Direct Final Rule Staying Numeric Limitation for the Construction and Development Point Source Category, 68215-68217 [2010-28033]

Download as PDF Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Rules and Regulations Parts per million Commodity * * * * * [FR Doc. 2010–27998 Filed 11–4–10; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 450 [EPA–HQ–OW–2010–0884; FRL–9222–2] Direct Final Rule Staying Numeric Limitation for the Construction and Development Point Source Category Environmental Protection Agency (EPA). ACTION: Direct final rule. AGENCY: EPA is taking direct final action to stay the numeric effluent limitation of 280 NTU and associated monitoring requirements for the Construction and Development Point Source Category. This action is necessary so that EPA can reconsider the record basis for calculating the numeric effluent limitation. EPA expects to move expeditiously with its reconsideration, and will remove the stay when such reconsideration is completed. DATES: This rule is effective on January 4, 2011 without further notice, unless EPA receives adverse comment by December 6, 2010 for 40 CFR 450.22(a) and (b), which are stayed indefinitely. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OW–2010–0884, by one of the following methods: • https://www.regulations.gov: This is EPA’s preferred approach, although you SUMMARY: may use the alternatives presented below. Follow the on-line instructions for submitting comments. • E-mail: OW-Docket@epa.gov. • Mail: USEPA Docket Center, Environmental Protection Agency, Docket Number EPA–HQ–OW–2010– 0884, Mailcode 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. • Hand Delivery: USEPA Docket Center, Public Reading Room, 1301 Constitution Ave., NW., Room 3334, EPA West Building, Washington, DC 20004. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–HQ–OW–2010– 0884. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at https:// www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https:// www.regulations.gov or e-mail. The https://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through https:// www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket are listed in the https:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in https:// www.regulations.gov or in hard copy at the USEPA Docket Center, Public Reading Room, Room 3334, EPA West Building, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the EPA Docket Center is (202) 566–2426. FOR FURTHER INFORMATION CONTACT: Janet Goodwin, USEPA Office of Water, by phone at (202) 566–1060 or by e-mail at goodwin.janet@epa.gov. SUPPLEMENTARY INFORMATION: A. Does this action apply to me? Regulated Entities Entities potentially regulated by this action include: North American industry classification system (NAICS) code Examples of regulated entities Industry .................................................... mstockstill on DSKH9S0YB1PROD with RULES Category Construction activities required to obtain NPDES permit coverage and performing the following activities: Construction of buildings, including building, developing and general contracting. Heavy and civil engineering construction, including land subdivision .................... EPA does not intend the preceding table to be exhaustive, but provides it as a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be VerDate Mar<15>2010 16:35 Nov 04, 2010 Jkt 223001 regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in 40 CFR 450.10 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 68215 236 237 (74 FR 62995) and the definition of ‘‘storm water discharges associated with industrial activity’’ and ‘‘storm water discharges associated with small construction activity’’ in existing EPA regulations at 40 CFR 122.26(b)(14)(x) E:\FR\FM\05NOR1.SGM 05NOR1 68216 Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Rules and Regulations mstockstill on DSKH9S0YB1PROD with RULES and 122.26(b)(15), respectively. If you have questions regarding the applicability of this action to a particular site, consult the person listed for technical information in the preceding FOR FURTHER INFORMATION CONTACT section. B. Background On December 1, 2009, EPA published in the Federal Register (74 FR 62995) effluent limitations guidelines and new source performance standards (ELGs) for the Construction and Development Point Source category. These ELGs control the discharge of pollutants from construction sites and require construction site owners and operators to implement a range of erosion and sediment control measures and pollution prevention practices to control pollutants in discharges from construction sites. These control measures became effective on February 1, 2010. In addition, the rule subjected discharges from certain larger construction sites to a numeric effluent limitation of 280 NTU starting in August of 2011 (for sites 20 acres or more) and February of 2014 (for sites 10 acres or more). These regulations are located at 40 CFR part 450. Subsequent to the promulgation of the construction and development ELGs, EPA received two petitions for