Proposed Modification to National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities, 63858-63865 [2018-26916]
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Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices
Ms.
Autumn Wolfe, Rates Manager, Sierra
Nevada Region, Western Area Power
Administration, 114 Parkshore Drive,
Folsom, CA 95630–4710, (916) 353–
4686, or email wolfe@wapa.gov.
SUPPLEMENTARY INFORMATION: On July
14, 2016, the Federal Energy Regulatory
Commission (FERC) approved Rate
Order No. WAPA–173,1 which extended
the rates listed below for three years
from October 1, 2016, through
September 30, 2019.
• CV–F13 (Base Resource and First
Preference Power),
• CPP–2 (Custom Product Power),
• CV–T3 (Firm and Non-Firm Pointto-Point Transmission Service),
• CV–NWT5 (Network Integration
Transmission Service),
• COTP–T3 (Firm and Non-Firm
Point-to-Point Transmission Service),
• PACI–T3 (Firm and Non-Firm
Point-to-Point Transmission Service),
• CV–TPT7 (Third-Party
Transmission Service),
• CV–UUP1 (Unreserved Use
Penalties),
• CV–RFS4 (Regulation and
Frequency Response),
• CV–SPR4 (Spinning Reserves),
• CV–SUR4 (Supplemental Reserves),
• CV–EID4 (Energy Imbalance
Service), and
• CV–GID1 (Generator Imbalance).
WAPA proposes to extend the
existing formula rates, without any
adjustments, for five years from October
1, 2019, through September 30, 2024.
WAPA is taking action under 10 CFR
903.23(a).
These formula rates allow for
recalculation of unit charges and
revenue requirements at least annually.
WAPA notifies customers of annual
changes in writing, at customer
meetings, and by posting on WAPA’s
website. The existing formula rates
provide sufficient revenue to pay all
annual costs, including interest
expense, and repay required
investments within the allowable period
consistent with the cost recovery criteria
set forth in DOE Order RA 6120.2.
Extending the rates through
September 30, 2024, will: (1) Ensure
continued cost recovery; (2) allow time
to develop rates under the new power
marketing plan effective January 1,
2025; and (3) provide WAPA and its
customers time to evaluate the Bureau
of Reclamation initiatives, including the
final CVP Cost Allocation Study results
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FOR FURTHER INFORMATION CONTACT:
1 See U.S. Department of Energy, Western Area
Power Administration, Docket No. EF16–3–000, 156
FERC ¶ 62,039 (2016). FERC originally approved
the rate on December 2, 2011. See U.S. Department
of Energy, Western Area Power Administration,
Docket No. EF11–9–000, 137 FERC ¶ 62,201 (2011).
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and credits and offsets from the Central
Valley Project Improvement Act.
Effective November 19, 2016, the
Secretary of Energy delegated, through
Delegation Order No. 00–037.00B: (1)
The authority to develop power and
transmission rates to WAPA’s
Administrator; (2) the authority to
confirm, approve, and place such rates
into effect on an interim basis to the
Deputy Secretary of Energy; and (3) the
authority to confirm, approve, and place
into effect on a final basis, to remand or
to disapprove such rates to FERC.
Effective November 1, 2018, the
Secretary of Energy delegated, through
Delegation Order No. 00–002.00Q, the
authority (on a non-exclusive basis) to
confirm, approve, and place such rates
into effect on an interim basis to the
Under Secretary of Energy.
WAPA will not hold public
information or public comment forums
but is initiating a 30-day consultation
and comment period in accordance with
10 CFR 903.23(a)(2). Written comments
on the proposed rate extension must be
received prior to the end of the
consultation and comment period to be
considered by WAPA in its decision
process. WAPA will post comments
received to its website, https://
www.wapa.gov/regions/SN/rates, after
the close of the consultation and
comment period. After considering
comments, WAPA will take further
action on the proposed formula rate
extension consistent with 10 CFR part
903.23(a).
Dated: November 28, 2018.
Mark A. Gabriel,
Administrator.
less than 15 calendar days’ notice. For
further information regarding the
teleconference and background
materials, please contact Ann-Marie
Gantner at the number and email
provided below.
Background: The Good Neighbor
Environmental Board is a federal
advisory committee chartered under the
Federal Advisory Committee Act, Public
Law 92–463. By statute, the Board is
required to submit an annual report to
the President on environmental and
infrastructure issues along the U.S.
border with Mexico.
Purpose of Meeting: The purpose of
this teleconference is to discuss and
approve the Board’s annual letter to the
President, which focuses on energy
infrastructure along the U.S.-Mexico
border.
General Information: The agenda and
teleconference materials, as well as
general information about the Board,
can be found at https://www2.epa.gov/
faca/gneb. If you wish to make oral
comments or submit written comments
to the Board, please contact Ann-Marie
Gantner at least five days prior to the
teleconference.
Meeting Access: For information on
access or services for individuals with
disabilities, please contact Ann-Marie
Gantner at (202) 564–4330 or email at
gantner.ann-marie@epa.gov. To request
accommodation of a disability, please
contact Ann-Marie Gantner at least 10
days prior to the meeting to give EPA as
much time as possible to process your
request.
[FR Doc. 2018–26886 Filed 12–11–18; 8:45 am]
Dated: December 4, 2018.
Ann-Marie Gantner,
Designated Federal Officer.
BILLING CODE 6450–01–P
[FR Doc. 2018–26918 Filed 12–11–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9987–79–OARM]
Good Neighbor Environmental Board;
Notification of Public Advisory
Committee Teleconference
Environmental Protection
Agency (EPA).
ACTION: Notice of Public Advisory
Committee Teleconference.
AGENCY:
Pursuant to the Federal
Advisory Committee Act, notice is
hereby given that the Good Neighbor
Environmental Board (Board) will hold
a public teleconference on December 19,
2018 from 12:00 p.m.–4:00 p.m. Eastern
Daylight Time. Due to unforeseen
administrative circumstances, EPA is
announcing this teleconference with
SUMMARY:
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ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OW–2015–0828; FRL–9987–77–
OW]
Proposed Modification to National
Pollutant Discharge Elimination
System (NPDES) General Permit for
Stormwater Discharges From
Construction Activities
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed modification
to the general permit for construction
stormwater discharges and request for
public comment.
AGENCY:
All ten Environmental
Protection Agency (EPA) Regions today
are proposing for public comment a
SUMMARY:
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modification to the 2017 National
Pollutant Discharge Elimination System
(NPDES) general permit for stormwater
discharges from construction activities,
also referred to as the ‘‘2017
Construction General Permit (CGP)’’ or
‘‘2017 CGP’’ which became effective on
February 16, 2017. The EPA is
proposing a modification to the 2017
CGP that is limited to clarifying the
intent of several requirements and
ensuring consistency with the
Construction and Development Effluent
Limitations Guidelines and New Source
Performance Standards. This action is
hereafter referred to as the ‘‘proposed
modification’’ or ‘‘draft modified
permit.’’ The proposed modification, if
finalized, would replace several existing
conditions in the 2017 CGP and relevant
fact sheet sections subject to
modification, but would not affect any
other terms and conditions of the
existing permit, including: The eligible
coverage area; the number or type of
entities eligible to be covered by the
permit; nor the five-year permit term of
the current 2017 CGP, which will expire
on February 16, 2022. The current 2017
CGP remains in effect while the EPA
pursues this action. This Federal
Register notice describes the proposed
modification and where the proposed
changes can be found in the 2017 CGP.
To assist in the public’s review of this
proposed modification, the EPA has
posted a redline strikeout version of the
permit and accompanying fact sheet
showing all of the proposed changes in
context of the documents they would
modify at https://www.epa.gov/npdes/
stormwater-discharges-constructionactivities; these documents can also be
found in the Docket (EPA–HQ–OW–
2015–0828).
Comments on the proposed
modification must be received on or
before January 28, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OW–2015–0828 to the Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or withdrawn. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
A written comment must accompany
any multimedia submissions (audio,
video, etc.). The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For
further information on the proposed
modification, contact the appropriate
EPA Regional office listed in Section I.F
of this notice, or Emily Halter, EPA
Headquarters, Office of Water, Office of
Wastewater Management at tel.: 202–
564–3324 or email: halter.emily@
epa.gov.
SUPPLEMENTARY INFORMATION: This
section is organized as follows:
DATES:
Table of Contents
I. General Information
A. Does this action apply to me?
B. How can I get copies of these documents
and other related information?
C. What should I consider as I prepare my
comments for the EPA?
D. Will public hearings be held on this
action?
E. What process will the EPA follow to
finalize the proposed modification?
F. Who are the EPA regional contacts for
the proposed modification?
II. Background on the Permit and Proposed
Modification
III. Summary of the Proposed Modification
IV. Analysis of Economic Impacts
V. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
VI. Compliance With the National
Environmental Policy Act (NEPA) for the
National Pollutant Discharge Elimination
System (NPDES) General Permit for
Discharges From Construction Activities
VII. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
VIII. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
I. General Information
A. Does this action apply to me?
1. Entities Covered by This Permit
The proposed modification described
herein would not change the types of
entities eligible to be covered under the
2017 CGP. The CGP would continue to
be available to cover the following
entities, as categorized in the North
American Industry Classification
System (NAICS):
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TABLE 1—ENTITIES COVERED BY THIS DRAFT PERMIT
North American
industry classification system
(NAICS) code
Category
Examples of affected entities
Industry ..........................
Construction site operators disturbing 1 or more acres of land, or less than 1 acre but part of a
larger common plan of development or sale if the larger common plan will ultimately disturb 1
acre or more, and performing the following activities:
Construction of Buildings ...................................................................................................................
