[Federal Register Volume 76, Number 111 (Thursday, June 9, 2011)]
[Notices]
[Pages 33753-33756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14197]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9316-1]
Modification of the Expiration Date for the National Pollutant
Discharge Elimination System General Permit for Stormwater Discharges
From Construction Activities on Tribal Lands Within the Southeastern
United States
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA Region 4 proposes to modify the expiration date of the
National Pollutant Discharge Elimination System (NPDES) general permit
authorizing the discharge of stormwater from construction activities on
Tribal Lands within the states of Alabama, Florida, Mississippi and
North Carolina. This NPDES construction general permit (CGP),
hereinafter referred to as ``the Region 4 CGP,'' was issued on
September 1, 2009, with an expiration date of August 31, 2011. EPA
Region 4 is proposing to extend the expiration date from August 31,
2011, to September 1, 2012. No other revisions are being proposed to
the Region 4 CGP. The purpose of extending the expiration date is to
ensure that there is no lapse in permit coverage prior to the effective
date of the issuance of a new permit, which has been proposed for
public review and comment in a separate action. Information about the
proposed new permit, hereinafter referred to as ``the new National
CGP,'' can be found at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.
DATES: EPA is proposing a modification to the Region 4 CGP that would
extend the expiration date from August 31, 2011, to September 1, 2012.
If the proposed modification is finalized, the Region 4 CGP would
expire at midnight, on September 1, 2012, or on the effective date of
the new National CGP, whichever is earlier. Comments on the proposal to
modify the expiration date of the Region 4 CGP must be postmarked by
July 11, 2011.
FOR FURTHER INFORMATION CONTACT: Alanna Conley or Michael Mitchell of
the Stormwater and Nonpoint Source Section, Water Protection Division,
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, GA 30303; telephone number: (404) 562-9443 or (404) 562-9303;
fax number: (404) 562-8692; e-mail address: conley.alanna@epa.gov or
mitchell.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
If a discharger chooses to apply for coverage under the Region 4
CGP, the permit provides specific requirements for preventing
contamination of waterbodies from stormwater discharges from the
following construction activities:
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North American
Examples of affected Industry
Category entities Classification
System (NAICS) Code
------------------------------------------------------------------------
Industry.............. Construction site operators disturbing 1 or more
acres of land, or less than 1 acre but part of
a larger common plan of development or sale if
the larger common plan will ultimately disturb
1 acre or more, and performing the following
activities:
-------------------------------------------------
Building, Developing and 233
General Contracting.
Heavy Construction........ 234
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EPA does not intend the preceding table to be exhaustive, but
provides it as a guide for readers regarding entities likely to be
regulated by this action. This table lists the types of activities that
EPA is now aware of that could potentially be affected by this action.
Other types of entities not listed in the table could also be affected.
To determine whether your facility is affected by this action, you
should carefully examine the definition of
[[Page 33754]]
``construction activity'' and ``small construction activity'' in
existing EPA regulations at 40 CFR 122.26(b)(14)(x) and 122.26(b)(15),
respectively. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed for technical
information in the preceding FOR FURTHER INFORMATION CONTACT section.
Eligibility for coverage under the Region 4 CGP would be limited to
operators of ``new projects'' or ``unpermitted ongoing projects.'' A
``new project'' is one that commences after the effective date of the
Region 4 CGP (i.e., September 1, 2009). An ``unpermitted ongoing
project'' is one that commenced prior to the effective date of the
Region 4 CGP, yet never received authorization to discharge under the
previous CGP or any other NPDES permit covering its construction-
related stormwater discharges. The Region 4 CGP is effective only in
those areas where EPA Region 4 is the permitting authority, which
includes all Indian Country Lands within the states of Alabama,
Florida, Mississippi, and North Carolina. A list of eligible areas is
included in Appendix B of the Region 4 CGP.
