[Federal Register Volume 75, Number 18 (Thursday, January 28, 2010)]
[Pages 4554-4557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1743]



[FRL-9107-3, EPA-HQ-OW-2008-0238]

Modification to 2008 National Pollutant Discharge Elimination 
System (NPDES) General Permit for Stormwater Discharges Associated With 
Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.


SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are modifying 
the 2008 National Pollutant Discharge Elimination System (NPDES) 
general permits for stormwater discharges associated with construction 
activity in order to extend by one year the expiration date of the 
permit. Hereinafter, these NPDES general permits will be referred to as 
``permit'' or ``2008 construction general permit'' or ``2008 CGP.'' The 
2008 CGP was originally issued for a period of two (2) years. Today, 
EPA is modifying the CGP in order to extend the 2 year term of the 2008 
CGP by one year so that it expires on June 30, 2011, instead of June 
30, 2010, resulting in a permit that will be in effect for a total 
period of three (3) years. By Federal law, no NPDES permit may be 
issued for a period that exceeds five (5) years.

DATES: EPA is modifying its 2008 Construction General Permit by 
extending the permit by one year. This permit modification is effective 
on January 20, 2010. The 2008 Construction General Permit will now 
expire on midnight June 30, 2011, instead of June 30, 2010.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Water Permits Division, 
Office of Wastewater Management (Mail Code: 4203M), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., EPA East, Washington, 
DC 20460; telephone number: (202) 564-0721; fax number: (202) 564-6431; 
e-mail address: [email protected].


I. General Information

A. Does This Action Apply to Me?

    If a discharger chooses to apply for coverage under the 2008 CGP, 
the permit provides specific requirements for preventing contamination 
of stormwater discharges from the following construction activities:

                                                         North American
         Category              Examples of affected      Classification
                                     entities            System (NAICS)
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

    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 
    Eligibility for coverage under the 2008 CGP is limited to operators 
of ``new projects'' or ``unpermitted ongoing projects.'' A ``new 
project'' is one that commences after the effective date of the 2008 
CGP. An ``unpermitted ongoing project'' is one that commenced prior to 
the effective date of the 2008 CGP, yet never received authorization to 
discharge under the 2003 CGP or any other NPDES permit covering its 
construction-related stormwater discharges. This permit is effective 
only in those areas where EPA is the permitting authority. A list of 
eligible areas is included in Appendix B of the 2008 CGP.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2008-0238. 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) EPA 
West, Room 3334, 1301 Constitution Ave., 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 
electronically through http://www.regulations.gov and 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 document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. Electronic versions of the 
final permit and fact sheet are available at EPA's stormwater Web site 

[[Page 4555]]

    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov/fdmspublic/component/main 
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. Once in the system, select 
``search'', then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. 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. Response to Public Comments

    EPA received 4 comments on the proposal to extend the 2008 CGP. All 
commenters were supportive of EPA's proposed extension. Three of the 
commenters recommended that EPA modify the 2008 CGP to extend the 
expiration date of the permit for 3 years, so that the permit would 
expire on June 30, 2013, instead of the proposed expiration date of 
June 30, 2011, thus making it a 5-year permit. EPA declined to adopt 
the commenter's recommendation. It is important to minimize the delay 
in issuing a new CGP that incorporates the new federal requirements for 
the discharges from construction and development sites, which were 
published in the Federal Register December 1, 2009. 74 FR 62996. For a 
copy of the ``Construction and Development Effluent Limitations 
Guidelines'' (or ``C&D rule''), and other related information, go to 
    The 2008 CGP was issued for a shorter term than the statutorily 
allowed 5 years so that the newly promulgated C&D rule requirements 
could be incorporated into the permit as soon as practicable. Many 
States will be looking at the Agency's next CGP to gain insight into 
how to implement the C&D ELG requirements into permits. The C&D ELG 
established numeric effluent limitations and monitoring requirements, 
both of which may be new to the large number of construction sites 
throughout the country. EPA would like to issue the next CGP 
implementing these requirements as soon as possible. By promulgating a 
final CGP that incorporates the C&D ELG by June 30, 2011 EPA will 
assist State agencies that must reissue their permits in the next few 
years and incorporate the C&D ELG into their permits.
    One commenter further recommended that EPA make modifications to 
the 2008 CGP in addition to the one-year extension of the permit. This 
commenter specifically recommended that EPA take the opportunity to 
streamline the CGP and the process for authorizing dischargers, such as 
through a simplified option for single lot construction projects, a 
simplified qualified local program option, and a certification of no 
pollutant discharge added to the permit. EPA is aware of the issues 
that the commenter has raised; however, EPA is not inclined to make 
further modifications to the 2008 CGP at this time beyond the one-year 
extension. The expiration date of the 2008 CGP is the only issue for 
which EPA proposed a modification; EPA believes the issues raised by 
the commenter, which will require a significant amount of time to 
consider for incorporation into the permit, are best contemplated for 
the new permit to be issued prior to June 30, 2011.