Heavy and Civil Engineering Construction ........................................................................................
The EPA does not intend the
preceding table to be exhaustive, but
provides it as a guide for readers
regarding the types of activities of
which the Agency is now aware that
could potentially be affected by this
action. Other types of entities not listed
in the table could also be affected. To
determine whether your site could be
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affected by this action, you should
carefully examine the definition of
‘‘construction activity’’ and ‘‘small
construction activity’’ in existing EPA
regulations at 40 CFR 122.26(b)(14)(x)
and 122.26(b)(15), respectively. If you
have questions regarding the
applicability of this action to a
particular entity, consult the person
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236
237
listed for technical information in the
preceding FOR FURTHER INFORMATION
CONTACT section.
2. Coverage Area of the Draft Modified
Permit
The proposed modification described
herein would not change the scope of
coverage under the 2017 CGP. Coverage
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would remain available to operators of
eligible projects for stormwater
discharges from construction activities
located in those areas where the EPA is
the NPDES permitting authority. A list
of eligible areas can be found in
Appendix B of the 2017 CGP and
include the states of New Hampshire,
Massachusetts, New Mexico, and Idaho
(until July 1, 2021, which is the date
Idaho becomes authorized to implement
the NPDES Stormwater program), as
well as most Indian country lands, and
areas in selected states operated by a
federal operator. Permit coverage is also
available to operators in Puerto Rico, the
District of Columbia, and the Pacific
Island territories, among others.
B. How can I get copies of these
documents and other related
information?
1. Docket. The EPA has established an
official public docket for this action
under Docket ID No. EPA–HQ–OW–
2015–0828. The official public docket is
the collection of materials that is
available for public viewing at the Water
Docket in the EPA Docket Center, (EPA/
DC) WJC West Building, Room 3334,
1301 Constitution Ave. NW,
Washington, DC 20460. Although all
documents in the docket are listed in an
index, some information is not publicly
available, i.e., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Publicly available docket materials are
available in hard copy at the EPA
Docket Center Public Reading Room,
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 Water
Docket is (202) 566–2426.
2. Electronic Access. You may access
this Federal Register notice
electronically through the United States
government on-line source for Federal
regulations at https://
www.regulations.gov.
Electronic versions of this draft
modified permit and draft modified fact
sheet are available on the EPA’s NPDES
website at https://www.epa.gov/npdes/
stormwater-discharges-constructionactivities.
An electronic version of the public
docket is available through the EPA’s
electronic public docket and comment
system, EPA Dockets. You may use EPA
Dockets at https://www.regulations.gov to
submit or view public comments, access
the index listing of the contents of the
official public docket, and to access
those documents in the public docket
that are available electronically. For
additional information about the EPA’s
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public docket, visit the Agency’s Docket
Center homepage at https://
www.epa.gov/dockets. Although not all
docket materials may be available
electronically, you may still access any
of the publicly available docket
materials through the Docket Facility
identified in Section I.B.1.
C. What should I consider as I prepare
my comments for the EPA?
1. Submitting CBI. Do not submit CBI
information to the EPA through
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to the EPA, mark the outside
of the disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
The EPA’s policy is that public
comments, whether submitted
electronically or in paper, will be made
available for public viewing in the
Agency’s electronic public docket as the
Agency receives them and without
change, unless the comment contains
copyrighted material, CBI, or other
information whose disclosure is
restricted by statute. As noted
previously, CBI information should not
be submitted through regulations.gov or
by email. When the EPA identifies a
comment containing copyrighted
material, the Agency will provide a
reference to that material in the version
of the comment that is placed in the
Agency’s electronic public docket. The
entire printed comment, including the
copyrighted material, will be available
in the public docket.
Public comments submitted on
computer disks that are mailed or
delivered to the docket will be
transferred to the EPA’s electronic
public docket. Public comments that are
mailed or delivered to the docket will be
scanned and placed in the EPA’s
electronic public docket. Where
practical, physical objects will be
photographed, and the photograph will
be placed in the EPA’s electronic public
docket along with a brief description
written by the docket staff.
2. Tips for Preparing Your Comments.
To assist the EPA in reviewing and
evaluating public comments, please
consider the following tips and
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suggestions when preparing your
comments for the Agency:
• Identify this draft modified permit
by docket number and other identifying
information (subject heading, Federal
Register date, and page number).
• Where possible, organize comments
by referencing a paragraph or part of the
draft modified permit or draft modified
fact sheet, whichever applies.
• Explain as clearly as possible why
you agree or disagree with the proposed
modification.
• Suggest alternatives and substitute
language for any requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• Provide specific examples to
illustrate your concerns.
• Submit your comments by the
comment period deadline identified.
D. Will public hearings be held on this
action?
Due to the limited scope of this
proposed modification, the EPA has not
scheduled any public hearings to
receive public comment concerning the
draft modified permit. All persons will
continue to have the right to provide
written comments during the public
comment period. However, interested
persons may request a public hearing
pursuant to 40 CFR 124.12 concerning
the draft modified permit. Requests for
a public hearing must be sent or
delivered in writing to the same address
as provided above for public comments
prior to the close of the comment period
and must state the nature of the issue
the requester would like raised in the
hearing. Pursuant to 40 CFR 124.12, the
EPA shall hold a public hearing if it
finds, on the basis of requests, a
significant degree of public interest in a
public hearing on the draft modified
permit. If the EPA decides to hold a
public hearing, a public notice of the
date, time, and place of the hearing will
be made at least 30 days prior to the
hearing. Any person may provide
written or oral statements and data
pertaining to the draft modified permit
at the public hearing.
E. What process will the EPA follow to
finalize the proposed modification?
After the close of the public comment
period, the EPA intends to issue a final
decision on the permit modification.
Any modification will not be issued
until all significant comments have been
considered and appropriate changes
made to the draft modified permit. The
EPA’s responses to public comments
received will be included in the docket
as part of the final modification
issuance. Any construction site operator
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that has permit coverage under the 2017
CGP prior to the final issuance of the
modification will automatically remain
covered under the permit and will not
have to resubmit or modify their Notice
of Intent (NOI) due to the finalized
permit modification.
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F. Who are the EPA regional contacts for
the proposed modification?
For EPA Region 1, contact Suzanne
Warner at tel.: (617) 918–1383 or email
at warner.suzanne@epa.gov.
For EPA Region 2, contact Stephen
Venezia at tel.: (212) 637–3856 or email
at venezia.stephen@epa.gov, or for
Puerto Rico, contact Sergio Bosques at
tel.: (787) 977–5838 or email at
bosques.sergio@epa.gov.
For EPA Region 3, contact Carissa
Moncavage at tel.: (215) 814–5798 or
email at moncavage.carissa@epa.gov.
For EPA Region 4, contact Michael
Mitchell at tel.: (404) 562–9303 or email
at mitchell.michael@epa.gov.
For EPA Region 5, contact Brian Bell
at tel.: (312) 886–0981 or email at
bell.brianc@epa.gov.
For EPA Region 6, contact Suzanna
Perea at tel.: (214) 665–7217 or email at:
perea.suzanna@epa.gov.
For EPA Region 7, contact Mark
Matthews at tel.: (913) 551–7635 or
email at: matthews.mark@epa.gov.
For EPA Region 8, contact Amy Clark
at tel.: (303) 312–7014 or email at:
clark.amy@epa.gov.
For EPA Region 9, contact Eugene
Bromley at tel.: (415) 972–3510 or email
at bromley.eugene@epa.gov.
For EPA Region 10, contact Margaret
McCauley at tel.: (206) 553–1772 or
email at mccauley.margaret@epa.gov.
II. Background on the Permit and
Proposed Modification
Section 402(p) of the Clean Water Act
(CWA) directs the EPA to regulate
stormwater discharges under the NPDES
program for certain designated sources,
including discharges from regulated
construction sites. The EPA’s NPDES
regulations further specify that permits
are required for stormwater discharges
from construction activities that disturb
at least one acre, including sites that are
part of a larger common plan of
development or sale that will ultimately
disturb at least one acre. See 40 CFR
122.26(a)(1)(ii), (a)(9)(i)(B), (b)(14)(x),
and (b)(15)(i). Under the statutory and
regulatory authority cited above, the
EPA issued the final 2017 CGP on
January 19, 2017 (82 FR 6534) and the
permit became effective on February 16,
2017.
In accordance with 40 CFR 23.2, the
2017 CGP was considered issued for the
purposes of judicial review on January
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25, 2017. Within the 120-day period of
judicial review under section 509(b) of
the CWA, both the National Association
of Home Builders (NAHB) and the
Chesapeake Bay Foundation (CBF) filed
petitions for review of the 2017 CGP in
the United States Court of Appeals in
the D.C. Circuit.
After receiving the petitions for
review, the EPA engaged in multiple
discussions with both NAHB and CBF
in which the parties discussed their
concerns about certain permit
requirements and how those
requirements might be subject to
confusion and misinterpretation by
construction site operators permitted
under the 2017 CGP. Through
discussions with the petitioners, the
following information was brought to
the EPA’s attention:
• In the current 2017 CGP, providing
parenthetical examples within the
definition of ‘‘operator’’ describing what
type of party could be considered an
operator ‘‘in most cases’’ may be
confusing. See specifically Parts 1.1.1(a)
and (b).
• The permit text for certain erosion
and sediment control and pollution
prevention permit requirements that
implement the Effluent Limitations
Guidelines (ELGs) and New Source
Performance Standards (NSPS) for
Construction & Development (40 CFR
part 450) (referred to collectively as ‘‘the
C&D rule’’) may not adequately connect
the permit requirements to controlling
stormwater discharges as in the C&D
rule.
