Final Modification to National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities, 24503-24506 [2019-11075]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 84, Number 102 (Tuesday, May 28, 2019)]
[Notices]
[Pages 24503-24506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11075]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2015-0828; FRL9994-23-OW]


Final Modification to National Pollutant Discharge Elimination 
System (NPDES) General Permit for Stormwater Discharges From 
Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit modification.

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SUMMARY: All ten of the Environmental Protection Agency (EPA) Regions 
today are issuing a final 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 modified permit, hereinafter known 
as the ``modified 2017 CGP'' or ``final modified permit,'' replaces 
several conditions in the original 2017 CGP and relevant fact sheet 
sections. The scope of the modification is limited to only these 
conditions; all other conditions remain the same. The permit term also 
remains the same, meaning the modified 2017 CGP will still expire on 
February 16, 2022. This Federal Register notice describes the final 
permit modification and changes that were made from the proposed 
modified permit to the final modified permit based on public comments. 
The modified 2017 CGP and accompanying fact sheet can be found in the 
Docket (EPA-HQ-OW-2015-0828) as well as on the EPA's construction 
stormwater website at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.

DATES: The modified 2017 CGP will become effective on June 27, 2019. In 
accordance with 40 CFR part 23, specifically 23.2, this modified permit 
shall be considered issued for the purpose of judicial review on May 
28, 2019. Under section 509(b) of the Clean Water Act, judicial review 
of this modified general permit can be requested by filing a petition 
for review in the United States Court of Appeals within 120 days after 
the modified permit is considered issued. Under section 509(b)(2) of 
the Clean Water Act, this modified permit may not be challenged later 
in civil or criminal proceedings to enforce this permit. In addition, 
this modified permit may not be challenged in any other agency 
proceedings. Deadlines for submittal of Notices of Intent are provided 
in Part 1.4.3 of the permit. The permit also provides additional dates 
for compliance with the terms of the permit.

FOR FURTHER INFORMATION CONTACT: For further information on the permit, 
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. Who are the EPA Regional Contacts for the Final Modified 
Permit?
II. Background on the Permit and Final Modification
III. Summary of the Final Modification
IV. Analysis of Economic Impacts
V. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
VI. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
VII. 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 scope of EPA's action to modify the 2017 CGP did not include 
the types of entities eligible to be covered under the original 2017 
CGP. The CGP continues to be available to cover the following entities, 
as categorized in the North American Industry Classification System 
(NAICS):

[[Page 24504]]



                Table 1--Entities Covered by This Permit
------------------------------------------------------------------------
                                                               North
                                                             American
                                   Examples of affected      Industry
            Category                     entities         Classification
                                                          System (NAICS)
                                                               code
------------------------------------------------------------------------
Industry.......................   Construction site operators disturbing
                                   1 or more acres of land, or less than
                                    1 acre but part of a larger common
                                    plan of development or sale if the
                                    larger common plan will ultimately
                                  disturb 1 acre or more, and performing
                                         the following activities:
                                ----------------------------------------
                                 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 Permit
    The scope of EPA's action to modify the 2017 CGP did not include 
the coverage area of the permit under the original 2017 CGP. Coverage 
remains 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 modified 2017 CGP and includes the states 
of New Hampshire, Massachusetts, New Mexico, and Idaho, 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 Avenue 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 final modified permit and accompanying 
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 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. Who are the EPA regional contacts for the final modified permit?

    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 Final Modification

    Section 402(p) of the Clean Water Act (CWA) directs the EPA to 
regulate certain stormwater discharges under the NPDES program, 
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 smaller 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

[[Page 24505]]

regulatory authority cited above, the EPA issued the original 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 original 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 
original 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 and provided new information to the Agency on 
how certain permit requirements might be misinterpreted by construction 
site operators permitted under the original 2017 CGP. 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 original 2017 CGP, the Agency proposed a permit modification for 
a 45-day public comment period beginning on December 12, 2018 and 
ending on January 28, 2019. The purpose of the proposed modification 
was to clarify the Agency's intent of certain permit requirements.
    In the proposed permit modification, the EPA proposed to remove 
examples of operators in the definition of operator; align three permit 
requirements that implement the Effluent Limitations Guidelines (ELGs) 
and New Source Performance Standards (NSPS) for Construction and 
Development (40 CFR part 450) (referred to collectively as ``the C&D 
rule'') more closely with the ELG text; and clarify the roles and 
responsibilities of individual operators on construction sites with 
multiple operators. The proposed changes were intended to simplify the 
permit language and accompanying fact sheet explanation without 
changing the underlying requirements, applicability, implementation, or 
enforceability of the original permit's requirements. Only those 
requirements that the EPA proposed to modify were reopened in the 
proposed modified permit for public comment (40 CFR 122.62).
    The final modified 2017 CGP is substantially similar to the 
proposed modified permit. The final modified 2017 CGP replaces several 
existing conditions in the original 2017 CGP and relevant fact sheet 
sections, but retains all other terms and conditions of the original 
permit unchanged. For instance, the modified 2017 CGP does 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 original 
2017 CGP, meaning the modified 2017 CGP will still expire on February 
16, 2022. The final modification is summarized in more detail below.

