Modification of the Expiration Date for the National Pollutant Discharge Elimination System General Permit for Stormwater Discharges From Construction Activities on Tribal Lands Within the Southeastern United States, 33753-33756 [2011-14197]
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Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices
number for the ORD Docket is (202)
566–1752.
FOR FURTHER INFORMATION CONTACT: Dr.
Michael W. Broder, Office of the
Science Advisor, Mail Code 8105–R,
U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW.,
Washington, DC 20460; telephone
number: (202) 564–3393; fax number:
(202) 564–2070, E-mail:
broder.michael@epa.gov.
SUPPLEMENTARY INFORMATION: Key goals
for the U.S. EPA include improving the
transparency, objectivity and scientific
basis for health risk assessment. In 2005,
a WHO-sponsored effort produced
guidance on the development of
Chemical-Specific Adjustment Factors
(CSAFs). CSAFs are intended to replace
default uncertainty factor values for
inter- and intraspecies extrapolation in
health risk assessment. The U.S. EPA
recognizes differences between the
WHO guidance and typical Agency risk
assessment practices, policies and
guidance. EPA’s Risk Assessment
Forum convened a technical panel that
initiated work on developing draft
guidance for use in replacing default
values for inter- and intraspecies
uncertainty factors with science-based
extrapolation factors. The draft
document has been reviewed by EPA’s
Risk Assessment Forum and Science
and Technology Policy Council and
approved for external review. In 2010,
the document was sent to the National
Science and Technology Council
(NSTC) Committee on Environment and
Natural Resources, Toxics and Risk
Subcommittee for informal review and
comment. The draft document is now
available for public comment.
The draft document has been
structured and developed in accordance
with existing Agency policies on health
risk assessment. The draft document
provides guidance for the evaluation of
data describing interspecies differences
in chemical disposition (toxicokinetics);
interspecies differences in toxicantinduced response (toxicodynamics);
intraspecies differences in chemical
disposition (toxicokinetics); and
intraspecies differences in toxicantinduced response (toxicodynamics). The
document maintains the subdivision of
the interspecies and intraspecies
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and toxicodynamic components
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(U.S. EPA, 1994). EPA will consider all
peer review and public comments in
finalizing Guidance for Applying
Quantitative Data to Develop DataDerived Extrapolation Factors for
Interspecies and Intraspecies
Extrapolation.
Dated: May 26, 2011.
Paul T. Anastas,
EPA Science Advisor.
[FR Doc. 2011–14294 Filed 6–8–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9316–1]
Modification of the Expiration Date for
the National Pollutant Discharge
Elimination System General Permit for
Stormwater Discharges From
Construction Activities on Tribal Lands
Within the Southeastern United States
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
EPA Region 4 proposes to
modify the expiration date of the
National Pollutant Discharge
Elimination System (NPDES) general
permit authorizing the discharge of
stormwater from construction activities
on Tribal Lands within the states of
Alabama, Florida, Mississippi and
North Carolina. This NPDES
construction general permit (CGP),
hereinafter referred to as ‘‘the Region 4
CGP,’’ was issued on September 1, 2009,
with an expiration date of August 31,
SUMMARY:
Category
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Industry .........
2011. EPA Region 4 is proposing to
extend the expiration date from August
31, 2011, to September 1, 2012. No other
revisions are being proposed to the
Region 4 CGP. The purpose of extending
the expiration date is to ensure that
there is no lapse in permit coverage
prior to the effective date of the issuance
of a new permit, which has been
proposed for public review and
comment in a separate action.
Information about the proposed new
permit, hereinafter referred to as ‘‘the
new National CGP,’’ can be found at
https://cfpub.epa.gov/npdes/stormwater/
cgp.cfm.
EPA is proposing a modification
to the Region 4 CGP that would extend
the expiration date from August 31,
2011, to September 1, 2012. If the
proposed modification is finalized, the
Region 4 CGP would expire at midnight,
on September 1, 2012, or on the
effective date of the new National CGP,
whichever is earlier. Comments on the
proposal to modify the expiration date
of the Region 4 CGP must be
postmarked by July 11, 2011.
DATES:
FOR FURTHER INFORMATION CONTACT:
Alanna Conley or Michael Mitchell of
the Stormwater and Nonpoint Source
Section, Water Protection Division,
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, GA 30303; telephone number:
(404) 562–9443 or (404) 562–9303; fax
number: (404) 562–8692; e-mail address:
conley.alanna@epa.gov or
mitchell.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
If a discharger chooses to apply for
coverage under the Region 4 CGP, the
permit provides specific requirements
for preventing contamination of
waterbodies from stormwater discharges
from the following construction
activities:
North American
Industry Classification
System (NAICS)
Code
Examples of affected entities
Construction site operators disturbing 1 or more acres of land, or less than 1 acre but part of a larger common plan of development or sale if the larger common plan will ultimately disturb 1 acre or more, and performing the following activities:
Building, Developing and General Contracting ............................................................................................
