[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Notices]
[Pages 63858-63865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26916]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2015-0828; FRL-9987-77-OW]


Proposed Modification to National Pollutant Discharge Elimination 
System (NPDES) General Permit for Stormwater Discharges From 
Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed modification to the general permit for 
construction stormwater discharges and request for public comment.

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SUMMARY: All ten Environmental Protection Agency (EPA) Regions today 
are proposing for public comment a

[[Page 63859]]

modification to the 2017 National Pollutant Discharge Elimination 
System (NPDES) general permit for stormwater discharges from 
construction activities, also referred to as the ``2017 Construction 
General Permit (CGP)'' or ``2017 CGP'' which became effective on 
February 16, 2017. The EPA is proposing a modification to the 2017 CGP 
that is limited to clarifying the intent of several requirements and 
ensuring consistency with the Construction and Development Effluent 
Limitations Guidelines and New Source Performance Standards. This 
action is hereafter referred to as the ``proposed modification'' or 
``draft modified permit.'' The proposed modification, if finalized, 
would replace several existing conditions in the 2017 CGP and relevant 
fact sheet sections subject to modification, but would not affect any 
other terms and conditions of the existing permit, including: The 
eligible coverage area; the number or type of entities eligible to be 
covered by the permit; nor the five-year permit term of the current 
2017 CGP, which will expire on February 16, 2022. The current 2017 CGP 
remains in effect while the EPA pursues this action. This Federal 
Register notice describes the proposed modification and where the 
proposed changes can be found in the 2017 CGP. To assist in the 
public's review of this proposed modification, the EPA has posted a 
redline strikeout version of the permit and accompanying fact sheet 
showing all of the proposed changes in context of the documents they 
would modify at https://www.epa.gov/npdes/stormwater-discharges-construction-activities; these documents can also be found in the 
Docket (EPA-HQ-OW-2015-0828).

DATES: Comments on the proposed modification must be received on or 
before January 28, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0828 to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. The 
EPA may publish any comment received to its public docket. Do not 
submit electronically any information you consider to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. A written comment must accompany any multimedia 
submissions (audio, video, etc.). The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For further information on the 
proposed modification, contact the appropriate EPA Regional office 
listed in Section I.F of this notice, or Emily Halter, EPA 
Headquarters, Office of Water, Office of Wastewater Management at tel.: 
202-564-3324 or email: [email protected].

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of these documents and other related 
information?
    C. What should I consider as I prepare my comments for the EPA?
    D. Will public hearings be held on this action?
    E. What process will the EPA follow to finalize the proposed 
modification?
    F. Who are the EPA regional contacts for the proposed 
modification?
II. Background on the Permit and Proposed Modification
III. Summary of the Proposed Modification
IV. Analysis of Economic Impacts
V. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
VI. Compliance With the National Environmental Policy Act (NEPA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges From Construction Activities
VII. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
VIII. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments

I. General Information

A. Does this action apply to me?

1. Entities Covered by This Permit
    The proposed modification described herein would not change the 
types of entities eligible to be covered under the 2017 CGP. The CGP 
would continue to be available to cover the following entities, as 
categorized in the North American Industry Classification System 
(NAICS):

             Table 1--Entities Covered by This Draft Permit
------------------------------------------------------------------------
                                                         North American
                                                            industry
           Category              Examples of affected    classification
                                       entities          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:
                                Construction of                      236
                                 Buildings.
                                Heavy and Civil                      237
                                 Engineering
                                 Construction.
------------------------------------------------------------------------

    The EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding the types of activities of 
which the Agency is now aware 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 site could be 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.
2. Coverage Area of the Draft Modified Permit
    The proposed modification described herein would not change the 
scope of coverage under the 2017 CGP. Coverage

[[Page 63860]]

would remain available to operators of eligible projects for stormwater 
discharges from construction activities located in those areas where 
the EPA is the NPDES permitting authority. A list of eligible areas can 
be found in Appendix B of the 2017 CGP and include the states of New 
Hampshire, Massachusetts, New Mexico, and Idaho (until July 1, 2021, 
which is the date Idaho becomes authorized to implement the NPDES 
Stormwater program), as well as most Indian country lands, and areas in 
selected states operated by a federal operator. Permit coverage is also 
available to operators in Puerto Rico, the District of Columbia, and 
the Pacific Island territories, among others.