• The explanation in the 2017 CGP
regarding legal responsibility for permit
compliance in situations where there
are multiple operators may be unclear.
The explanation for an instance where
there are multiple operators at one
construction site who each require
permit coverage and who divide permit
responsibilities among themselves,
including the use and maintenance of a
shared stormwater control (such as a
sediment basin), may be misinterpreted
to mean that each operator must
perform every permit-related function,
even if those responsibilities were by
agreement performed by another
operator. Additionally, references to
joint and several liability in the current
permit may have been an inaccurate
way to explain what the permit
compliance duties are for multiple
operators who share implementation
responsibilities under the permit.
Under 40 CFR 122.62(a)(2), the EPA
may modify a permit if the Agency is
presented with new information during
the permit term that was not available
at the time of issuance and would have
justified the application of different
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permit conditions at the time of
issuance. Based on the information the
petitioners provided to the EPA
following the issuance of the 2017 CGP,
the Agency is proposing a permit
modification to clarify the Agency’s
intent of the related permit
requirements.
The proposed modification would
remove examples of operators in the
definition of operator; align three
requirements that implement the C&D
rule more closely with the ELG text (one
requirement on minimizing dust, one on
streambank erosion control, and one on
building materials pollution
prevention); and clarify the roles and
responsibilities of individual operators
in multiple operator arrangements. The
proposed changes in this modification
would simplify the permit language and
accompanying fact sheet explanation
but would not affect the substantive
requirements, applicability,
implementation, or enforceability of the
permit’s current requirements. Only
those requirements that the EPA
proposes to modify would be reopened
in the draft modified permit for public
comment (40 CFR 122.62). The
proposed modification, if finalized,
would replace the existing conditions in
the 2017 CGP and relevant fact sheet
sections subject to modification, but not
affect any other terms and conditions of
the permit.
In addition, the proposed
modification would not affect the
eligible coverage area, the number or
type of entities eligible to be covered by
the permit, nor the five-year permit term
of the current 2017 CGP, which will
expire on February 16, 2022. The
current 2017 CGP remains in effect
while the EPA pursues this proposed
permit modification. The proposed
modification is summarized in more
detail below.
III. Summary of the Proposed
Modification
The EPA proposes the following
specific changes to the 2017 CGP:
1. Removing examples in the
definition of ‘‘operator’’—The EPA
proposes to remove the parenthetical
examples of the type of party that may
be considered an operator from the
definition of ‘‘operator.’’ If a party
wishes to obtain coverage under the
2017 CGP for its stormwater discharges
from construction activities, it is the
operator who is responsible for
submitting to the EPA a Notice of Intent
(NOI) for coverage under the permit. In
the previous 2012 CGP, the EPA defined
an ‘‘operator’’ as ‘‘any party associated
with a construction project that meets
either of the following two criteria: (a)
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The party has operational control over
construction plans and specifications,
including the ability to make
modifications to those plans and
specifications; or (b) the party has dayto-day operational control of those
activities at a project that are necessary
to ensure compliance with the permit
conditions (e.g., they are authorized to
direct workers at a site to carry out
activities required by the permit).’’
During the proposal of the 2017 CGP,
the EPA received a public comment
stating that, ‘‘to make the meaning [of
‘‘operator’’] as clear as possible, it
would be helpful for the EPA to include,
within the body of the permit, examples
of whom it expects to meet part one and
part two of the definition.’’ To address
this comment, in the final issuance of
the 2017 CGP, the EPA added the
requested examples into the two-part
definition of operator. These additions,
denoted here in italicized text, read as
follows: ‘‘an ‘‘operator’’ is any party
associated with a construction project
that meets either of the following two
criteria: (a) The party has operational
control over construction plans and
specifications, including the ability to
make modifications to those plans and
specifications (e.g., in most cases this is
the owner of the site); or (b) the party
has day-to-day operational control of
those activities at a project that are
necessary to ensure compliance with the
permit conditions (e.g., they are
authorized to direct workers at a site to
carry out activities required by the
permit; in most cases this is the general
contractor (as defined in Appendix A) of
the project).’’ See Parts 1.1.1(a) and (b)
of the 2017 CGP.
After the EPA issued the final 2017
CGP, petitioners brought to the Agency’s
attention that adding the phrase ‘‘in
most cases’’ followed by examples of
who may be considered an operator
might cause further confusion to a party
trying to determine if it is an operator
or not because those examples would
not, in every instance, qualify as
operators. For example, with respect to
the language added to the Part 1.1.1(a)
definition of operator (‘‘e.g., in most
cases this is the owner of the site.’’), the
EPA did not intend to indicate that, in
every instance, the owner of a site is
always considered an operator. The EPA
acknowledges that there may be
instances where a site owner does not
have operational control over
construction plans and specifications,
and therefore would not be an operator
and would not be responsible for
seeking permit coverage. Rather than
suggesting who might be considered an
operator ‘‘in most cases,’’ the EPA
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proposes to remove the examples from
both Part 1.1.1(a) and (b), and allow
parties to rely solely on the substantive
definition of operator for determining if
they should seek permit coverage. See
Part 1.1.1 of the draft modified permit.
2. Aligning language of three
requirements with the C&D rule—The
EPA proposes to adjust the wording of
two erosion and sediment control
requirements and one pollution
prevention requirement in the 2017 CGP
to clarify their intent:
• The current requirement in Part
2.2.6 (Minimize Dust) reads as follows:
‘‘On areas of exposed soil, the operator
must minimize the generation of dust
through the appropriate application of
water or other dust suppression
techniques.’’ The accompanying fact
sheet discusses how this requirement is
intended to minimize the discharge of
sediment in stormwater from the
generation of dust and how dust
suppression techniques prevent dust
from being generated, minimizing the
potential for the dust to accumulate
where it is likely to discharge from the
site in stormwater discharges. To more
precisely convey that dust control is
important for preventing sediment from
being discharged in stormwater,
consistent with the C&D rule at 40 CFR
450.21(a)(5), the EPA proposes to
modify the requirement to read, with
the addition denoted in italicized text:
‘‘On areas of exposed soil, minimize
dust through the appropriate
application of water or other dust
suppression techniques to control the
generation of pollutants that could be
discharged in stormwater from the site.’’
See Part 2.2.6 of the draft modified
permit.
• The current requirement in Part
2.2.11 (Minimize erosion of stormwater
conveyance channels and their
embankments . . .) reads as follows:
‘‘Minimize erosion of stormwater
conveyance channels and their
embankments, outlets, adjacent
streambanks, slopes, and downstream
waters. Use erosion controls and
velocity dissipation devices within and
along the length of any stormwater
conveyance channel and at any outlet to
slow down runoff to minimize erosion.’’
Footnote 24 to this requirement states:
‘‘Examples of velocity dissipation
devices include check dams, sediment
traps, riprap, and grouted riprap at
outlets.’’ The accompanying fact sheet
explains that this requirement
implements the C&D ELG to ‘‘control
stormwater volume and velocity to
minimize soil erosion in order to
minimize pollutant discharges’’ (40 CFR
450.21(a)(1)), to ‘‘control stormwater
discharges. . . to minimize channel and
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streambank erosion and scour in the
immediate vicinity of discharge points’’
(40 CFR 450.21(a)(2)), to ‘‘minimize the
amount of soil exposed during
construction activity’’ (40 CFR
450.21(a)(3)), and to ‘‘minimize the
disturbance of steep slopes’’ (40 CFR
450.21(a)(4)). To streamline this
requirement to more precisely focus on
controlling stormwater discharges to
minimize erosion at discharge points
and to align it with the text of the C&D
rule at 40 CFR 450.21(a)(2), the EPA
proposes to modify the requirement to
read as follows: ‘‘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.’’ Footnote
24 would be revised to read as follows:
‘‘Examples of control measures that can
be used to comply with this requirement
include the use of erosion controls and/
or velocity dissipation devices (e.g.,
check dams, sediment traps), within and
along the length of a stormwater
conveyance and at the outfall to slow
down runoff.’’ See Part 2.2.11 of the
draft modified permit.
• The current requirement in Part
2.3.3(a) regarding storage, handling, and
disposal of building products, materials,
and wastes reads as follows: ‘‘For
building materials and building
products, provide either (1) cover (e.g.,
plastic sheeting, temporary roofs) to
minimize the exposure of these
products to precipitation and to
stormwater, or (2) a similarly effective
means designed to minimize the
discharge of pollutants from these
areas.’’ One objective the EPA had
during the proposal of the 2017 CGP
was to streamline the permit as much as
possible so that the permit itself was
limited to the actual requirements,
while explanatory text or notes were
moved to the fact sheet. During this
streamlining process, the EPA omitted a
note from the 2017 CGP that previously
appeared in the 2012 CGP in the
equivalent section of the permit (i.e.,
Part 2.3.3.3). The 2012 CGP provision
read as follows: ‘‘Note: These
requirements do not apply to those
products, materials, or wastes that are
not a source of stormwater
contamination or that are designed to be
exposed to stormwater.’’ Although the
EPA omitted this note in the 2017 CGP,
the Agency incorporated by reference
the relevant fact sheet discussion from
the 2012 CGP, which explained that
‘‘[t]hese requirements implement the 40
CFR 450.21(d)(2) requirement to
‘minimize the exposure of building
materials, building products,
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construction wastes, trash, landscape
materials, fertilizers, pesticides,
herbicides, detergents . . . present on
the site to precipitation and to
stormwater.’ The permit clarifies that
the staging or storage of construction
materials, building products, or wastes,
which are either not a source of
contamination to stormwater or are
designed to be exposed to stormwater,
are not subject to this requirement.’’