Heavy Construction ......................................................................................................................................
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.
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This table lists the types of activities
that EPA is now aware of that could
potentially be affected by this action.
Other types of entities not listed in the
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table could also be affected. To
determine whether your facility is
affected by this action, you should
carefully examine the definition of
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‘‘construction activity’’ and ‘‘small
construction activity’’ in existing EPA
regulations at 40 CFR 122.26(b)(14)(x)
and 122.26(b)(15), respectively. If you
have questions regarding the
applicability of this action to a
particular entity, consult the person
listed for technical information in the
preceding FOR FURTHER INFORMATION
CONTACT section.
Eligibility for coverage under the
Region 4 CGP would be limited to
operators of ‘‘new projects’’ or
‘‘unpermitted ongoing projects.’’ A ‘‘new
project’’ is one that commences after the
effective date of the Region 4 CGP (i.e.,
September 1, 2009). An ‘‘unpermitted
ongoing project’’ is one that commenced
prior to the effective date of the Region
4 CGP, yet never received authorization
to discharge under the previous CGP or
any other NPDES permit covering its
construction-related stormwater
discharges. The Region 4 CGP is
effective only in those areas where EPA
Region 4 is the permitting authority,
which includes all Indian Country
Lands within the states of Alabama,
Florida, Mississippi, and North
Carolina. A list of eligible areas is
included in Appendix B of the Region
4 CGP.
required to consider these late
comments.
D. Finalizing this action
This action will not be finalized until
after all significant public comments
have been considered and addressed.
Once the final permit becomes effective,
operators of new and unpermitted
ongoing construction projects may seek
authorization under the Region 4 CGP
prior to midnight, September 1, 2012, or
the effective date of the new National
CGP, whichever is earlier.
II. Background of Permit
A. Statutory and Regulatory History
The Clean Water Act (CWA)
establishes a comprehensive program
‘‘to restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters.’’ See 33 U.S.C. 1251(a).
The CWA also includes the objective of
attaining ‘‘water quality which provides
for the protection and propagation of
fish, shellfish and wildlife and * * *
recreation in and on the water.’’ See 33
U.S.C. 1251(a)(2). To achieve these
goals, the CWA requires EPA to control
point source discharges of pollutants
through the issuance of NPDES permits.
The Water Quality Act of 1987 (WQA)
added section 402(p) of the CWA, which
B. How can I get copies of this document
directed EPA to develop a phased
and other related information?
approach to regulate stormwater
You may access this Federal Register
discharges under the NPDES program,
document electronically through the
33 U.S.C. 1342(p). EPA published a final
EPA Internet under the ‘‘Federal
regulation in the Federal Register, often
Register’’ listings at https://www.epa.gov/ called the ‘‘Phase I Rule’’ on November
fedrgstr/. Electronic versions of the
16, 1990, establishing permit
Region 4 CGP and fact sheet are
application requirements for, among
available at EPA Region 4’s stormwater
other things, ‘‘storm water discharges
Web site at: https://www.epa.gov/
associated with industrial activity.’’ See
region4/water/permits/stormwater.html. 55 FR 47990. EPA defined the term
‘‘storm water discharge associated with
C. How and to whom do I submit
industrial activity’’ in a comprehensive
comments?
manner to cover a wide variety of
facilities. Construction activities,
You may submit comments
including activities that are part of a
electronically (e-mail or cdrom), or by
postal mail. Comments should be sent to larger common plan of development or
sale, that ultimately disturb at least five
the person listed for technical
acres of land and have point source
information in the FOR FURTHER
discharges to waters of the United States
INFORMATION CONTACT section of this
notice. To ensure proper receipt by EPA, were included in the definition of
‘‘industrial activity’’ pursuant to 40 CFR
identify the appropriate Federal
122.26(b)(14)(x). The second rule
Register title in the subject line on the
implementing section 402(p), often
first page of your comment. To ensure
called the Phase II Rule, was published
that EPA can read, understand, and
in the Federal Register on December 8,
therefore properly respond to
1999, requires NPDES permits for
comments, the Agency would prefer
discharges from construction sites
that commenters cite, where possible,
disturbing at least one acre but less than
the paragraph(s) or section in the fact
sheet or permit to which each comment five acres, including sites that are less
than one acre but are part of a larger
refers. Please ensure that your
common plan of development or sale
comments are submitted within the
that will ultimately disturb at least one
specified comment period. Comments
acre but less than five acres, pursuant to
received after the close of the comment
period will be marked ‘‘late.’’ EPA is not 40 CFR 122.26(b)(15)(i). See 64 FR
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68722. EPA issued the Region 4 CGP
under the statutory and regulatory
authority cited above.