reconsideration of the rule. These petitions pointed out a potential error in the calculation of the numeric limitation. Based on EPA’s examination of the dataset underlying the 280 NTU limit, EPA has concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support the 280 NTU effluent limitation. EPA intends to expeditiously conduct a separate rulemaking to correct the numeric effluent limitation. EPA plans to publish a proposed correction rule in December 2010 for public comment, and take final action on the proposal by May 30, 2011 so that the revised limitation will be effective by June 29, 2011. An effective date for any revised limitation of June 29, 2011 is necessary in order for EPA to incorporate the corrected numeric limitation in its next Construction General Permit by June 30, 2011. In 2010 and 2011, EPA estimates that 16 states will incorporate the new construction and development ELG requirements, including the numeric limitation, in their construction general permits. Since EPA acknowledges an error in calculating the 280 NTU limit, it would be inappropriate for states to incorporate the current numeric limitation in construction and VerDate Mar<15>2010 16:35 Nov 04, 2010 Jkt 223001 development permits. Consequently, EPA believes a stay of the 280 NTU effluent limitation and associated monitoring requirements is appropriate until EPA can correct its error in calculating the numeric limitation. EPA plans to initiate a limited rulemaking to correct the numeric limitation, and plans to take final action on the proposal by May 30, 2011. This direct final rule stays the numeric limitation in 40 CFR 450.22(a) and (b) and associated monitoring requirements until the new rulemaking is effective. States issuing permits between effective date of the stay and the effective date of the new rule need not incorporate the 280 NTU numeric limitation into their permits. C. Description of This Action EPA is staying Section 22(a) and (b) of 40 CFR part 450 until it can complete a new rulemaking to correct the 280 NTU numeric limitation. Otherwise, compliance with the 280 NTU numeric limitation based on an inadequate administrative record would be required. This stay provides certainty to dischargers, which would need to comply with the numeric limitation and associated monitoring requirements, and to permitting agencies, which would need to incorporate the numeric limitation and associated monitoring requirements in construction permits. This is especially critical for the 16 states that are expected to issue new construction general permits in 2010 and 2011. Pursuant to 5 U.S.C. 553(b), EPA has determined for the reasons stated above that good cause exists for issuing this stay without notice and public comment procedures because in this context, for the reasons discussed above, such procedures are unnecessary and not in the public interest. EPA is not staying any other provision of 40 CFR part 450. D. Statutory and Executive Order Reviews Under Executive Order 12866, 58 FR 51735 (October 4, 1993), this action is not a ‘‘significant regulatory action’’ and is therefore not subject to review by the Office of Management and Budget. Because the Agency has made a ‘‘good cause’’ finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) Public Law 104–4. In addition, this action does not significantly or uniquely affect small governments or impose a significant PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175. 65 FR 67249 (November 9, 2000). This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. 64 FR 43255 (August 10, 1999). This rule also is not subject to Executive Order 13045, 62 FR 19885 (April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. This action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995, 15 U.S.C. 272, do not apply. This rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898, 59 FR 7629 (February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, 61 FR 4729 (February 7, 1996). EPA has complied with Executive Order 12630, 53 FR 8859 (March 15, 1988), by examining the takings implications of the rule in accordance with the ‘‘Attorney General’s Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings’’ issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. EPA’s compliance with these statutes and Executive Orders for the underlying rule is discussed in the December 1, 2009 Federal Register notice. 74 FR 62995. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the E:\FR\FM\05NOR1.SGM 05NOR1 Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Rules and Regulations Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made a good cause finding to forego public notice and comment procedures. Today’s stay eliminates a numeric limitation for which the record is inadequate and any opportunity for confusion. Any additional delay in correcting the calculation error would only increase the potential confusion and could require states to incorporate an incorrect numeric limitation in their construction permits. EPA sets an effective date to make the stay effective 60 days after publication in the Federal Register. