[Federal Register Volume 74, Number 87 (Thursday, May 7, 2009)]
[Notices]
[Pages 21357-21361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10536]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8900-1]


Draft EPA Region 4 National Pollutant Discharge Elimination 
System (NPDES) General Permit for Stormwater Discharges From 
Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed permit issuance.

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SUMMARY: EPA Region 4 today is proposing for public comment the 
issuance of its 2009 National Pollutant Discharge Elimination System 
general permit for stormwater discharges on Indian Country Lands within 
the states of Region 4 from new dischargers engaged in large and small 
construction activities. Hereinafter, this NPDES general permit will be 
referred to as ``permit'' or ``2009 construction general permit'' or 
``2009 CGP.'' ``New dischargers'' are those who did not file a notice 
of intent (``NOI'') to be covered under the 2004 construction general 
permit (``2004 CGP'') before it expired. Existing dischargers who 
properly filed an NOI to be covered under the 2004 CGP continue to be 
authorized to discharge under that permit according to its terms. This 
draft 2009 CGP contains generally the same limits and conditions as the 
National CGP issued by other EPA regions on July 30, 2008 (``2008 
National CGP''). As proposed, EPA Region 4 is issuing this CGP for a 
period not to exceed two (2) years and will make the permit available 
to new construction activities and unpermitted ongoing activities only.

DATES: Comments on EPA Region 4's proposal, including the draft permit, 
must be postmarked by June 14, 2009.

ADDRESSES: Persons wishing to comment on any aspects of this permit 
reissuance or wishing to request a public hearing are invited to submit 
their comments or hearing requests in writing within thirty (30) days 
of this notice to the Water Protection Division, Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303, 
Attention: Alanna Conley.
    Instructions: A copy of the draft 2009 CGP and its accompanying 
fact sheet is available at http://www.epa.gov/region4/water/permits/stormwater.html. EPA's policy is that all comments received will be 
included in the public docket without change, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through e-mail. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.

FOR FURTHER INFORMATION CONTACT: The proposed NPDES general permit, 
fact sheet and other relevant documents are on file and may be 
inspected any time between 9 a.m. and 4 p.m., Monday through Friday at 
the address shown above. Copies of these documents may be obtained by 
writing the above address or by calling Alanna Conley at (404) 562-
9443. In addition, copies of the proposed permit and fact sheet may be 
downloaded at http://www.epa.gov/region4/water/permits/stormwater.html.
    For any questions, please contact Alanna Conley, telephone number: 
(404) 562-9443, or at the following address: Water Protection Division, 
Stormwater and Nonpoint Source Section, Environmental Protection 
Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303, or by fax 
at (404) 562-9224.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    The 2009 CGP would potentially apply to the following construction 
activities:

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                                       Examples of        North American Industry Classification System (NAICS)
             Category               affected entities                             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:
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[[Page 21358]]

 
                                   Building,                                                                 233
                                    Developing and
                                    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 ``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 2009 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 
2009 CGP. An ``unpermitted ongoing project'' is one that commenced 
prior to the effective date of the 2009 CGP, yet never received 
authorization to discharge under the 2004 CGP or any other NPDES permit 
covering its construction-related stormwater discharges. This proposal 
is limited to those areas where EPA Region 4 is the permitting 
authority, including all Indian Country Lands within the States of 
Alabama, Florida, Mississippi, and North Carolina.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through e-
mail. 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 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.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking (subject heading: Region 4 CGP 
Comments).
     Consider organizing your comments by permit section 
numbers.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Public Hearings

    EPA has not scheduled any public hearings to receive public comment 
concerning the proposed 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 proposed 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. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
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 
proposed permit. If 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 proposed permit at the public 
hearing.

D. Finalizing the Permit

    After the close of the public comment period, EPA Region 4 will 
issue a final permit. This permit will not be issued until after all 
public comments have been considered and appropriate changes made to 
the permit. EPA's response to public comments received will be included 
in the administrative record as part of the final permit decision. Once 
the final permit becomes effective, operators of new and unpermitted 
ongoing construction projects may seek authorization to discharge by 
filing a NOI to be covered under the new 2009 CGP. Under EPA's 
regulations at 40 CFR 122.6, any construction site operator obtaining 
permit coverage prior to the April 30, 2009, expiration date of the 
2004 CGP, automatically remains covered under that permit until:
     The operator submits a Notice of Termination;
     EPA issues an individual permit or denies coverage under 
an individual permit for the site's stormwater discharges, or;
     EPA issues a new general permit that establishes 
procedures for covering these existing dischargers to obtain coverage 
under the new general permit and the operator obtains coverage 
consistent with the procedures detailed in that new general permit.