III. Summary of the Final Modification

    During the public comment period for the proposed permit 
modification, the EPA received a total of 14 comment letters. Three 
industry groups, one environmental group, three states, and seven 
anonymous commenters submitted comments to the Agency. The majority of 
comments were generally supportive of the proposed modification, with 
some commenters suggesting further changes to the wording or phrasing 
of some elements of the proposed modification. The EPA considered all 
comments before finalizing the permit modification. The EPA's response 
to comments is available in the Docket (EPA-HQ-OW-2015-0828). The 
modified 2017 CGP contains the following finalized changes from the 
original 2017 CGP:
    1. Removed examples in the definition of ``operator''--The EPA 
removed two parenthetical examples that appeared in Part 1.1.1 of the 
original 2017 CGP showing examples of the type of entity that would be 
considered an ``operator'' and therefore would be eligible for coverage 
under the permit. The EPA has determined after further consideration 
that providing these examples may cause unintended confusion since 
there may be instances where a party technically fits the description 
used in the example yet would not qualify as an operator as intended by 
the permit. Therefore, rather than suggesting who might be considered 
an operator ``in most cases,'' the EPA removed the examples from both 
Part 1.1.1(a) and (b) so that entities determining if they should seek 
permit coverage under the modified 2017 CGP can focus solely on the 
substantive definition of operator. See Part 1.1.1 of the final 
modified permit.
    2. Aligned language of three requirements with the C&D rule--The 
EPA adjusted the wording of two erosion and sediment control 
requirements and one pollution prevention requirement in the permit to 
clarify their intent and to align their text with the C&D ELG at 40 CFR 
part 450. See Part 2.2.6 on minimizing dust; Part 2.2.11 on minimizing 
channel and streambank erosion and scour in the immediate vicinity of 
discharge points; and Part 2.3.3(a) on storage, handling, and disposal 
of building products, materials, and wastes.
    3. Clarified individual operator responsibility in multiple 
operator arrangements--The EPA clarified an individual operator's legal 
responsibility for permit compliance in situations where there are 
multiple operators who divide permit responsibilities among themselves. 
In particular, the EPA removed references to ``joint and several 
liability'' from the original permit since they may have provided, 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 clarified that, where multiple operators 
divide permit responsibilities among themselves, each operator remains 
responsible for compliance with the permit, but that they do not have 
to duplicate those permit-related functions if one of the other 
operators is appropriately implementing the relevant requirement in 
full compliance with the permit. The EPA received some public comments 
indicating that the italicized part of the following sentence proposed 
in the permit footnote 52 and in the fact sheet may be construed in 
ways that the EPA did not intend: ``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.'' Given 
that this phrase is not imperative to the objective of the sentence, 
which describes that all operators have an individual responsibility to 
comply with the permit, the EPA agreed to remove it in the final 
modified permit. Additionally, the EPA added the ``Operator A/B'' 
example that was proposed in the fact sheet, which explains how 
operators do not have to duplicate divided responsibilities, to the 
permit footnote 52 to reinforce the Agency's position. The example 
reads, ``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

[[Page 24506]]

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 52; and 
Appendix A definition for ``shared control''; and the accompanying fact 
sheet explanation for these Parts.

IV. Analysis of Economic Impacts

    Due to the narrow scope of this 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 permit modification. It is therefore 
unnecessary for the EPA to revise the economic analysis that was 
prepared for the original 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 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. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (E.O.) 12898 (59 FR 7629 (February 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 original 
2017 CGP, this final modification to the 2017 CGP will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because the requirements 
in the modified permit 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 provisions increase the 
level of environmental protection for all affected populations.

VII. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This 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 action.
    In compliance with Executive Order 13175, the EPA consulted with 
tribal officials during the development of the original 2017 CGP to 
gain an understanding of and, where necessary, address any areas of the 
original 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 the 
original 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 modified 2017 CGP).
    As part of the proposal for this modification, the EPA reviewed the 
tribal conditions that were incorporated into the original 2017 CGP 
under Section 401 certifications to identify any requirements that the 
proposed action might affect. See Part 9 of the original 2017 CGP. Only 
two tribal conditions referenced a permit requirement that was the 
subject of the proposed modification, Part 2.2.11 (Minimize erosion of 
stormwater conveyance channels and their embankments . . .). The EPA 
also completed the CWA Section 401 certification procedures with all 
applicable tribes where the permit applies for the final permit 
modification. Due to the narrow scope of the permit modification and 
the focus on clarifying the intent of certain requirements rather than 
changing the underlying requirement itself, the EPA determined that the 
final action will not change the interpretation or implementation of 
the tribal conditions referencing Part 2.2.11, and therefore any tribal 
impacts from this modification will be limited.

    Authority:  Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: May 14, 2019.
Deborah A. Szaro,
Acting Regional Administrator, EPA Region 1.
    Dated: May 14, 2019.
Jeff Gratz,
Deputy Director, Water Division, EPA Region 2.
    Dated: May 14, 2019.
Jose C. Font,
Acting Director, Caribbean Environmental Protection Division, EPA 
Region 2.
    Dated: May 14, 2019.
Catharine McManus,
Deputy Director, Water Division, EPA Region 3.
    Dated: May 14, 2019.
Jeaneanne M. Gettle,
Director, Water Division, EPA Region 4.
    Dated: May 14, 2019.
Joan M. Tanaka,
Acting Director, Water Division, EPA Region 5.
    Dated: May 14, 2019.
Charles W. Maguire,
Director, Water Division, EPA Region 6.
    Dated: May 14, 2019.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
    Dated: May 14, 2019.
Darcy O'Connor,
Director, Water Division, EPA Region 8.
    Dated: May 14, 2019.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.
    Dated: May 14, 2019.
Daniel D. Opalski,
Director, Water Division, EPA Region 10.
[FR Doc. 2019-11075 Filed 5-24-19; 8:45 am]
 BILLING CODE 6560-50-P