B. How can I get copies of these documents and other related 
information?

    1. Docket. The EPA has established an official public docket for 
this action under Docket ID No. EPA-HQ-OW-2015-0828. 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) 
WJC West Building, 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 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 notice 
electronically through the United States government on-line source for 
Federal regulations at http://www.regulations.gov.
    Electronic versions of this draft modified permit and draft 
modified fact sheet are available on the EPA's NPDES website at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.
    An electronic version of the public docket is available through the 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov to submit or 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. For additional information about the 
EPA's public docket, visit the Agency's Docket Center homepage at 
https://www.epa.gov/dockets. 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. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit CBI information to the EPA through 
www.regulations.gov or email. 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 the 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.
    The EPA's policy is that public comments, whether submitted 
electronically or in paper, will be made available for public viewing 
in the Agency's electronic public docket as the Agency receives them 
and without change, unless the comment contains copyrighted material, 
CBI, or other information whose disclosure is restricted by statute. As 
noted previously, CBI information should not be submitted through 
regulations.gov or by email. When the EPA identifies a comment 
containing copyrighted material, the Agency will provide a reference to 
that material in the version of the comment that is placed in the 
Agency's electronic public docket. The entire printed comment, 
including the copyrighted material, will be available in the public 
docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to the EPA's electronic 
public docket. Public comments that are mailed or delivered to the 
docket will be scanned and placed in the EPA's electronic public 
docket. Where practical, physical objects will be photographed, and the 
photograph will be placed in the EPA's electronic public docket along 
with a brief description written by the docket staff.
    2. Tips for Preparing Your Comments.
    To assist the EPA in reviewing and evaluating public comments, 
please consider the following tips and suggestions when preparing your 
comments for the Agency:
     Identify this draft modified permit by docket number and 
other identifying information (subject heading, Federal Register date, 
and page number).
     Where possible, organize comments by referencing a 
paragraph or part of the draft modified permit or draft modified fact 
sheet, whichever applies.
     Explain as clearly as possible why you agree or disagree 
with the proposed modification.
     Suggest alternatives and substitute language for any 
requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     Provide specific examples to illustrate your concerns.
     Submit your comments by the comment period deadline 
identified.

D. Will public hearings be held on this action?

    Due to the limited scope of this proposed modification, the EPA has 
not scheduled any public hearings to receive public comment concerning 
the draft modified 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 draft modified 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 and must state the nature of the issue the requester would like 
raised in the hearing. Pursuant to 40 CFR 124.12, the 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 draft modified 
permit. If the 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 draft modified permit at the public hearing.

E. What process will the EPA follow to finalize the proposed 
modification?

    After the close of the public comment period, the EPA intends to 
issue a final decision on the permit modification. Any modification 
will not be issued until all significant comments have been considered 
and appropriate changes made to the draft modified permit. The EPA's 
responses to public comments received will be included in the docket as 
part of the final modification issuance. Any construction site operator

[[Page 63861]]

that has permit coverage under the 2017 CGP prior to the final issuance 
of the modification will automatically remain covered under the permit 
and will not have to resubmit or modify their Notice of Intent (NOI) 
due to the finalized permit modification.