Therefore, while the EPA incorporated
by reference in the 2017 CGP fact sheet
the exception to Part 2.3.3(a) for
building materials that are not a source
of contamination or are designed to be
exposed to stormwater, the permit
requirement in Part 2.3.3(a) did not
explicitly state this as it appears in 40
CFR 450.21(d)(2). To avoid any
confusion this omission might cause,
the EPA proposes to modify the
requirement to read, with the addition
denoted in italicized text, as follows:
‘‘For building materials and building
products, provide either (1) cover (e.g.,
plastic sheeting, temporary roofs) to
minimize the exposure of these
products to precipitation and to
stormwater, or (2) a similarly effective
means designed to minimize the
discharge of pollutants from these areas.
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).’’ See Part 2.3.3(a) of the proposed
modified permit.
3. Clarifying individual operator
responsibility in multiple operator
arrangements—The EPA proposes to
modify the 2017 CGP to clarify an
individual operator’s legal
responsibility for permit compliance in
situations where there are multiple
operators who divide permit
responsibilities. In particular, the EPA
proposes to remove references to joint
and several liability from the current
permit since they are, in the Agency’s
view, an inaccurate explanation of what
the permit compliance duties are for
multiple operators who share
implementation responsibilities under
the permit.
In addition, the EPA proposes to
clarify that operators who divide
responsibilities do not have to duplicate
permit-related functions if one operator
is appropriately implementing the
requirement for the rest of the operators
to be in full compliance with the permit.
In the proposed modification, the
permit would state that, where there are
multiple operators associated with the
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same site, they may develop a group
Stormwater Pollution Prevention Plan
(SWPPP) instead of multiple individual
SWPPPs, but regardless of whether there
is a group SWPPP or multiple
individual SWPPPs, each operator is
responsible for compliance with the
permit’s terms and conditions,
notwithstanding how the SWPPP(s) may
divide each operator’s responsibilities.
This would apply to a scenario where
there are multiple operators associated
with the same site through a common
plan of development or sale (such as a
housing development) at which a shared
control exists. In this scenario, the
operators may develop a group SWPPP
instead of multiple individual SWPPPs,
and divide amongst themselves various
permit-related functions provided that
each SWPPP, or a group SWPPP,
documents which operator will perform
each permit-related function, including
those related to the installation and
maintenance of the shared control.
Regardless of whether there is a group
SWPPP or multiple individual SWPPPs,
all operators are legally responsible for
compliance with the permit,
notwithstanding how the SWPPP(s) may
divide each operator’s individual
responsibilities. In other words, if
Operator A relies on Operator B to
satisfy its permit obligations, Operator A
does not have to duplicate those permitrelated functions if Operator B is
implementing them for both operators to
be in compliance with the permit.
However, Operator A remains
responsible for permit compliance if
Operator B fails to implement any
measures necessary for Operator A to
comply with the permit. See Part 1.1.1,
footnote 1; Part 7.1, footnote 53 (which
the EPA now proposes to combine with
footnote 52); the accompanying fact
sheet explanation for these Parts; and
Appendix A Definitions for ‘‘Shared
Control’’ of the proposed modified
permit.
IV. Analysis of Economic Impacts
Due to the narrow scope of this
proposed permit modification and the
focus on clarifying the intent of certain
requirements rather than changing the
underlying requirement itself, the EPA
does not expect any change in economic
impact from this proposed permit
modification. It is therefore unnecessary
for the EPA to revise the economic
analysis that was prepared for the final
2017 CGP. A copy of the EPA’s
economic analysis, titled ‘‘Cost Impact
Analysis for the 2017 Construction
General Permit (CGP),’’ is available in
the docket for this proposed permit
modification.
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63863
V. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
The Office of Management and Budget
(OMB) determined that this action is not
significant under Executive Orders
12866 and 13563 (76 FR 3821, January
21, 2011).
VI. Compliance With the National
Environmental Policy Act (NEPA) for
the National Pollutant Discharge
Elimination System (NPDES) General
Permit for Discharges From
Construction Activities
Pursuant to the National
Environmental Policy Act (NEPA) (42
U.S.C. 4321–4307h), the Council on
Environmental Quality’s NEPA
regulations (40 CFR part 15), and the
EPA’s regulations for implementing
NEPA (40 CFR part 6), the Agency has
determined that the modifications to the
2017 CGP are eligible for a categorical
exclusion requiring documentation
under 40 CFR 6.204(a)(1)(iv). This
category consists of ‘‘actions involving
reissuance of a NPDES permit for a new
source providing the conclusions of the
original NEPA document are still valid
(including the appropriate mitigation),
there will be no degradation of the
receiving waters, and the permit
conditions do not change or are more
environmentally protective.’’ 40 CFR
6.204(a)(1)(iv). The EPA completed an
Environmental Assessment/Finding of
No Significant Impact (EA/FONSI) for
the previous 2012 CGP and issued a
categorical exclusion under 40 CFR
6.204(a)(1)(iv) for the 2017 reissuance.
The EPA determined the analysis and
conclusions regarding the potential
environmental impacts, reasonable
alternatives, and potential mitigation
included in the EA/FONSI were still
valid for the 2017 reissuance of the CGP
because the permit conditions are either
the same or, in some cases, are more
environmentally protective.
As stated in Section II of this Federal
Register Notice on the Background on
the Permit and Proposed Modification,
the proposed modification to the 2017
CGP, if finalized, would remove
examples of operators in the definition
of operator; align three requirements
that implement the C&D rule more
closely with the ELG text; and clarify
the roles and responsibilities of
individual operators in multiple
operator arrangements. The proposed
changes in this modification would
simplify the permit language and
accompanying fact sheet explanation
but would not affect the substantive
requirements, applicability,
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implementation, or enforceability of the
permit’s current requirements.
Therefore, the same analysis and
conclusions found in the EA/FONSI for
the 2012 CGP still stand for this
modification of the 2017 CGP.
Actions may be categorically
excluded if the action fits within a
category of action that is eligible for
exclusion and the proposed action does
not involve any extraordinary
circumstances. The EPA has reviewed
the proposed action and determined
that the modification of the 2017 CGP
does not involve any extraordinary
circumstances listed in 40 CFR
6.204(b)(1)–(b)(10). Prior to the issuance
of the final modification of the 2017
CGP, the EPA Responsible Official will
document the application of the
categorical exclusion and will make it
available to the public on the Agency’s
website at https://cdxnodengn.epa.gov/
cdx-enepa-public/action/nepa/search. If
new information or changes in the draft
modified permit involve or relate to at
least one of the extraordinary
circumstances or otherwise indicate that
the permit may not meet the criteria for
categorical exclusion, the EPA will
prepare an EA or Environmental Impact
Statement (EIS).
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VII. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (E.O.) 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.
Consistent with the EPA’s previous
determination for the 2017 CGP, this
proposed modification to the 2017 CGP,
if finalized, would not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because the requirements in the draft
modified permit would apply equally to
all construction projects that disturb one
or more acres in areas where the Agency
is the permitting authority, and the
erosion and sediment control proposed
provisions increase the level of
environmental protection for all affected
populations.
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VIII. Executive Order 13175:
Consultation and Coordination With
Indian Tribal Governments
This proposed action does not have
tribal implications as specified in
Executive Order 13175. It does not have
a substantial direct effect on one or
more Indian tribes. Thus, Executive
Order 13175 does not apply to this
proposed action.
In compliance with Executive Order
13175, the EPA consulted with tribal
officials during the development of 2017
CGP to gain an understanding of and,
where necessary, address any areas of
the draft permit that may affect tribal
interest. In the course of this
consultation, the EPA conducted several
outreach activities with tribal officials
which are detailed in the Federal
Register Notice for the final 2017 CGP
(82 FR 6534). During the finalization of
2017 CGP, the EPA also completed the
CWA Section 401 certification
procedures with all applicable tribes
where the permit applies (see Appendix
B of the 2017 CGP).
As part of this proposed modification,
the EPA reviewed the tribal conditions
that were incorporated into the 2017
CGP under Section 401 certifications to
identify any requirements that this
proposed action might affect. See Part 9
of the 2017 CGP. Only two tribal
conditions reference a current permit
requirement that is subject to this
proposed modification, Part 2.2.11
(Minimize erosion of stormwater
conveyance channels and their
embankments . . .):
• The following condition applies
only to discharges on the Pueblo of
Isleta Reservation: ‘‘Under Minimize
erosion, a permittee must secure
permission from the Pueblo or affected
Pueblo of Isleta land assignment owner
if a dissipation device needs to be
placed up- or down-elevation of a given
construction site. CGP 2.2.11 at pg. 11.’’
See Part 9.4.2.1(j) of the 2017 CGP.
• The following condition applies
only to discharges on the Puyallup Tribe
of Indians Reservation: ‘‘To the extent
feasible, utilize vegetated, upland areas
of the site to infiltrate dewatering water
before discharge. At all points where
dewatering water is discharged, comply
with the velocity dissipation
requirements of Part 2.2.11 of EPA’s
2017 General Construction Stormwater
Permit. Examples of velocity dissipation
devices include check dams, sediment
traps, riprap, and grouted riprap at
outlets.’’ See Part 9.7.4.4(i) of the 2017
CGP.
As stated in Section II of this Federal
Register Notice, the proposed
modification to the 2017 CGP, if
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finalized, would remove examples of
operators in the definition of operator;
align three requirements that implement
the C&D rule more closely with the ELG
text, including the requirement in Part
2.2.11; and clarify the roles and
responsibilities of individual operators
in multiple operator arrangements. The
proposed changes in this modification
would simplify the permit language and
accompanying fact sheet explanation
but would not affect the substantive
requirements, applicability,
implementation, or enforceability of the
permit’s current requirements. Due to
the narrow scope of this proposed
permit modification and the focus on
clarifying the intent of certain
requirements rather than changing the
underlying requirement itself, the
proposed action would not change the
interpretation or implementation of the
tribal conditions, in particular those
referencing Part 2.2.11, and therefore
any tribal impacts from this proposed
modification would be limited.