D. Who Are The EPA Regional Contacts for This Permit?

For EPA Region 1, contact Jessica Hing at tel.: (617) 918-1560 or e-
mail at [email protected].
For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 or e-
mail at [email protected], or for Puerto Rico, contact Sergio 
Bosques at tel.: (787) 977-5838 or e-mail at [email protected].
For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 or e-
mail at [email protected].
For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail 
at [email protected].
For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-
mail at: [email protected].
For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or e-
mail at: [email protected].
For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-mail 
at: [email protected].
For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or e-
mail at [email protected].
For EPA Region 10, contact Dick Hetherington at tel.: (206) 553-1941 or 
e-mail at [email protected].

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 discharges through the issuance of National Pollutant Discharge 
Elimination System (``NPDES'') permits, which may be issued for fixed 
terms that may not exceed five (5) years. 33 U.S.C. 1342(b)(1)(B).
    Section 405 of the Water Quality Act of 1987 (WQA) added section 
402(p) of the Clean Water Act (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 
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. EPA is proposing to extend the 
expiration date of the 2008 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

[[Page 4556]]

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 2008 CGP

    EPA announced the issuance of the 2008 CGP on July 14, 2008. See 73 
FR 40338. Construction operators choosing to be covered by the 2008 CGP 
must certify in their notice of intent (NOI) that they meet the 
requisite eligibility requirements, described in Part 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.
    The 2008 CGP permit provides coverage for discharges from 
construction sites that occur in areas not covered by an approved State 
NPDES program. EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 issued the 
2008 CGP to replace the expired 2003 CGP for operators of new and 
unpermitted ongoing construction projects. The geographic coverage and 
scope of the 2008 CGP is listed in Appendix B of the permit.

C. What Is EPA's Rationale for the Modification of the 2008 CGP for a 
One-Year Extension of the Expiration Date?

    As stated above, any NPDES permit issued after the effective date 
of the C&D rule, whether issued by EPA or an authorized state, must 
incorporate the substantive technology-based requirements of the rule 
into the permit. The effective date of the C&D rule is February 1, 
2010. Therefore, EPA's next permit, which will be issued after the 
effective date of the C&D rule, will require that the requirements of 
the rule be incorporated into the permit. While as discussed above, EPA 
wants to issue a CGP that incorporates the C&D ELG as soon as possible 
in order to provide guidance to state permitting authorities, today's 
one-year extension is necessary due to EPA's judgment that an extension 
of one year is needed to provide sufficient time to incorporate the new 
C&D rule requirements, provide guidance to state permitting 
authorities, and to be able to manage the additional actions and 
initiatives that are being undertaken at the same time by the Agency. 
Without the one-year extension, EPA fears that it would be left with an 
inadequate amount of time to issue a new CGP, placing potentially 
thousands of construction projects at risk of discharging without an 
effective stormwater permit.
    Prior to the extension, the 2008 CGP would have expired on June 30, 
2010, giving EPA approximately seven months to propose and finalize a 
new CGP. In EPA's judgment, the seven-month period would have been 
insufficient to properly draft new requirements that reflect the C&D 
rule, and to modify these permit conditions in response to public 
comments. The seven-month timeframe to propose and finalize a new 
permit would have been impracticable based on EPA's past experience in 
issuing stormwater general permits, in general, and with the 
construction general permit specifically. In the past, EPA required an 
estimated eighteen months to propose and finalize the 2003 CGP, and a 
similar amount of time for the previous construction general permits. 
While EPA does not believe the 2008 Multi-Sector General Permit (MSGP) 
for stormwater discharges associated with industrial activities was 
typical, that permit required almost three years to finalize after the 
proposed permit was published. Beyond incorporating updated 
modifications to the permit based on changes to the technology-based 
and water quality-based effluent limitations into the permit, EPA is 
required to conduct many additional tasks that are automatically 
required of final Federal actions, such as conducting consultations 
under the Endangered Species Act and National Historic Properties Act, 
obtaining CWA section 401 certifications for the permit from States and 
Indian Country lands, providing the public with an opportunity to 
comment, and responding to all comments received during the public 
comment period. Separately, these tasks have historically required more 
than seven months. The combined effect of these tasks, which are each 
necessary to issue a general permit, on EPA's schedule for permit 
issuance is to make a seven-month permit issuance timeframe 
    While a seven-month schedule to finalize a new CGP would be 
impracticable under the circumstances, as discussed above, what would 
have made this period of time even more challenging is the 
incorporation of the new Federal C&D rule requirements into the general 
permit. The C&D rule has introduced several concepts that may be new to 
most construction sites, including the requirement for certain sized 
construction sites to comply with a numeric effluent limitation for 
turbidity. Additionally, the non-numeric effluent limitations in the 
C&D ELG will need to be properly translated into permit conditions and 
modified based on public comments received. The additional one-year 
extension will ensure that the Agency has sufficient time to accomplish 
these tasks.
    Also weighing heavily in favor of extending the expiration date of 
the 2008 CGP are the risks associated with failing to issue a 
replacement permit prior to the 2008 CGP's original expiration date. If 
EPA fails to issue a new CGP before the expiration of the 2008 CGP, no 
new construction projects would be able to be eligible for coverage by 
the 2008 CGP, leaving individual NPDES permits as the only available 
option for permitting new projects. The sole reliance on individual 
permits will mean that discharge authorizations will be delayed due to 
the greater amount of time and Agency resources that are required for 
developing and issuing individual permits. EPA is unwilling to risk the 
possibility of such delays. The one-year extension to the 2008 CGP's 
expiration date will provide the Agency with the time needed to issue a 
new permit, without any gaps in permit coverage.