F. Who are the EPA regional contacts for the proposed modification?

    For EPA Region 1, contact Suzanne Warner at tel.: (617) 918-1383 or 
email at [email protected].
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or email at [email protected], or for Puerto Rico, contact Sergio 
Bosques at tel.: (787) 977-5838 or email at [email protected].
    For EPA Region 3, contact Carissa Moncavage at tel.: (215) 814-5798 
or email at [email protected].
    For EPA Region 4, contact Michael Mitchell at tel.: (404) 562-9303 
or email at [email protected].
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or 
email at [email protected].
    For EPA Region 6, contact Suzanna Perea at tel.: (214) 665-7217 or 
email at: [email protected].
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
email at: [email protected].
    For EPA Region 8, contact Amy Clark at tel.: (303) 312-7014 or 
email at: [email protected].
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
email at [email protected].
    For EPA Region 10, contact Margaret McCauley at tel.: (206) 553-
1772 or email at [email protected].

II. Background on the Permit and Proposed Modification

    Section 402(p) of the Clean Water Act (CWA) directs the EPA to 
regulate stormwater discharges under the NPDES program for certain 
designated sources, including discharges from regulated construction 
sites. The EPA's NPDES regulations further specify that permits are 
required for stormwater discharges from construction activities that 
disturb at least one acre, including sites that are part of a larger 
common plan of development or sale that will ultimately disturb at 
least one acre. See 40 CFR 122.26(a)(1)(ii), (a)(9)(i)(B), (b)(14)(x), 
and (b)(15)(i). Under the statutory and regulatory authority cited 
above, the EPA issued the final 2017 CGP on January 19, 2017 (82 FR 
6534) and the permit became effective on February 16, 2017.
    In accordance with 40 CFR 23.2, the 2017 CGP was considered issued 
for the purposes of judicial review on January 25, 2017. Within the 
120-day period of judicial review under section 509(b) of the CWA, both 
the National Association of Home Builders (NAHB) and the Chesapeake Bay 
Foundation (CBF) filed petitions for review of the 2017 CGP in the 
United States Court of Appeals in the D.C. Circuit.
    After receiving the petitions for review, the EPA engaged in 
multiple discussions with both NAHB and CBF in which the parties 
discussed their concerns about certain permit requirements and how 
those requirements might be subject to confusion and misinterpretation 
by construction site operators permitted under the 2017 CGP. Through 
discussions with the petitioners, the following information was brought 
to the EPA's attention:
     In the current 2017 CGP, providing parenthetical examples 
within the definition of ``operator'' describing what type of party 
could be considered an operator ``in most cases'' may be confusing. See 
specifically Parts 1.1.1(a) and (b).
     The permit text for certain erosion and sediment control 
and pollution prevention permit requirements that implement the 
Effluent Limitations Guidelines (ELGs) and New Source Performance 
Standards (NSPS) for Construction & Development (40 CFR part 450) 
(referred to collectively as ``the C&D rule'') may not adequately 
connect the permit requirements to controlling stormwater discharges as 
in the C&D rule.
     The explanation in the 2017 CGP regarding legal 
responsibility for permit compliance in situations where there are 
multiple operators may be unclear. The explanation for an instance 
where there are multiple operators at one construction site who each 
require permit coverage and who divide permit responsibilities among 
themselves, including the use and maintenance of a shared stormwater 
control (such as a sediment basin), may be misinterpreted to mean that 
each operator must perform every permit-related function, even if those 
responsibilities were by agreement performed by another operator. 
Additionally, references to joint and several liability in the current 
permit may have been an inaccurate way to explain what the permit 
compliance duties are for multiple operators who share implementation 
responsibilities under the permit.
    Under 40 CFR 122.62(a)(2), the EPA may modify a permit if the 
Agency is presented with new information during the permit term that 
was not available at the time of issuance and would have justified the 
application of different permit conditions at the time of issuance. 
Based on the information the petitioners provided to the EPA following 
the issuance of the 2017 CGP, the Agency is proposing a permit 
modification to clarify the Agency's intent of the related permit 
requirements.
    The proposed modification would remove examples of operators in the 
definition of operator; align three requirements that implement the C&D 
rule more closely with the ELG text (one requirement on minimizing 
dust, one on streambank erosion control, and one on building materials 
pollution prevention); and clarify the roles and responsibilities of 
individual operators in multiple operator arrangements. The proposed 
changes in this modification would simplify the permit language and 
accompanying fact sheet explanation but would not affect the 
substantive requirements, applicability, implementation, or 
enforceability of the permit's current requirements. Only those 
requirements that the EPA proposes to modify would be reopened in the 
draft modified permit for public comment (40 CFR 122.62). The proposed 
modification, if finalized, would replace the existing conditions in 
the 2017 CGP and relevant fact sheet sections subject to modification, 
but not affect any other terms and conditions of the permit.
    In addition, the proposed modification would not affect the 
eligible coverage area, the number or type of entities eligible to be 
covered by the permit, nor the five-year permit term of the current 
2017 CGP, which will expire on February 16, 2022. The current 2017 CGP 
remains in effect while the EPA pursues this proposed permit 
modification. The proposed modification is summarized in more detail 
below.