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 450 Environmental protection, Construction industry, Land development, Erosion, Sediment, Stormwater, Water pollution control. Dated: November 1, 2010. Lisa P. Jackson, Administrator. For the reasons set forth in the preamble, EPA is amending 40 CFR part 450 as follows: ■ 48 CFR Part 970 RIN 1991–AB91 Acquisition Regulation: Agency Supplementary Regulations Department of Energy. Final rule. AGENCY: ACTION: The Department of Energy (DOE) is amending the Department of Energy Acquisition Regulation (DEAR) on DOE Management and Operating Contracts to make changes to conform to the Federal Acquisition Regulation (FAR), remove out-of-date coverage, and update references. Today’s rule does not alter substantive rights or obligations under current law. DATES: Effective Date: December 6, 2010. FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287–1340 or by e-mail, barbara.binney@hq.doe.gov. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background II. Comments and Responses III. Procedural Requirements A. Review Under Executive Order 12866 B. Review Under Executive Order 12988 C. Review Under the Regulatory Flexibility Act D. Review Under the Paperwork Reduction Act E. Review Under the National Environmental Policy Act F. Review Under Executive Order 13132 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 13211 J. Review Under the Treasury and General Government Appropriations Act, 2001 K. Review Under the Small Business Regulatory Enforcement Fairness Act of 1996 L. Approval by the Office of the Secretary of Energy I. Background PART 450—CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY [FR Doc. 2010–28033 Filed 11–4–10; 8:45 am] This final rule amends the existing Department of Energy Acquisition Regulation (DEAR) Subchapter I. The purpose of this rule is to update DEAR Subchapter I—Agency Supplementary Regulations, Part 970—DOE Management and Operating Contracts to conform it to the FAR. None of today’s changes are substantive or of a nature to cause any significant expense for DOE or its contractors. BILLING CODE 6560–50–P II. Comments and Responses 1. The authority citation for part 450 is revised to read as follows: ■ Authority: 33 U.S.C. 101, 301, 304, 306, 308, 401, 402, 501 and 510. 2. Section 450.22(a) and (b) are stayed indefinitely. ■ mstockstill on DSKH9S0YB1PROD with RULES DEPARTMENT OF ENERGY DOE published a notice of proposed rulemaking on June 9, 2010 (75 FR 32719), with a public comment period ending on July 9, 2010. DOE received no comments. VerDate Mar<15>2010 16:35 Nov 04, 2010 Jkt 223001 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 68217 DOE amends the DEAR as follows: 1. Section 970.0100 is amended to add the references for the Code of Federal Regulation (CFR) chapters 1 and 9. 2. Section 970.0103 is revised to remove ‘‘DEAR’’ before 970.0309 and remove ‘‘FAR’’ before 3.9 and add in its place ‘‘48 CFR subpart’’ in paragraph (a)(3). 3. Section 970.0404–2 is amended to update the DOE Order to 475.1, Counterintelligence Program. 4. Section 970.19 is amended to revise the subpart heading and the 970.1907 section heading to conform to the FAR. 5. Section 970.1907–1 is redesignated as 970.1907–4 to conform to the FAR. 6. Part 970 is revised by adding a new subpart ‘‘970.25 Foreign Acquisition’’ and section ‘‘970.2570 Contract clauses’’ which provides instructions on when to insert and how to modify the clauses at FAR 52.225–1, Buy American Act— Supplies, and FAR 52.225–9, Buy American Act—Construction Materials, in management and operating contracts. 7. Section 970.3102–05–6 paragraphs (a)(7)(i) and (ii) are amended to clarify that the contract will set forth the reimbursable costs for compensation for personal services, it removes the reference to the personnel appendix. Paragraph (p)(1) revises the reference to the FAR from the ‘‘Federal Acquisition Regulation’’ to ‘‘48 CFR.’’ 8. Subpart 970.34 is amended by redesignating 970.3400 as 970.3405 and 970.3400–1 as 970.3405–2 to conform with the FAR. 9. Subpart 970.37 is revised to add the new section ‘‘970.3706 Performancebased acquisition’’ and ‘‘970.3706–1 General’’ which references 970.1100 for policy and guidance on performancebased contracting for management and operating (M&O) contracts. 10. Section 970.3770–1 is amended by adding that the use of DOE directives is prescribed in 970.0470. 11. Section 970.5204–1 is amended by revising the date of the clause and removing ‘‘DOE Order 5670.3, Counterintelligence Program’’ in paragraph (a) of the clause and adding in its place ‘‘DOE Order 475.1, Counterintelligence Program, or its successor’’. 12. Section 970.5223–3 is amended by revising the date of the provision and adding that DOE may grant an extension to the notification or implementation period if necessary as per 10 CFR 707.5 (g) in paragraph (b). This change will provide the contracting officer the authority to extend the time needed for the contractor to submit the workplace substance abuse program plan. E:\FR\FM\05NOR1.SGM 05NOR1