NPDES permits issued for
construction stormwater discharges are
required under Section 402(a)(1) of the
CWA to include conditions for meeting
technology-based effluent limits
established under Section 301 and,
where applicable, Section 306. Once an
effluent limitations guideline or new
source performance standard is
promulgated in accordance with these
sections, NPDES permits are required to
incorporate limits based on such
limitations and standards. See 40 CFR
122.44(a)(1). Prior to the promulgation
of national effluent limitations
guidelines and new source performance
standards, permitting authorities
incorporate technology-based effluent
limitations on a best professional
judgment basis. See CWA section
402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).
B. Summary of the Region 4 CGP Issued
in 2009
EPA announced the issuance of the
2009 Region 4 CGP on August 26, 2009.
See 74 FR 43120. Construction operators
choosing to be covered by the Region 4
CGP must certify in their notice of
intent (NOI) that they meet the requisite
eligibility requirements, described in
Subpart 1.3 of the permit. If eligible,
operators are authorized to discharge
under this permit in accordance with
Part 2. Permittees must install and
implement control measures to meet the
effluent limits applicable to all
dischargers in Part 3, and must inspect
such stormwater controls and repair or
modify them in accordance with Part 4.
The permit in Part 5 requires all
construction operators to prepare a
stormwater pollution prevention plan
(SWPPP) that identifies all sources of
pollution and describes control
measures used to minimize pollutants
discharged from the construction site.
Part 6 details the requirements for
terminating coverage under the permit.
EPA Region 4 issued the Region 4
CGP in 2009 to replace the expired CGP,
issued in 2004, for operators of new and
unpermitted ongoing construction
projects. The geographic coverage and
scope of eligible construction activities
are listed in Appendix B of the Region
4 CGP.
C. What is EPA’s rationale for the
modification of the expiration date for
the Region 4 CGP?
EPA proposes to modify the Region 4
CGP by extending the expiration date of
the permit to September 1, 2012. EPA
Region 4 finds it necessary to propose
this extension in order to provide
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sufficient time for finalization of the
new National CGP which is being issued
by EPA Region 4 and the other EPA
regional offices and would also provide
coverage to eligible existing and new
construction projects in all areas of the
country where EPA is the NPDES
permitting authority (i.e., other Indian
Lands, Idaho, Massachusetts, New
Hampshire, New Mexico, Puerto Rico,
Washington, DC, and U.S. territories
and protectorates). The proposed
National CGP will incorporate for the
first time new effluent limitations
guidelines and new source performance
standards, which EPA promulgated in
December 2009. Once the new National
CGP is effective, eligible existing and
new construction projects on Tribal
lands within Region 4, will be regulated
under the new National CGP. The
extension of the expiration date of the
Region 4 CGP is necessary in order to
make up for a delay in the issuance
process of the new National CGP due to
an error discovered in the December
2009 final rule regarding the calculation
of the numeric limitation on turbidity.
This numeric limit has since been
stayed by EPA. EPA’s proposed
extension would provide the Agency
with sufficient time to account for this
delay and to meet its other permit
issuance obligations.
NPDES permits issued for
construction stormwater discharges are
required under Section 402(a)(1) of the
CWA to include conditions for meeting
technology-based effluent limits
established under Section 301 and,
where applicable, Section 306. Once an
effluent limitations guideline or new
source performance standard is
promulgated in accordance with these
sections, any NPDES permits issued
after the effective date of these
requirements must incorporate limits
based on such limitations and
standards. See 40 CFR 122.44(a)(1). In
the case of the CGP, EPA promulgated
effluent limitations guidelines and new
source performance standards for the
construction and development point
source category on December 1, 2009
(‘‘C&D rule’’), which for the first time
imposed a set of minimum Federal
numeric and non-numeric effluent
limitations on regulated construction
sites. See 74 FR 62996 (December 1,
2009). The C&D rule (located at 40 CFR
part 450) became effective on February
1, 2010, thus requiring that any NPDES
permit issued after this date, whether
issued by EPA or an authorized state,
must incorporate the substantive
technology-based requirements of the
rule into the permit. For the new
National CGP, this means that EPA must
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incorporate the effective requirements of
the C&D rule into the permit.
Among other requirements, the C&D
rule subjected discharges from certain
larger construction sites to a numeric
effluent limitation of 280 NTU for the
pollutant turbidity starting in August of
2011 (for sites disturbing 20 or more
acres at one time) and February of 2014
(for sites disturbing 10 or more acres at
one time). Subsequent to the
promulgation of the C&D rule, 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 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
numeric effluent limitation. In response
to this finding, EPA finalized a stay of
the 280 numeric NTU limit and
associated monitoring requirements (see
40 CFR 450.22(a)) on January 4, 2011, in
order to enable the Agency to correct its
error in calculating the numeric
limitation. See 75 FR 68215 (November
5, 2010). EPA is currently in the process
of initiating a limited rulemaking to
correct the numeric limitation.
