Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category, 12661-12667 [2014-04612]
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Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations
Dangerous Goods Code, may be made to
the St. Lawrence Seaway Management
Corporation, 202 Pitt Street, Cornwall,
Ontario, K6J 3P7, or to the Saint
Lawrence Seaway Development
Corporation, P.O. Box 520, Massena,
New York, U.S.A. 13662.
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■ 16. In § 401.74, revise paragraphs (a)
and (f) to read as follows:
§ 401.74
Transit Declaration.
(a) A Seaway Transit Declaration
Form (Cargo and Passenger) shall be
forwarded to the Manager by the
representative of a vessel, for each
vessel that has an approved
preclearance except non-cargo vessels,
within fourteen (14) days after the
vessel enters the Seaway on any up
bound or down bound transit. The form
may be obtained from the St. Lawrence
Management Corporation, 151 Ecluse
Street, St. Lambert, Quebec, J4R 2V6 or
downloaded from the St. Lawrence
Seaway Web site at www.greatlakesseaway.com. The form may also be
completed and submitted on the Seaway
Web site via e-business.
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(f) Seaway Transit Declaration Forms
shall be used in assessing toll charges in
accordance with the St. Lawrence
Seaway Schedule of Tolls, and toll
accounts shall be forwarded to the
representative or its designated agent.
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■ 17. In § 401.75, revise paragraph (b)
and add a new paragraph (d) to read as
follows:
§ 401.75
Payment of tolls.
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(b) Tolls established by agreement
between Canada and the United States,
and known as the St. Lawrence Seaway
Schedule of Tolls, shall be paid by
pleasure crafts with prepaid tickets
purchased in Canadian funds using
credit card ticket dispensers located at
pleasure craft docks or Paypal on the
Seaway Web site. At U.S. locks, the toll
is paid in U.S. funds or the pre-
established equivalent in Canadian
funds or through payment via Pay.gov
on the Seaway Web site.
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*
(d) Vessel representatives with past
due toll accounts, unpaid after 45 days,
may be subject to the suspension of
preclearance for each vessel of which a
preclearance has been given and/or the
immediate removal of the waved
security for the toll charges set in
§ 401.26(c) and § 401.26(d.)
■ 18. In § 401.79, add a new paragraph
(b)(5) to read as follows:
§ 401.79 Advance notice of arrival, vessels
requiring inspection.
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(b) * * *
(5) A tall ship or vessel of an unusual
design is subject to Seaway yearly
inspection.
Issued at Washington, DC, on February 28,
2014.
Carrie Lavigne,
Chief Counsel, Saint Lawrence Seaway
Development Corporation.
[FR Doc. 2014–04821 Filed 3–5–14; 8:45 am]
BILLING CODE 4910–61–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 450
[EPA–HQ–OW–2010–0884; FRL–9906–51–
OW]
RIN 2040–AF44
Effluent Limitations Guidelines and
Standards for the Construction and
Development Point Source Category
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing changes to
the effluent limitations guidelines and
standards for the Construction and
Development point source category.
SUMMARY:
Category
I. General 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 ....................................................
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EPA is promulgating these changes
pursuant to a settlement agreement to
resolve litigation. This final rule
withdraws the numeric discharge
standards, which are currently stayed,
and changes several of the non-numeric
provisions of the existing rule.
DATES: This final rule is effective on
May 5, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OW–2010–0884. All
documents in the docket are listed on
the www.regulations.gov Web site.
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, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the USEPA Docket Center, WJC West,
Room 3334, 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) 566–1744.
FOR FURTHER INFORMATION CONTACT: Mr.
Jesse W. Pritts at Engineering and
Analysis Division, Office of Water
(4303T), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone
number: 202–566–1038; fax number:
202–566–1053; email address:
pritts.jesse@epa.gov.
SUPPLEMENTARY INFORMATION:
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
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likely to be regulated by this action.
This table lists the types of entities that
EPA is now aware could potentially be
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regulated by this action. Other types of
entities not listed in the table could also
be regulated. To determine whether
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your facility is regulated by this action,
you should carefully examine the
applicability criteria at 40 CFR 450.10
and the definition of ‘‘storm water
discharge associated with industrial
activity’’ and ‘‘storm water discharge
associated with 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 site, consult
the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Overview
This preamble describes the terms,
acronyms, and abbreviations used in
this document; the legal authority for
this final rule; background information;
and a summary of the final changes.
Table of Contents
I. Legal Authority
II. Purpose & Summary of the Final Rule
III. Statutory and Executive Order Reviews
I. Legal Authority
EPA is promulgating these regulations
under the authorities of sections 101,
301, 304, 306, 308, 401, 402, 501 and
510 of the Clean Water Act (CWA), 33
U.S.C. 1251, 1311, 1314, 1316, 1318,
1341, 1342, 1361 and 1370, and
pursuant to the Pollution Prevention
Act of 1990, 42 U.S.C. 13101 et seq.
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II. Purpose & Summary of the Final
Rule
A. Background
EPA promulgated Effluent Limitations
Guidelines and Standards for the
Construction and Development Point
Source Category (hereafter referred to as
the ‘‘C&D rule’’) (74 FR 62996,
December 1, 2009). The C&D rule
established requirements based on Best
Practicable Control Technology
Currently Available, Best Available
Technology Economically Achievable,
Best Conventional Pollutant Control
Technology, and New Source
Performance Standards based on Best
Available Demonstrated Control
Technology. Construction activities like
clearing, excavating, and grading
significantly disturb the land. The
disturbed soil, if not managed properly,
can easily be washed off of the
construction site during storms and
enter water bodies. Stormwater
discharges from construction activities
can cause an array of physical, chemical
and biological impacts to receiving
streams.
The C&D rule included non-numeric
requirements to:
• Implement erosion and sediment
controls;
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• stabilize soils;
• manage dewatering activities;
• implement pollution prevention
measures;
• prohibit certain discharges; and
• utilize surface outlets for discharges
from basins and impoundments.
The C&D rule also established a
numeric limitation on the allowable
level of turbidity in discharges from
certain construction sites. The
technology basis for the final numeric
limitation was passive treatment
controls including polymer-aided
settling to reduce the turbidity in
discharges.
Following promulgation of the C&D
rule, the Wisconsin Builders
Association, the National Association of
Home Builders (NAHB) and the Utility
Water Act Group (UWAG) filed
petitions for review in the U.S. Circuit
Courts of Appeals for the Fifth, Seventh,
and D.C. Circuits. The petitions were
consolidated in the Seventh Circuit.
Wisconsin Builders Association, et al. v.
EPA, Case Nos. 09–4113, 10–1247, and
10–1876 (7th Cir.). On July 8, 2010, the
petitioners filed their briefs.
In April 2010, the Small Business
Administration (SBA) filed with EPA a
petition for administrative
reconsideration of several technical
aspects of the C&D rule. SBA identified
potential deficiencies with the dataset
that EPA used to support its decision to
adopt the numeric turbidity limitation.
In June 2010, NAHB also filed a petition
for administrative reconsideration with
EPA incorporating by reference SBA’s
argument regarding the potential
deficiencies in the data.
On August 12, 2010, EPA filed an
unopposed motion with the Court
seeking to hold the litigation in
abeyance until February 15, 2012 (see
the docket for this action, EPA–HQ–
OW–2010–0884–0085), and asking the
Court to remand the record to EPA and
vacate the numeric limitation portion of
the rule. In addition, EPA agreed to
reconsider the numeric limitation and to
solicit site-specific information
regarding the applicability of the
numeric effluent limitation to cold
weather sites and to small sites that are
part of a larger project.
On August 24, 2010, the Court issued
an order remanding the matter to the
Agency but without vacating the
numeric limitation. Subsequently on
September 9, 2010, the petitioners filed
an unopposed motion for clarification or
reconsideration of the Court’s August
24, 2010 order, asking the Court again
to vacate the numeric limitation. On
September 20, 2010, the Court
remanded the administrative record to
EPA, and ordered the case held in
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abeyance until February 15, 2012, but
did not vacate the numeric limitation.