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 a permit 
may be modified when ``[t]he Director has received new

[[Page 4557]]

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 2008 CGP, a permit modification is justified 
based on the new information EPA received since issuance of the 2008 
CGP in July 2008, in terms of the new actions EPA is planning or 
undertaking that are putting new demands on the Agency's available 
resources in the NPDES stormwater program. New actions and the 
resulting resource demands have come about as a result of EPA's desire 
to respond to the 2008 National Research Council report, Urban 
Stormwater Management in the United States (see http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf), and to take action under the 
President's May 2009 Executive Order on Chesapeake Bay Protection and 
Restoration (see http://www.whitehouse.gov/the_press_office/Executive-Order-Chesapeake-Bay-Protection-and-Restoration/). Related to 
these efforts, EPA has announced its intention to initiate a national 
rulemaking to establish a program to reduce stormwater discharges from 
new development and redevelopment, and to make other regulatory 
improvements to strengthen its stormwater program. Refer to http://www.epa.gov/npdes/stormwater/rulemaking. EPA's meeting these new 
demands, while implementing new Federal requirements for the 
construction and development industry, is not practical in a seven-
month time period. Additionally, at the time of the 2008 CGP was 
issued, EPA did not know the final content of the C&D ELG. If this 
information was available at the time of permit issuance, it would have 
justified EPA establishing an expiration date for the 2008 CGP later 
than midnight June 30, 2010. As a result, cause exists under EPA 
regulations to justify modification of the 2008 CGP to extend the 
expiration date of the permit from midnight June 30, 2010 to midnight 
June 30, 2011.

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

    Dated: January 20, 2010.
Curt Spalding,
Regional Administrator, EPA Region 1.
    Dated: January 20, 2010.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA 
Region 2.
    Dated: January 20, 2010.
Barbara A. Finazzo,
Division Director, Division of Environmental Planning & Protection, EPA 
Region 2.
    Dated: January 20, 2010.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
    Dated: January 20, 2010.
Timothy C. Henry,
Associate Director, Water Division, EPA Region 5.
    Dated: January 20, 2010.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
    Dated: January 20, 2010.
William A. Spratlin,
Director, Wetlands and Pesticides Division, EPA Region 7.
    Dated: January 20, 2010.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships & Regulatory 
Assistance, EPA Region 8.
    Dated: January 20, 2010.
Alexis Strauss,
Director, Water Division, EPA Region 9.
    Dated: January 20, 2010.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2010-1743 Filed 1-27-10; 8:45 am]