Preceding the decision to stay the
numeric turbidity limit, the uncertainty
surrounding the error in calculating the
280 NTU limit, and the appropriate way
for EPA to address it, caused a delay of
several months to the permit issuance
process for the new National CGP. EPA
believes it is impracticable to finalize
the new National CGP when considering
the minimum tasks required of the
Agency to finalize the permit.
With the setback of time related to the
stay of the 280 NTU limit, EPA needs
additional time to complete the permit
issuance process as explained above.
EPA believes that the proposed
extension of the expiration date of the
Region 4 CGP to September 1, 2012, will
provide the sufficient time for the
Agency to finalize the new National
CGP. EPA believes it is imperative that
sufficient time to incorporate the C&D
ELG into the new National CGP is
allotted. If EPA does not extend the
expiration date of the Region 4 CGP, no
new construction projects could receive
general permit coverage between
September 1, 2011, and the effective
date of the new National CGP, leaving
individual NPDES permits as the only
available option for permitting new
projects. The sole reliance on individual
permits would mean that discharge
authorizations would almost certainly
be delayed due to the greater amount of
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time and Agency resources that are
required for developing and issuing
individual permits. In turn, construction
projects that need to begin construction
activities on or after midnight August
31, 2011, for the 2009 Regional CGP,
would be delayed for an uncertain
amount of time until EPA can review
their individual permit application and
issue the necessary permits. Rather than
risk detrimental delays to new
construction projects, with no clear
benefit to our nation’s surface waters,
EPA Region 4 has decided that it is
advisable to instead propose a
modification to the 2009 Region 4 CGP
to extend the expiration date until
September 1, 2012.
D. EPA’s Authority To Modify NPDES
Permits
EPA regulations establish when the
permitting authority may make
modifications to existing NPDES
permits. In relevant part, EPA
regulations state that ‘‘[w]hen the
Director receives any information * * *
he or she may determine whether or not
one or more of the causes listed in
paragraph (a) * * * of this section for
modification * * * exist. If cause exists,
the Director may modify * * * the
permit accordingly, subject to the
limitations of 40 CFR 124.5(c).’’ 40 CFR
122.62. For purposes of this Federal
Register notice, the relevant cause for
modification is at 40 CFR 122.62(a)(2),
which states that a permit may be
modified when ‘‘[t]he Director has
received new information’’ and that
information was not available at the
time of permit issuance * * * and
would have justified the application of
different permit conditions at the time
of issuance.’’ Pursuant to EPA
regulations, ‘‘[w]hen a permit is
modified, only the conditions subject to
the modification are reopened.’’ 40 CFR
122.62.
In the case of the Region 4 CGP, a
permit modification is justified based on
the new information EPA received
following the issuance of the permit,
and more specifically, in terms of the
delay to the permit process associated
with the discovery of the numeric limit
calculation error and resulting stay to
the numeric turbidity limit. If this
information was available at the time of
issuance of the Region 4 CGP, it would
have justified EPA establishing an
expiration date for the Region 4 CGP
that was later than August 31, 2011. As
a result, cause exists under EPA
regulations to justify modification of the
Region 4 CGP to extend the permit until
September 1, 2012. If the proposed
modification is finalized, the Region 4
CGP would expire at midnight, on
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September 1, 2012, or on the effective
date of the proposed new National CGP,
whichever is earlier.
EPA notes that, by law, NPDES
permits cannot be extended beyond 5
years. See 40 CFR 122.46. The proposed
extension of the expiration date of the
Region 4 CGP complies with this
restriction. The Region 4 CGP was
issued with an effective date of
September 1, 2009. Assuming the
extension of the expiration date of the
Region 4 CGP is finalized as proposed,
the permit would still have been in
effect for less than the 5-year limit.
Authority: Clean Water Act, 33 U.S.C. 1251
et seq.
Signed this 27th day of May, 2011.
Douglas Mundrick,
Acting Director, Water Protection Division,
Region 4.
[FR Doc. 2011–14197 Filed 6–8–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R07–OW–2011–0504; FRL–9317–
5]
Notice of Approval of the Primacy
Application for National Primary
Drinking Water Regulations for the
State of Missouri
Environmental Protection
Agency (EPA).
ACTION: Notice of approval and
solicitation of requests for a public
hearing.
AGENCY:
The Environmental Protection
Agency (EPA) is hereby giving notice
that the State of Missouri is revising its
approved Public Water System
Supervision Program under the
Missouri Department of Natural
Resources (MDNR). The EPA has
determined that these revisions are no
less stringent than the corresponding
Federal regulations. Therefore, the EPA
intends to approve these program
revisions.
DATES: This determination to approve
the Missouri program revision is made
pursuant to 40 CFR 142.12(d)(3). This
determination shall become final and
effective on July 11, 2011, unless (1) A
timely and appropriate request for a
public hearing is received or (2) the
Regional Administrator elects to hold a
public hearing on his own motion. Any
interested person, other than Federal
Agencies, may request a public hearing.