During this period, EPA provided
additional information in the docket to
supplement the administrative record
for the C&D rule (see EPA–HQ–OW–
2008–0465–2124 through EPA–HQ–
OW–2008–0465–2134) and an updated
response to comment document (see
EPA–HQ–OW–2008–0465–2135).
In November 2010, EPA issued a
direct final regulation and a companion
proposed regulation to stay the numeric
limitation at 40 CFR 450.22 indefinitely
(75 FR 68215, November 5, 2010 and 75
FR 68305, November 5, 2010). The
proposed rule solicited comment due no
later than December 6, 2010. Since no
adverse comments were received, the
direct final rule took effect on January
4, 2011.
As of this date, neither states nor EPA
were required to incorporate the
numeric turbidity limitation and
monitoring requirements found at
§ 450.22(a) and § 450.22(b) into NPDES
permits because the numeric limitation
was stayed. However, the remainder of
the C&D rule was still in effect and had
to be incorporated into newly issued
NPDES permits.
After issuing the stay of the numeric
turbidity limitation, EPA continued to
consult with stakeholders regarding
next steps with respect to numeric
discharge standards. EPA published a
Federal Register notice (77 FR 112,
January 3, 2012) seeking data on the
effectiveness of technologies in
controlling turbidity in discharges from
construction sites and information on
other related issues.
EPA also continued to meet with the
petitioners in an effort to settle the
litigation over the C&D rule. On
December 10, 2012, EPA entered into a
settlement agreement with petitioners to
resolve the litigation in Wisconsin
Builders Association, et al. v. EPA, Case
Nos. 09–4113, 10–1247, and 10–1876
(7th Cir.). The settlement agreement
provides for EPA to propose for public
comment certain changes specific to the
non-numeric portions of the C&D rule,
as well as withdrawal of the numeric
limitation, and take final action on the
proposal. Under the terms of the
settlement agreement, by April 15, 2013
EPA was to sign for publication in the
Federal Register a notice of proposed
rulemaking, with at least a 30-day
comment period, to amend the C&D rule
in a manner substantially similar to
Exhibit A, which is attached to the
settlement agreement. The settlement
then provides that by February 28, 2014,
EPA will take final action on the
proposed rule. Under the settlement, if
EPA takes the above actions by the
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specified dates, and EPA’s final action
on the proposed rule amends the C&D
rule in any manner, then Petitioners and
EPA will promptly file a joint request
with the Court asking it to dismiss the
C&D litigation. In addition, if EPA’s
final action amends the C&D rule in a
manner substantially similar to Exhibit
A, Petitioners will not seek judicial
review of those amendments. Finally,
the settlement provides that within 60
days after EPA signs the proposal
mentioned above, NAHB and EPA will
file a joint request with the Court to
dismiss NAHB’s challenge to the 2012
Construction General Permit (CGP),
which EPA issued on February 29, 2012
(see 77 FR 12286). EPA proposed a rule
on April 1, 2013. Today’s final rule
satisfies EPA’s commitments under the
settlement agreement.
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B. Revisions to 40 CFR Part 450
The revisions to 40 CFR part 450
being promulgated consist of the
following three elements:
• Addition of a definition of
‘‘infeasible’’;
• revisions to the effluent limitations
reflecting the best practicable control
technology currently available (BPT),
effluent limitations reflecting the best
available technology economically
achievable (BAT), effluent limitations
reflecting the best conventional
pollutant control technology (BCT), and
the new source performance standards
reflecting the best available
demonstrated control technology
(NSPS) found at 40 CFR 450.21, 450.22,
450.23 and 450.24, respectively; and
• withdrawal of the numeric turbidity
effluent limitation and monitoring
requirements found at 40 CFR 450.22(a)
and 450.22(b) and reserving these
subparts.
EPA has made these revisions to
clarify when and where these provisions
apply and what exceptions apply.
Today’s changes provide clarity to
permitting authorities on how to
implement or incorporate these
provisions into permits. The following
discusses each of the changes
promulgated today, and summarizes the
comments EPA received on each of the
changes.
1. Addition of Definition at 40 CFR
450.11
EPA proposed to add a definition of
infeasible at 40 CFR 450.11(b). Several
of the provisions of the C&D rule require
permittees to implement controls,
unless infeasible. EPA did not provide
a definition of infeasible in the 2009
C&D rule, although EPA did provide a
definition in the preamble (74 FR 63005,
63017, December 1, 2009). The
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proposed definition of infeasible was
derived from EPA’s preamble language
from the 2009 final rule and the 2012
CGP.
EPA received a number of comments
on the proposed definition of infeasible.
Some commenters supported EPA’s
inclusion of a definition, while some
did not. Some commenters offered
specific revisions to the definition,
while others requested that EPA provide
additional examples of specific
instances where a given practice may be
infeasible. Some commenters requested
that EPA incorporate an infeasibility
condition into all of the requirements of
the final rule, not just those where it is
currently included.
EPA had previously concluded that
an infeasibility provision for some
requirements (specifically, buffers,
preserving topsoil, and use of surface
outlets) was appropriate, given that sitespecific constraints may exist. EPA now
concludes that a definition of infeasible
is appropriate in the rule in order to
provide clarity to permitting authorities.
EPA has not changed the proposed
definition for today’s final rule as a
result of comments received because the
definition allows sufficient flexibility
for permitting authorities to incorporate
appropriate requirements into their
permits to address the limited number
of circumstances where a given
requirement may be infeasible. See the
comment response document for today’s
action for additional discussion of the
comments received.
2. Revision of 40 CFR 450.21(a)(1)
EPA received several comments on
this proposed amended requirement.
Some stated that this requirement is not
needed since there are other ways of
controlling erosion besides controlling
volume and velocity, or that the
requirement is too prescriptive. Others
stated that the ‘‘within the site’’
language that is contained in the 2009
final rule is necessary and should be
retained in this rule so that permittees
are not held responsible for installing
controls beyond their area of
disturbance in order to control erosion
caused by their discharges. Others
stated that EPA does not have authority
to regulate internal processes at a
construction site, and that removal of
the ‘‘within the site’’ language is
justified on this basis.
After consideration of comments, EPA
did not make any changes to the
proposed requirement for this final rule.
EPA has determined that the revision, as
proposed, is an important component of
construction stormwater management as
increased volume and duration of flows
resulting from removal of vegetation and
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soil compaction that accompany
construction activities can contribute to
significant increases in soil erosion and
transport and discharge of pollutants to
surface waters. EPA has authority to
promulgate non-numeric effluent
limitations that regulate internal
processes at construction sites in order
to control and minimize the discharge of
pollutants to surface waters. See EPA–
HQ–OW–2008–0465–2124 through
EPA–HQ–OW–2008–0465–2134 for
discussion linking up-slope/on-site
activities to controlling or minimizing
the discharge of pollutants from the site
to surface waters. See also Citizens Coal
Council, et al. v. EPA, 446 F.3d 879, 895
(6th Cir. 2006)(‘‘under the [Clean Water]
Act, effluent limitations are not limited
to numeric discharges but encompass
‘any restriction’ on discharges’’);
Waterkeeper Alliance, Inc. v. EPA, 399
F.3d 486, 502 (2nd Cir. 2005)(‘‘rather
than setting forth numerical effluent
limitations for land application of
manure, the CAFO Rule establishes nonnumerical effluent limitations in the
form of best management practices’’);
Texas Municipal Power Agency v. EPA,
836 F.2d 1482, 1488 (5th Cir. 1988) (‘‘it
is sometimes necessary to regulate
discharges within the treatment process
to control discharges at the end . . .
[t]his position has support in the
language of the CWA, its legislative
history, and common sense.’’); Public
Service Company of Colorado, Fort St.
Vrain Station v. EPA, 949 F.2d 1063,
1065 (10th Cir. 1991) (‘‘We find no clear
Congressional or Presidential intent
expressly forbidding EPA from
imposing internal waste stream effluent
limitations when such limitations
would be impracticable to monitor at
the end of the pipe.’’).