B. How can I get copies of this document and other related information?
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/. Electronic versions of the Region 4 CGP
and fact sheet are available at EPA Region 4's stormwater Web site at:
http://www.epa.gov/region4/water/permits/stormwater.html.
C. How and to whom do I submit comments?
You may submit comments electronically (e-mail or cdrom), or by
postal mail. Comments should be sent to the person listed for technical
information in the FOR FURTHER INFORMATION CONTACT section of this
notice. To ensure proper receipt by EPA, identify the appropriate
Federal Register title in the subject line on the first page of your
comment. To ensure that EPA can read, understand, and therefore
properly respond to comments, the Agency would prefer that commenters
cite, where possible, the paragraph(s) or section in the fact sheet or
permit to which each comment refers. Please ensure that your comments
are submitted within the specified comment period. Comments received
after the close of the comment period will be marked ``late.'' EPA is
not required to consider these late comments.
D. Finalizing this action
This action will not be finalized until after all significant
public comments have been considered and addressed. Once the final
permit becomes effective, operators of new and unpermitted ongoing
construction projects may seek authorization under the Region 4 CGP
prior to midnight, September 1, 2012, or the effective date of the new
National CGP, whichever is earlier.
II. Background of Permit
A. Statutory and Regulatory History
The Clean Water Act (CWA) establishes a comprehensive program ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' See 33 U.S.C. 1251(a). The CWA also includes
the objective of attaining ``water quality which provides for the
protection and propagation of fish, shellfish and wildlife and * * *
recreation in and on the water.'' See 33 U.S.C. 1251(a)(2). To achieve
these goals, the CWA requires EPA to control point source discharges of
pollutants through the issuance of NPDES permits.
The Water Quality Act of 1987 (WQA) added section 402(p) of the
CWA, which directed EPA to develop a phased approach to regulate
stormwater discharges under the NPDES program, 33 U.S.C. 1342(p). EPA
published a final regulation in the Federal Register, often called the
``Phase I Rule'' on November 16, 1990, establishing permit application
requirements for, among other things, ``storm water discharges
associated with industrial activity.'' See 55 FR 47990. EPA defined the
term ``storm water discharge associated with industrial activity'' in a
comprehensive manner to cover a wide variety of facilities.
Construction activities, including activities that are part of a larger
common plan of development or sale, that ultimately disturb at least
five acres of land and have point source discharges to waters of the
United States were included in the definition of ``industrial
activity'' pursuant to 40 CFR 122.26(b)(14)(x). The second rule
implementing section 402(p), often called the Phase II Rule, was
published in the Federal Register on December 8, 1999, requires NPDES
permits for discharges from construction sites disturbing at least one
acre but less than five acres, including sites that are less than one
acre but are part of a larger common plan of development or sale that
will ultimately disturb at least one acre but less than five acres,
pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR 68722. EPA issued the
Region 4 CGP under the statutory and regulatory authority cited above.
NPDES permits issued for construction stormwater discharges are
required under Section 402(a)(1) of the CWA to include conditions for
meeting technology-based effluent limits established under Section 301
and, where applicable, Section 306. Once an effluent limitations
guideline or new source performance standard is promulgated in
accordance with these sections, NPDES permits are required to
incorporate limits based on such limitations and standards. See 40 CFR
122.44(a)(1). Prior to the promulgation of national effluent
limitations guidelines and new source performance standards, permitting
authorities incorporate technology-based effluent limitations on a best
professional judgment basis. See CWA section 402(a)(1)(B); 40 CFR
125.3(a)(2)(ii)(B).
B. Summary of the Region 4 CGP Issued in 2009
EPA announced the issuance of the 2009 Region 4 CGP on August 26,
2009. See 74 FR 43120. Construction operators choosing to be covered by
the Region 4 CGP must certify in their notice of intent (NOI) that they
meet the requisite eligibility requirements, described in Subpart 1.3
of the permit. If eligible, operators are authorized to discharge under
this permit in accordance with Part 2. Permittees must install and
implement control measures to meet the effluent limits applicable to
all dischargers in Part 3, and must inspect such stormwater controls
and repair or modify them in accordance with Part 4. The permit in Part
5 requires all construction operators to prepare a stormwater pollution
prevention plan (SWPPP) that identifies all sources of pollution and
describes control measures used to minimize pollutants discharged from
the construction site. Part 6 details the requirements for terminating
coverage under the permit.