III. Summary of the Proposed Modification

    The EPA proposes the following specific changes to the 2017 CGP:
    1. Removing examples in the definition of ``operator''--The EPA 
proposes to remove the parenthetical examples of the type of party that 
may be considered an operator from the definition of ``operator.'' If a 
party wishes to obtain coverage under the 2017 CGP for its stormwater 
discharges from construction activities, it is the operator who is 
responsible for submitting to the EPA a Notice of Intent (NOI) for 
coverage under the permit. In the previous 2012 CGP, the EPA defined an 
``operator'' as ``any party associated with a construction project that 
meets either of the following two criteria: (a)

[[Page 63862]]

The party has operational control over construction plans and 
specifications, including the ability to make modifications to those 
plans and specifications; or (b) the party has day-to-day operational 
control of those activities at a project that are necessary to ensure 
compliance with the permit conditions (e.g., they are authorized to 
direct workers at a site to carry out activities required by the 
permit).'' During the proposal of the 2017 CGP, the EPA received a 
public comment stating that, ``to make the meaning [of ``operator''] as 
clear as possible, it would be helpful for the EPA to include, within 
the body of the permit, examples of whom it expects to meet part one 
and part two of the definition.'' To address this comment, in the final 
issuance of the 2017 CGP, the EPA added the requested examples into the 
two-part definition of operator. These additions, denoted here in 
italicized text, read as follows: ``an ``operator'' is any party 
associated with a construction project that meets either of the 
following two criteria: (a) The party has operational control over 
construction plans and specifications, including the ability to make 
modifications to those plans and specifications (e.g., in most cases 
this is the owner of the site); or (b) the party has day-to-day 
operational control of those activities at a project that are necessary 
to ensure compliance with the permit conditions (e.g., they are 
authorized to direct workers at a site to carry out activities required 
by the permit; in most cases this is the general contractor (as defined 
in Appendix A) of the project).'' See Parts 1.1.1(a) and (b) of the 
2017 CGP.
    After the EPA issued the final 2017 CGP, petitioners brought to the 
Agency's attention that adding the phrase ``in most cases'' followed by 
examples of who may be considered an operator might cause further 
confusion to a party trying to determine if it is an operator or not 
because those examples would not, in every instance, qualify as 
operators. For example, with respect to the language added to the Part 
1.1.1(a) definition of operator (``e.g., in most cases this is the 
owner of the site.''), the EPA did not intend to indicate that, in 
every instance, the owner of a site is always considered an operator. 
The EPA acknowledges that there may be instances where a site owner 
does not have operational control over construction plans and 
specifications, and therefore would not be an operator and would not be 
responsible for seeking permit coverage. Rather than suggesting who 
might be considered an operator ``in most cases,'' the EPA proposes to 
remove the examples from both Part 1.1.1(a) and (b), and allow parties 
to rely solely on the substantive definition of operator for 
determining if they should seek permit coverage. See Part 1.1.1 of the 
draft modified permit.
    2. Aligning language of three requirements with the C&D rule--The 
EPA proposes to adjust the wording of two erosion and sediment control 
requirements and one pollution prevention requirement in the 2017 CGP 
to clarify their intent:
     The current requirement in Part 2.2.6 (Minimize Dust) 
reads as follows: ``On areas of exposed soil, the operator must 
minimize the generation of dust through the appropriate application of 
water or other dust suppression techniques.'' The accompanying fact 
sheet discusses how this requirement is intended to minimize the 