Authority: Clean Water Act, 33 U.S.C. 1251
et seq.
Dated: November 28, 2018.
Deborah Szaro,
Acting Regional Administrator, EPA Region
1.
Dated: November 28, 2018.
Javier Laureano, Ph.D.,
Director, Clean Water Division, EPA Region
2.
Dated: November 28, 2018.
Carmen R. Guerrero-Perez,
Director, Caribbean Environmental
Protection Division, EPA Region 2.
Dated: November 28, 2018.
Catharine McManus,
Acting Deputy Director, Water Protection
Division, EPA Region 3.
Dated: November 28, 2018.
Jeaneanne M. Gettle,
Director, Water Protection Division, EPA
Region 4.
Dated: November 28, 2018.
Deborah C. Baltazar,
Acting Division Director, Water Division, EPA
Region 5.
Dated: November 28, 2018.
David F. Garcia, P.E.,
Deputy Director, Water Division, EPA Region
6.
Dated: November 28, 2018.
Jeffery Robichaud,
Division Director, Water, Wetlands and
Pesticides Division, EPA Region 7.
Dated: November 28, 2018.
Darcy O’Connor,
Assistant Regional Administrator, Office of
Water Protection, EPA Region 8.
Dated: November 28, 2018.
Toma´s Torres,
Director, Water Division, EPA Region 9.
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Dated: November 28, 2018.
Daniel D. Opalski,
Director Office of Water and Watersheds, EPA
Region 10.
[FR Doc. 2018–26916 Filed 12–11–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OGC–2018–0745; FRL–9987–80–
OGC]
Proposed Joint Stipulation,
Endangered Species Act Claims
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed stipulation;
request for public comment.
AGENCY:
In accordance with the EPA
Administrator’s October 16, 2017,
Directive Promoting Transparency and
Public Participation in Consent Decrees
and Settlement Agreements, notice is
hereby given of a proposed joint
stipulation and proposed stipulated
notice of dismissal in the United States
District Court for the Northern District
of California in the case of Ellis, et al.,
v. Keigwin, et al., No. 3:13–cv–01266.
On May 8, 2017, the court issued an
order on summary judgment dismissing
claims against EPA under the Federal
Insecticide, Fungicide and Rodenticide
Act (‘‘FIFRA’’), but finding that EPA
failed to perform duties mandated by
the Endangered Species Act (‘‘ESA’’) to
consult with the United States Fish and
Wildlife Service (‘‘FWS’’) regarding 59
EPA-approved pesticide products
containing either of the insecticidal
active ingredients clothianidin or
thiamethoxam. The parties are
proposing to reach a settlement in the
form of a joint stipulation on the
appropriate remedy for the court’s
finding of liability. Among other
provisions, the joint stipulation would
set a June 30, 2022, deadline for EPA to
complete ESA effects determination for
EPA’s registration reviews of
clothianidin and thiamethoxam and, as
appropriate, request initiation of any
ESA consultations with FWS that EPA
may determine to be necessary as a
result of those effects determinations.
EPA is also taking comment on a
proposed stipulated notice of dismissal
that would be entered with the court
following execution of the joint
stipulation.
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SUMMARY:
Written comments on the
proposed joint stipulation and
stipulated notice of dismissal must be
received by January 11, 2019.
DATES:
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Submit your comments,
identified by Docket ID number EPA–
HQ–OGC–2018–0745 online at
www.regulations.gov (EPA’s preferred
method). For comments submitted at
www.regulations.gov, follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.regulations.gov. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA generally
will not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Mark Dyner, Pesticides and Toxic
Substances Law Office (2333A), Office
of General Counsel, U.S. Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW, Washington, DC 20460;
telephone: (202) 564–1754; email
address: dyner.mark@epa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Additional Information About the
Proposed Joint Stipulation and
Stipulated Notice of Dismissal
On March 21, 2013, Plaintiffs (several
beekeepers and public interest
organizations) filed suit in the United
States District Court for the Northern
District of California. Plaintiffs brought
claims alleging that EPA had improperly
denied a petition to suspend products
containing clothianidin and that EPA’s
registration of certain clothianidin and
thiamethoxam products violated certain
registration requirements of FIFRA, and
violated section 7(a)(2) of the ESA
because EPA had failed to consult with
FWS prior to issuing the registrations.
On May 8, 2017, the court granted EPA’s
summary judgment motion with respect
to the FIFRA claims and partially
granted Plaintiffs’ summary judgment
motion with respect to the ESA claims,
finding that EPA had failed to comply
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63865
with the consultation requirements of
section 7(a)(2) with respect to 59
clothianidin and thiamethoxam
products. In its order, the court also
directed the parties to develop a briefing
schedule for determining the
appropriate remedy and, concurrently,
to schedule a settlement conference to
determine whether the parties could
settle the remedy proceeding outside of
court.
The proposed stipulation and
stipulated notice of dismissal would
settle the remedy proceeding.
Specifically, paragraph two of the
proposed stipulation provides that EPA
would agree to complete ESA effects
determinations by June 30, 2022, for its
FIFRA registration reviews of
clothianidin and thiamethoxam and, as
appropriate, request initiation of any
necessary ESA consultations with the
Services. As provided in paragraph
three of the proposed stipulation, EPA
would also agree to initiate informal
consultation with the Services to begin
an informal dialogue between the
agencies prior to EPA completing its
effects determinations.
In addition, as described in paragraph
one of the proposed stipulation,
defendant-intervenors Syngenta, Bayer
and Valent (the registrants of products
containing clothianidin and
thiamethoxam) have agreed to request
that EPA voluntarily cancel the
following 12 specific products that
contain either clothianidin or
thiamethoxam under section 6(f)(1) of
FIFRA:
1. Adage Premier Seedcare, EPA Reg.
No. 100–1450.
2. Adage Deluxe, EPA Reg. No. 100–
1449.
3. Avicta Complete Corn 500, EPA
Reg. No. 100–1399.
4. TMX–MXM–FDL–TBZ FS, EPA
Reg. No. 100–1426.
5. Inovate Seed Protectant, EPA Reg.
No. 59639–176.
6. Inovate Neutral Seed Protectant
Reg. No. 59639–187.
7. Emesto Quantum, EPA Reg. No.
264–1125.
8. Flower Rose & Shrub Care III, EPA
Reg No. 72155–95.
9. V10170 0.25G GL, EPA Reg. No.
59639–164.
10. Meridian 0.14G, EPA Reg. No.
100–1346.
11. Meridian 0.20G, EPA Reg. No.
100–1341.
12. Aloft GC G Insecticide, Reg. No.
59639–214.
For a period of thirty (30) days
following the date of publication of this
document, the Agency will accept
written comments relating to the
proposed joint stipulation and
E:\FR\FM\12DEN1.SGM
12DEN1
Agencies
[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Notices]
[Pages 63858-63865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26916]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2015-0828; FRL-9987-77-OW]
Proposed Modification to National Pollutant Discharge Elimination
System (NPDES) General Permit for Stormwater Discharges From
Construction Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed modification to the general permit for
construction stormwater discharges and request for public comment.
-----------------------------------------------------------------------
SUMMARY: All ten Environmental Protection Agency (EPA) Regions today
are proposing for public comment a
[[Page 63859]]
modification to the 2017 National Pollutant Discharge Elimination
System (NPDES) general permit for stormwater discharges from
construction activities, also referred to as the ``2017 Construction
General Permit (CGP)'' or ``2017 CGP'' which became effective on
February 16, 2017. The EPA is proposing a modification to the 2017 CGP
that is limited to clarifying the intent of several requirements and
ensuring consistency with the Construction and Development Effluent
Limitations Guidelines and New Source Performance Standards. This
action is hereafter referred to as the ``proposed modification'' or
``draft modified permit.'' The proposed modification, if finalized,
would replace several existing conditions in the 2017 CGP and relevant
fact sheet sections subject to modification, but would not affect any
other terms and conditions of the existing permit, including: The
eligible coverage area; the number or type of entities eligible to be
covered by the permit; nor the five-year permit term of the current
2017 CGP, which will expire on February 16, 2022. The current 2017 CGP
remains in effect while the EPA pursues this action. This Federal
Register notice describes the proposed modification and where the
proposed changes can be found in the 2017 CGP. To assist in the
public's review of this proposed modification, the EPA has posted a
redline strikeout version of the permit and accompanying fact sheet
showing all of the proposed changes in context of the documents they
would modify at https://www.epa.gov/npdes/stormwater-discharges-construction-activities; these documents can also be found in the
Docket (EPA-HQ-OW-2015-0828).
DATES: Comments on the proposed modification must be received on or
before January 28, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0828 to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or withdrawn. The
EPA may publish any comment received to its public docket. Do not
submit electronically any information you consider to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. A written comment must accompany any multimedia
submissions (audio, video, etc.). The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For further information on the
proposed modification, contact the appropriate EPA Regional office
listed in Section I.F of this notice, or Emily Halter, EPA
Headquarters, Office of Water, Office of Wastewater Management at tel.:
202-564-3324 or email: [email protected].
SUPPLEMENTARY INFORMATION: This section is organized as follows:
Table of Contents
I. General Information
A. Does this action apply to me?
B. How can I get copies of these documents and other related
information?
C. What should I consider as I prepare my comments for the EPA?
D. Will public hearings be held on this action?
E. What process will the EPA follow to finalize the proposed
modification?
