
[Federal Register Volume 79, Number 44 (Thursday, March 6, 2014)]
[Rules and Regulations]
[Pages 12661-12667]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04612]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 450

[EPA-HQ-OW-2010-0884; FRL-9906-51-OW]
RIN 2040-AF44


Effluent Limitations Guidelines and Standards for the 
Construction and Development Point Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
changes to the effluent limitations guidelines and standards for the 
Construction and Development point source category. EPA is promulgating 
these changes pursuant to a settlement agreement to resolve litigation. 
This final rule withdraws the numeric discharge standards, which are 
currently stayed, and changes several of the non-numeric provisions of 
the existing rule.

DATES: This final rule is effective on May 5, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2010-0884. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the USEPA Docket Center, WJC 
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public 
Reading Room is 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 EPA 
Docket Center is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. Jesse W. Pritts at Engineering and 
Analysis Division, Office of Water (4303T), Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone 
number: 202-566-1038; fax number: 202-566-1053; email address: 
pritts.jesse@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

Regulated Entities
    Entities potentially regulated by this action include:

------------------------------------------------------------------------
                                                         North American
                                                            Industry
           Category             Examples of regulated    Classification
                                       entities          System (NAICS)
                                                              Code
------------------------------------------------------------------------
Industry......................     Construction activities required to
                                     obtain NPDES permit coverage and
                                   performing the following activities:
                               -----------------------------------------
                                Construction of                      236
                                 buildings, including
                                 building, developing
                                 and general
                                 contracting.
                                Heavy and civil                      237
                                 engineering
                                 construction,
                                 including land
                                 subdivision.
------------------------------------------------------------------------

    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 entities that 
EPA is now aware could potentially be regulated by this action. Other 
types of entities not listed in the table could also be regulated. To 
determine whether

[[Page 12662]]

your facility is regulated by this action, you should carefully examine 
the applicability criteria at 40 CFR 450.10 and the definition of 
``storm water discharge associated with industrial activity'' and 
``storm water discharge associated with 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 site, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Overview
    This preamble describes the terms, acronyms, and abbreviations used 
in this document; the legal authority for this final rule; background 
information; and a summary of the final changes.

Table of Contents

I. Legal Authority
II. Purpose & Summary of the Final Rule
III. Statutory and Executive Order Reviews

I. Legal Authority

    EPA is promulgating these regulations under the authorities of 
sections 101, 301, 304, 306, 308, 401, 402, 501 and 510 of the Clean 
Water Act (CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1341, 1342, 
1361 and 1370, and pursuant to the Pollution Prevention Act of 1990, 42 
U.S.C. 13101 et seq.