3. Revision of 40 CFR 450.21(a)(2)
EPA received a number of comments
on this proposed revision. One
commenter suggested that EPA change
the language to require management of
local scour. Others suggested that EPA’s
proposed change to limit erosion in the
‘‘immediate vicinity of discharge
points’’ narrows the requirement from
what was contained in the 2009 rule.
Others stated that EPA does not have
authority under the effluent guidelines
program to control erosion in receiving
waters since effluent guidelines regulate
the discharge of pollutants from point
sources, and more broadly that EPA
does not have authority to regulate
volume. Some comments stated that
projects with constrained space, such as
linear projects, cannot feasibly control
the volume of discharges. Other
comments suggested that the
requirement is too prescriptive, and that
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there are other measures to control
erosion in receiving waters. Some
commenters suggested that the ‘‘in the
immediate vicinity’’ language is
ambiguous and should be removed, and
that permittees should be responsible
for downstream erosion caused by their
discharges. Other comments stated that
the language should be expanded to
state that attainment of water quality
standards should be the goal and that
the discharges should not contribute to
an existing impairment.
EPA made one change to the proposed
requirement for today’s final rule, which
is the insertion of the words ‘‘and
scour’’ after the word ‘‘erosion’’. EPA
made this change as a result of
comments received by the American
Association of State Highway and
Transportation Officials (AASHTO) (see
EPA–HQ–OW–2010–0884–0194), which
indicated that ‘‘local scour’’ is an
appropriate term for the erosion in
receiving waters that EPA is intending
to address by this requirement. EPA did
not include the ‘‘local’’ qualifier since
the requirement is limited to erosion ‘‘in
the immediate vicinity’’ of discharge
points, and therefore the addition of
‘‘local’’ would be redundant. EPA has
not elected to make any of the other
changes suggested by commenters.
While EPA understands that some
would find a requirement to also
include downstream erosion
environmentally beneficial, it is more
appropriate to consider downstream
erosion on a site-specific water quality
basis than in this nationally applicable,
technology-based rule.
4. Revision of 40 CFR 450.21(a)(6)
EPA received several comments on
this proposed amended requirement.
Some commenters expressed concern
over requiring infiltration for controlling
pollutants, indicating that there are
other methods for reducing pollutants
other than infiltration. Commenters also
were concerned about the requirement
to provide buffers, indicating that some
disturbance would be needed, such as
stream crossing. Commenters were also
concerned about the overlap between
this requirement and Section 404
permits, and the switch from ‘‘surface
waters’’, which was the language in the
2009 rule, to ‘‘Waters of the United
States,’’ as they believed that the latter
has a broader scope. Specific mention
was made of the need to install buffers
around jurisdictional wetlands.
Commenters also requested clarification
of the terms ‘‘provide’’ and ‘‘natural
buffers’’.
EPA did not make any changes to the
proposed requirement for today’s final
rule. The language, as proposed,
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includes an exception for infeasibility
and provides sufficient flexibility for
permitting authorities to incorporate
appropriate language into permits to
address the range of site-specific
conditions that may exist and to address
instances where a buffer or infiltration
may be infeasible for some part of a
project. See the 2012 CGP for an
example of how EPA has incorporated
buffer requirements, as well as
alternative controls, into a general
permit.
EPA has not changed the proposed
use of the term ‘‘waters of the United
States’’ instead of the phrase ‘‘surface
waters.’’ EPA intended that the two
phrases mean the same set of waters.
See the comment response document for
specific responses to other comments
concerning this provision.
5. Revision of 40 CFR 450.21(a)(7)
EPA proposed to amend this
requirement, as well as separate the two
provisions (minimizing soil compaction
and preserving topsoil) into two
separate requirements. EPA received
several comments on this proposed
amended requirement. Some
commenters requested more specificity
on types of practices that would meet
this provision, such as use of soil
amendments or deep ripping. Other
comments suggested that the use of soil
compaction for temporary soil
stabilization should be permitted. Still
other comments indicated that there are
methods to provide stabilization other
than preserving topsoil.
EPA did not make any changes to the
proposed requirement for today’s final
rule. The provision, as proposed,
provides sufficient flexibility for
permitting authorities to develop
appropriate language for their permits
and provides permittees sufficient
flexibility to obtain relief in cases where
these practices would be infeasible
based on site-specific conditions. The
requirement to minimize soil
compaction does not prohibit use of
compaction for temporary stabilization
since the requirement is to minimize,
not prohibit, compaction. If the
permitting authority determines that
compaction is an appropriate temporary
stabilization measure (considering other
stabilization language contained at
450.21(b)), then it may elect to develop
appropriate language to this effect in its
permit.
6. Revision of 40 CFR 450.21(b)
EPA received several comments on
this proposed amended requirement.
One commenter requested an exemption
from the ‘‘immediate’’ initiation of
stabilization requirement for areas of
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disturbance less than one acre on a site
so as to allow prioritization of
stabilization activities. The commenter
also requested inclusion of the
definition of ‘‘initiate immediately’’
from the 2012 CGP, and other
commenters requested additional
clarification of the term ‘‘immediately.’’
Commenters also requested that
additional exemptions be provided, for
example, during periods with low
temperatures or excessive or inadequate
moisture that would limit the ability to
establish vegetative stabilization. One
commenter was also concerned that the
language regarding ‘‘intended function’’
was not specific, and that this could
allow permittees to take advantage of
this exemption. This commenter
suggested that requiring that the
permittee obtain a waiver from
stabilization would be a reasonable
requirement.
The final rule allows an exemption
from stabilization in limited
circumstances. In general, stabilization
represents sound industry practice to
minimize discharges from an active
construction site. Industry
representatives have pointed out to the
Agency that there are limited
circumstances where this requirement
may not make sense. Therefore the rule
gives permitting authorities flexibility to
provide a waiver from stabilization in
limited circumstances (an example
might be a motocross track where the
intended function is an unstabilized
area). Rather than specify in this
national rule all such circumstances,
which would likely miss some
reasonable exception, the rule allows
permitting authorities to define these
circumstances at the time of permitting.
As stated above, however, EPA expects
that sound industry practice of
stabilizing the site immediately will be
the norm.
With respect to providing additional
exemptions from vegetative
stabilization, EPA notes that 450.21(b)
does not require vegetative stabilization.
Both vegetative and non-vegetative
stabilization may be appropriate
measures, consistent with permit
requirements. In arid, semiarid and
drought-stricken areas, the amended
requirement states that alternative ‘‘e.g.,
non-vegetative’’ stabilization measures
must be employed in these areas
because vegetative stabilization is
infeasible (because adequate moisture
would not be present to establish and
maintain such vegetation). However, the
language does not limit the use of nonvegetative stabilization in other
instances, such as during cold weather
conditions. All areas (except those
where the intended function
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necessitates that it remain disturbed)
would require stabilization, vegetative
or non-vegetative, consistent with
requirements developed by the
permitting authority.
After consideration of all comments
on this provision, EPA did not make any
changes to the proposed requirement for
today’s final rule. EPA has determined
that the requirement contains sufficient
flexibility for permitting authorities to
develop appropriate criteria for
vegetative and non-vegetative
stabilization, and to develop permit
language regarding the timing of such
stabilization activities.
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7. Revision of 40 CFR 450.21(d)(2)
EPA did not receive any substantive
comments on this proposed amended
requirement, and therefore EPA did not
make any changes to the proposed
requirement for today’s final rule.
8. Removal of Numeric Standard and
Monitoring Provisions at 40 CFR
450.22(a) and 450.22(b)
The final change removes the numeric
discharge standard and monitoring
requirements previously found at 40
CFR 450.22(a) and 450.22(b).
EPA received several comments on
this proposed change. While many
commenters were supportive of
removing the numeric turbidity effluent
limitation and monitoring requirements,
some commenters were opposed to this
and requested that EPA reinstate a
numeric limitation. Some commenters
suggested that EPA completely remove
these sections of the CFR instead of
reserving these sections.
