[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Notices]
[Pages 22882-22891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9929]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9297-9; EPA-HQ-OW-2010-0782]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: EPA's Regional Offices are proposing for public comment the 
draft National Pollutant Discharge Elimination System general permit 
for stormwater discharges from large and small construction activities. 
This draft construction general permit includes new requirements that 
implement the technology-based Effluent Limitation Guidelines and New 
Source Performance Standards, which were issued by EPA for the 
construction and development industry on December 1, 2009. The draft 
permit also includes new water quality-based requirements for 
construction sites discharging stormwater to waters requiring 
additional pollutant control. EPA proposes to issue this construction 
general permit for five (5) years, and to provide permit coverage to 
eligible existing and new construction projects in all areas of the 
country where EPA is the National Pollutant Discharge Elimination 
System permitting authority, including Idaho, Massachusetts, New 
Hampshire, and New Mexico, Indian Country Lands, Puerto Rico, 
Washington, DC, and U.S. territories and protectorates.

DATES: Comments on the draft general permit must be received on or 
before June 24, 2011. Comments on the preparation and issuance of the 
draft/preliminary Environmental Assessment must be received by May 25, 
2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0782, by one of the following methods:

[[Page 22883]]

    1. http://www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#650a1248010a060e0011250015044b020a13"><span class="__cf_email__" data-cfemail="553a2278313a363e3021153025347b323a23">[email protected]</span></a>
    3. Mail to: Water Docket, U.S. Environmental Protection Agency, 
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention: Docket ID No. EPA-HQ-OW-2010-0782. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0782. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at a docket facility. The Office 
of Water (OW) Docket Center is open from 8:30 until 4:30 p.m., Monday 
through Friday, excluding legal holidays. The OW Docket Center 
telephone number is (202) 566-2426, and the Docket address is OW 
Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, 
DC 20004. 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.

FOR FURTHER INFORMATION CONTACT: For further information on the draft 
NPDES general permit, contact the appropriate EPA Regional office 
listed in Section I.G, or Greg Schaner, EPA Headquarters, Office of 
Water, Office of Wastewater Management at tel.: 202-564-0721 or e-mail: 
<a href="/cdn-cgi/l/email-protection#d6a5b5beb7b8b3a4f8b1a4b3b196b3a6b7f8b1b9a0"><span class="__cf_email__" data-cfemail="ccbfafa4ada2a9bee2abbea9ab8ca9bcade2aba3ba">[email protected]</span></a>, or Erika Farris, EPA Headquarters, Office of 
Water, Office of Wastewater Management at tel.: 202-564-7548, or e-mail 
<a href="/cdn-cgi/l/email-protection#ccaaadbebea5bfe2a9bea5a7ad8ca9bcade2aba3ba"><span class="__cf_email__" data-cfemail="9cfafdeeeef5efb2f9eef5f7fddcf9ecfdb2fbf3ea">[email protected]</span></a>. For further information on the preparation and 
issuance of the draft/preliminary Environmental Assessment, contact 
Jessica Trice, EPA Headquarters, Office of Federal Activities, NEPA 
Compliance Division at tel: 202-564-6646, or e-mail 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="681c1a010b0d46020d1b1b010b0946280d1809460f071e">[email protected]</a>.

SUPPLEMENTARY INFORMATION: This supplementary information 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 EPA?
    D. Will public hearings be held on this action?
    E. What process will EPA follow to finalize the permit?
    F. Who are the EPA regional contacts for this permit?
II. Background of Permit
    A. Statutory and Regulatory History
    B. Vacature of the C&D Rule Numeric Limit and Implications for 
This Permit
III. Summary of the Draft CGP
    A. Non-Numeric C&D Rule Requirements
    B. Numeric C&D Rule Requirements
    C. Water Quality-Based Effluent Limits
    D. Summary of Significant Proposed Changes to the CGP
    E. Permit Provisions for Which EPA is Soliciting Comment
    F. Construction Projects Eligible for Permit Coverage
    G. Geographic Coverage
IV. Notice of Intent to Prepare an Environmental Assessment (EA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges from Large and Small Construction Activities
V. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations
VI. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

I. General Information

A. Does this action apply to me?

    The draft construction general permit (``draft CGP'') applies to 
the following construction activities:

         Table 1--Entities Potentially Regulated by This Permit
------------------------------------------------------------------------
                                                         North American
                                                            Industry
        Category         Examples of Affected Entities   Classification
                                                         System (NAICS)
                                                              Code
------------------------------------------------------------------------
Industry...............    Construction site operators disturbing 1 or
                            more acres of land, or less than 1 acre but
                          part of a larger common plan of development or
                          sale if the larger common plan will ultimately
                            disturb 1 acre or more, and performing the
                                       following activities:
                        ------------------------------------------------
                         Building, Developing and                    233
                          General Contracting.
                         Heavy Construction...........               234
------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your facility is regulated by this action, you 
should carefully examine the definition of