II. Purpose & Summary of the Final Rule

A. Background

    EPA promulgated Effluent Limitations Guidelines and Standards for 
the Construction and Development Point Source Category (hereafter 
referred to as the ``C&D rule'') (74 FR 62996, December 1, 2009). The 
C&D rule established requirements based on Best Practicable Control 
Technology Currently Available, Best Available Technology Economically 
Achievable, Best Conventional Pollutant Control Technology, and New 
Source Performance Standards based on Best Available Demonstrated 
Control Technology. Construction activities like clearing, excavating, 
and grading significantly disturb the land. The disturbed soil, if not 
managed properly, can easily be washed off of the construction site 
during storms and enter water bodies. Stormwater discharges from 
construction activities can cause an array of physical, chemical and 
biological impacts to receiving streams.
    The C&D rule included non-numeric requirements to:
     Implement erosion and sediment controls;
     stabilize soils;
     manage dewatering activities;
     implement pollution prevention measures;
     prohibit certain discharges; and
     utilize surface outlets for discharges from basins and 
impoundments.
    The C&D rule also established a numeric limitation on the allowable 
level of turbidity in discharges from certain construction sites. The 
technology basis for the final numeric limitation was passive treatment 
controls including polymer-aided settling to reduce the turbidity in 
discharges.
    Following promulgation of the C&D rule, the Wisconsin Builders 
Association, the National Association of Home Builders (NAHB) and the 
Utility Water Act Group (UWAG) filed petitions for review in the U.S. 
Circuit Courts of Appeals for the Fifth, Seventh, and D.C. Circuits. 
The petitions were consolidated in the Seventh Circuit. Wisconsin 
Builders Association, et al. v. EPA, Case Nos. 09-4113, 10-1247, and 
10-1876 (7th Cir.). On July 8, 2010, the petitioners filed their 
briefs.
    In April 2010, the Small Business Administration (SBA) filed with 
EPA a petition for administrative reconsideration of several technical 
aspects of the C&D rule. SBA identified potential deficiencies with the 
dataset that EPA used to support its decision to adopt the numeric 
turbidity limitation. In June 2010, NAHB also filed a petition for 
administrative reconsideration with EPA incorporating by reference 
SBA's argument regarding the potential deficiencies in the data.
    On August 12, 2010, EPA filed an unopposed motion with the Court 
seeking to hold the litigation in abeyance until February 15, 2012 (see 
the docket for this action, EPA-HQ-OW-2010-0884-0085), and asking the 
Court to remand the record to EPA and vacate the numeric limitation 
portion of the rule. In addition, EPA agreed to reconsider the numeric 
limitation and to solicit site-specific information regarding the 
applicability of the numeric effluent limitation to cold weather sites 
and to small sites that are part of a larger project.
    On August 24, 2010, the Court issued an order remanding the matter 
to the Agency but without vacating the numeric limitation. Subsequently 
on September 9, 2010, the petitioners filed an unopposed motion for 
clarification or reconsideration of the Court's August 24, 2010 order, 
asking the Court again to vacate the numeric limitation. On September 