discharge of sediment in stormwater from the generation of dust and how 
dust suppression techniques prevent dust from being generated, 
minimizing the potential for the dust to accumulate where it is likely 
to discharge from the site in stormwater discharges. To more precisely 
convey that dust control is important for preventing sediment from 
being discharged in stormwater, consistent with the C&D rule at 40 CFR 
450.21(a)(5), the EPA proposes to modify the requirement to read, with 
the addition denoted in italicized text: ``On areas of exposed soil, 
minimize dust through the appropriate application of water or other 
dust suppression techniques to control the generation of pollutants 
that could be discharged in stormwater from the site.'' See Part 2.2.6 
of the draft modified permit.
     The current requirement in Part 2.2.11 (Minimize erosion 
of stormwater conveyance channels and their embankments . . .) reads as 
follows: ``Minimize erosion of stormwater conveyance channels and their 
embankments, outlets, adjacent streambanks, slopes, and downstream 
waters. Use erosion controls and velocity dissipation devices within 
and along the length of any stormwater conveyance channel and at any 
outlet to slow down runoff to minimize erosion.'' Footnote 24 to this 
requirement states: ``Examples of velocity dissipation devices include 
check dams, sediment traps, riprap, and grouted riprap at outlets.'' 
The accompanying fact sheet explains that this requirement implements 
the C&D ELG to ``control stormwater volume and velocity to minimize 
soil erosion in order to minimize pollutant discharges'' (40 CFR 
450.21(a)(1)), to ``control stormwater discharges. . . to minimize 
channel and streambank erosion and scour in the immediate vicinity of 
discharge points'' (40 CFR 450.21(a)(2)), to ``minimize the amount of 
soil exposed during construction activity'' (40 CFR 450.21(a)(3)), and 
to ``minimize the disturbance of steep slopes'' (40 CFR 450.21(a)(4)). 
To streamline this requirement to more precisely focus on controlling 
stormwater discharges to minimize erosion at discharge points and to 
align it with the text of the C&D rule at 40 CFR 450.21(a)(2), the EPA 
proposes to modify the requirement to read as follows: ``Control 
stormwater discharges, including both peak flowrates and total 
stormwater volume, to minimize channel and streambank erosion and scour 
in the immediate vicinity of discharge points.'' Footnote 24 would be 
revised to read as follows: ``Examples of control measures that can be 
used to comply with this requirement include the use of erosion 
controls and/or velocity dissipation devices (e.g., check dams, 
sediment traps), within and along the length of a stormwater conveyance 
and at the outfall to slow down runoff.'' See Part 2.2.11 of the draft 
modified permit.
     The current requirement in Part 2.3.3(a) regarding 
storage, handling, and disposal of building products, materials, and 
wastes reads as follows: ``For building materials and building 
products, provide either (1) cover (e.g., plastic sheeting, temporary 
roofs) to minimize the exposure of these products to precipitation and 
to stormwater, or (2) a similarly effective means designed to minimize 
the discharge of pollutants from these areas.'' One objective the EPA 
had during the proposal of the 2017 CGP was to streamline the permit as 
much as possible so that the permit itself was limited to the actual 
requirements, while explanatory text or notes were moved to the fact 
sheet. During this streamlining process, the EPA omitted a note from 
the 2017 CGP that previously appeared in the 2012 CGP in the equivalent 
section of the permit (i.e., Part 2.3.3.3). The 2012 CGP provision read 
as follows: ``Note: These requirements do not apply to those products, 
materials, or wastes that are not a source of stormwater contamination 
or that are designed to be exposed to stormwater.'' Although the EPA 
omitted this note in the 2017 CGP, the Agency incorporated by reference 
the relevant fact sheet discussion from the 2012 CGP, which explained 
that ``[t]hese requirements implement the 40 CFR 450.21(d)(2) 
requirement to `minimize the exposure of building materials, building 
products,