F. Who are the EPA regional contacts for the proposed
modification?
II. Background on the Permit and Proposed Modification
III. Summary of the Proposed Modification
IV. Analysis of Economic Impacts
V. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
VI. Compliance With the National Environmental Policy Act (NEPA) for
the National Pollutant Discharge Elimination System (NPDES) General
Permit for Discharges From Construction Activities
VII. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
VIII. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. General Information
A. Does this action apply to me?
1. Entities Covered by This Permit
The proposed modification described herein would not change the
types of entities eligible to be covered under the 2017 CGP. The CGP
would continue to be available to cover the following entities, as
categorized in the North American Industry Classification System
(NAICS):
Table 1--Entities Covered by This Draft Permit
------------------------------------------------------------------------
North American
industry
Category Examples of affected classification
entities system (NAICS)
code
------------------------------------------------------------------------
Industry...................... Construction site
operators disturbing
1 or more acres of
land, or less than 1
acre but part of a
larger common plan
of development or
sale if the larger
common plan will
ultimately disturb 1
acre or more, and
performing the
following
activities:
Construction of 236
Buildings.
Heavy and Civil 237
Engineering
Construction.
------------------------------------------------------------------------
The EPA does not intend the preceding table to be exhaustive, but
provides it as a guide for readers regarding the types of activities of
which the Agency is now aware that could potentially be affected by
this action. Other types of entities not listed in the table could also
be affected. To determine whether your site could be affected by this
action, you should carefully examine the definition of ``construction
activity'' and ``small construction activity'' in existing EPA
regulations at 40 CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively.
If you have questions regarding the applicability of this action to a
particular entity, consult the person listed for technical information
in the preceding FOR FURTHER INFORMATION CONTACT section.
2. Coverage Area of the Draft Modified Permit
The proposed modification described herein would not change the
scope of coverage under the 2017 CGP. Coverage
[[Page 63860]]
would remain available to operators of eligible projects for stormwater
discharges from construction activities located in those areas where
the EPA is the NPDES permitting authority. A list of eligible areas can
be found in Appendix B of the 2017 CGP and include the states of New
Hampshire, Massachusetts, New Mexico, and Idaho (until July 1, 2021,
which is the date Idaho becomes authorized to implement the NPDES
Stormwater program), as well as most Indian country lands, and areas in
selected states operated by a federal operator. Permit coverage is also
available to operators in Puerto Rico, the District of Columbia, and
the Pacific Island territories, among others.
B. How can I get copies of these documents and other related
information?
1. Docket. The EPA has established an official public docket for
this action under Docket ID No. EPA-HQ-OW-2015-0828. The official
public docket is the collection of materials that is available for
public viewing at the Water Docket in the EPA Docket Center, (EPA/DC)
WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC
20460. Although all documents in the docket are listed in an index,
some information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Publicly available docket materials are available in hard
copy at the EPA Docket Center Public Reading Room, 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 Water Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register notice
electronically through the United States government on-line source for
Federal regulations at https://www.regulations.gov.
Electronic versions of this draft modified permit and draft
modified fact sheet are available on the EPA's NPDES website at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.
An electronic version of the public docket is available through the
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at https://www.regulations.gov to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. For additional information about the
EPA's public docket, visit the Agency's Docket Center homepage at
https://www.epa.gov/dockets. Although not all docket materials may be
available electronically, you may still access any of the publicly
available docket materials through the Docket Facility identified in
Section I.B.1.
C. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI. Do not submit CBI information to the EPA through
www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
The EPA's policy is that public comments, whether submitted
electronically or in paper, will be made available for public viewing
in the Agency's electronic public docket as the Agency receives them
and without change, unless the comment contains copyrighted material,
CBI, or other information whose disclosure is restricted by statute. As
noted previously, CBI information should not be submitted through
regulations.gov or by email. When the EPA identifies a comment
containing copyrighted material, the Agency will provide a reference to
that material in the version of the comment that is placed in the
Agency's electronic public docket. The entire printed comment,
including the copyrighted material, will be available in the public
docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to the EPA's electronic
public docket. Public comments that are mailed or delivered to the
docket will be scanned and placed in the EPA's electronic public
docket. Where practical, physical objects will be photographed, and the
photograph will be placed in the EPA's electronic public docket along
with a brief description written by the docket staff.
2. Tips for Preparing Your Comments.
To assist the EPA in reviewing and evaluating public comments,
please consider the following tips and suggestions when preparing your
comments for the Agency:
Identify this draft modified permit by docket number and
other identifying information (subject heading, Federal Register date,
and page number).
Where possible, organize comments by referencing a
paragraph or part of the draft modified permit or draft modified fact
sheet, whichever applies.
Explain as clearly as possible why you agree or disagree
with the proposed modification.
Suggest alternatives and substitute language for any
requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
Provide specific examples to illustrate your concerns.
Submit your comments by the comment period deadline
identified.
D. Will public hearings be held on this action?
Due to the limited scope of this proposed modification, the EPA has
not scheduled any public hearings to receive public comment concerning
the draft modified permit. All persons will continue to have the right
to provide written comments during the public comment period. However,
interested persons may request a public hearing pursuant to 40 CFR
124.12 concerning the draft modified permit. Requests for a public
hearing must be sent or delivered in writing to the same address as
provided above for public comments prior to the close of the comment
period and must state the nature of the issue the requester would like
raised in the hearing. Pursuant to 40 CFR 124.12, the EPA shall hold a
public hearing if it finds, on the basis of requests, a significant
degree of public interest in a public hearing on the draft modified
permit. If the EPA decides to hold a public hearing, a public notice of
the date, time, and place of the hearing will be made at least 30 days
prior to the hearing. Any person may provide written or oral statements
and data pertaining to the draft modified permit at the public hearing.
E. What process will the EPA follow to finalize the proposed
modification?
After the close of the public comment period, the EPA intends to
issue a final decision on the permit modification. Any modification
will not be issued until all significant comments have been considered
and appropriate changes made to the draft modified permit. The EPA's
responses to public comments received will be included in the docket as
part of the final modification issuance. Any construction site operator
[[Page 63861]]
that has permit coverage under the 2017 CGP prior to the final issuance
of the modification will automatically remain covered under the permit
and will not have to resubmit or modify their Notice of Intent (NOI)
due to the finalized permit modification.
F. Who are the EPA regional contacts for the proposed modification?
For EPA Region 1, contact Suzanne Warner at tel.: (617) 918-1383 or
email at [email protected].
For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856
or email at [email protected], or for Puerto Rico, contact Sergio
Bosques at tel.: (787) 977-5838 or email at [email protected].
For EPA Region 3, contact Carissa Moncavage at tel.: (215) 814-5798
or email at [email protected].
For EPA Region 4, contact Michael Mitchell at tel.: (404) 562-9303
or email at [email protected].
For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or
email at [email protected].
For EPA Region 6, contact Suzanna Perea at tel.: (214) 665-7217 or
email at: [email protected].
For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or
email at: [email protected].
For EPA Region 8, contact Amy Clark at tel.: (303) 312-7014 or
email at: [email protected].
For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or
email at [email protected].
For EPA Region 10, contact Margaret McCauley at tel.: (206) 553-
1772 or email at [email protected].
II. Background on the Permit and Proposed Modification
Section 402(p) of the Clean Water Act (CWA) directs the EPA to
regulate stormwater discharges under the NPDES program for certain
designated sources, including discharges from regulated construction
sites. The EPA's NPDES regulations further specify that permits are
required for stormwater discharges from construction activities that
disturb at least one acre, including sites that are part of a larger
common plan of development or sale that will ultimately disturb at
least one acre. See 40 CFR 122.26(a)(1)(ii), (a)(9)(i)(B), (b)(14)(x),
and (b)(15)(i). Under the statutory and regulatory authority cited
above, the EPA issued the final 2017 CGP on January 19, 2017 (82 FR
6534) and the permit became effective on February 16, 2017.
In accordance with 40 CFR 23.2, the 2017 CGP was considered issued
for the purposes of judicial review on January 25, 2017. Within the
120-day period of judicial review under section 509(b) of the CWA, both
the National Association of Home Builders (NAHB) and the Chesapeake Bay
Foundation (CBF) filed petitions for review of the 2017 CGP in the
United States Court of Appeals in the D.C. Circuit.
After receiving the petitions for review, the EPA engaged in
multiple discussions with both NAHB and CBF in which the parties
discussed their concerns about certain permit requirements and how
those requirements might be subject to confusion and misinterpretation
by construction site operators permitted under the 2017 CGP. Through
discussions with the petitioners, the following information was brought
to the EPA's attention:
In the current 2017 CGP, providing parenthetical examples
within the definition of ``operator'' describing what type of party
could be considered an operator ``in most cases'' may be confusing. See
specifically Parts 1.1.1(a) and (b).
The permit text for certain erosion and sediment control
and pollution prevention permit requirements that implement the
Effluent Limitations Guidelines (ELGs) and New Source Performance
Standards (NSPS) for Construction & Development (40 CFR part 450)
(referred to collectively as ``the C&D rule'') may not adequately
connect the permit requirements to controlling stormwater discharges as
in the C&D rule.
The explanation in the 2017 CGP regarding legal
responsibility for permit compliance in situations where there are
multiple operators may be unclear. The explanation for an instance
where there are multiple operators at one construction site who each
require permit coverage and who divide permit responsibilities among
themselves, including the use and maintenance of a shared stormwater
control (such as a sediment basin), may be misinterpreted to mean that
each operator must perform every permit-related function, even if those
responsibilities were by agreement performed by another operator.