20, 2010, the Court remanded the administrative record to EPA, and 
ordered the case held in abeyance until February 15, 2012, but did not 
vacate the numeric limitation. During this period, EPA provided 
additional information in the docket to supplement the administrative 
record for the C&D rule (see EPA-HQ-OW-2008-0465-2124 through EPA-HQ-
OW-2008-0465-2134) and an updated response to comment document (see 
EPA-HQ-OW-2008-0465-2135).
    In November 2010, EPA issued a direct final regulation and a 
companion proposed regulation to stay the numeric limitation at 40 CFR 
450.22 indefinitely (75 FR 68215, November 5, 2010 and 75 FR 68305, 
November 5, 2010). The proposed rule solicited comment due no later 
than December 6, 2010. Since no adverse comments were received, the 
direct final rule took effect on January 4, 2011.
    As of this date, neither states nor EPA were required to 
incorporate the numeric turbidity limitation and monitoring 
requirements found at Sec.  450.22(a) and Sec.  450.22(b) into NPDES 
permits because the numeric limitation was stayed. However, the 
remainder of the C&D rule was still in effect and had to be 
incorporated into newly issued NPDES permits.
    After issuing the stay of the numeric turbidity limitation, EPA 
continued to consult with stakeholders regarding next steps with 
respect to numeric discharge standards. EPA published a Federal 
Register notice (77 FR 112, January 3, 2012) seeking data on the 
effectiveness of technologies in controlling turbidity in discharges 
from construction sites and information on other related issues.
    EPA also continued to meet with the petitioners in an effort to 
settle the litigation over the C&D rule. On December 10, 2012, EPA 
entered into a settlement agreement with petitioners to resolve the 
litigation in Wisconsin Builders Association, et al. v. EPA, Case Nos. 
09-4113, 10-1247, and 10-1876 (7th Cir.). The settlement agreement 
provides for EPA to propose for public comment certain changes specific 
to the non-numeric portions of the C&D rule, as well as withdrawal of 
the numeric limitation, and take final action on the proposal. Under 
the terms of the settlement agreement, by April 15, 2013 EPA was to 
sign for publication in the Federal Register a notice of proposed 
rulemaking, with at least a 30-day comment period, to amend the C&D 
rule in a manner substantially similar to Exhibit A, which is attached 
to the settlement agreement. The settlement then provides that by 
February 28, 2014, EPA will take final action on the proposed rule. 
Under the settlement, if EPA takes the above actions by the

[[Page 12663]]

specified dates, and EPA's final action on the proposed rule amends the 
C&D rule in any manner, then Petitioners and EPA will promptly file a 
joint request with the Court asking it to dismiss the C&D litigation. 
In addition, if EPA's final action amends the C&D rule in a manner 
substantially similar to Exhibit A, Petitioners will not seek judicial 
review of those amendments. Finally, the settlement provides that 
within 60 days after EPA signs the proposal mentioned above, NAHB and 
EPA will file a joint request with the Court to dismiss NAHB's 
challenge to the 2012 Construction General Permit (CGP), which EPA 
issued on February 29, 2012 (see 77 FR 12286). EPA proposed a rule on 
April 1, 2013. Today's final rule satisfies EPA's commitments under the 
settlement agreement.