EPA is withdrawing the numeric
limitation but has reserved these
paragraphs for potential revisions
should EPA decide to propose and
promulgate additional effluent
limitations guidelines and monitoring
requirements in a future rulemaking.
The Agency is considering data and
comments submitted in response to the
January 3, 2012 Federal Register notice
(77 FR 112) seeking additional
information and data on numeric
standards. At this time, EPA is
concerned that a numeric limitation
may create a disincentive to green
infrastructure techniques for managing
stormwater. For example, meeting a
numeric standard may require
installation of a sediment basin or other
impoundment on certain sites, which
may be a disincentive to installing
distributed stormwater controls. Also,
EPA recognizes that additional data
collection would likely be necessary in
order to inform any establishment of
numeric discharge standards and
monitoring requirements in the future.
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At such time that EPA decides on a path
forward with respect to numeric
discharge standards and monitoring
requirements, EPA will take appropriate
actions to notify interested stakeholders.
EPA encourages interested parties to
continue submitting data and
information to EPA with respect to
numeric discharge standards at
construction sites. In the interim, it is
preferable to reserve these sections of
the CFR for future action. Removing
these paragraphs altogether would
require re-organization of other sections
of the rule. EPA sees no meaningful
disadvantage of reserving these sections
as opposed to removing these sections.
III. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under Executive
Orders 12866 and 13563 (76 FR 3821,
January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Burden is
defined at 5 CFR 1320.3(b). The action
does not impose an information
collection burden because the
amendments do not impose any data
collection or reporting requirements.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s final rule on small entities,
small entity is defined as: (1) A small
business as defined by the Small
Business Administration’s (SBA)
regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-for-
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12665
profit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
In determining whether a rule has a
significant economic impact on a
substantial number of small entities, the
impact of concern is any significant
adverse economic impact on small
entities, since the primary purpose of
the regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the rule
on small entities.’’ 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule
will not have a significant economic
impact on a substantial number of small
entities if the rule relieves regulatory
burden, or otherwise has a positive
economic effect on all of the small
entities subject to the rule.
The final rule clarifies applicability of
the existing non-numeric effluent
limitations at 40 CFR Part 450 and
provides exemptions to some
requirements in limited cases. We have
therefore concluded that today’s final
rule will relieve regulatory burden for
affected small entities.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal
mandate that may result in expenditures
of $100 million or more for State, local,
and tribal governments, in the aggregate,
or the private sector in any one year.
This rule clarifies applicability of the
existing non-numeric effluent
limitations at 40 CFR Part 450 and
provides exemptions to some
requirements in limited cases. The rule
does not impose new or more stringent
requirements, and therefore this action
does not subject regulated entities to
any costs incremental to the existing
rule. Thus, this rule is not subject to the
requirements of sections 202 or 205 of
the Unfunded Mandates Reform Act
(UMRA).
This rule is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
rule clarifies applicability of the existing
non-numeric effluent limitations at 40
CFR Part 450 and provides exemptions
to some requirements in limited cases.
These requirements apply to all
governmental entities that undertake
construction activities regulated at 40
CFR 122.26, and therefore do not
significantly or uniquely affect small
governments.
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Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It 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. This rule
clarifies applicability of the existing
non-numeric effluent limitations at 40
CFR Part 450 and provides exemptions
to some requirements in limited cases.
Thus, Executive Order 13132 does not
apply to this action.
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This action does not involved
technical standards. Therefore, EPA did
not consider the use of any voluntary
consensus standards.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This rule clarifies applicability of
the existing non-numeric effluent
limitations at 40 CFR Part 450 and
provides exemptions to some
requirements in limited cases. The rule
does not impose new or more stringent
requirements, and therefore this action
would not subject regulated entities to
any costs incremental to the existing
rule. Thus, Executive Order 13175 does
not apply to this action.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has concluded that it is not
practicable to determine whether there
would be disproportionately high and
adverse human health or environmental
effects on minority and/or low income
populations from this final rule. This
final rule clarifies applicability of the
existing non-numeric effluent
limitations at 40 CFR Part 450 and
provides exemptions to some
requirements in limited cases. While
EPA considers it unlikely, it is possible
that the changes to some of these
requirements could result in greater
pollution discharge to waters of the
United States. However, EPA does not
expect the quantity of pollution
discharges to specific waterbodies or at
the national level to significantly
increase as a result of this final rule.
Furthermore, the primary pollutants
discharged by this industry, which are
sediment and turbidity, are present in
background levels to varying quantities
in waters of the United States.
Therefore, the extent, if any, of changes
in human health or environmental
effects as a result of this action would
depend upon waterbody-specific
conditions and the locations and
interaction of populations with those
waterbodies. Due to the varying nature
and location of construction site
discharges, and due to the fact that there
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This action is not subject to
Executive Order 13045 because it is
based solely on technology
performance.
tkelley on DSK3SPTVN1PROD with RULES
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (66 FR 28355 (May 22,
2001)), because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
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are often other sources of sediment and
turbidity pollution in waterbodies, it is
not practicable to quantify the extent to
which this action would alter levels of
pollution discharges or whether any
change in pollution discharges as a
result of this action would contribute
disproportionately high and adverse
human health or environmental effects
on minority and/or low income
populations.
K. Congressional Review Act
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
Congress and to the Comptroller General
of the United States. 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. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective May 5, 2014.
L. Judicial Review
In accordance with 40 CFR 23.2,
today’s rule is considered promulgated
for the purposes of judicial review as of
1 p.m. Eastern Standard Time, March
20, 2014. Under Section 509(b)(1) of the
Clean Water Act (CWA), judicial review
of today’s effluent limitations guidelines
and new source performance standards
may be obtained by filing a petition in
the United States Circuit Court of
Appeals for review within 120 days
from the date of promulgation of these
guidelines and standards. Under Section
509(b)(2) of the CWA, the requirements
of this regulation may not be challenged
later in civil or criminal proceedings
brought to enforce these requirements.
List of Subjects in 40 CFR Part 450
Environmental protection,
Construction industry, Land
development, Water pollution control.
Dated: February 20, 2014.
Gina McCarthy,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as
follows:
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Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations
PART 450—CONSTRUCTION AND
DEVELOPMENT POINT SOURCE
CATEGORY
1. The authority citation for part 450
is revised to read as follows:
■
Authority: 33 U.S.C. 1311, 1312, 1314,
1316, 1341, 1342, 1361 and 1370.
Subpart A—General Provisions
2. Section 450.11 is amended by
adding paragraph (b) to read as follows:
■
§ 450.11
General definitions.
*
*
*
*
*
(b) Infeasible. Infeasible means not
technologically possible, or not
economically practicable and achievable
in light of best industry practices.
Subpart B—Construction and
Development Effluent Guidelines
3. Section 450.21 is amended by:
a. Revising paragraphs (a)(1), (a)(2),
(a)(6), and (a)(7).
■ b. Adding paragraph (a)(8).
■ c. Revising paragraph (b).
■ d. Revising paragraph (d)(2).
The added and revised text read as
follows:
■
■
§ 450.21 Effluent limitations reflecting the
best practicable technology currently
available (BPT).
tkelley on DSK3SPTVN1PROD with RULES
*
*
*
*
*
(a) * * *
(1) Control stormwater volume and
velocity to minimize soil erosion in
order to minimize pollutant discharges;
(2) Control stormwater discharges,
including both peak flowrates and total
stormwater volume, to minimize
channel and streambank erosion and
scour in the immediate vicinity of
discharge points;
*
*
*
*
*
(6) Provide and maintain natural
buffers around waters of the United
States, direct stormwater to vegetated
areas and maximize stormwater
infiltration to reduce pollutant
discharges, unless infeasible;
(7) Minimize soil compaction.
Minimizing soil compaction is not
required where the intended function of
a specific area of the site dictates that it
be compacted; and
(8) Unless infeasible, preserve topsoil.
Preserving topsoil is not required where
the intended function of a specific area
of the site dictates that the topsoil be
disturbed or removed.
