[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Notices]
[Pages 43120-43123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20595]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8941-2]
Final 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 final permit issuance.
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SUMMARY: EPA Region 4 is issuing the final National Pollutant Discharge
Elimination System (NPDES) general permit for stormwater discharges
from new dischargers engaged in large and small construction activities
on Indian Country Lands within Region 4. 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 2009 CGP contains generally the same limits and
conditions as the National CGP that was issued by other EPA regions and
became effective on June 30, 2008 (``2008 National CGP''). 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: The effective date of this permit is September 1, 2009 and will
expire at midnight August 31, 2011. This effective date is necessary to
provide dischargers with the immediate opportunity to comply with Clean
Water Act requirements in light of the expiration of the 2004 CGP. In
accordance with 40 CFR part 23, this permit shall be considered issued
for the purpose of judicial review on September 15, 2009. Under Section
509(b) of the Clean Water Act, judicial review of this general permit
can be had by filing a petition for review in the United States Court
of Appeals within 120 days after the permit is considered issued for
purposes of judicial review. Under section 509(b)(2) of the Clean Water
Act, the requirements in this permit may not be challenged later in
civil or criminal proceedings to enforce these requirements. In
addition, this permit may not be challenged in other agency
proceedings.
FOR FURTHER INFORMATION CONTACT: Alanna Conley, Water Protection
Division, Stormwater and Nonpoint Source Section, Environmental
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303;
telephone number: (404) 562-9443. In addition, copies of the permit and
fact sheet may be downloaded at http://www.epa.gov/region4/water/permits/stormwater.html.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
If a discharger chooses to apply to be authorized to discharge
under the 2009 construction general permit (``2009 CGP''), the permit
provides specific requirements for preventing contamination of
stormwater discharges from the following construction activities:
[[Page 43121]]
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North American
Examples of affected Industry
Category entities Classification
System (NAICS) code
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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 233
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.
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.'' 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. 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). 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. EPA is issuing the 2009 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 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
EPA noticed the draft 2009 CGP for public review and comment on May
7, 2009. No comments were received from the public, and therefore, the
requirements and provisions of the final permit are not different from
those proposed in the draft permit.
Construction operators choosing to be covered by the 2009 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. The 2009 CGP includes 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'') 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.) Dischargers who filed NOIs to be authorized under the
2004 permit prior to the expiration date will continue to be authorized
to discharge in accordance with EPA's regulations at 40 CFR 122.6.
Operators of new projects or unpermitted ongoing projects seeking
coverage under the 2009 CGP are expected to use the same electronic
Notice of Intent (eNOI) system that is currently in place for the 2004
CGP. 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
[[Page 43122]]
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.
C. What Is EPA's Rationale for the Two-Year Duration of the 2009 CGP?
The 2009 CGP is effective 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.
D. Why Is EPA Using Requirements That Are Nearly Identical to the 2004
CGP?
In consideration that the 2004 CGP expired 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
issuing a CGP that adopts generally 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.
E. Significant Changes From 2004 CGP
As discussed above, the 2009 CGP will provide coverage 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 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.
F. 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. The EPA Region 4, 2009 CGP replaces the expired 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. U.S. 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
[[Page 43123]]
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 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
project 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 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.
Dated: August 17, 2009.
James D. Giattina, Director,
Water Protection Division, Region 4.
[FR Doc. E9-20595 Filed 8-25-09; 8:45 am]
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