All interested parties may request a
public hearing on the approval of these
program revisions to the EPA Regional
Administrator to the address shown
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SUMMARY:
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below by July 11, 2011. If a substantial
request for a public hearing is made
within the requested thirty day time
frame, a public hearing will be held and
a notice will be given in the Federal
Register and a newspaper of general
circulation. Frivolous or insubstantial
requests for a hearing may be denied by
the Regional Administrator.
ADDRESSES: Any request for a public
hearing shall include the following
information: (1) Name, address and
telephone number of the individual
organization or other entity requesting a
hearing; (2) a brief statement of the
requesting person’s interest in the
Regional Administrator’s determination
and a brief statement on information
that the requesting person intends to
submit at such hearing; (3) the signature
of the individual making the request or,
if the request is made on behalf of an
organization or other entity, the
signature of a responsible official of the
organization or other entity. Requests
for Public Hearing shall be addressed to:
Karl Brooks, Regional Administrator,
Environmental Protection AgencyRegion 7, 901 North 5th Street, Kansas
City, Kansas 66101.
All documents relating to this
determination are available for review
between the hours of 9 a.m. and 4:30
p.m., Monday through Friday, at the
following offices:
(1) Missouri Department of Natural
Resources, Public Drinking Water
Branch, 1101 Riverside Drive, Jefferson
City, MO 65101. (2) Environmental
Protection Agency-Region 7, Water
Wetlands and Pesticides Division,
Drinking Water Management Branch,
901 North 5th Street, Kansas City,
Kansas 66101.
FOR FURTHER INFORMATION CONTACT:
Neftali Hernandez-Santiago,
Environmental Protection AgencyRegion 7, Drinking Water Management
Branch, (913) 551–7036, or by e-mail at
hernandez-santiago.neftali@epa.gov.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that the EPA has
determined to approve an application
by the Missouri Department of Natural
Resources to incorporate the following
EPA National Primary Drinking Water
Regulations: (1) Stage 2 Disinfectants
and Disinfection Byproducts Rule
(January 4, 2006, 71 FR 388) and (2)
Long Term 2 Enhanced Surface Water
Treatment Rule (January 5, 2006, 71 FR
654). During the review of the state’s
drinking water regulations, EPA noted
an issue related to best available
technology (BAT). Under the Safe
Drinking Water Act, EPA must specify
the best available technology for each
maximum contaminant level (MCL) or
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maximum residual disinfectant level
(MRDL) that is set. Public water systems
that are unable to achieve an MCL or
MRDL may be granted a variance on
condition that the system use the BATs,
treatment techniques, or other means
which the Administrator finds are
available (taking costs into
consideration), based upon an
evaluation satisfactory to the State that
indicates that alternative sources of
water are not reasonably available to the
system. Missouri allows variances to
MCLs but has not adopted the BATs
listed in 40 CFR 141.64(a) and (b). Since
Missouri has the authority to grant
variances, the state must also adopt the
BATs specified by the EPA
Administrator, in order to be consistent
with the language in Sections 1415 and
1416 of the SDWA. The Missouri rule
language currently states that the system
installs BATs that the state (department)
finds to be available; this language is
less stringent than the Federal statute
requires. EPA Region 7 has negotiated a
resolution to this issue with MDNR,
concluding that, until Missouri
promulgates a rule adopting EPA’s
BATs, MDNR agrees to issue variances
only to systems that have agreed, as a
condition of being issued the variance,
to utilize BATs, treatment techniques, or
other means, which the EPA
Administrator, taking cost into
consideration, finds generally available,
in accordance with the requirements of
Title 40 of the CFR and Sections 1415
and 1416 of the SDWA. In light of
Missouri’s agreement to issue variances
only to systems that have agreed to
install BATs, treatment techniques, or
other means consistent with
requirements of the SDWA and its
implementing regulations, EPA has
determined that Missouri continues to
meet requirements for primary
enforcement responsibility of the
SDWA, as specified in 40 CFR 142.10.
Authority: Section 1413 of the Safe
Drinking Water Act, as amended, and 40 CFR
142.10, 142.12(d) and 142.13.
Dated: May 31, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011–14297 Filed 6–8–11; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 76, Number 111 (Thursday, June 9, 2011)]
[Notices]
[Pages 33753-33756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14197]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9316-1]
Modification of the Expiration Date for the National Pollutant
Discharge Elimination System General Permit for Stormwater Discharges
From Construction Activities on Tribal Lands Within the Southeastern
United States
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: EPA Region 4 proposes to modify the expiration date of the
National Pollutant Discharge Elimination System (NPDES) general permit
authorizing the discharge of stormwater from construction activities on
Tribal Lands within the states of Alabama, Florida, Mississippi and
North Carolina. This NPDES construction general permit (CGP),
hereinafter referred to as ``the Region 4 CGP,'' was issued on
September 1, 2009, with an expiration date of August 31, 2011. EPA
Region 4 is proposing to extend the expiration date from August 31,
2011, to September 1, 2012. No other revisions are being proposed to
the Region 4 CGP. The purpose of extending the expiration date is to
ensure that there is no lapse in permit coverage prior to the effective
date of the issuance of a new permit, which has been proposed for
public review and comment in a separate action. Information about the
proposed new permit, hereinafter referred to as ``the new National
CGP,'' can be found at https://cfpub.epa.gov/npdes/stormwater/cgp.cfm.