[[Page 63863]]

construction wastes, trash, landscape materials, fertilizers, 
pesticides, herbicides, detergents . . . present on the site to 
precipitation and to stormwater.' The permit clarifies that the staging 
or storage of construction materials, building products, or wastes, 
which are either not a source of contamination to stormwater or are 
designed to be exposed to stormwater, are not subject to this 
requirement.'' Therefore, while the EPA incorporated by reference in 
the 2017 CGP fact sheet the exception to Part 2.3.3(a) for building 
materials that are not a source of contamination or are designed to be 
exposed to stormwater, the permit requirement in Part 2.3.3(a) did not 
explicitly state this as it appears in 40 CFR 450.21(d)(2). To avoid 
any confusion this omission might cause, the EPA proposes to modify the 
requirement to read, with the addition denoted in italicized text, as 
follows: ``For building materials and building products, provide either 
(1) cover (e.g., plastic sheeting, temporary roofs) to minimize the 
exposure of these products to precipitation and to stormwater, or (2) a 
similarly effective means designed to minimize the discharge of 
pollutants from these areas. Minimization of exposure is not required 
in cases where the exposure to precipitation and to stormwater will not 
result in a discharge of pollutants, or where exposure of a specific 
material or product poses little risk of stormwater contamination (such 
as final products and materials intended for outdoor use).'' See Part 
2.3.3(a) of the proposed modified permit.
    3. Clarifying individual operator responsibility in multiple 
operator arrangements--The EPA proposes to modify the 2017 CGP to 
clarify an individual operator's legal responsibility for permit 
compliance in situations where there are multiple operators who divide 
permit responsibilities. In particular, the EPA proposes to remove 
references to joint and several liability from the current permit since 
they are, in the Agency's view, an inaccurate explanation of what the 
permit compliance duties are for multiple operators who share 
implementation responsibilities under the permit.
    In addition, the EPA proposes to clarify that operators who divide 
responsibilities do not have to duplicate permit-related functions if 
one operator is appropriately implementing the requirement for the rest 
of the operators to be in full compliance with the permit. In the 
proposed modification, the permit would state that, where there are 
multiple operators associated with the same site, they may develop a 
group Stormwater Pollution Prevention Plan (SWPPP) instead of multiple 
individual SWPPPs, but regardless of whether there is a group SWPPP or 
multiple individual SWPPPs, each operator is responsible for compliance 
with the permit's terms and conditions, notwithstanding how the 
SWPPP(s) may divide each operator's responsibilities. This would apply 
to a scenario where there are multiple operators associated with the 
same site through a common plan of development or sale (such as a 
housing development) at which a shared control exists. In this 
scenario, the operators may develop a group SWPPP instead of multiple 
individual SWPPPs, and divide amongst themselves various permit-related 
functions provided that each SWPPP, or a group SWPPP, documents which 
operator will perform each permit-related function, including those 
related to the installation and maintenance of the shared control. 
Regardless of whether there is a group SWPPP or multiple individual 
SWPPPs, all operators are legally responsible for compliance with the 
permit, notwithstanding how the SWPPP(s) may divide each operator's 
individual responsibilities. In other words, if Operator A relies on 
Operator B to satisfy its permit obligations, Operator A does not have 
to duplicate those permit-related functions if Operator B is 
implementing them for both operators to be in compliance with the 
permit. However, Operator A remains responsible for permit compliance 
if Operator B fails to implement any measures necessary for Operator A 
to comply with the permit. See Part 1.1.1, footnote 1; Part 7.1, 
footnote 53 (which the EPA now proposes to combine with footnote 52); 
the accompanying fact sheet explanation for these Parts; and Appendix A 
Definitions for ``Shared Control'' of the proposed modified permit.