Additionally, references to joint and several liability in the current
permit may have been an inaccurate way to explain what the permit
compliance duties are for multiple operators who share implementation
responsibilities under the permit.
Under 40 CFR 122.62(a)(2), the EPA may modify a permit if the
Agency is presented with new information during the permit term that
was not available at the time of issuance and would have justified the
application of different permit conditions at the time of issuance.
Based on the information the petitioners provided to the EPA following
the issuance of the 2017 CGP, the Agency is proposing a permit
modification to clarify the Agency's intent of the related permit
requirements.
The proposed modification would remove examples of operators in the
definition of operator; align three requirements that implement the C&D
rule more closely with the ELG text (one requirement on minimizing
dust, one on streambank erosion control, and one on building materials
pollution prevention); and clarify the roles and responsibilities of
individual operators in multiple operator arrangements. The proposed
changes in this modification would simplify the permit language and
accompanying fact sheet explanation but would not affect the
substantive requirements, applicability, implementation, or
enforceability of the permit's current requirements. Only those
requirements that the EPA proposes to modify would be reopened in the
draft modified permit for public comment (40 CFR 122.62). The proposed
modification, if finalized, would replace the existing conditions in
the 2017 CGP and relevant fact sheet sections subject to modification,
but not affect any other terms and conditions of the permit.
In addition, the proposed modification would not affect the
eligible coverage area, the number or type of entities eligible to be
covered by the permit, nor the five-year permit term of the current
2017 CGP, which will expire on February 16, 2022. The current 2017 CGP
remains in effect while the EPA pursues this proposed permit
modification. The proposed modification is summarized in more detail
below.
III. Summary of the Proposed Modification
The EPA proposes the following specific changes to the 2017 CGP:
1. Removing examples in the definition of ``operator''--The EPA
proposes to remove the parenthetical examples of the type of party that
may be considered an operator from the definition of ``operator.'' If a
party wishes to obtain coverage under the 2017 CGP for its stormwater
discharges from construction activities, it is the operator who is
responsible for submitting to the EPA a Notice of Intent (NOI) for
coverage under the permit. In the previous 2012 CGP, the EPA defined an
``operator'' as ``any party associated with a construction project that
meets either of the following two criteria: (a)
[[Page 63862]]
The party has operational control over construction plans and
specifications, including the ability to make modifications to those
plans and specifications; or (b) the party has day-to-day operational
control of those activities at a project that are necessary to ensure
compliance with the permit conditions (e.g., they are authorized to
direct workers at a site to carry out activities required by the
permit).'' During the proposal of the 2017 CGP, the EPA received a
public comment stating that, ``to make the meaning [of ``operator''] as
clear as possible, it would be helpful for the EPA to include, within
the body of the permit, examples of whom it expects to meet part one
and part two of the definition.'' To address this comment, in the final
issuance of the 2017 CGP, the EPA added the requested examples into the
two-part definition of operator. These additions, denoted here in
italicized text, read as follows: ``an ``operator'' is any party
associated with a construction project that meets either of the
following two criteria: (a) The party has operational control over
construction plans and specifications, including the ability to make
modifications to those plans and specifications (e.g., in most cases
this is the owner of the site); or (b) the party has day-to-day
operational control of those activities at a project that are necessary
to ensure compliance with the permit conditions (e.g., they are
authorized to direct workers at a site to carry out activities required
by the permit; in most cases this is the general contractor (as defined
in Appendix A) of the project).'' See Parts 1.1.1(a) and (b) of the
2017 CGP.
After the EPA issued the final 2017 CGP, petitioners brought to the
Agency's attention that adding the phrase ``in most cases'' followed by
examples of who may be considered an operator might cause further
confusion to a party trying to determine if it is an operator or not
because those examples would not, in every instance, qualify as
operators. For example, with respect to the language added to the Part
1.1.1(a) definition of operator (``e.g., in most cases this is the
owner of the site.''), the EPA did not intend to indicate that, in
every instance, the owner of a site is always considered an operator.
The EPA acknowledges that there may be instances where a site owner
does not have operational control over construction plans and
specifications, and therefore would not be an operator and would not be
responsible for seeking permit coverage. Rather than suggesting who
might be considered an operator ``in most cases,'' the EPA proposes to
remove the examples from both Part 1.1.1(a) and (b), and allow parties
to rely solely on the substantive definition of operator for
determining if they should seek permit coverage. See Part 1.1.1 of the
draft modified permit.
2. Aligning language of three requirements with the C&D rule--The
EPA proposes to adjust the wording of two erosion and sediment control
requirements and one pollution prevention requirement in the 2017 CGP
to clarify their intent:
The current requirement in Part 2.2.6 (Minimize Dust)
reads as follows: ``On areas of exposed soil, the operator must
minimize the generation of dust through the appropriate application of
water or other dust suppression techniques.'' The accompanying fact
sheet discusses how this requirement is intended to minimize the
discharge of sediment in stormwater from the generation of dust and how
dust suppression techniques prevent dust from being generated,
minimizing the potential for the dust to accumulate where it is likely
to discharge from the site in stormwater discharges. To more precisely
convey that dust control is important for preventing sediment from
being discharged in stormwater, consistent with the C&D rule at 40 CFR
450.21(a)(5), the EPA proposes to modify the requirement to read, with
the addition denoted in italicized text: ``On areas of exposed soil,
minimize dust through the appropriate application of water or other
dust suppression techniques to control the generation of pollutants
that could be discharged in stormwater from the site.'' See Part 2.2.6
of the draft modified permit.
The current requirement in Part 2.2.11 (Minimize erosion
of stormwater conveyance channels and their embankments . . .) reads as
follows: ``Minimize erosion of stormwater conveyance channels and their
embankments, outlets, adjacent streambanks, slopes, and downstream
waters. Use erosion controls and velocity dissipation devices within
and along the length of any stormwater conveyance channel and at any
outlet to slow down runoff to minimize erosion.'' Footnote 24 to this
requirement states: ``Examples of velocity dissipation devices include
check dams, sediment traps, riprap, and grouted riprap at outlets.''
The accompanying fact sheet explains that this requirement implements
the C&D ELG to ``control stormwater volume and velocity to minimize
soil erosion in order to minimize pollutant discharges'' (40 CFR
450.21(a)(1)), to ``control stormwater discharges. . . to minimize
channel and streambank erosion and scour in the immediate vicinity of
discharge points'' (40 CFR 450.21(a)(2)), to ``minimize the amount of
soil exposed during construction activity'' (40 CFR 450.21(a)(3)), and
to ``minimize the disturbance of steep slopes'' (40 CFR 450.21(a)(4)).
To streamline this requirement to more precisely focus on controlling
stormwater discharges to minimize erosion at discharge points and to
align it with the text of the C&D rule at 40 CFR 450.21(a)(2), the EPA
proposes to modify the requirement to read as follows: ``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.'' Footnote 24 would be
revised to read as follows: ``Examples of control measures that can be
used to comply with this requirement include the use of erosion
controls and/or velocity dissipation devices (e.g., check dams,
sediment traps), within and along the length of a stormwater conveyance
and at the outfall to slow down runoff.'' See Part 2.2.11 of the draft
modified permit.
The current requirement in Part 2.3.3(a) regarding
storage, handling, and disposal of building products, materials, and
wastes reads as follows: ``For building materials and building
products, provide either (1) cover (e.g., plastic sheeting, temporary
roofs) to minimize the exposure of these products to precipitation and
to stormwater, or (2) a similarly effective means designed to minimize
the discharge of pollutants from these areas.'' One objective the EPA
had during the proposal of the 2017 CGP was to streamline the permit as
much as possible so that the permit itself was limited to the actual
requirements, while explanatory text or notes were moved to the fact
sheet. During this streamlining process, the EPA omitted a note from
the 2017 CGP that previously appeared in the 2012 CGP in the equivalent
section of the permit (i.e., Part 2.3.3.3). The 2012 CGP provision read
as follows: ``Note: These requirements do not apply to those products,
materials, or wastes that are not a source of stormwater contamination
or that are designed to be exposed to stormwater.'' Although the EPA
omitted this note in the 2017 CGP, the Agency incorporated by reference
the relevant fact sheet discussion from the 2012 CGP, which explained
that ``[t]hese requirements implement the 40 CFR 450.21(d)(2)
requirement to `minimize the exposure of building materials, building
products,
[[Page 63863]]
construction wastes, trash, landscape materials, fertilizers,
pesticides, herbicides, detergents . . . present on the site to
precipitation and to stormwater.' The permit clarifies that the staging
or storage of construction materials, building products, or wastes,
which are either not a source of contamination to stormwater or are
designed to be exposed to stormwater, are not subject to this
requirement.'' Therefore, while the EPA incorporated by reference in
the 2017 CGP fact sheet the exception to Part 2.3.3(a) for building
materials that are not a source of contamination or are designed to be
exposed to stormwater, the permit requirement in Part 2.3.3(a) did not
explicitly state this as it appears in 40 CFR 450.21(d)(2). To avoid
any confusion this omission might cause, the EPA proposes to modify the
requirement to read, with the addition denoted in italicized text, as
follows: ``For building materials and building products, provide either
(1) cover (e.g., plastic sheeting, temporary roofs) to minimize the
exposure of these products to precipitation and to stormwater, or (2) a
similarly effective means designed to minimize the discharge of
pollutants from these areas. 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).'' See Part
2.3.3(a) of the proposed modified permit.
3. Clarifying individual operator responsibility in multiple
operator arrangements--The EPA proposes to modify the 2017 CGP to
clarify an individual operator's legal responsibility for permit
compliance in situations where there are multiple operators who divide
permit responsibilities. In particular, the EPA proposes to remove
references to joint and several liability from the current permit since
they are, in the Agency's view, an inaccurate explanation of what the
permit compliance duties are for multiple operators who share
implementation responsibilities under the permit.