DATES: EPA is proposing a modification to the Region 4 CGP that would
extend the expiration date from August 31, 2011, to September 1, 2012.
If the proposed modification is finalized, the Region 4 CGP would
expire at midnight, on September 1, 2012, or on the effective date of
the new National CGP, whichever is earlier. Comments on the proposal to
modify the expiration date of the Region 4 CGP must be postmarked by
July 11, 2011.
FOR FURTHER INFORMATION CONTACT: Alanna Conley or Michael Mitchell of
the Stormwater and Nonpoint Source Section, Water Protection Division,
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, GA 30303; telephone number: (404) 562-9443 or (404) 562-9303;
fax number: (404) 562-8692; e-mail address: conley.alanna@epa.gov or
mitchell.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
If a discharger chooses to apply for coverage under the Region 4
CGP, the permit provides specific requirements for preventing
contamination of waterbodies from stormwater discharges from the
following construction activities:
------------------------------------------------------------------------
North American
Examples of affected Industry
Category entities Classification
System (NAICS) Code
------------------------------------------------------------------------
Industry.............. Construction site operators disturbing 1 or more
acres of land, or less than 1 acre but part of
a larger common plan of development or sale if
the larger common plan will ultimately disturb
1 acre or more, and performing the following
activities:
-------------------------------------------------
Building, Developing and 233
General Contracting.
Heavy Construction........ 234
------------------------------------------------------------------------
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 activities that
EPA is now aware of that could potentially be affected by this action.
Other types of entities not listed in the table could also be affected.
To determine whether your facility is affected by this action, you
should carefully examine the definition of
[[Page 33754]]
``construction activity'' and ``small construction activity'' in
existing EPA regulations at 40 CFR 122.26(b)(14)(x) and 122.26(b)(15),
respectively. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed for technical
information in the preceding FOR FURTHER INFORMATION CONTACT section.
Eligibility for coverage under the Region 4 CGP would be limited to
operators of ``new projects'' or ``unpermitted ongoing projects.'' A
``new project'' is one that commences after the effective date of the
Region 4 CGP (i.e., September 1, 2009). An ``unpermitted ongoing
project'' is one that commenced prior to the effective date of the
Region 4 CGP, yet never received authorization to discharge under the
previous CGP or any other NPDES permit covering its construction-
related stormwater discharges. The Region 4 CGP is effective only in
those areas where EPA Region 4 is the permitting authority, which
includes all Indian Country Lands within the states of Alabama,
Florida, Mississippi, and North Carolina. A list of eligible areas is
included in Appendix B of the Region 4 CGP.
B. How can I get copies of this document and other related information?
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
https://www.epa.gov/fedrgstr/. Electronic versions of the Region 4 CGP
and fact sheet are available at EPA Region 4's stormwater Web site at:
https://www.epa.gov/region4/water/permits/stormwater.html.
C. How and to whom do I submit comments?
You may submit comments electronically (e-mail or cdrom), or by
postal mail. Comments should be sent to the person listed for technical
information in the FOR FURTHER INFORMATION CONTACT section of this
notice. To ensure proper receipt by EPA, identify the appropriate
Federal Register title in the subject line on the first page of your
comment. To ensure that EPA can read, understand, and therefore
properly respond to comments, the Agency would prefer that commenters
cite, where possible, the paragraph(s) or section in the fact sheet or
permit to which each comment refers. Please ensure that your comments
are submitted within the specified comment period. Comments received
after the close of the comment period will be marked ``late.'' EPA is
not required to consider these late comments.
D. Finalizing this action
This action will not be finalized until after all significant
public comments have been considered and addressed. Once the final
permit becomes effective, operators of new and unpermitted ongoing
construction projects may seek authorization under the Region 4 CGP
prior to midnight, September 1, 2012, or the effective date of the new
National CGP, whichever is earlier.
II. Background of Permit
A. Statutory and Regulatory History
The Clean Water Act (CWA) establishes a comprehensive program ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' See 33 U.S.C. 1251(a). The CWA also includes
the objective of attaining ``water quality which provides for the
protection and propagation of fish, shellfish and wildlife and * * *
recreation in and on the water.'' See 33 U.S.C. 1251(a)(2). To achieve
these goals, the CWA requires EPA to control point source discharges of
pollutants through the issuance of NPDES permits.