B. Revisions to 40 CFR Part 450

    The revisions to 40 CFR part 450 being promulgated consist of the 
following three elements:
     Addition of a definition of ``infeasible'';
     revisions to the effluent limitations reflecting the best 
practicable control technology currently available (BPT), effluent 
limitations reflecting the best available technology economically 
achievable (BAT), effluent limitations reflecting the best conventional 
pollutant control technology (BCT), and the new source performance 
standards reflecting the best available demonstrated control technology 
(NSPS) found at 40 CFR 450.21, 450.22, 450.23 and 450.24, respectively; 
and
     withdrawal of the numeric turbidity effluent limitation 
and monitoring requirements found at 40 CFR 450.22(a) and 450.22(b) and 
reserving these subparts.
    EPA has made these revisions to clarify when and where these 
provisions apply and what exceptions apply. Today's changes provide 
clarity to permitting authorities on how to implement or incorporate 
these provisions into permits. The following discusses each of the 
changes promulgated today, and summarizes the comments EPA received on 
each of the changes.
1. Addition of Definition at 40 CFR 450.11
    EPA proposed to add a definition of infeasible at 40 CFR 450.11(b). 
Several of the provisions of the C&D rule require permittees to 
implement controls, unless infeasible. EPA did not provide a definition 
of infeasible in the 2009 C&D rule, although EPA did provide a 
definition in the preamble (74 FR 63005, 63017, December 1, 2009). The 
proposed definition of infeasible was derived from EPA's preamble 
language from the 2009 final rule and the 2012 CGP.
    EPA received a number of comments on the proposed definition of 
infeasible. Some commenters supported EPA's inclusion of a definition, 
while some did not. Some commenters offered specific revisions to the 
definition, while others requested that EPA provide additional examples 
of specific instances where a given practice may be infeasible. Some 
commenters requested that EPA incorporate an infeasibility condition 
into all of the requirements of the final rule, not just those where it 
is currently included.
    EPA had previously concluded that an infeasibility provision for 
some requirements (specifically, buffers, preserving topsoil, and use 
of surface outlets) was appropriate, given that site-specific 
constraints may exist. EPA now concludes that a definition of 
infeasible is appropriate in the rule in order to provide clarity to 
permitting authorities. EPA has not changed the proposed definition for 
today's final rule as a result of comments received because the 
definition allows sufficient flexibility for permitting authorities to 
incorporate appropriate requirements into their permits to address the 
limited number of circumstances where a given requirement may be 
infeasible. See the comment response document for today's action for 
additional discussion of the comments received.
2. Revision of 40 CFR 450.21(a)(1)
    EPA received several comments on this proposed amended requirement. 
Some stated that this requirement is not needed since there are other 
ways of controlling erosion besides controlling volume and velocity, or 
that the requirement is too prescriptive. Others stated that the 
``within the site'' language that is contained in the 2009 final rule 
is necessary and should be retained in this rule so that permittees are 
not held responsible for installing controls beyond their area of 
disturbance in order to control erosion caused by their discharges. 
Others stated that EPA does not have authority to regulate internal 
processes at a construction site, and that removal of the ``within the 
site'' language is justified on this basis.
    After consideration of comments, EPA did not make any changes to 
the proposed requirement for this final rule. EPA has determined that 
the revision, as proposed, is an important component of construction 
stormwater management as increased volume and duration of flows 
resulting from removal of vegetation and soil compaction that accompany 
construction activities can contribute to significant increases in soil 
erosion and transport and discharge of pollutants to surface waters. 
EPA has authority to promulgate non-numeric effluent limitations that 
regulate internal processes at construction sites in order to control 
and minimize the discharge of pollutants to surface waters. See EPA-HQ-
OW-2008-0465-2124 through EPA-HQ-OW-2008-0465-2134 for discussion 
linking up-slope/on-site activities to controlling or minimizing the 
discharge of pollutants from the site to surface waters. See also 
Citizens Coal Council, et al. v. EPA, 446 F.3d 879, 895 (6th Cir. 
2006)(``under the [Clean Water] Act, effluent limitations are not 
limited to numeric discharges but encompass `any restriction' on 
discharges''); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 502 
(2nd Cir. 2005)(``rather than setting forth numerical effluent 
limitations for land application of manure, the CAFO Rule establishes 
non-numerical effluent limitations in the form of best management 
practices''); Texas Municipal Power Agency v. EPA, 836 F.2d 1482, 1488 
(5th Cir. 1988) (``it is sometimes necessary to regulate discharges 
within the treatment process to control discharges at the end . . . 
[t]his position has support in the language of the CWA, its legislative 
history, and common sense.''); Public Service Company of Colorado, Fort 
St. Vrain Station v. EPA, 949 F.2d 1063, 1065 (10th Cir. 1991) (``We 
find no clear Congressional or Presidential intent expressly forbidding 
EPA from imposing internal waste stream effluent limitations when such 
limitations would be impracticable to monitor at the end of the 
pipe.'').
3. Revision of 40 CFR 450.21(a)(2)
    EPA received a number of comments on this proposed revision. One 
commenter suggested that EPA change the language to require management 
of local scour. Others suggested that EPA's proposed change to limit 
erosion in the ``immediate vicinity of discharge points'' narrows the 
requirement from what was contained in the 2009 rule. Others stated 
that EPA does not have authority under the effluent guidelines program 
to control erosion in receiving waters since effluent guidelines 
regulate the discharge of pollutants from point sources, and more 
broadly that EPA does not have authority to regulate volume. Some 
comments stated that projects with constrained space, such as linear 
projects, cannot feasibly control the volume of discharges. Other 
comments suggested that the requirement is too prescriptive, and that

