[Federal Register Volume 76, Number 111 (Thursday, June 9, 2011)]
[Notices]
[Pages 33753-33756]
From the Federal Register Online via the Government Publishing 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: [email protected] or 
[email protected].

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:

------------------------------------------------------------------------
                                                       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
------------------------------------------------------------------------

    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]
BILLING CODE 6560-50-P