[Federal Register Volume 69, Number 47 (Wednesday, March 10, 2004)]
[Notices]
[Pages 11434-11436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5371]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7633-5]


Final National Pollutant Discharge Elimination System (NPDES) 
General Permit for Storm Water Discharges From Construction Activities 
That Are Classified as Associated With Industrial Activity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final National Pollutant Discharge Elimination System 
(NPDES) general permit reissuance for storm water discharges from 
construction activities that are classified as ``associated with 
industrial activity.''

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SUMMARY: EPA Region 4 is reissuing a final NPDES general permit for 
discharges from large and small construction activities. The reissued 
permit covers Phase II (small) construction activities and replaces the 
previous permit issued March 31, 1998 (63 FR 15622), and modified on 
April 28, 2000 (64 FR 25122), which covered Phase I (large) 
construction activities. The reissued permit covers facilities on 
Indian country lands within the states of Alabama, Florida, Mississippi 
and North Carolina.

DATES: The effective date of this permit is May 1, 2004, and will 
expire at midnight April 30, 2009.

ADDRESSES: The administrative record is available for inspection and 
copying at the United States Environmental Protection Agency, Region 4, 
Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960.

FOR FURTHER INFORMATION CONTACT: For further information on the final 
permit, the Notice of Intent (NOI) or Notice of Termination (NOT), 
contact Mr. Floyd Wellborn of the NPDES and Biosolids Permits Section 
at (404) 562-9296 or by email at [email protected] or Mr. Michael 
Mitchell at (404) 562-9303 or by email at [email protected]. 
Copies may be obtained by writing the United States Environmental 
Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, GA 30303-8960, Attention: Ms. Ann Brown, or calling (404) 
562-9288. In addition, copies of the final NPDES general permit, fact 
sheet or other relevant documents may be downloaded at www.epa.gov/region4/water/permits/stormwater.html.

SUPPLEMENTARY INFORMATION:

I. Procedures for Reaching a Final Permit Decision

    A formal hearing is available to challenge any NPDES permit issued 
according to the regulations at 40 CFR 124.15, except for a general 
permit as cited by 40 CFR 124.71. Within 120 days following notice of 
EPA's final decision for the general permit under 40 CFR 124.15, any 
interested person may appeal the permit in the Federal Court of Appeals 
in accordance with section 509(b)(1) of the CWA. Persons affected by a 
general permit may not challenge the conditions of a general permit as 
a right in further Agency proceedings. They may instead either 
challenge the general permit in court, or apply for an individual 
permit as specified at 40 CFR 122.21, as authorized at 40 CFR 122.28, 
and then request a formal hearing on the issuance or denial of an 
individual permit.

II. Background

A. Statutory and Regulatory History

    Section 405 of the Water Quality Act of 1987 added section 402(p) 
to the CWA, which directed the EPA to develop a phased approach to 
regulate the storm water discharges under the National Pollutant 
Discharge Elimination System (NPDES) program. EPA published a final 
regulation on the first phase of this program on November 16, 1990, 
establishing permit application requirements for ``storm water 
discharges associated with industrial activity.'' Construction 
activities that disturb at least five acres of land or are part of a 
larger plan of development and have point source discharges to waters 
of the U.S., are defined in 40 CFR 122.26(b)(14)(x) as an ``industrial 
activity.'' Upon the advent of the Phase II storm water regulations, 
these activities became referred to as large construction activities.
    Phase II of the storm water program was published in the Federal 
Register on December 8, 1999. Phase II includes sites disturbing at 
least one acre of land and less than five acres, as well as sites less 
than one acre of land area that are part of a larger common plan of 
development or sale if the larger common plan will ultimately disturb 
equal to or greater than one and less than five acres. Small 
construction activity is defined at 40 CFR 122.26(b)(15)(i).

B. Significant Changes From the 1998 General Permit and the Subsequent 
2000 Modification

    1. The organization and numbering of the permit has been changed 
from the March 1998 (63 FR 15622) permit and

[[Page 11435]]

the April 2000 (64 FR 25122) permit modification to mirror the 
organization and numbering of the national permit issued by various 
other EPA regions in the July 2003 Federal Register (68 FR 39087). This 
change also will support the use of the NOI form used to apply for 
coverage under the general permit. The NOI directs the applicant to 
certain sections of the permit. Therefore, it is imperative that the 
permit sections cited correspond to the topics referenced in the NOI.
    2. Coverage for discharges from small construction activities has 
been added to the eligibility provisions.
    3. The eligibility conditions were clarified regarding facilities 
discharging to water bodies with Total Maximum Daily Loads (TMDLs).
    4. Waivers have been added for qualifying discharges from small 
construction activities.
    5. The permit coverage area has been changed. This reissuance no 
longer covers facilities on non-Indian lands in the State of Florida. 
It does continue to cover facilities on Indian Country lands within the 
States of Alabama, Florida, Mississippi and North Carolina.
    6. The NOI has been changed from the previous permit. See page 
78118 of the December 20, 2002, Federal Register (67 FR 78116) for a 
detailed discussion on the changes.
    7. Authorization of coverage is seven (7) days from the date of the 
acknowledgment letter rather than two (2) days from the postmark of the 
NOI.
    8. The deadlines for submitting the NOI have changed in Part 2.2 of 
the permit to reflect the new authorization schedule.
    9. The size rain event trigger for inspections of the site have 
been changed from a rain event of 0.25 inches to one that is 0.5 inches 
in a 24 hour period.
    10. Addendum F, a list of reportable quantities of hazardous 
substances, has been added to the permit.
    11. Part 3.2.A. has been changed to allow off site retention of the 
SWPPP where necessary.