In addition, the EPA proposes to clarify that operators who divide
responsibilities do not have to duplicate permit-related functions if
one operator is appropriately implementing the requirement for the rest
of the operators to be in full compliance with the permit. In the
proposed modification, the permit would state that, where there are
multiple operators associated with the same site, they may develop a
group Stormwater Pollution Prevention Plan (SWPPP) instead of multiple
individual SWPPPs, but regardless of whether there is a group SWPPP or
multiple individual SWPPPs, each operator is responsible for compliance
with the permit's terms and conditions, notwithstanding how the
SWPPP(s) may divide each operator's responsibilities. This would apply
to a scenario where there are multiple operators associated with the
same site through a common plan of development or sale (such as a
housing development) at which a shared control exists. In this
scenario, the operators may develop a group SWPPP instead of multiple
individual SWPPPs, and divide amongst themselves various permit-related
functions provided that each SWPPP, or a group SWPPP, documents which
operator will perform each permit-related function, including those
related to the installation and maintenance of the shared control.
Regardless of whether there is a group SWPPP or multiple individual
SWPPPs, all operators are legally responsible for compliance with the
permit, notwithstanding how the SWPPP(s) may divide each operator's
individual responsibilities. In other words, if Operator A relies on
Operator B to satisfy its permit obligations, Operator A does not have
to duplicate those permit-related functions if Operator B is
implementing them for both operators to be in compliance with the
permit. However, Operator A remains responsible for permit compliance
if Operator B fails to implement any measures necessary for Operator A
to comply with the permit. See Part 1.1.1, footnote 1; Part 7.1,
footnote 53 (which the EPA now proposes to combine with footnote 52);
the accompanying fact sheet explanation for these Parts; and Appendix A
Definitions for ``Shared Control'' of the proposed modified permit.
IV. Analysis of Economic Impacts
Due to the narrow scope of this proposed permit modification and
the focus on clarifying the intent of certain requirements rather than
changing the underlying requirement itself, the EPA does not expect any
change in economic impact from this proposed permit modification. It is
therefore unnecessary for the EPA to revise the economic analysis that
was prepared for the final 2017 CGP. A copy of the EPA's economic
analysis, titled ``Cost Impact Analysis for the 2017 Construction
General Permit (CGP),'' is available in the docket for this proposed
permit modification.
V. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
The Office of Management and Budget (OMB) determined that this
action is not significant under Executive Orders 12866 and 13563 (76 FR
3821, January 21, 2011).
VI. Compliance With the National Environmental Policy Act (NEPA) for
the National Pollutant Discharge Elimination System (NPDES) General
Permit for Discharges From Construction Activities
Pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C.
4321-4307h), the Council on Environmental Quality's NEPA regulations
(40 CFR part 15), and the EPA's regulations for implementing NEPA (40
CFR part 6), the Agency has determined that the modifications to the
2017 CGP are eligible for a categorical exclusion requiring
documentation under 40 CFR 6.204(a)(1)(iv). This category consists of
``actions involving reissuance of a NPDES permit for a new source
providing the conclusions of the original NEPA document are still valid
(including the appropriate mitigation), there will be no degradation of
the receiving waters, and the permit conditions do not change or are
more environmentally protective.'' 40 CFR 6.204(a)(1)(iv). The EPA
completed an Environmental Assessment/Finding of No Significant Impact
(EA/FONSI) for the previous 2012 CGP and issued a categorical exclusion
under 40 CFR 6.204(a)(1)(iv) for the 2017 reissuance. The EPA
determined the analysis and conclusions regarding the potential
environmental impacts, reasonable alternatives, and potential
mitigation included in the EA/FONSI were still valid for the 2017
reissuance of the CGP because the permit conditions are either the same
or, in some cases, are more environmentally protective.
As stated in Section II of this Federal Register Notice on the
Background on the Permit and Proposed Modification, the proposed
modification to the 2017 CGP, if finalized, would remove examples of
operators in the definition of operator; align three requirements that
implement the C&D rule more closely with the ELG text; and clarify the
roles and responsibilities of individual operators in multiple operator
arrangements. The proposed changes in this modification would simplify
the permit language and accompanying fact sheet explanation but would
not affect the substantive requirements, applicability,
[[Page 63864]]
implementation, or enforceability of the permit's current requirements.
Therefore, the same analysis and conclusions found in the EA/FONSI for
the 2012 CGP still stand for this modification of the 2017 CGP.
Actions may be categorically excluded if the action fits within a
category of action that is eligible for exclusion and the proposed
action does not involve any extraordinary circumstances. The EPA has
reviewed the proposed action and determined that the modification of
the 2017 CGP does not involve any extraordinary circumstances listed in
40 CFR 6.204(b)(1)-(b)(10). Prior to the issuance of the final
modification of the 2017 CGP, the EPA Responsible Official will
document the application of the categorical exclusion and will make it
available to the public on the Agency's website at https://cdxnodengn.epa.gov/cdx-enepa-public/action/nepa/search. If new
information or changes in the draft modified permit involve or relate
to at least one of the extraordinary circumstances or otherwise
indicate that the permit may not meet the criteria for categorical
exclusion, the EPA will prepare an EA or Environmental Impact Statement
(EIS).
VII. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (E.O.) 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.
Consistent with the EPA's previous determination for the 2017 CGP,
this proposed modification to the 2017 CGP, if finalized, would not
have disproportionately high and adverse human health or environmental
effects on minority or low-income populations because the requirements
in the draft modified permit would apply equally to all construction
projects that disturb one or more acres in areas where the Agency is
the permitting authority, and the erosion and sediment control proposed
provisions increase the level of environmental protection for all
affected populations.
VIII. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications as specified
in Executive Order 13175. It does not have a substantial direct effect
on one or more Indian tribes. Thus, Executive Order 13175 does not
apply to this proposed action.
In compliance with Executive Order 13175, the EPA consulted with
tribal officials during the development of 2017 CGP to gain an
understanding of and, where necessary, address any areas of the draft
permit that may affect tribal interest. In the course of this
consultation, the EPA conducted several outreach activities with tribal
officials which are detailed in the Federal Register Notice for the
final 2017 CGP (82 FR 6534). During the finalization of 2017 CGP, the
EPA also completed the CWA Section 401 certification procedures with
all applicable tribes where the permit applies (see Appendix B of the
2017 CGP).
As part of this proposed modification, the EPA reviewed the tribal
conditions that were incorporated into the 2017 CGP under Section 401
certifications to identify any requirements that this proposed action
might affect. See Part 9 of the 2017 CGP. Only two tribal conditions
reference a current permit requirement that is subject to this proposed
modification, Part 2.2.11 (Minimize erosion of stormwater conveyance
channels and their embankments . . .):
The following condition applies only to discharges on the
Pueblo of Isleta Reservation: ``Under Minimize erosion, a permittee
must secure permission from the Pueblo or affected Pueblo of Isleta
land assignment owner if a dissipation device needs to be placed up- or
down-elevation of a given construction site. CGP 2.2.11 at pg. 11.''
See Part 9.4.2.1(j) of the 2017 CGP.
The following condition applies only to discharges on the
Puyallup Tribe of Indians Reservation: ``To the extent feasible,
utilize vegetated, upland areas of the site to infiltrate dewatering
water before discharge. At all points where dewatering water is
discharged, comply with the velocity dissipation requirements of Part
2.2.11 of EPA's 2017 General Construction Stormwater Permit. Examples
of velocity dissipation devices include check dams, sediment traps,
riprap, and grouted riprap at outlets.'' See Part 9.7.4.4(i) of the
2017 CGP.
As stated in Section II of this Federal Register Notice, the
proposed modification to the 2017 CGP, if finalized, would remove
examples of operators in the definition of operator; align three
requirements that implement the C&D rule more closely with the ELG
text, including the requirement in Part 2.2.11; and clarify the roles
and responsibilities of individual operators in multiple operator
arrangements. The proposed changes in this modification would simplify
the permit language and accompanying fact sheet explanation but would
not affect the substantive requirements, applicability, implementation,
or enforceability of the permit's current requirements. Due to the
narrow scope of this proposed permit modification and the focus on
clarifying the intent of certain requirements rather than changing the
underlying requirement itself, the proposed action would not change the
interpretation or implementation of the tribal conditions, in
particular those referencing Part 2.2.11, and therefore any tribal
impacts from this proposed modification would be limited.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: November 28, 2018.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
Dated: November 28, 2018.
Javier Laureano, Ph.D.,
Director, Clean Water Division, EPA Region 2.
Dated: November 28, 2018.
Carmen R. Guerrero-Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Dated: November 28, 2018.
Catharine McManus,
Acting Deputy Director, Water Protection Division, EPA Region 3.
Dated: November 28, 2018.
Jeaneanne M. Gettle,
Director, Water Protection Division, EPA Region 4.
Dated: November 28, 2018.
Deborah C. Baltazar,
Acting Division Director, Water Division, EPA Region 5.
Dated: November 28, 2018.
David F. Garcia, P.E.,
Deputy Director, Water Division, EPA Region 6.
Dated: November 28, 2018.
Jeffery Robichaud,
Division Director, Water, Wetlands and Pesticides Division, EPA
Region 7.
Dated: November 28, 2018.
Darcy O'Connor,
Assistant Regional Administrator, Office of Water Protection, EPA
Region 8.
Dated: November 28, 2018.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.
[[Page 63865]]
Dated: November 28, 2018.
Daniel D. Opalski,
Director Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2018-26916 Filed 12-11-18; 8:45 am]
BILLING CODE 6560-50-P