Agencies

[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Rules and Regulations]
[Pages 68215-68217]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28033]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 450

[EPA-HQ-OW-2010-0884; FRL-9222-2]


Direct Final Rule Staying Numeric Limitation for the Construction 
and Development Point Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to stay the numeric effluent 
limitation of 280 NTU and associated monitoring requirements for the 
Construction and Development Point Source Category. This action is 
necessary so that EPA can reconsider the record basis for calculating 
the numeric effluent limitation. EPA expects to move expeditiously with 
its reconsideration, and will remove the stay when such reconsideration 
is completed.

DATES: This rule is effective on January 4, 2011 without further 
notice, unless EPA receives adverse comment by December 6, 2010 for 40 
CFR 450.22(a) and (b), which are stayed indefinitely. If EPA receives 
adverse comment, we will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0884, by one of the following methods:
     https://www.regulations.gov: This is EPA's preferred 
approach, although you may use the alternatives presented below. Follow 
the on-line instructions for submitting comments.
     E-mail: OW-Docket@epa.gov.
     Mail: USEPA Docket Center, Environmental Protection 
Agency, Docket Number EPA-HQ-OW-2010-0884, Mailcode 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: USEPA Docket Center, Public Reading Room, 
1301 Constitution Ave., NW., Room 3334, EPA West Building, Washington, 
DC 20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0884. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through  https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the  https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the USEPA Docket 
Center, Public Reading Room, Room 3334, EPA West Building, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the EPA Docket Center is (202) 
566-2426.

FOR FURTHER INFORMATION CONTACT: Janet Goodwin, USEPA Office of Water, 
by phone at (202) 566-1060 or by e-mail at goodwin.janet@epa.gov.

SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

Regulated Entities

    Entities potentially regulated by this action include:

------------------------------------------------------------------------
                                                         North American
                                                            industry
           Category             Examples of regulated    classification
                                       entities          system (NAICS)
                                                              code
------------------------------------------------------------------------
Industry......................  Construction                         236
                                 activities required
                                 to obtain NPDES
                                 permit coverage and
                                 performing the
                                 following
                                 activities:
                                 Construction of
                                 buildings, including
                                 building, developing
                                 and general
                                 contracting.
                                Heavy and civil                      237
                                 engineering
                                 construction,
                                 including land
                                 subdivision.
------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of entities that 
EPA is now aware could potentially be regulated by this action. Other 
types of entities not listed in the table could also be regulated. To 
determine whether your facility is regulated by this action, you should 
carefully examine the applicability criteria in 40 CFR 450.10 (74 FR 
62995) and the definition of ``storm water discharges associated with 
industrial activity'' and ``storm water discharges associated with 
small construction activity'' in existing EPA regulations at 40 CFR 
122.26(b)(14)(x)

[[Page 68216]]

and 122.26(b)(15), respectively. If you have questions regarding the 
applicability of this action to a particular site, consult the person 
listed for technical information in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Background

    On December 1, 2009, EPA published in the Federal Register (74 FR 
62995) effluent limitations guidelines and new source performance 
standards (ELGs) for the Construction and Development Point Source 
category. These ELGs control the discharge of pollutants from 
construction sites and require construction site owners and operators 
to implement a range of erosion and sediment control measures and 
pollution prevention practices to control pollutants in discharges from 
construction sites. These control measures became effective on February 
1, 2010. In addition, the rule subjected discharges from certain larger 
construction sites to a numeric effluent limitation of 280 NTU starting 
in August of 2011 (for sites 20 acres or more) and February of 2014 
(for sites 10 acres or more). These regulations are located at 40 CFR 
part 450.
    Subsequent to the promulgation of the construction and development 
ELGs, EPA received two petitions for reconsideration of the rule. These 
petitions pointed out a potential error in the calculation of the 
numeric limitation. Based on EPA's examination of the dataset 
underlying the 280 NTU limit, EPA has concluded that it improperly 
interpreted the data and, as a result, the calculations in the existing 
administrative record are no longer adequate to support the 280 NTU 
effluent limitation. EPA intends to expeditiously conduct a separate 
rulemaking to correct the numeric effluent limitation. EPA plans to 
publish a proposed correction rule in December 2010 for public comment, 
and take final action on the proposal by May 30, 2011 so that the 
revised limitation will be effective by June 29, 2011. An effective 
date for any revised limitation of June 29, 2011 is necessary in order 
for EPA to incorporate the corrected numeric limitation in its next 
Construction General Permit by June 30, 2011.
    In 2010 and 2011, EPA estimates that 16 states will incorporate the 
new construction and development ELG requirements, including the 
numeric limitation, in their construction general permits. Since EPA 
acknowledges an error in calculating the 280 NTU limit, it would be 
inappropriate for states to incorporate the current numeric limitation 
in construction and development permits. Consequently, EPA believes a 
stay of the 280 NTU effluent limitation and associated monitoring 
requirements is appropriate until EPA can correct its error in 
calculating the numeric limitation. EPA plans to initiate a limited 
rulemaking to correct the numeric limitation, and plans to take final 
action on the proposal by May 30, 2011. This direct final rule stays 
the numeric limitation in 40 CFR 450.22(a) and (b) and associated 
monitoring requirements until the new rulemaking is effective. States 
issuing permits between effective date of the stay and the effective 
date of the new rule need not incorporate the 280 NTU numeric 
limitation into their permits.