EPA Region 4 issued the Region 4 CGP in 2009 to replace the expired
CGP, issued in 2004, for operators of new and unpermitted ongoing
construction projects. The geographic coverage and scope of eligible
construction activities are listed in Appendix B of the Region 4 CGP.
C. What is EPA's rationale for the modification of the expiration date
for the Region 4 CGP?
EPA proposes to modify the Region 4 CGP by extending the expiration
date of the permit to September 1, 2012. EPA Region 4 finds it
necessary to propose this extension in order to provide
[[Page 33755]]
sufficient time for finalization of the new National CGP which is being
issued by EPA Region 4 and the other EPA regional offices and would
also provide coverage to eligible existing and new construction
projects in all areas of the country where EPA is the NPDES permitting
authority (i.e., other Indian Lands, Idaho, Massachusetts, New
Hampshire, New Mexico, Puerto Rico, Washington, DC, and U.S.
territories and protectorates). The proposed National CGP will
incorporate for the first time new effluent limitations guidelines and
new source performance standards, which EPA promulgated in December
2009. Once the new National CGP is effective, eligible existing and new
construction projects on Tribal lands within Region 4, will be
regulated under the new National CGP. The extension of the expiration
date of the Region 4 CGP is necessary in order to make up for a delay
in the issuance process of the new National CGP due to an error
discovered in the December 2009 final rule regarding the calculation of
the numeric limitation on turbidity. This numeric limit has since been
stayed by EPA. EPA's proposed extension would provide the Agency with
sufficient time to account for this delay and to meet its other permit
issuance obligations.
NPDES permits issued for construction stormwater discharges are
required under Section 402(a)(1) of the CWA to include conditions for
meeting technology-based effluent limits established under Section 301
and, where applicable, Section 306. Once an effluent limitations
guideline or new source performance standard is promulgated in
accordance with these sections, any NPDES permits issued after the
effective date of these requirements must incorporate limits based on
such limitations and standards. See 40 CFR 122.44(a)(1). In the case of
the CGP, EPA promulgated effluent limitations guidelines and new source
performance standards for the construction and development point source
category on December 1, 2009 (``C&D rule''), which for the first time
imposed a set of minimum Federal numeric and non-numeric effluent
limitations on regulated construction sites. See 74 FR 62996 (December
1, 2009). The C&D rule (located at 40 CFR part 450) became effective on
February 1, 2010, thus requiring that any NPDES permit issued after
this date, whether issued by EPA or an authorized state, must
incorporate the substantive technology-based requirements of the rule
into the permit. For the new National CGP, this means that EPA must
incorporate the effective requirements of the C&D rule into the permit.
Among other requirements, the C&D rule subjected discharges from
certain larger construction sites to a numeric effluent limitation of
280 NTU for the pollutant turbidity starting in August of 2011 (for
sites disturbing 20 or more acres at one time) and February of 2014
(for sites disturbing 10 or more acres at one time). Subsequent to the
promulgation of the C&D rule, EPA received two petitions for
reconsideration of the rule. These petitions pointed out a potential
error in the calculation of the numeric limitation. Based on EPA's
examination of the dataset underlying the 280 NTU limit, EPA concluded
that it improperly interpreted the data and, as a result, the
calculations in the existing administrative record are no longer
adequate to support the 280 NTU numeric effluent limitation. In
response to this finding, EPA finalized a stay of the 280 numeric NTU
limit and associated monitoring requirements (see 40 CFR 450.22(a)) on
January 4, 2011, in order to enable the Agency to correct its error in
calculating the numeric limitation. See 75 FR 68215 (November 5, 2010).