C. Summary of Terms and Conditions of the General Permit

1. Discharges Covered
    Operators of construction activities disturbing at least one acre 
of land, or less than an acre but is part of a larger plan of 
development or sale, on Indian Country lands within the States of 
Alabama, Florida, Mississippi and North Carolina may be eligible to 
obtain coverage under this permit for allowable storm water and non-
storm water discharges specifically listed in the permit.
2. Limitations on Coverage
    The general permit retains the eligibility restrictions from the 
previous permit. The permit does not regulate post-construction 
discharges, storm water discharges commingled with non-storm water 
discharges, except as noted, discharges previously covered by another 
NPDES, discharges which cause or contribute to a violation of a water 
quality standard, discharges which adversely affect threatened or 
endangered species or their critical habitat, or discharges which 
adversely affect a listed or proposed to be listed historic place or 
resource. In addition, the permit includes a new restriction on 
discharges of storm water to waters for which a TMDL has been approved 
or established. Discharges of storm water from construction activities 
on at least one acre of land, or less than one acre that are part of a 
larger plan of development or sale, that do not meet the eligibility 
requirements of the general permit would be required to submit an 
individual permit application.
3. Deadlines and Permit Application Process
    To obtain discharge authorization under the general permit, 
dischargers must submit an NOI, which requires basic information about 
the facility owner/operator, location and discharge(s). NOI due dates, 
for construction activities on Indian lands in Alabama, Florida, 
Mississippi and North Carolina, are as follows:
    i. Ongoing construction activities previously covered by an NPDES 
permit, must submit an NOI within 60 days of the effective date of this 
permit.
    ii. New construction activities, after the effective date of this 
permit, must submit a complete and accurate NOI in accordance with the 
requirements of Part 2.1, prior to the commencement of construction 
activities. Authorization to discharge is seven (7) days after the date 
of the acknowledgment letter (see part 2.4).
4. Storm Water Pollution Prevention Plans
    The general permit requires operators covered by the permit to 
develop and implement a SWPPP. All SWPPPs must be developed in 
accordance with sound engineering practices and developed specific to 
the site. The SWPPP must be prepared prior to submission of the NOI.
5. Monitoring Requirements
    The permittee shall monitor by grab sample, during regular working 
hours, once per month within the first 30 minutes of a qualifying event 
or within the first 30 minutes of the beginning of the discharge of a 
previously collected qualifying event for Settleable Solids (ml/l), 
Total Suspended Solids (mg/l), Turbidity (NTUs) and Flow (MGD).

III. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health, or safety, or State, 
local, or Tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. OMB has exempted 
review of NPDES general permits under the terms of Executive Order 
12866.

IV. Regulatory Flexibility Act

    The regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rule making requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    Issuance of an NPDES general permit is not subject to rule making 
requirements, including the requirement for a general notice of 
proposed rule making, under APA section 533 or any other law, and is 
thus not subject to the RFA requirements.
    The APA defines two broad, mutually exclusive categories of agency 
action--``rules'' and ``orders.'' APA section 551(4) defines rule as 
``an agency statement of general or particular applicability and future 
effect designed to implement, interpret or prescribe law or policy or 
describing the organization, procedure, or practice or requirements of 
an agency * * *'' APA section 551(6) defines orders as ``a final 
disposition

[[Page 11436]]

* * * of an agency in a matter other than rule making but including 
licensing.'' APA section 551(8) defines ``license'' to ``include * * * 
an agency permit * * *'' The APA thus categorizes a permit as an order, 
which by the APA's definition is not a rule. Section 553 of the APA 
establishes ``rule making'' requirements. APA section 551(5) defines 
``rule making'' as ``the agency process for formulating, amending, or 
repealing a rule.'' By its terms, section 553 applies only to rules and 
not to orders, exempting by definition permits.

V. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their ``regulatory actions'' to refer to regulations. (See, 
e.g., UMRA section 401, ``Each agency shall * * * assess the effects of 
Federal regulatory actions * * * (other than to the extent that such 
regulations incorporate requirements specifically set forth in law).'') 
UMRA section 102 defines ``regulation'' by reference to 2 U.S.C. 658 
which in turn defines ``regulation'' and ``rule'' by reference to 
section 601(2) of the RFA. That section of the RFA defines ``rule'' as 
``any rule for which the agency publishes a notice of proposed rule 
making pursuant to section 553(b) of the APA, or any other law.''
    As discussed in the RFA section of this notice, NPDES general 
permits are not ``rules'' by definition under the APA and thus not 
subject to the APA requirement to publish a notice of proposed rule 
making. NPDES general permits are also not subject to such a 
requirement under the CWA. While EPA publishes a notice to solicit 
public comment on draft general permits, it does so pursuant to the CWA 
section 402(a) requirement to provide an opportunity for a hearing. 
Therefore, NPDES general permits are not ``rules'' for RFA or UMRA 
purposes.

VI. Paperwork Reduction Act

    EPA HQ has reviewed the requirements imposed on regulated 
facilities resulting from the construction general permit under the 
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information 
collection requirements of the construction general permit for large 
construction activities have already been approved by the Office of 
Management and Budget (OMB) (OMB Control No. 2040-0188) in previous 
submissions made for the NPDES permit program under the provisions of 
the CWA. Information collection requirements of the construction 
general permit for small construction activities (OMB Control No. 2040-
0211) were approved by OMB on June 12, 2003, and published in the 
Federal Register on July 25, 2003 (68 FR 44076).

James D. Giattina,
Director, Water Management Division.
[FR Doc. 04-5371 Filed 3-9-04; 8:45 am]
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