The Water Quality Act of 1987 (WQA) added section 402(p) of the
CWA, which directed EPA to develop a phased approach to regulate
stormwater discharges under the NPDES program, 33 U.S.C. 1342(p). EPA
published a final regulation in the Federal Register, often called the
``Phase I Rule'' on November 16, 1990, establishing permit application
requirements for, among other things, ``storm water discharges
associated with industrial activity.'' See 55 FR 47990. EPA defined the
term ``storm water discharge associated with industrial activity'' in a
comprehensive manner to cover a wide variety of facilities.
Construction activities, including activities that are part of a larger
common plan of development or sale, that ultimately disturb at least
five acres of land and have point source discharges to waters of the
United States were included in the definition of ``industrial
activity'' pursuant to 40 CFR 122.26(b)(14)(x). The second rule
implementing section 402(p), often called the Phase II Rule, was
published in the Federal Register on December 8, 1999, requires NPDES
permits for discharges from construction sites disturbing at least one
acre but less than five acres, including sites that are less than one
acre but are part of a larger common plan of development or sale that
will ultimately disturb at least one acre but less than five acres,
pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR 68722. EPA issued the
Region 4 CGP under the statutory and regulatory authority cited above.
NPDES permits issued for construction stormwater discharges are
required under Section 402(a)(1) of the CWA to include conditions for
meeting technology-based effluent limits established under Section 301
and, where applicable, Section 306. Once an effluent limitations
guideline or new source performance standard is promulgated in
accordance with these sections, NPDES permits are required to
incorporate limits based on such limitations and standards. See 40 CFR
122.44(a)(1). Prior to the promulgation of national effluent
limitations guidelines and new source performance standards, permitting
authorities incorporate technology-based effluent limitations on a best
professional judgment basis. See CWA section 402(a)(1)(B); 40 CFR
125.3(a)(2)(ii)(B).
B. Summary of the Region 4 CGP Issued in 2009
EPA announced the issuance of the 2009 Region 4 CGP on August 26,
2009. See 74 FR 43120. Construction operators choosing to be covered by
the Region 4 CGP must certify in their notice of intent (NOI) that they
meet the requisite eligibility requirements, described in Subpart 1.3
of the permit. If eligible, operators are authorized to discharge under
this permit in accordance with Part 2. Permittees must install and
implement control measures to meet the effluent limits applicable to
all dischargers in Part 3, and must inspect such stormwater controls
and repair or modify them in accordance with Part 4. The permit in Part
5 requires all construction operators to prepare a stormwater pollution
prevention plan (SWPPP) that identifies all sources of pollution and
describes control measures used to minimize pollutants discharged from
the construction site. Part 6 details the requirements for terminating
coverage under the permit.
EPA Region 4 issued the Region 4 CGP in 2009 to replace the expired
CGP, issued in 2004, for operators of new and unpermitted ongoing
construction projects. The geographic coverage and scope of eligible
construction activities are listed in Appendix B of the Region 4 CGP.
C. What is EPA's rationale for the modification of the expiration date
for the Region 4 CGP?
EPA proposes to modify the Region 4 CGP by extending the expiration
date of the permit to September 1, 2012. EPA Region 4 finds it
necessary to propose this extension in order to provide
[[Page 33755]]
sufficient time for finalization of the new National CGP which is being
issued by EPA Region 4 and the other EPA regional offices and would
also provide coverage to eligible existing and new construction
projects in all areas of the country where EPA is the NPDES permitting
authority (i.e., other Indian Lands, Idaho, Massachusetts, New
Hampshire, New Mexico, Puerto Rico, Washington, DC, and U.S.
territories and protectorates). The proposed National CGP will
incorporate for the first time new effluent limitations guidelines and
new source performance standards, which EPA promulgated in December
2009. Once the new National CGP is effective, eligible existing and new
construction projects on Tribal lands within Region 4, will be
regulated under the new National CGP. The extension of the expiration
date of the Region 4 CGP is necessary in order to make up for a delay
in the issuance process of the new National CGP due to an error
discovered in the December 2009 final rule regarding the calculation of
the numeric limitation on turbidity. This numeric limit has since been
stayed by EPA. EPA's proposed extension would provide the Agency with
sufficient time to account for this delay and to meet its other permit
issuance obligations.
NPDES permits issued for construction stormwater discharges are
required under Section 402(a)(1) of the CWA to include conditions for
meeting technology-based effluent limits established under Section 301
and, where applicable, Section 306. Once an effluent limitations
guideline or new source performance standard is promulgated in
accordance with these sections, any NPDES permits issued after the
effective date of these requirements must incorporate limits based on
such limitations and standards. See 40 CFR 122.44(a)(1). In the case of
the CGP, EPA promulgated effluent limitations guidelines and new source
performance standards for the construction and development point source
category on December 1, 2009 (``C&D rule''), which for the first time
imposed a set of minimum Federal numeric and non-numeric effluent
limitations on regulated construction sites. See 74 FR 62996 (December
1, 2009). The C&D rule (located at 40 CFR part 450) became effective on
February 1, 2010, thus requiring that any NPDES permit issued after
this date, whether issued by EPA or an authorized state, must
incorporate the substantive technology-based requirements of the rule
into the permit. For the new National CGP, this means that EPA must
incorporate the effective requirements of the C&D rule into the permit.