C. Description of This Action

    EPA is staying Section 22(a) and (b) of 40 CFR part 450 until it 
can complete a new rulemaking to correct the 280 NTU numeric 
limitation. Otherwise, compliance with the 280 NTU numeric limitation 
based on an inadequate administrative record would be required. This 
stay provides certainty to dischargers, which would need to comply with 
the numeric limitation and associated monitoring requirements, and to 
permitting agencies, which would need to incorporate the numeric 
limitation and associated monitoring requirements in construction 
permits. This is especially critical for the 16 states that are 
expected to issue new construction general permits in 2010 and 2011. 
Pursuant to 5 U.S.C. 553(b), EPA has determined for the reasons stated 
above that good cause exists for issuing this stay without notice and 
public comment procedures because in this context, for the reasons 
discussed above, such procedures are unnecessary and not in the public 
interest. EPA is not staying any other provision of 40 CFR part 450.

D. Statutory and Executive Order Reviews

    Under Executive Order 12866, 58 FR 51735 (October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget. Because the 
Agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., or to sections 202 and 205 of the Unfunded Mandates Reform Act 
of 1995 (UMRA) Public Law 104-4. In addition, this action does not 
significantly or uniquely affect small governments or impose a 
significant intergovernmental mandate, as described in sections 203 and 
204 of UMRA. This rule also does not significantly or uniquely affect 
the communities of tribal governments, as specified by Executive Order 
13175. 65 FR 67249 (November 9, 2000). This rule will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. 64 FR 43255 (August 10, 1999). This 
rule also is not subject to Executive Order 13045, 62 FR 19885 (April 
23, 1997), because it is not economically significant and it does not 
make decisions based on environmental health or safety risks. This rule 
is not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355 (May 22, 2001)) because it is not a significant 
regulatory action under Executive Order 12866.
    This action does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995, 15 U.S.C. 272, do not apply. This rule also 
does not involve special consideration of environmental justice related 
issues as required by Executive Order 12898, 59 FR 7629 (February 16, 
1994). In issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct, as required by 
section 3 of Executive Order 12988, 61 FR 4729 (February 7, 1996). EPA 
has complied with Executive Order 12630, 53 FR 8859 (March 15, 1988), 
by examining the takings implications of the rule in accordance with 
the ``Attorney General's Supplemental Guidelines for the Evaluation of 
Risk and Avoidance of Unanticipated Takings'' issued under the 
executive order. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501 et seq. EPA's compliance with these statutes and Executive 
Orders for the underlying rule is discussed in the December 1, 2009 
Federal Register notice. 74 FR 62995.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the

[[Page 68217]]

Congress and to the Comptroller General of the United States. Section 
808 allows the issuing agency to make a rule effective sooner than 
otherwise provided by the CRA if the agency makes a good cause finding 
that notice and public procedure is impracticable, unnecessary, or 
contrary to the public interest. This determination must be supported 
by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has 
made a good cause finding to forego public notice and comment 
procedures. Today's stay eliminates a numeric limitation for which the 
record is inadequate and any opportunity for confusion. Any additional 
delay in correcting the calculation error would only increase the 
potential confusion and could require states to incorporate an 
incorrect numeric limitation in their construction permits. EPA sets an 
effective date to make the stay effective 60 days after publication in 
the Federal Register. EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 450

    Environmental protection, Construction industry, Land development, 
Erosion, Sediment, Stormwater, Water pollution control.

    Dated: November 1, 2010.
Lisa P. Jackson,
Administrator.

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For the reasons set forth in the preamble, EPA is amending 40 CFR part 
450 as follows:

PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY

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1. The authority citation for part 450 is revised to read as follows:

    Authority:  33 U.S.C. 101, 301, 304, 306, 308, 401, 402, 501 and 
510.


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2. Section 450.22(a) and (b) are stayed indefinitely.

[FR Doc. 2010-28033 Filed 11-4-10; 8:45 am]
BILLING CODE 6560-50-P
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