[[Page 12664]]

there are other measures to control erosion in receiving waters. Some 
commenters suggested that the ``in the immediate vicinity'' language is 
ambiguous and should be removed, and that permittees should be 
responsible for downstream erosion caused by their discharges. Other 
comments stated that the language should be expanded to state that 
attainment of water quality standards should be the goal and that the 
discharges should not contribute to an existing impairment.
    EPA made one change to the proposed requirement for today's final 
rule, which is the insertion of the words ``and scour'' after the word 
``erosion''. EPA made this change as a result of comments received by 
the American Association of State Highway and Transportation Officials 
(AASHTO) (see EPA-HQ-OW-2010-0884-0194), which indicated that ``local 
scour'' is an appropriate term for the erosion in receiving waters that 
EPA is intending to address by this requirement. EPA did not include 
the ``local'' qualifier since the requirement is limited to erosion 
``in the immediate vicinity'' of discharge points, and therefore the 
addition of ``local'' would be redundant. EPA has not elected to make 
any of the other changes suggested by commenters. While EPA understands 
that some would find a requirement to also include downstream erosion 
environmentally beneficial, it is more appropriate to consider 
downstream erosion on a site-specific water quality basis than in this 
nationally applicable, technology-based rule.
4. Revision of 40 CFR 450.21(a)(6)
    EPA received several comments on this proposed amended requirement. 
Some commenters expressed concern over requiring infiltration for 
controlling pollutants, indicating that there are other methods for 
reducing pollutants other than infiltration. Commenters also were 
concerned about the requirement to provide buffers, indicating that 
some disturbance would be needed, such as stream crossing. Commenters 
were also concerned about the overlap between this requirement and 
Section 404 permits, and the switch from ``surface waters'', which was 
the language in the 2009 rule, to ``Waters of the United States,'' as 
they believed that the latter has a broader scope. Specific mention was 
made of the need to install buffers around jurisdictional wetlands. 
Commenters also requested clarification of the terms ``provide'' and 
``natural buffers''.
    EPA did not make any changes to the proposed requirement for 
today's final rule. The language, as proposed, includes an exception 
for infeasibility and provides sufficient flexibility for permitting 
authorities to incorporate appropriate language into permits to address 
the range of site-specific conditions that may exist and to address 
instances where a buffer or infiltration may be infeasible for some 
part of a project. See the 2012 CGP for an example of how EPA has 
incorporated buffer requirements, as well as alternative controls, into 
a general permit.
    EPA has not changed the proposed use of the term ``waters of the 
United States'' instead of the phrase ``surface waters.'' EPA intended 
that the two phrases mean the same set of waters. See the comment 
response document for specific responses to other comments concerning 
this provision.
5. Revision of 40 CFR 450.21(a)(7)
    EPA proposed to amend this requirement, as well as separate the two 
provisions (minimizing soil compaction and preserving topsoil) into two 
separate requirements. EPA received several comments on this proposed 
amended requirement. Some commenters requested more specificity on 
types of practices that would meet this provision, such as use of soil 
amendments or deep ripping. Other comments suggested that the use of 
soil compaction for temporary soil stabilization should be permitted. 
Still other comments indicated that there are methods to provide 
stabilization other than preserving topsoil.
    EPA did not make any changes to the proposed requirement for 
today's final rule. The provision, as proposed, provides sufficient 
flexibility for permitting authorities to develop appropriate language 
for their permits and provides permittees sufficient flexibility to 
obtain relief in cases where these practices would be infeasible based 
on site-specific conditions. The requirement to minimize soil 
compaction does not prohibit use of compaction for temporary 
stabilization since the requirement is to minimize, not prohibit, 
compaction. If the permitting authority determines that compaction is 
an appropriate temporary stabilization measure (considering other 
stabilization language contained at 450.21(b)), then it may elect to 
develop appropriate language to this effect in its permit.
6. Revision of 40 CFR 450.21(b)
    EPA received several comments on this proposed amended requirement. 
One commenter requested an exemption from the ``immediate'' initiation 
of stabilization requirement for areas of disturbance less than one 
acre on a site so as to allow prioritization of stabilization 
activities. The commenter also requested inclusion of the definition of 
``initiate immediately'' from the 2012 CGP, and other commenters 
requested additional clarification of the term ``immediately.'' 
Commenters also requested that additional exemptions be provided, for 
example, during periods with low temperatures or excessive or 
inadequate moisture that would limit the ability to establish 
vegetative stabilization. One commenter was also concerned that the 
language regarding ``intended function'' was not specific, and that 
this could allow permittees to take advantage of this exemption. This 
commenter suggested that requiring that the permittee obtain a waiver 
from stabilization would be a reasonable requirement.
    The final rule allows an exemption from stabilization in limited 
circumstances. In general, stabilization represents sound industry 
practice to minimize discharges from an active construction site. 
Industry representatives have pointed out to the Agency that there are 
limited circumstances where this requirement may not make sense. 
Therefore the rule gives permitting authorities flexibility to provide 
a waiver from stabilization in limited circumstances (an example might 
be a motocross track where the intended function is an unstabilized 
area). Rather than specify in this national rule all such 
circumstances, which would likely miss some reasonable exception, the 
rule allows permitting authorities to define these circumstances at the 
time of permitting. As stated above, however, EPA expects that sound 
industry practice of stabilizing the site immediately will be the norm.
    With respect to providing additional exemptions from vegetative 
stabilization, EPA notes that 450.21(b) does not require vegetative 
stabilization. Both vegetative and non-vegetative stabilization may be 
appropriate measures, consistent with permit requirements. In arid, 
semiarid and drought-stricken areas, the amended requirement states 
that alternative ``e.g., non-vegetative'' stabilization measures must 
be employed in these areas because vegetative stabilization is 
infeasible (because adequate moisture would not be present to establish 
and maintain such vegetation). However, the language does not limit the 
use of non-vegetative stabilization in other instances, such as during 
cold weather conditions. All areas (except those where the intended 
function