II. Background of Permit Proposal

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.'' 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.'' 33 
U.S.C. 1251(a)(2). To achieve these goals, the CWA requires EPA to 
control the discharges through the issuance of National Pollutant 
Discharge Elimination System (``NPDES'') permits.
    Section 405 of 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. EPA published a 
final regulation in the Federal Register on the first phase of this 
program on November 16, 1990, establishing permit application 
requirements for ``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.

[[Page 21359]]

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 
U.S. were included in the definition of ``industrial activity'' 
pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the stormwater program 
was published in the Federal Register on December 8, 1999, and required 
NPDES permits for discharges from construction sites disturbing at 
least one acre, but less than five acres, including sites that 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.
    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 and standards, permitting authorities incorporate 
technology-based effluent limitations on a best professional judgment 
basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

B. Summary of Permit Proposal

    EPA proposes to issue the 2009 CGP for a period not to exceed two 
years. As proposed, the 2009 CGP will include conditions and limits 
that are generally identical to the 2008 National CGP issued by other 
EPA Regional offices, with a few requirements carried over from the 
2004 CGP. Note that the 2009 CGP only applies to new and unpermitted 
ongoing construction projects. Discharges from ongoing projects (or 
``existing dischargers'') would continue to be covered under the 
existing 2004 CGP. (However, EPA clarifies that if an operator of a 
permitted ongoing project transfers ownership of the project, or a 
portion thereof, to a different operator, that subsequent operator will 
be required to submit a complete and accurate NOI for a new project 
under the 2009 CGP.) Although the existing permit expires on April 30, 
2009, dischargers who filed NOIs to be authorized under that permit 
prior to the expiration date will continue to be authorized to 
discharge in accordance with EPA's regulations at 40 CFR 122.6. The 
draft permit proposed here will only apply to dischargers who were not 
authorized under the 2004 CGP, which includes both ``new projects'' and 
``unpermitted ongoing projects.'' Operators of new projects or 
unpermitted ongoing projects seeking coverage under the 2009 CGP would 
be expected to use the same electronic Notice of Intent (eNOI) system 
that is currently in place for the 2004 CGP.
    As stated, EPA Region 4 proposes to issue the 2009 CGP for a period 
not to exceed two years. As a result of recent litigation brought 
against EPA concerning the promulgation of effluent limitations 
guidelines and standards for the construction and development (``C&D'') 
industry, EPA was required by court order to propose effluent 
limitations guidelines and new source performance standards 
(hereinafter, ``effluent guidelines'') for the C&D industry by December 
2008, and promulgate those effluent guidelines by December 2009. See 
Natural Resources Defense Council, et al. v. U.S. Environmental 
Protection Agency, No CV--0408307-GH (C.D. Cal.) (Permanent Injunction 
and Judgment, December 5, 2006). EPA believes it is appropriate to 
propose a revised National CGP once EPA has issued C&D effluent 
guidelines, and therefore proposes a maximum two-year duration for this 
permit to better coincide with the court-ordered deadlines for the C&D 
rule. EPA intends to propose and finalize a new, revised National CGP 
sooner, if the C&D rule is promulgated earlier than the date directed 
by the court.