(b) Soil Stabilization. Stabilization of
disturbed areas must, at a minimum, be
initiated immediately whenever any
clearing, grading, excavating or other
earth disturbing activities have
permanently ceased on any portion of
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the site, or temporarily ceased on any
portion of the site and will not resume
for a period exceeding 14 calendar days.
In arid, semiarid, and drought-stricken
areas where initiating vegetative
stabilization measures immediately is
infeasible, alternative stabilization
measures must be employed as specified
by the permitting authority.
Stabilization must be completed within
a period of time determined by the
permitting authority. In limited
circumstances, stabilization may not be
required if the intended function of a
specific area of the site necessitates that
it remain disturbed.
*
*
*
*
*
(d) * * *
(2) Minimize the exposure of building
materials, building products,
construction wastes, trash, landscape
materials, fertilizers, pesticides,
herbicides, detergents, sanitary waste
and other materials present on the site
to precipitation and to stormwater.
Minimization of exposure is not
required in cases where the exposure to
precipitation and to stormwater will not
result in a discharge of pollutants, or
where exposure of a specific material or
product poses little risk of stormwater
contamination (such as final products
and materials intended for outdoor use);
and
*
*
*
*
*
§ 450.22
[Amended]
4. Section 450.22 is amended by
removing and reserving paragraphs (a)
and (b).
■
[FR Doc. 2014–04612 Filed 3–5–14; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 15
[ET Docket Nos. 10–23 and 10–27; FCC 14–
2]
Level Probing Radars
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
This document modifies the
Commission’s rules for level probing
radars (LPRs) operating on an
unlicensed basis in the 5.925–7.250
GHz, 24.05–29.00 GHz, and 75–85 GHz
bands to revise our measurement
procedures to provide more accurate
and repeatable measurement protocols
for these devices. LPR devices are lowpower radars that measure the level
(relative height) of various substances in
SUMMARY:
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12667
man-made or natural containments. The
new rules will benefit the public and
industry by improving the accuracy and
reliability of these measuring tools, and
providing needed flexibility and cost
savings for LPR device manufacturers
which should in turn make them more
available to users, without causing
harmful interference to authorized
services.
DATES: Effective April 7, 2014.
FOR FURTHER INFORMATION CONTACT: Anh
Wride, Office of Engineering and
Technology, 202–418–0577,
Anh.Wride@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order and Order, ET Docket
Nos.10–23 and 10–27, FCC 14–2,
adopted January 15, 2014 and released
January 15, 2014. The full text of this
document is available for inspection
and copying during normal business
hours in the FCC Reference Center
(Room CY–A257), 445 12th Street SW.,
Washington, DC 20554. The complete
text of this document also may be
purchased from the Commission’s copy
contractor, Best Copy and Printing, Inc.,
445 12th Street SW., Room, CY–B402,
Washington, DC 20554. The full text
may also be downloaded at:
www.fcc.gov. People with Disabilities:
To request materials in accessible
formats for people with disabilities
(braille, large print, electronic files,
audio format), send an email to fcc504@
fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–
418–0530 (voice), 202–418–0432 (tty).
Summary of Report and Order
1. By this action, the Commission
modifies part 15 of its rules for level
probing radars (LPRs) operating on an
unlicensed basis in the 5.925–7.250
GHz, 24.05–29.00 GHz, and 75–85 GHz
bands to revise our measurement
procedures to provide more accurate
and repeatable measurement protocols
for these devices. LPR devices are lowpower radars that measure the level
(relative height) of various substances in
man-made or natural containments. In
open-air environments, LPR devices
may be used to measure levels of
substances such as water basin levels or
coal piles. An LPR device that is
installed inside an enclosure, which
could be filled with liquids or
granulates, is commonly referred to as a
tank level probing radar (TLPR). LPR
(including TLPR) devices can provide
accurate and reliable target resolution to
identify water levels in rivers and dams
or critical levels of materials such as
fuel or sewer-treated waste, reducing
overflow and spillage and minimizing
E:\FR\FM\06MRR1.SGM
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]]>Agencies
[Federal Register Volume 79, Number 44 (Thursday, March 6, 2014)]
[Rules and Regulations]
[Pages 12661-12667]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04612]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 450
[EPA-HQ-OW-2010-0884; FRL-9906-51-OW]
RIN 2040-AF44
Effluent Limitations Guidelines and Standards for the
Construction and Development Point Source Category
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is finalizing
changes to the effluent limitations guidelines and standards for the
Construction and Development point source category. EPA is promulgating
these changes pursuant to a settlement agreement to resolve litigation.
This final rule withdraws the numeric discharge standards, which are
currently stayed, and changes several of the non-numeric provisions of
the existing rule.
DATES: This final rule is effective on May 5, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2010-0884. All documents in the docket are listed on the
www.regulations.gov Web site. 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, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the USEPA Docket Center, WJC
West, Room 3334, 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) 566-1744.
FOR FURTHER INFORMATION CONTACT: Mr. Jesse W. Pritts at Engineering and
Analysis Division, Office of Water (4303T), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone
number: 202-566-1038; fax number: 202-566-1053; email address:
pritts.jesse@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General 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 activities required to
obtain NPDES permit coverage and
performing the following activities:
-----------------------------------------
Construction of 236
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
[[Page 12662]]
your facility is regulated by this action, you should carefully examine
the applicability criteria at 40 CFR 450.10 and the definition of
``storm water discharge associated with industrial activity'' and
``storm water discharge associated with 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 site, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Overview
This preamble describes the terms, acronyms, and abbreviations used
in this document; the legal authority for this final rule; background
information; and a summary of the final changes.
Table of Contents
I. Legal Authority
II. Purpose & Summary of the Final Rule
III. Statutory and Executive Order Reviews
I. Legal Authority
EPA is promulgating these regulations under the authorities of
sections 101, 301, 304, 306, 308, 401, 402, 501 and 510 of the Clean
Water Act (CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1341, 1342,
1361 and 1370, and pursuant to the Pollution Prevention Act of 1990, 42
U.S.C. 13101 et seq.
II. Purpose & Summary of the Final Rule
A. Background
EPA promulgated Effluent Limitations Guidelines and Standards for
the Construction and Development Point Source Category (hereafter
referred to as the ``C&D rule'') (74 FR 62996, December 1, 2009). The
C&D rule established requirements based on Best Practicable Control
Technology Currently Available, Best Available Technology Economically
Achievable, Best Conventional Pollutant Control Technology, and New
Source Performance Standards based on Best Available Demonstrated
Control Technology. Construction activities like clearing, excavating,
and grading significantly disturb the land. The disturbed soil, if not
managed properly, can easily be washed off of the construction site
during storms and enter water bodies. Stormwater discharges from
construction activities can cause an array of physical, chemical and
biological impacts to receiving streams.
The C&D rule included non-numeric requirements to:
Implement erosion and sediment controls;
stabilize soils;
manage dewatering activities;
implement pollution prevention measures;
prohibit certain discharges; and
utilize surface outlets for discharges from basins and
impoundments.
The C&D rule also established a numeric limitation on the allowable
level of turbidity in discharges from certain construction sites. The
technology basis for the final numeric limitation was passive treatment
controls including polymer-aided settling to reduce the turbidity in
discharges.
Following promulgation of the C&D rule, the Wisconsin Builders
Association, the National Association of Home Builders (NAHB) and the
Utility Water Act Group (UWAG) filed petitions for review in the U.S.
Circuit Courts of Appeals for the Fifth, Seventh, and D.C. Circuits.
The petitions were consolidated in the Seventh Circuit. Wisconsin
Builders Association, et al. v. EPA, Case Nos. 09-4113, 10-1247, and
10-1876 (7th Cir.). On July 8, 2010, the petitioners filed their
briefs.
In April 2010, the Small Business Administration (SBA) filed with
EPA a petition for administrative reconsideration of several technical
aspects of the C&D rule. SBA identified potential deficiencies with the
dataset that EPA used to support its decision to adopt the numeric
turbidity limitation. In June 2010, NAHB also filed a petition for
administrative reconsideration with EPA incorporating by reference
SBA's argument regarding the potential deficiencies in the data.