[[Page 12665]]

necessitates that it remain disturbed) would require stabilization, 
vegetative or non-vegetative, consistent with requirements developed by 
the permitting authority.
    After consideration of all comments on this provision, EPA did not 
make any changes to the proposed requirement for today's final rule. 
EPA has determined that the requirement contains sufficient flexibility 
for permitting authorities to develop appropriate criteria for 
vegetative and non-vegetative stabilization, and to develop permit 
language regarding the timing of such stabilization activities.
7. Revision of 40 CFR 450.21(d)(2)
    EPA did not receive any substantive comments on this proposed 
amended requirement, and therefore EPA did not make any changes to the 
proposed requirement for today's final rule.
8. Removal of Numeric Standard and Monitoring Provisions at 40 CFR 
450.22(a) and 450.22(b)
    The final change removes the numeric discharge standard and 
monitoring requirements previously found at 40 CFR 450.22(a) and 
450.22(b).
    EPA received several comments on this proposed change. While many 
commenters were supportive of removing the numeric turbidity effluent 
limitation and monitoring requirements, some commenters were opposed to 
this and requested that EPA reinstate a numeric limitation. Some 
commenters suggested that EPA completely remove these sections of the 
CFR instead of reserving these sections.
    EPA is withdrawing the numeric limitation but has reserved these 
paragraphs for potential revisions should EPA decide to propose and 
promulgate additional effluent limitations guidelines and monitoring 
requirements in a future rulemaking. The Agency is considering data and 
comments submitted in response to the January 3, 2012 Federal Register 
notice (77 FR 112) seeking additional information and data on numeric 
standards. At this time, EPA is concerned that a numeric limitation may 
create a disincentive to green infrastructure techniques for managing 
stormwater. For example, meeting a numeric standard may require 
installation of a sediment basin or other impoundment on certain sites, 
which may be a disincentive to installing distributed stormwater 
controls. Also, EPA recognizes that additional data collection would 
likely be necessary in order to inform any establishment of numeric 
discharge standards and monitoring requirements in the future. At such 
time that EPA decides on a path forward with respect to numeric 
discharge standards and monitoring requirements, EPA will take 
appropriate actions to notify interested stakeholders. EPA encourages 
interested parties to continue submitting data and information to EPA 
with respect to numeric discharge standards at construction sites. In 
the interim, it is preferable to reserve these sections of the CFR for 
future action. Removing these paragraphs altogether would require re-
organization of other sections of the rule. EPA sees no meaningful 
disadvantage of reserving these sections as opposed to removing these 
sections.

III. Statutory and Executive Order Reviews

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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). The action does not impose an 
information collection burden because the amendments do not impose any 
data collection or reporting requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    The final rule clarifies applicability of the existing non-numeric 
effluent limitations at 40 CFR Part 450 and provides exemptions to some 
requirements in limited cases. We have therefore concluded that today's 
final rule will relieve regulatory burden for affected small entities.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
This rule clarifies applicability of the existing non-numeric effluent 
limitations at 40 CFR Part 450 and provides exemptions to some 
requirements in limited cases. The rule does not impose new or more 
stringent requirements, and therefore this action does not subject 
regulated entities to any costs incremental to the existing rule. Thus, 
this rule is not subject to the requirements of sections 202 or 205 of 
the Unfunded Mandates Reform Act (UMRA).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule clarifies 
applicability of the existing non-numeric effluent limitations at 40 
CFR Part 450 and provides exemptions to some requirements in limited 
cases. These requirements apply to all governmental entities that 
undertake construction activities regulated at 40 CFR 122.26, and 
therefore do not significantly or uniquely affect small governments.

[[Page 12666]]

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule clarifies applicability 
of the existing non-numeric effluent limitations at 40 CFR Part 450 and 
provides exemptions to some requirements in limited cases. Thus, 
Executive Order 13132 does not apply to this action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule 
clarifies applicability of the existing non-numeric effluent 
limitations at 40 CFR Part 450 and provides exemptions to some 
requirements in limited cases. The rule does not impose new or more 
stringent requirements, and therefore this action would not subject 
regulated entities to any costs incremental to the existing rule. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is based 
solely on technology performance.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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

    Executive Order 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.
    EPA has concluded that it is not practicable to determine whether 
there would be disproportionately high and adverse human health or 
environmental effects on minority and/or low income populations from 
this final rule. This final rule clarifies applicability of the 
existing non-numeric effluent limitations at 40 CFR Part 450 and 
provides exemptions to some requirements in limited cases. While EPA 
considers it unlikely, it is possible that the changes to some of these 
requirements could result in greater pollution discharge to waters of 
the United States. However, EPA does not expect the quantity of 
pollution discharges to specific waterbodies or at the national level 
to significantly increase as a result of this final rule. Furthermore, 
the primary pollutants discharged by this industry, which are sediment 
and turbidity, are present in background levels to varying quantities 
in waters of the United States. Therefore, the extent, if any, of 
changes in human health or environmental effects as a result of this 
action would depend upon waterbody-specific conditions and the 
locations and interaction of populations with those waterbodies. Due to 
the varying nature and location of construction site discharges, and 
due to the fact that there are often other sources of sediment and 
turbidity pollution in waterbodies, it is not practicable to quantify 
the extent to which this action would alter levels of pollution 
discharges or whether any change in pollution discharges as a result of 
this action would contribute disproportionately high and adverse human 
health or environmental effects on minority and/or low income 
populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 5, 2014.

