						6560.50

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8970-1, 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 [INSERT DATE OF SIGNATURE BY THE REGIONAL ADMINISTRATORS]  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;
email address: schaner.greg@epa.gov. 

SUPPLEMENTARY INFORMATION:  

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: 

Category	Examples of Affected Entities	North American Industry
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 General Contracting	233

	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 preceding
“FOR FURTHER INFORMATION CONTACT” section.

	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  
HYPERLINK "www.regulations.gov%20"  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   HYPERLINK "http://www.epa.gov/fedrgstr/" 
http://www.epa.gov/fedrgstr/ .  Electronic versions of the final permit
and fact sheet are available at EPA’s stormwater website
http://www.epa.gov/npdes/stormwater.

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   HYPERLINK
"http://www.epa.gov/guide/construction/" 
http://www.epa.gov/guide/construction/ .  

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 hing.jessica@epa.gov.

For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 or
e-mail at venezia.stephen@epa.gov, or for Puerto Rico, contact Sergio
Bosques at tel.: (787) 977-5838 or e-mail at bosques.sergio@epa.gov.

For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 or
e-mail at miller.garrison@epa.gov.

For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail
at bell.brianc@epa.gov.

For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-mail
at: larsen.brent@epa.gov.For EPA Region 7, contact Mark Matthews at
tel.: (913) 551-7635 or e-mail at:    HYPERLINK
"mailto:matthews.mark@epa.gov"  matthews.mark@epa.gov . 

For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-mail
at:   HYPERLINK "mailto:davis.gregory@epa.gov"  davis.gregory@epa.gov . 

For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or
e-mail at   HYPERLINK "mailto:bromley.eugene@epa.gov" 
bromley.eugene@epa.gov .

For EPA Region 10, contact Dick Hetherington at tel.: (206) 553-1941 or
e-mail at hetherington.dick@epa.gov.

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 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
impracticable.  

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 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   HYPERLINK
"http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf" 
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   HYPERLINK
"http://www.whitehouse.gov/the_press_office/Executive-Order-Chesapeake-B
ay-Protection-and-Restoration/" 
http://www.whitehouse.gov/the_press_office/Executive-Order-Chesapeake-Ba
y-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   HYPERLINK
"http://www.epa.gov/npdes/stormwater/rulemaking" 
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.

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