On August 12, 2010, EPA filed an unopposed motion with the Court
seeking to hold the litigation in abeyance until February 15, 2012 (see
the docket for this action, EPA-HQ-OW-2010-0884-0085), and asking the
Court to remand the record to EPA and vacate the numeric limitation
portion of the rule. In addition, EPA agreed to reconsider the numeric
limitation and to solicit site-specific information regarding the
applicability of the numeric effluent limitation to cold weather sites
and to small sites that are part of a larger project.
On August 24, 2010, the Court issued an order remanding the matter
to the Agency but without vacating the numeric limitation. Subsequently
on September 9, 2010, the petitioners filed an unopposed motion for
clarification or reconsideration of the Court's August 24, 2010 order,
asking the Court again to vacate the numeric limitation. On September
20, 2010, the Court remanded the administrative record to EPA, and
ordered the case held in abeyance until February 15, 2012, but did not
vacate the numeric limitation. During this period, EPA provided
additional information in the docket to supplement the administrative
record for the C&D rule (see EPA-HQ-OW-2008-0465-2124 through EPA-HQ-
OW-2008-0465-2134) and an updated response to comment document (see
EPA-HQ-OW-2008-0465-2135).
In November 2010, EPA issued a direct final regulation and a
companion proposed regulation to stay the numeric limitation at 40 CFR
450.22 indefinitely (75 FR 68215, November 5, 2010 and 75 FR 68305,
November 5, 2010). The proposed rule solicited comment due no later
than December 6, 2010. Since no adverse comments were received, the
direct final rule took effect on January 4, 2011.
As of this date, neither states nor EPA were required to
incorporate the numeric turbidity limitation and monitoring
requirements found at Sec. 450.22(a) and Sec. 450.22(b) into NPDES
permits because the numeric limitation was stayed. However, the
remainder of the C&D rule was still in effect and had to be
incorporated into newly issued NPDES permits.
After issuing the stay of the numeric turbidity limitation, EPA
continued to consult with stakeholders regarding next steps with
respect to numeric discharge standards. EPA published a Federal
Register notice (77 FR 112, January 3, 2012) seeking data on the
effectiveness of technologies in controlling turbidity in discharges
from construction sites and information on other related issues.
EPA also continued to meet with the petitioners in an effort to
settle the litigation over the C&D rule. On December 10, 2012, EPA
entered into a settlement agreement with petitioners to resolve the
litigation in Wisconsin Builders Association, et al. v. EPA, Case Nos.
09-4113, 10-1247, and 10-1876 (7th Cir.). The settlement agreement
provides for EPA to propose for public comment certain changes specific
to the non-numeric portions of the C&D rule, as well as withdrawal of
the numeric limitation, and take final action on the proposal. Under
the terms of the settlement agreement, by April 15, 2013 EPA was to
sign for publication in the Federal Register a notice of proposed
rulemaking, with at least a 30-day comment period, to amend the C&D
rule in a manner substantially similar to Exhibit A, which is attached
to the settlement agreement. The settlement then provides that by
February 28, 2014, EPA will take final action on the proposed rule.
Under the settlement, if EPA takes the above actions by the
[[Page 12663]]
specified dates, and EPA's final action on the proposed rule amends the
C&D rule in any manner, then Petitioners and EPA will promptly file a
joint request with the Court asking it to dismiss the C&D litigation.
In addition, if EPA's final action amends the C&D rule in a manner
substantially similar to Exhibit A, Petitioners will not seek judicial
review of those amendments. Finally, the settlement provides that
within 60 days after EPA signs the proposal mentioned above, NAHB and
EPA will file a joint request with the Court to dismiss NAHB's
challenge to the 2012 Construction General Permit (CGP), which EPA
issued on February 29, 2012 (see 77 FR 12286). EPA proposed a rule on
April 1, 2013. Today's final rule satisfies EPA's commitments under the
settlement agreement.
B. Revisions to 40 CFR Part 450
The revisions to 40 CFR part 450 being promulgated consist of the
following three elements:
Addition of a definition of ``infeasible'';
revisions to the effluent limitations reflecting the best
practicable control technology currently available (BPT), effluent
limitations reflecting the best available technology economically
achievable (BAT), effluent limitations reflecting the best conventional
pollutant control technology (BCT), and the new source performance
standards reflecting the best available demonstrated control technology
(NSPS) found at 40 CFR 450.21, 450.22, 450.23 and 450.24, respectively;
and
withdrawal of the numeric turbidity effluent limitation
and monitoring requirements found at 40 CFR 450.22(a) and 450.22(b) and
reserving these subparts.
EPA has made these revisions to clarify when and where these
provisions apply and what exceptions apply. Today's changes provide
clarity to permitting authorities on how to implement or incorporate
these provisions into permits. The following discusses each of the
changes promulgated today, and summarizes the comments EPA received on
each of the changes.
1. Addition of Definition at 40 CFR 450.11
EPA proposed to add a definition of infeasible at 40 CFR 450.11(b).
Several of the provisions of the C&D rule require permittees to
implement controls, unless infeasible. EPA did not provide a definition
of infeasible in the 2009 C&D rule, although EPA did provide a
definition in the preamble (74 FR 63005, 63017, December 1, 2009). The
proposed definition of infeasible was derived from EPA's preamble
language from the 2009 final rule and the 2012 CGP.
EPA received a number of comments on the proposed definition of
infeasible. Some commenters supported EPA's inclusion of a definition,
while some did not. Some commenters offered specific revisions to the
definition, while others requested that EPA provide additional examples
of specific instances where a given practice may be infeasible. Some
commenters requested that EPA incorporate an infeasibility condition
into all of the requirements of the final rule, not just those where it
is currently included.
EPA had previously concluded that an infeasibility provision for
some requirements (specifically, buffers, preserving topsoil, and use
of surface outlets) was appropriate, given that site-specific
constraints may exist. EPA now concludes that a definition of
infeasible is appropriate in the rule in order to provide clarity to
permitting authorities. EPA has not changed the proposed definition for
today's final rule as a result of comments received because the
definition allows sufficient flexibility for permitting authorities to
incorporate appropriate requirements into their permits to address the
limited number of circumstances where a given requirement may be
infeasible. See the comment response document for today's action for
additional discussion of the comments received.
2. Revision of 40 CFR 450.21(a)(1)
EPA received several comments on this proposed amended requirement.
Some stated that this requirement is not needed since there are other
ways of controlling erosion besides controlling volume and velocity, or
that the requirement is too prescriptive. Others stated that the
``within the site'' language that is contained in the 2009 final rule
is necessary and should be retained in this rule so that permittees are
not held responsible for installing controls beyond their area of
disturbance in order to control erosion caused by their discharges.
Others stated that EPA does not have authority to regulate internal
processes at a construction site, and that removal of the ``within the
site'' language is justified on this basis.
After consideration of comments, EPA did not make any changes to
the proposed requirement for this final rule. EPA has determined that
the revision, as proposed, is an important component of construction
stormwater management as increased volume and duration of flows
resulting from removal of vegetation and soil compaction that accompany
construction activities can contribute to significant increases in soil
erosion and transport and discharge of pollutants to surface waters.
EPA has authority to promulgate non-numeric effluent limitations that
regulate internal processes at construction sites in order to control
and minimize the discharge of pollutants to surface waters. See EPA-HQ-
OW-2008-0465-2124 through EPA-HQ-OW-2008-0465-2134 for discussion
linking up-slope/on-site activities to controlling or minimizing the
discharge of pollutants from the site to surface waters. See also
Citizens Coal Council, et al. v. EPA, 446 F.3d 879, 895 (6th Cir.
2006)(``under the [Clean Water] Act, effluent limitations are not
limited to numeric discharges but encompass `any restriction' on
discharges''); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 502
(2nd Cir. 2005)(``rather than setting forth numerical effluent
limitations for land application of manure, the CAFO Rule establishes
non-numerical effluent limitations in the form of best management
practices''); Texas Municipal Power Agency v. EPA, 836 F.2d 1482, 1488
(5th Cir. 1988) (``it is sometimes necessary to regulate discharges
within the treatment process to control discharges at the end . . .
