[Federal Register Volume 76, Number 149 (Wednesday, August 3, 2011)]
[Notices]
[Pages 46801-46804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19687]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9447-5]


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: Final Notice.

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SUMMARY: EPA Region 4 is modifying 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 modification will extend the NPDES construction 
general permit (CGP), hereinafter referred to as ``the Region 4 CGP,'' 
so that it expires on September 1, 2012 instead of August 31, 2011. 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, hereinafter referred to as ``the new National CGP,'' 
which was proposed as draft for public review and comment on April 25, 
2011. The Region 4 CGP was issued on September 1, 2009, and the 
modification of the expiration date makes it a three-year permit. By 
Federal law, no NPDES permit may be issued for a period that exceeds 
five years. The extension complies with this restriction.

DATES: EPA is finalizing a modification to the Region 4 CGP that 
extends the permit until September 1, 2012 instead of August 31, 2011. 
The Region 4 CGP will now expire at midnight, on September 1, 2012, or 
on the effective date of the new National CGP, whichever is earlier.

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:

[[Page 46802]]



------------------------------------------------------------------------
                                                       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:
 
                              Heavy Construction..  237
------------------------------------------------------------------------


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 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. 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.

II. Background of Permit

A. Statutory and Regulatory History

    Section 402(p) of the Clean Water Act (CWA) directs EPA to develop 
a phased approach to regulate stormwater discharges under the NPDES 
program. 33 U.S.C. 1342(p). EPA published two regulations, on November 
16, 1990 (the ``Phase I rule'', see 55 FR 47990) and on December 8, 
1999 (the ``Phase II rule'', see 64 FR 68722), which resulted in 
requiring 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. See 40 CFR 122.26(b)(14)(x) and 122.26(b)(15)(i).

B. The Relevance of EPA's ``C&D Rule'' to the Region 4 CGP

    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 of the CWA. Once an effluent 
limitations guideline or new source performance standard is promulgated 
in accordance with these sections, NPDES permits issued by the NPDES 
permitting authorities must incorporate requirements based on such 
limitations and standards. See 40 CFR 122.44(a)(1). Prior to the 
promulgation of national effluent limitations guidelines or new source 
performance 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).
    On December 1, 2009, EPA published final regulations establishing 
technology-based Effluent Limitations Guidelines (ELGs) and New Source 
Performance Standards (NSPS) for the Construction & Development (C&D) 
point source category. See 40 CFR Part 450, and 74 FR 62996 (December 
1, 2009). The Construction & Development Rule, or ``C&D rule'', became 
effective on February 1, 2010; therefore, all NPDES construction 
permits issued by EPA or states after this date must incorporate the 
C&D rule requirements.
    Because EPA issued the Region 4 CGP prior to the effective date of 
the C&D rule, the Agency is not required by the CWA and 40 CFR 
122.44(a)(1) to incorporate the C&D rule requirements into the current 
permit. However, EPA is required to incorporate the C&D rule 
requirements into the new National CGP. EPA published for public 
comment on April 25, 2011 a draft of the new National CGP, which 
includes new requirements implementing the C&D rule. For more 
information, see 76 FR 22882.

C. Stay of the C&D Rule Numeric Limit

    The C&D rule included non-numeric requirements for erosion and 
sediment control, stabilization, and pollution prevention (see 40 CFR 
450.21(a) thru (f)), and for the first time, a numeric limitation on 
the discharge of turbidity from active construction sites (see 40 CFR 
450.22). Since its promulgation, EPA discovered that the data used to 
calculate the numeric limit for turbidity were misinterpreted, and that 
it was necessary to recalculate the numeric limit.
    On August 12, 2010, EPA filed a motion with the U.S. Court of 
Appeals for the Seventh Circuit, requesting that the Court issue an 
order vacating and remanding to the Agency limited portions of the 
final C&D rule. On August 24, 2010, the U.S. Court of Appeals for the 
Seventh Circuit remanded the matter to EPA but did not vacate the 
numeric limit. On September 9, 2010, the National Association of Home 
Builders (NAHB) filed a motion for clarification (which EPA did not 
oppose) asking the court to (1) Vacate the limit and (2) hold the case 
in abeyance until February 15, 2012 instead of remanding the matter to 
EPA. On September 20, 2010, the court granted the motion in part by 
ruling to hold the matter in abeyance pending EPA consideration of the 
numeric limit and the other remand issues, but the court did not vacate 
the numeric limit. Instead, the court stated that ``EPA may

[[Page 46803]]

make any changes to the limit it deems appropriate, as authorized by 
law.''
    EPA issued a direct final rule staying the current numeric limit 
and a companion proposed rule proposing a stay, and the stay took 
effect on January 4, 2011, resulting in an indefinite postponement of 
the implementation of the 280 NTU limit. The Agency is currently 
developing a proposed rule proposing the recalculated limit. If the 
numeric limit becomes effective prior to the issuance of the new 
National CGP, EPA must by law incorporate the applicable numeric limit 
into the new National CGP.

D. 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 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.

III. Extension of Region 4 CGP Expiration Date

A. What is EPA's rationale for the modification of the region 4 CGP for 
an extension of the expiration date?

    As stated above, EPA is modifying the Region 4 CGP by extending the 
expiration date of the permit to September 1, 2012. This extension is 
necessary in order to provide sufficient time for finalization of the 
new National CGP which will be 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 new National CGP will 
incorporate for the first time new effluent limitation 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 
of several months in the issuance process of the new National CGP 
caused by the initial uncertainty surrounding the error in calculating 
the 280 NTU limit and the appropriate way for EPA to address it. This 
delay made it a near certainty that, given even the most optimistic 
timeframe for finalizing the new National CGP, EPA would not have been 
able to finalize the new CGP by the August 31, 2011 expiration date of 
the 2009 Region 4 CGP. 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 EPA has sufficient time to 
incorporate the C&D rule requirements into the new National CGP prior 
to the existing permit's expiration date. If EPA does not issue the new 
National CGP before the expiration date of the Region 4 CGP, no new 
construction projects could receive general permit coverage between 
August 31, 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 Region 4 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, EPA Region 4 has 
decided that it is advisable to instead extend the expiration date 
until September 1, 2012.

B. 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 error in the numeric 
turbidity limit and the Agency's decision to stay 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 midnight, on 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. 40 CFR 122.46. The 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. With the new 
expiration date of September 1, 2012, the Region 4 CGP will still have 
been in effect for less than the 5-year limit.

C. Response to Comments

    EPA did not receive comment on the proposed extension of the Region 
4 CGP expiration date.


[[Page 46804]]


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

    Signed this 25th day of July 2011.
James D. Giattina,
Director, Water Protection Division, U.S. Environmental Protection 
Agency, Region 4.
[FR Doc. 2011-19687 Filed 8-2-11; 8:45 am]
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