C. What Is EPA's Rationale for This Permit Proposal?

    In consideration that the 2004 CGP expires on April 30, 2009, it is 
incumbent upon EPA Region 4 to make available a similar general permit 
that provides coverage for any new dischargers commencing construction 
in the areas where EPA Region 4 is the permitting authority. Without 
such a permit vehicle, the only other available option for construction 
site operators is to obtain coverage under an individual permit. EPA is 
proposing to issue a CGP that adopts the same limits and conditions of 
the 2008 National CGP issued by other EPA regions for a limited period 
of time. This action is appropriate for several reasons. One main 
reason, as discussed above, is that EPA is working on the development 
of a new effluent guideline that will address stormwater discharges 
from the same industrial activities (i.e., construction activities 
disturbing one or more acres) as the CGP. Because the development of 
the C&D rule and the issuance of the CGP are on relatively similar 
schedules, and the C&D rule will establish national technology-based 
effluent limitations and standards for construction activities, EPA 
believes that it is more appropriate to proceed along two tracks to 
permit construction discharges. The first track entails issuing a CGP 
for a limited period of time, not to exceed 2 years, that contains the 
2004 CGP limits and conditions, but for only operators of new and 
unpermitted ongoing projects, so that such entities can obtain valid 
permit coverage for their discharges. The second track involves 
proposing and issuing a revised 5-year CGP that incorporates the 
requirements of the new C&D rule after the rule is promulgated.
    In addition, EPA believes that issuing a substantially revised CGP 
would be impracticable given the number of unknowns concerning the 
outcome of the C&D rule. EPA does not believe that it would be 
appropriate to issue a permit containing technology-based limitations 
that could be quickly outdated, given the timing of a promulgation of 
the C&D rule and permit issuance. If EPA had attempted to approximate 
the requirements of the new C&D rule and incorporate such limits into a 
new CGP, such a permit would presuppose the outcome of the C&D rule and 
potentially conflict with the scope and content of the effluent 
limitation guideline. Instead, EPA Region 4 has decided to wait the 
short time until after the C&D rule promulgation to issue a revised CGP 
that is fully reflective of the new effluent limitation guideline. In 
the meantime, during this relatively short period of time prior to the 
C&D rule's promulgation and prior to the issuance of the revised CGP 
that incorporates those standards, EPA is proposing to use similar 
permit limits and conditions as the 2004 CGP as an effective vehicle to 
control new discharges. EPA notes that it has minimized the amount of 
time during which the 2009 CGP will remain effective in order to 
underscore the Agency's intention to issue a revised CGP once the C&D 
rule is finalized.

D. Significant Changes From 2004 CGP

    As discussed above, EPA is proposing to issue the 2008 CGP for a 
period not to exceed two years. This permit would include similar 
limits and conditions as the 2004 CGP with the following noteworthy 
differences:
    1. Clarification that eligibility for coverage under the 2009 CGP 
is limited

[[Page 21360]]

to operators of new and unpermitted ongoing construction projects.
    2. Clarification that operators of ongoing permitted construction 
projects are not eligible for coverage under the 2009 CGP.

E. Geographic Coverage

    EPA is only authorized to provide permit coverage for classes of 
discharges that are outside the scope of a state's NPDES program 
authorization. EPA Region 4 is proposing to issue the 2009 CGP to 
replace the expiring 2004 CGP for operators of new and unpermitted 
ongoing construction projects. The geographic coverage and scope of the 
2009 CGP includes all Indian Country Lands within the States of 
Alabama, Florida, Mississippi, and North Carolina, where EPA Region 4 
is the NPDES permitting authority. There is no change in the scope of 
coverage from the 2004 CGP.

III. Compliance With the Regulatory Flexibility Act

A. EPA's Approach to Compliance With the Regulatory Flexibility Act for 
General Permits

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
Section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of that general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. US Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army Corps general 
permits under Section 404 of the CWA are rules under the APA and the 
Regulatory Flexibility Act; ``Each NWP [nationwide permit] easily fits 
within the APA's definition `rule. * * * As such, each NWP constitutes 
a rule * * * '').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications rather than rules, as noted above, the DC Circuit 
recently held that Nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the CWA. Accordingly, EPA has committed to operate 
in accordance with the RFA's framework and requirements during the 
Agency's issuance of CWA general permits (in other words, the Agency 
has committed that it will apply the RFA in its issuance of general 
permits as if those permits do qualify as ``rules'' that are subject to 
the RFA).

B. Application of RFA Framework to Proposed Issuance of CGP

    EPA has concluded, consistent with the discussion in Section IV.A 
above, that the proposed issuance of the 2009 CGP could affect a 
handful of small entities. In the areas where the CGP is effective (see 
Section II.E), (those areas where EPA is the permit authority), a total 
of 27 construction projects were authorized under the 2004 CGP--some of 
these projects could have been operated by small entities. However, EPA 
has concluded that the proposed issuance of the 2009 CGP is unlikely to 
have an adverse economic impact on small entities. The draft 2009 CGP 
includes the same requirements as those of the national 2008 CGP issued 
by other EPA regions. Additionally, an operator's use of the CGP is 
volitional (i.e., a discharger could apply for an individual permit 
rather than for coverage under this general permit) and, given the more 
streamlined process for obtaining permit coverage, is less burdensome 
than an individual NPDES permit. EPA intends to include an updated 
economic screening analysis with the issuance of the next national CGP.

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


[[Page 21361]]


    Dated: April 28, 2009.
William L. Cox,
Acting Director, Water Protection Division, Region 4.
[FR Doc. E9-10536 Filed 5-6-09; 8:45 am]
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