[t]his position has support in the language of the CWA, its legislative
history, and common sense.''); Public Service Company of Colorado, Fort
St. Vrain Station v. EPA, 949 F.2d 1063, 1065 (10th Cir. 1991) (``We
find no clear Congressional or Presidential intent expressly forbidding
EPA from imposing internal waste stream effluent limitations when such
limitations would be impracticable to monitor at the end of the
pipe.'').
3. Revision of 40 CFR 450.21(a)(2)
EPA received a number of comments on this proposed revision. One
commenter suggested that EPA change the language to require management
of local scour. Others suggested that EPA's proposed change to limit
erosion in the ``immediate vicinity of discharge points'' narrows the
requirement from what was contained in the 2009 rule. Others stated
that EPA does not have authority under the effluent guidelines program
to control erosion in receiving waters since effluent guidelines
regulate the discharge of pollutants from point sources, and more
broadly that EPA does not have authority to regulate volume. Some
comments stated that projects with constrained space, such as linear
projects, cannot feasibly control the volume of discharges. Other
comments suggested that the requirement is too prescriptive, and that
[[Page 12664]]
there are other measures to control erosion in receiving waters. Some
commenters suggested that the ``in the immediate vicinity'' language is
ambiguous and should be removed, and that permittees should be
responsible for downstream erosion caused by their discharges. Other
comments stated that the language should be expanded to state that
attainment of water quality standards should be the goal and that the
discharges should not contribute to an existing impairment.
EPA made one change to the proposed requirement for today's final
rule, which is the insertion of the words ``and scour'' after the word
``erosion''. EPA made this change as a result of comments received by
the American Association of State Highway and Transportation Officials
(AASHTO) (see EPA-HQ-OW-2010-0884-0194), which indicated that ``local
scour'' is an appropriate term for the erosion in receiving waters that
EPA is intending to address by this requirement. EPA did not include
the ``local'' qualifier since the requirement is limited to erosion
``in the immediate vicinity'' of discharge points, and therefore the
addition of ``local'' would be redundant. EPA has not elected to make
any of the other changes suggested by commenters. While EPA understands
that some would find a requirement to also include downstream erosion
environmentally beneficial, it is more appropriate to consider
downstream erosion on a site-specific water quality basis than in this
nationally applicable, technology-based rule.
4. Revision of 40 CFR 450.21(a)(6)
EPA received several comments on this proposed amended requirement.
Some commenters expressed concern over requiring infiltration for
controlling pollutants, indicating that there are other methods for
reducing pollutants other than infiltration. Commenters also were
concerned about the requirement to provide buffers, indicating that
some disturbance would be needed, such as stream crossing. Commenters
were also concerned about the overlap between this requirement and
Section 404 permits, and the switch from ``surface waters'', which was
the language in the 2009 rule, to ``Waters of the United States,'' as
they believed that the latter has a broader scope. Specific mention was
made of the need to install buffers around jurisdictional wetlands.
Commenters also requested clarification of the terms ``provide'' and
``natural buffers''.
EPA did not make any changes to the proposed requirement for
today's final rule. The language, as proposed, includes an exception
for infeasibility and provides sufficient flexibility for permitting
authorities to incorporate appropriate language into permits to address
the range of site-specific conditions that may exist and to address
instances where a buffer or infiltration may be infeasible for some
part of a project. See the 2012 CGP for an example of how EPA has
incorporated buffer requirements, as well as alternative controls, into
a general permit.
EPA has not changed the proposed use of the term ``waters of the
United States'' instead of the phrase ``surface waters.'' EPA intended
that the two phrases mean the same set of waters. See the comment
response document for specific responses to other comments concerning
this provision.
5. Revision of 40 CFR 450.21(a)(7)
EPA proposed to amend this requirement, as well as separate the two
provisions (minimizing soil compaction and preserving topsoil) into two
separate requirements. EPA received several comments on this proposed
amended requirement. Some commenters requested more specificity on
types of practices that would meet this provision, such as use of soil
amendments or deep ripping. Other comments suggested that the use of
soil compaction for temporary soil stabilization should be permitted.
Still other comments indicated that there are methods to provide
stabilization other than preserving topsoil.
EPA did not make any changes to the proposed requirement for
today's final rule. The provision, as proposed, provides sufficient
flexibility for permitting authorities to develop appropriate language
for their permits and provides permittees sufficient flexibility to
obtain relief in cases where these practices would be infeasible based
on site-specific conditions. The requirement to minimize soil
compaction does not prohibit use of compaction for temporary
stabilization since the requirement is to minimize, not prohibit,
compaction. If the permitting authority determines that compaction is
an appropriate temporary stabilization measure (considering other
stabilization language contained at 450.21(b)), then it may elect to
develop appropriate language to this effect in its permit.
6. Revision of 40 CFR 450.21(b)
EPA received several comments on this proposed amended requirement.
One commenter requested an exemption from the ``immediate'' initiation
of stabilization requirement for areas of disturbance less than one
acre on a site so as to allow prioritization of stabilization
activities. The commenter also requested inclusion of the definition of
``initiate immediately'' from the 2012 CGP, and other commenters
requested additional clarification of the term ``immediately.''
Commenters also requested that additional exemptions be provided, for
example, during periods with low temperatures or excessive or
inadequate moisture that would limit the ability to establish
vegetative stabilization. One commenter was also concerned that the
language regarding ``intended function'' was not specific, and that
this could allow permittees to take advantage of this exemption. This
commenter suggested that requiring that the permittee obtain a waiver
from stabilization would be a reasonable requirement.
The final rule allows an exemption from stabilization in limited
circumstances. In general, stabilization represents sound industry
practice to minimize discharges from an active construction site.
Industry representatives have pointed out to the Agency that there are
limited circumstances where this requirement may not make sense.
Therefore the rule gives permitting authorities flexibility to provide
a waiver from stabilization in limited circumstances (an example might
be a motocross track where the intended function is an unstabilized
area). Rather than specify in this national rule all such
circumstances, which would likely miss some reasonable exception, the
rule allows permitting authorities to define these circumstances at the
time of permitting. As stated above, however, EPA expects that sound
industry practice of stabilizing the site immediately will be the norm.
With respect to providing additional exemptions from vegetative
stabilization, EPA notes that 450.21(b) does not require vegetative
stabilization. Both vegetative and non-vegetative stabilization may be
appropriate measures, consistent with permit requirements. In arid,
semiarid and drought-stricken areas, the amended requirement states
that alternative ``e.g., non-vegetative'' stabilization measures must
be employed in these areas because vegetative stabilization is
infeasible (because adequate moisture would not be present to establish
and maintain such vegetation). However, the language does not limit the
use of non-vegetative stabilization in other instances, such as during
cold weather conditions. All areas (except those where the intended
function
[[Page 12665]]
necessitates that it remain disturbed) would require stabilization,
vegetative or non-vegetative, consistent with requirements developed by
the permitting authority.
After consideration of all comments on this provision, EPA did not
make any changes to the proposed requirement for today's final rule.
EPA has determined that the requirement contains sufficient flexibility
for permitting authorities to develop appropriate criteria for
vegetative and non-vegetative stabilization, and to develop permit
language regarding the timing of such stabilization activities.
7. Revision of 40 CFR 450.21(d)(2)
EPA did not receive any substantive comments on this proposed
amended requirement, and therefore EPA did not make any changes to the
proposed requirement for today's final rule.
8. Removal of Numeric Standard and Monitoring Provisions at 40 CFR
450.22(a) and 450.22(b)
The final change removes the numeric discharge standard and
monitoring requirements previously found at 40 CFR 450.22(a) and
450.22(b).
EPA received several comments on this proposed change. While many
commenters were supportive of removing the numeric turbidity effluent
limitation and monitoring requirements, some commenters were opposed to
this and requested that EPA reinstate a numeric limitation. Some
commenters suggested that EPA completely remove these sections of the
CFR instead of reserving these sections.