Among other requirements, the C&D rule subjected discharges from
certain larger construction sites to a numeric effluent limitation of
280 NTU for the pollutant turbidity starting in August of 2011 (for
sites disturbing 20 or more acres at one time) and February of 2014
(for sites disturbing 10 or more acres at one time). Subsequent to the
promulgation of the C&D rule, 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 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 numeric effluent limitation. In
response to this finding, EPA finalized a stay of the 280 numeric NTU
limit and associated monitoring requirements (see 40 CFR 450.22(a)) on
January 4, 2011, in order to enable the Agency to correct its error in
calculating the numeric limitation. See 75 FR 68215 (November 5, 2010).
EPA is currently in the process of initiating a limited rulemaking to
correct the numeric limitation.
Preceding the decision to stay the numeric turbidity limit, the
uncertainty surrounding the error in calculating the 280 NTU limit, and
the appropriate way for EPA to address it, caused a delay of several
months to the permit issuance process for the new National CGP. EPA
believes it is impracticable to finalize the new National CGP when
considering the minimum tasks required of the Agency to finalize the
permit.
With the setback of time related to the stay of the 280 NTU limit,
EPA needs additional time to complete the permit issuance process as
explained above. EPA believes that the proposed extension of the
expiration date of the Region 4 CGP to September 1, 2012, will provide
the sufficient time for the Agency to finalize the new National CGP.
EPA believes it is imperative that sufficient time to incorporate the
C&D ELG into the new National CGP is allotted. If EPA does not extend
the expiration date of the Region 4 CGP, no new construction projects
could receive general permit coverage between September 1, 2011, and
the effective date of the new National CGP, leaving individual NPDES
permits as the only available option for permitting new projects. The
sole reliance on individual permits would mean that discharge
authorizations would almost certainly be delayed due to the greater
amount of time and Agency resources that are required for developing
and issuing individual permits. In turn, construction projects that
need to begin construction activities on or after midnight August 31,
2011, for the 2009 Regional CGP, would be delayed for an uncertain
amount of time until EPA can review their individual permit application
and issue the necessary permits. Rather than risk detrimental delays to
new construction projects, with no clear benefit to our nation's
surface waters, EPA Region 4 has decided that it is advisable to
instead propose a modification to the 2009 Region 4 CGP to extend the
expiration date until September 1, 2012.
D. EPA's Authority To Modify NPDES Permits
EPA regulations establish when the permitting authority may make
modifications to existing NPDES permits. In relevant part, EPA
regulations state that ``[w]hen the Director receives any information *
* * he or she may determine whether or not one or more of the causes
listed in paragraph (a) * * * of this section for modification * * *
exist. If cause exists, the Director may modify * * * the permit
accordingly, subject to the limitations of 40 CFR 124.5(c).'' 40 CFR
122.62. For purposes of this Federal Register notice, the relevant
cause for modification is at 40 CFR 122.62(a)(2), which states that a
permit may be modified when ``[t]he Director has received new
information'' and that information was not available at the time of
permit issuance * * * and would have justified the application of
different permit conditions at the time of issuance.'' Pursuant to EPA
regulations, ``[w]hen a permit is modified, only the conditions subject
to the modification are reopened.'' 40 CFR 122.62.
In the case of the Region 4 CGP, a permit modification is justified
based on the new information EPA received following the issuance of the
permit, and more specifically, in terms of the delay to the permit
process associated with the discovery of the numeric limit calculation
error and resulting stay to the numeric turbidity limit. If this
information was available at the time of issuance of the Region 4 CGP,
it would have justified EPA establishing an expiration date for the
Region 4 CGP that was later than August 31, 2011. As a result, cause
exists under EPA regulations to justify modification of the Region 4
CGP to extend the permit until September 1, 2012. If the proposed
modification is finalized, the Region 4 CGP would expire at midnight,
on
[[Page 33756]]
September 1, 2012, or on the effective date of the proposed new
National CGP, whichever is earlier.
EPA notes that, by law, NPDES permits cannot be extended beyond 5
years. See 40 CFR 122.46. The proposed extension of the expiration date
of the Region 4 CGP complies with this restriction. The Region 4 CGP
was issued with an effective date of September 1, 2009. Assuming the
extension of the expiration date of the Region 4 CGP is finalized as
proposed, the permit would still have been in effect for less than the
5-year limit.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Signed this 27th day of May, 2011.
Douglas Mundrick,
Acting Director, Water Protection Division, Region 4.
[FR Doc. 2011-14197 Filed 6-8-11; 8:45 am]
BILLING CODE 6560-50-P