IV. Analysis of Economic Impacts

    Due to the narrow scope of this proposed permit modification and 
the focus on clarifying the intent of certain requirements rather than 
changing the underlying requirement itself, the EPA does not expect any 
change in economic impact from this proposed permit modification. It is 
therefore unnecessary for the EPA to revise the economic analysis that 
was prepared for the final 2017 CGP. A copy of the EPA's economic 
analysis, titled ``Cost Impact Analysis for the 2017 Construction 
General Permit (CGP),'' is available in the docket for this proposed 
permit modification.

V. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) determined that this 
action is not significant under Executive Orders 12866 and 13563 (76 FR 
3821, January 21, 2011).

VI. Compliance With the National Environmental Policy Act (NEPA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges From Construction Activities

    Pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321-4307h), the Council on Environmental Quality's NEPA regulations 
(40 CFR part 15), and the EPA's regulations for implementing NEPA (40 
CFR part 6), the Agency has determined that the modifications to the 
2017 CGP are eligible for a categorical exclusion requiring 
documentation under 40 CFR 6.204(a)(1)(iv). This category consists of 
``actions involving reissuance of a NPDES permit for a new source 
providing the conclusions of the original NEPA document are still valid 
(including the appropriate mitigation), there will be no degradation of 
the receiving waters, and the permit conditions do not change or are 
more environmentally protective.'' 40 CFR 6.204(a)(1)(iv). The EPA 
completed an Environmental Assessment/Finding of No Significant Impact 
(EA/FONSI) for the previous 2012 CGP and issued a categorical exclusion 
under 40 CFR 6.204(a)(1)(iv) for the 2017 reissuance. The EPA 
determined the analysis and conclusions regarding the potential 
environmental impacts, reasonable alternatives, and potential 
mitigation included in the EA/FONSI were still valid for the 2017 
reissuance of the CGP because the permit conditions are either the same 
or, in some cases, are more environmentally protective.
    As stated in Section II of this Federal Register Notice on the 
Background on the Permit and Proposed Modification, the proposed 
modification to the 2017 CGP, if finalized, would remove examples of 
operators in the definition of operator; align three requirements that 
implement the C&D rule more closely with the ELG text; and clarify the 
roles and responsibilities of individual operators in multiple operator 
arrangements. The proposed changes in this modification would simplify 
the permit language and accompanying fact sheet explanation but would 
not affect the substantive requirements, applicability,

[[Page 63864]]

implementation, or enforceability of the permit's current requirements. 
Therefore, the same analysis and conclusions found in the EA/FONSI for 
the 2012 CGP still stand for this modification of the 2017 CGP.
    Actions may be categorically excluded if the action fits within a 
category of action that is eligible for exclusion and the proposed 
action does not involve any extraordinary circumstances. The EPA has 
reviewed the proposed action and determined that the modification of 
the 2017 CGP does not involve any extraordinary circumstances listed in 
40 CFR 6.204(b)(1)-(b)(10). Prior to the issuance of the final 
modification of the 2017 CGP, the EPA Responsible Official will 
document the application of the categorical exclusion and will make it 
available to the public on the Agency's website at https://cdxnodengn.epa.gov/cdx-enepa-public/action/nepa/search. If new 
information or changes in the draft modified permit involve or relate 
to at least one of the extraordinary circumstances or otherwise 
indicate that the permit may not meet the criteria for categorical 
exclusion, the EPA will prepare an EA or Environmental Impact Statement 
(EIS).

VII. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    Consistent with the EPA's previous determination for the 2017 CGP, 
this proposed modification to the 2017 CGP, if finalized, would not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because the requirements 
in the draft modified permit would apply equally to all construction 
projects that disturb one or more acres in areas where the Agency is 
the permitting authority, and the erosion and sediment control proposed 
provisions increase the level of environmental protection for all 
affected populations.