EPA is withdrawing the numeric limitation but has reserved these
paragraphs for potential revisions should EPA decide to propose and
promulgate additional effluent limitations guidelines and monitoring
requirements in a future rulemaking. The Agency is considering data and
comments submitted in response to the January 3, 2012 Federal Register
notice (77 FR 112) seeking additional information and data on numeric
standards. At this time, EPA is concerned that a numeric limitation may
create a disincentive to green infrastructure techniques for managing
stormwater. For example, meeting a numeric standard may require
installation of a sediment basin or other impoundment on certain sites,
which may be a disincentive to installing distributed stormwater
controls. Also, EPA recognizes that additional data collection would
likely be necessary in order to inform any establishment of numeric
discharge standards and monitoring requirements in the future. At such
time that EPA decides on a path forward with respect to numeric
discharge standards and monitoring requirements, EPA will take
appropriate actions to notify interested stakeholders. EPA encourages
interested parties to continue submitting data and information to EPA
with respect to numeric discharge standards at construction sites. In
the interim, it is preferable to reserve these sections of the CFR for
future action. Removing these paragraphs altogether would require re-
organization of other sections of the rule. EPA sees no meaningful
disadvantage of reserving these sections as opposed to removing these
sections.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). The action does not impose an
information collection burden because the amendments do not impose any
data collection or reporting requirements.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
The final rule clarifies applicability of the existing non-numeric
effluent limitations at 40 CFR Part 450 and provides exemptions to some
requirements in limited cases. We have therefore concluded that today's
final rule will relieve regulatory burden for affected small entities.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This rule clarifies applicability of the existing non-numeric effluent
limitations at 40 CFR Part 450 and provides exemptions to some
requirements in limited cases. The rule does not impose new or more
stringent requirements, and therefore this action does not subject
regulated entities to any costs incremental to the existing rule. Thus,
this rule is not subject to the requirements of sections 202 or 205 of
the Unfunded Mandates Reform Act (UMRA).
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule clarifies
applicability of the existing non-numeric effluent limitations at 40
CFR Part 450 and provides exemptions to some requirements in limited
cases. These requirements apply to all governmental entities that
undertake construction activities regulated at 40 CFR 122.26, and
therefore do not significantly or uniquely affect small governments.
[[Page 12666]]
E. Executive Order 13132: Federalism
This action does not have federalism implications. It 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. This rule clarifies applicability
of the existing non-numeric effluent limitations at 40 CFR Part 450 and
provides exemptions to some requirements in limited cases. Thus,
Executive Order 13132 does not apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
clarifies applicability of the existing non-numeric effluent
limitations at 40 CFR Part 450 and provides exemptions to some
requirements in limited cases. The rule does not impose new or more
stringent requirements, and therefore this action would not subject
regulated entities to any costs incremental to the existing rule. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is based
solely on technology performance.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involved technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has concluded that it is not practicable to determine whether
there would be disproportionately high and adverse human health or
environmental effects on minority and/or low income populations from
this final rule. This final rule clarifies applicability of the
existing non-numeric effluent limitations at 40 CFR Part 450 and
provides exemptions to some requirements in limited cases. While EPA
considers it unlikely, it is possible that the changes to some of these
requirements could result in greater pollution discharge to waters of
the United States. However, EPA does not expect the quantity of
pollution discharges to specific waterbodies or at the national level
to significantly increase as a result of this final rule. Furthermore,
the primary pollutants discharged by this industry, which are sediment
and turbidity, are present in background levels to varying quantities
in waters of the United States. Therefore, the extent, if any, of
changes in human health or environmental effects as a result of this
action would depend upon waterbody-specific conditions and the
locations and interaction of populations with those waterbodies. Due to
the varying nature and location of construction site discharges, and
due to the fact that there are often other sources of sediment and
turbidity pollution in waterbodies, it is not practicable to quantify
the extent to which this action would alter levels of pollution
discharges or whether any change in pollution discharges as a result of
this action would contribute disproportionately high and adverse human
health or environmental effects on minority and/or low income
populations.
K. Congressional Review Act
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 Congress and to the Comptroller General of the
United States. 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective May 5, 2014.
L. Judicial Review
In accordance with 40 CFR 23.2, today's rule is considered
promulgated for the purposes of judicial review as of 1 p.m. Eastern
Standard Time, March 20, 2014. Under Section 509(b)(1) of the Clean
Water Act (CWA), judicial review of today's effluent limitations
guidelines and new source performance standards may be obtained by
filing a petition in the United States Circuit Court of Appeals for
review within 120 days from the date of promulgation of these
guidelines and standards. Under Section 509(b)(2) of the CWA, the
requirements of this regulation may not be challenged later in civil or
criminal proceedings brought to enforce these requirements.
List of Subjects in 40 CFR Part 450
Environmental protection, Construction industry, Land development,
Water pollution control.
Dated: February 20, 2014.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
[[Page 12667]]
PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY
0
1. The authority citation for part 450 is revised to read as follows:
Authority: 33 U.S.C. 1311, 1312, 1314, 1316, 1341, 1342, 1361
and 1370.
Subpart A--General Provisions
0
2. Section 450.11 is amended by adding paragraph (b) to read as
follows:
Sec. 450.11 General definitions.
* * * * *
(b) Infeasible. Infeasible means not technologically possible, or
not economically practicable and achievable in light of best industry
practices.
Subpart B--Construction and Development Effluent Guidelines
0
3. Section 450.21 is amended by:
0
a. Revising paragraphs (a)(1), (a)(2), (a)(6), and (a)(7).
0
b. Adding paragraph (a)(8).
0
c. Revising paragraph (b).
0
d. Revising paragraph (d)(2).
The added and revised text read as follows:
Sec. 450.21 Effluent limitations reflecting the best practicable
technology currently available (BPT).
* * * * *
(a) * * *
(1) Control stormwater volume and velocity to minimize soil erosion
in order to minimize pollutant discharges;
(2) Control stormwater discharges, including both peak flowrates
and total stormwater volume, to minimize channel and streambank erosion
and scour in the immediate vicinity of discharge points;
* * * * *
(6) Provide and maintain natural buffers around waters of the
United States, direct stormwater to vegetated areas and maximize
stormwater infiltration to reduce pollutant discharges, unless
infeasible;
(7) Minimize soil compaction. Minimizing soil compaction is not
required where the intended function of a specific area of the site
dictates that it be compacted; and
(8) Unless infeasible, preserve topsoil. Preserving topsoil is not
required where the intended function of a specific area of the site
dictates that the topsoil be disturbed or removed.
(b) Soil Stabilization. Stabilization of disturbed areas must, at a
minimum, be initiated immediately whenever any clearing, grading,
excavating or other earth disturbing activities have permanently ceased
on any portion of the site, or temporarily ceased on any portion of the
site and will not resume for a period exceeding 14 calendar days. In
arid, semiarid, and drought-stricken areas where initiating vegetative
stabilization measures immediately is infeasible, alternative
stabilization measures must be employed as specified by the permitting
authority. Stabilization must be completed within a period of time
determined by the permitting authority. In limited circumstances,
stabilization may not be required if the intended function of a
specific area of the site necessitates that it remain disturbed.
* * * * *
(d) * * *
(2) Minimize the exposure of building materials, building products,
construction wastes, trash, landscape materials, fertilizers,
pesticides, herbicides, detergents, sanitary waste and other materials
present on the site to precipitation and to stormwater. Minimization of
exposure is not required in cases where the exposure to precipitation
and to stormwater will not result in a discharge of pollutants, or
where exposure of a specific material or product poses little risk of
stormwater contamination (such as final products and materials intended
for outdoor use); and
* * * * *
Sec. 450.22 [Amended]
0
4. Section 450.22 is amended by removing and reserving paragraphs (a)
and (b).
[FR Doc. 2014-04612 Filed 3-5-14; 8:45 am]
BILLING CODE 6560-50-P