L. Judicial Review

    In accordance with 40 CFR 23.2, today's rule is considered 
promulgated for the purposes of judicial review as of 1 p.m. Eastern 
Standard Time, March 20, 2014. Under Section 509(b)(1) of the Clean 
Water Act (CWA), judicial review of today's effluent limitations 
guidelines and new source performance standards may be obtained by 
filing a petition in the United States Circuit Court of Appeals for 
review within 120 days from the date of promulgation of these 
guidelines and standards. Under Section 509(b)(2) of the CWA, the 
requirements of this regulation may not be challenged later in civil or 
criminal proceedings brought to enforce these requirements.

List of Subjects in 40 CFR Part 450

    Environmental protection, Construction industry, Land development, 
Water pollution control.

    Dated: February 20, 2014.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

[[Page 12667]]

PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY

0
1. The authority citation for part 450 is revised to read as follows:

    Authority:  33 U.S.C. 1311, 1312, 1314, 1316, 1341, 1342, 1361 
and 1370.

Subpart A--General Provisions

0
2. Section 450.11 is amended by adding paragraph (b) to read as 
follows:


Sec.  450.11  General definitions.

* * * * *
    (b) Infeasible. Infeasible means not technologically possible, or 
not economically practicable and achievable in light of best industry 
practices.

Subpart B--Construction and Development Effluent Guidelines

0
3. Section 450.21 is amended by:
0
a. Revising paragraphs (a)(1), (a)(2), (a)(6), and (a)(7).
0
b. Adding paragraph (a)(8).
0
c. Revising paragraph (b).
0
d. Revising paragraph (d)(2).
    The added and revised text read as follows:


Sec.  450.21  Effluent limitations reflecting the best practicable 
technology currently available (BPT).

* * * * *
    (a) * * *
    (1) Control stormwater volume and velocity to minimize soil erosion 
in order to minimize pollutant discharges;
    (2) 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;
* * * * *
    (6) Provide and maintain natural buffers around waters of the 
United States, direct stormwater to vegetated areas and maximize 
stormwater infiltration to reduce pollutant discharges, unless 
infeasible;
    (7) Minimize soil compaction. Minimizing soil compaction is not 
required where the intended function of a specific area of the site 
dictates that it be compacted; and
    (8) Unless infeasible, preserve topsoil. Preserving topsoil is not 
required where the intended function of a specific area of the site 
dictates that the topsoil be disturbed or removed.
    (b) Soil Stabilization. Stabilization of disturbed areas must, at a 
minimum, be initiated immediately whenever any clearing, grading, 
excavating or other earth disturbing activities have permanently ceased 
on any portion of the site, or temporarily ceased on any portion of the 
site and will not resume for a period exceeding 14 calendar days. In 
arid, semiarid, and drought-stricken areas where initiating vegetative 
stabilization measures immediately is infeasible, alternative 
stabilization measures must be employed as specified by the permitting 
authority. Stabilization must be completed within a period of time 
determined by the permitting authority. In limited circumstances, 
stabilization may not be required if the intended function of a 
specific area of the site necessitates that it remain disturbed.
* * * * *
    (d) * * *
    (2) Minimize the exposure of building materials, building products, 
construction wastes, trash, landscape materials, fertilizers, 
pesticides, herbicides, detergents, sanitary waste and other materials 
present on the site to precipitation and to stormwater. 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); and
* * * * *


Sec.  450.22  [Amended]

0
4. Section 450.22 is amended by removing and reserving paragraphs (a) 
and (b).

[FR Doc. 2014-04612 Filed 3-5-14; 8:45 am]
BILLING CODE 6560-50-P