VIII. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications as specified 
in Executive Order 13175. It does not have a substantial direct effect 
on one or more Indian tribes. Thus, Executive Order 13175 does not 
apply to this proposed action.
    In compliance with Executive Order 13175, the EPA consulted with 
tribal officials during the development of 2017 CGP to gain an 
understanding of and, where necessary, address any areas of the draft 
permit that may affect tribal interest. In the course of this 
consultation, the EPA conducted several outreach activities with tribal 
officials which are detailed in the Federal Register Notice for the 
final 2017 CGP (82 FR 6534). During the finalization of 2017 CGP, the 
EPA also completed the CWA Section 401 certification procedures with 
all applicable tribes where the permit applies (see Appendix B of the 
2017 CGP).
    As part of this proposed modification, the EPA reviewed the tribal 
conditions that were incorporated into the 2017 CGP under Section 401 
certifications to identify any requirements that this proposed action 
might affect. See Part 9 of the 2017 CGP. Only two tribal conditions 
reference a current permit requirement that is subject to this proposed 
modification, Part 2.2.11 (Minimize erosion of stormwater conveyance 
channels and their embankments . . .):
     The following condition applies only to discharges on the 
Pueblo of Isleta Reservation: ``Under Minimize erosion, a permittee 
must secure permission from the Pueblo or affected Pueblo of Isleta 
land assignment owner if a dissipation device needs to be placed up- or 
down-elevation of a given construction site. CGP 2.2.11 at pg. 11.'' 
See Part 9.4.2.1(j) of the 2017 CGP.
     The following condition applies only to discharges on the 
Puyallup Tribe of Indians Reservation: ``To the extent feasible, 
utilize vegetated, upland areas of the site to infiltrate dewatering 
water before discharge. At all points where dewatering water is 
discharged, comply with the velocity dissipation requirements of Part 
2.2.11 of EPA's 2017 General Construction Stormwater Permit. Examples 
of velocity dissipation devices include check dams, sediment traps, 
riprap, and grouted riprap at outlets.'' See Part 9.7.4.4(i) of the 
2017 CGP.
    As stated in Section II of this Federal Register Notice, the 
proposed modification to the 2017 CGP, if finalized, would remove 
examples of operators in the definition of operator; align three 
requirements that implement the C&D rule more closely with the ELG 
text, including the requirement in Part 2.2.11; and clarify the roles 
and responsibilities of individual operators in multiple operator 
arrangements. The proposed changes in this modification would simplify 
the permit language and accompanying fact sheet explanation but would 
not affect the substantive requirements, applicability, implementation, 
or enforceability of the permit's current requirements. Due to the 
narrow scope of this proposed permit modification and the focus on 
clarifying the intent of certain requirements rather than changing the 
underlying requirement itself, the proposed action would not change the 
interpretation or implementation of the tribal conditions, in 
particular those referencing Part 2.2.11, and therefore any tribal 
impacts from this proposed modification would be limited.

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

    Dated: November 28, 2018.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.

    Dated: November 28, 2018.
Javier Laureano, Ph.D.,
Director, Clean Water Division, EPA Region 2.

    Dated: November 28, 2018.
Carmen R. Guerrero-Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.

    Dated: November 28, 2018.
Catharine McManus,
Acting Deputy Director, Water Protection Division, EPA Region 3.

    Dated: November 28, 2018.
Jeaneanne M. Gettle,
Director, Water Protection Division, EPA Region 4.

    Dated: November 28, 2018.
Deborah C. Baltazar,
Acting Division Director, Water Division, EPA Region 5.

    Dated: November 28, 2018.
David F. Garcia, P.E.,
Deputy Director, Water Division, EPA Region 6.

    Dated: November 28, 2018.
Jeffery Robichaud,
Division Director, Water, Wetlands and Pesticides Division, EPA 
Region 7.

    Dated: November 28, 2018.
Darcy O'Connor,
Assistant Regional Administrator, Office of Water Protection, EPA 
Region 8.

    Dated: November 28, 2018.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.



[[Page 63865]]


    Dated: November 28, 2018.
Daniel D. Opalski,
Director Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2018-26916 Filed 12-11-18; 8:45 am]
BILLING CODE 6560-50-P