EPA is currently in the process of initiating a limited rulemaking to
correct the numeric limitation.
Preceding the decision to stay the numeric turbidity limit, the
uncertainty surrounding the error in calculating the 280 NTU limit, and
the appropriate way for EPA to address it, caused a delay of several
months to the permit issuance process for the new National CGP. EPA
believes it is impracticable to finalize the new National CGP when
considering the minimum tasks required of the Agency to finalize the
permit.
With the setback of time related to the stay of the 280 NTU limit,
EPA needs additional time to complete the permit issuance process as
explained above. EPA believes that the proposed extension of the
expiration date of the Region 4 CGP to September 1, 2012, will provide
the sufficient time for the Agency to finalize the new National CGP.
EPA believes it is imperative that sufficient time to incorporate the
C&D ELG into the new National CGP is allotted. If EPA does not extend
the expiration date of the Region 4 CGP, no new construction projects
could receive general permit coverage between September 1, 2011, and
the effective date of the new National CGP, leaving individual NPDES
permits as the only available option for permitting new projects. The
sole reliance on individual permits would mean that discharge
authorizations would almost certainly be delayed due to the greater
amount of time and Agency resources that are required for developing
and issuing individual permits. In turn, construction projects that
need to begin construction activities on or after midnight August 31,
2011, for the 2009 Regional CGP, would be delayed for an uncertain
amount of time until EPA can review their individual permit application
and issue the necessary permits. Rather than risk detrimental delays to
new construction projects, with no clear benefit to our nation's
surface waters, EPA Region 4 has decided that it is advisable to
instead propose a modification to the 2009 Region 4 CGP to extend the
expiration date until September 1, 2012.
D. EPA's Authority To Modify NPDES Permits
EPA regulations establish when the permitting authority may make
modifications to existing NPDES permits. In relevant part, EPA
regulations state that ``[w]hen the Director receives any information *
* * he or she may determine whether or not one or more of the causes
listed in paragraph (a) * * * of this section for modification * * *
exist. If cause exists, the Director may modify * * * the permit
accordingly, subject to the limitations of 40 CFR 124.5(c).'' 40 CFR
122.62. For purposes of this Federal Register notice, the relevant
cause for modification is at 40 CFR 122.62(a)(2), which states that a
permit may be modified when ``[t]he Director has received new
information'' and that information was not available at the time of
permit issuance * * * and would have justified the application of
different permit conditions at the time of issuance.'' Pursuant to EPA
regulations, ``[w]hen a permit is modified, only the conditions subject
to the modification are reopened.'' 40 CFR 122.62.
In the case of the Region 4 CGP, a permit modification is justified
based on the new information EPA received following the issuance of the
permit, and more specifically, in terms of the delay to the permit
process associated with the discovery of the numeric limit calculation
error and resulting stay to the numeric turbidity limit. If this
information was available at the time of issuance of the Region 4 CGP,
it would have justified EPA establishing an expiration date for the
Region 4 CGP that was later than August 31, 2011. As a result, cause
exists under EPA regulations to justify modification of the Region 4
CGP to extend the permit until September 1, 2012. If the proposed
modification is finalized, the Region 4 CGP would expire at midnight,
on
[[Page 33756]]
September 1, 2012, or on the effective date of the proposed new
National CGP, whichever is earlier.
EPA notes that, by law, NPDES permits cannot be extended beyond 5
years. See 40 CFR 122.46. The proposed extension of the expiration date
of the Region 4 CGP complies with this restriction. The Region 4 CGP
was issued with an effective date of September 1, 2009. Assuming the
extension of the expiration date of the Region 4 CGP is finalized as
proposed, the permit would still have been in effect for less than the
5-year limit.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Signed this 27th day of May, 2011.
Douglas Mundrick,
Acting Director, Water Protection Division, Region 4.
[FR Doc. 2011-14197 Filed 6-8-11; 8:45 am]
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