[[Page 22884]]

``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 one of the persons listed for 
technical information in the preceding FOR FURTHER INFORMATION CONTACT 
section.
    Eligibility for coverage under the draft CGP is limited to 
operators of stormwater discharges from ``new sources'', ``existing 
permitted dischargers'', ``existing unpermitted dischargers'', ``new 
operators of new sources or existing permitted dischargers'', and 
``emergency-related projects''. A ``new source'' is a construction 
project that commenced or will commence construction activities after 
February 1, 2010, which is the effective date of the new source 
performance standards promulgated as part of the Construction and 
Development (C&D) rule on December 1, 2009. An ``existing permitted 
discharger'' is a construction project that is not a new source, 
because construction activities commenced prior to February 1, 2010 and 
prior coverage was obtained under either the 2003 CGP, the 2008 CGP, or 
under another NPDES permit. An ``existing unpermitted discharger'' is a 
construction project that is not a new source, because construction 
activities commenced prior to February 1, 2010, but has never received 
coverage for its construction discharges under an effective NPDES 
permit. A ``new operator of a new source or existing permitted 
discharger'' is an operator that replaces an existing operator on a 
construction project through transfer or ownership and/or operation. An 
``emergency-related project'' is one in which earth-disturbing 
activities need to take place immediately in order to respond to a 
public emergency (e.g., tornado, hurricane, earthquake, flood), and the 
related work requires immediate authorization to avoid imminent 
endangerment to human health or the environment. Coverage under this 
permit is available to operators of eligible projects located in those 
areas where EPA is the permitting authority and has opted to make this 
general permit for use. A list of eligible areas is included in 
Appendix B of the draft CGP.

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

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2010-0782. 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 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 United States government on-line source for 
Federal regulations at http://www.regulations.gov.
    Electronic versions of this draft permit and fact sheet are 
available on EPA's NPDES Web site at http://www.epa.gov/npdes/stormwater/cgp.
    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 EPA's 
public docket, visit the EPA Docket Center homepage at http://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 EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark all of the information that you 
claim to be CBI. For CBI information on computer disks mailed to EPA, 
mark the surface of the disk as CBI. Also identify electronically the 
specific information contained in the disk or that you claim is CBI. In 
addition to one complete version of the specific information claimed as 
CBI, you must submit a copy that does not contain the information 
claimed as CBI for inclusion in the public document. Information marked 
as CBI will not be disclosed except in accordance with procedures set 
forth in 40 CFR Part 2.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA'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 EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    <bullet> Identify this permit by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
    <bullet> Where possible, respond to specific questions or organize 
comments by referencing a section or part of this permit.
    <bullet> Explain why you agree or disagree, suggest alternatives, 
and suggest substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible.
    <bullet> To ensure that EPA can read, understand, and therefore 
properly respond to comments, the Agency would prefer that commenters 
cite, where possible, the paragraph(s) or section in the fact sheet or 
permit to which each comment refers.

[[Page 22885]]

    <bullet> Make sure to submit your comments by the comment period 
deadline identified.

D. Will public hearings be held on this action?

    EPA has not scheduled any public hearings to receive public comment 
concerning the draft 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 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. 
Requests for a public hearing must state the nature of the issues 
proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 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 
permit. If 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 permit at the public hearing.

E. What process will EPA follow to finalize the permit?

    After the close of the public comment period, EPA intends to issue 
a final permit on or prior to the expiration date of the current 2008 
CGP. [Please note that EPA is proposing in another notice today an 
extension of the 2008 CGP to January 31, 2012 in order to provide the 
Agency with sufficient time to finalize this permit.] This permit will 
not be issued until all significant comments have been considered and 
appropriate changes made to the permit. EPA's responses to public 
comments received will be included in the docket as part of the final 
permit issuance. Once the final permit becomes effective, eligible 
operators of existing and new construction projects may seek 
authorization under the new CGP. Any construction site operator 
obtaining permit coverage prior to the expiration date of the 2008 CGP 
will automatically remain covered under that permit until the earliest 
of:
    <bullet> The operator submits a Notice of Termination (NOT); or
    <bullet> EPA issues an individual permit or denies coverage under 
an individual permit for the site's stormwater discharges.

F. 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 <a href="/cdn-cgi/l/email-protection#fb9392959cd5919e888892989abb9e8b9ad59c948d"><span class="__cf_email__" data-cfemail="5e3637303970343b2d2d373d3f1e3b2e3f70393128">[email protected]</span></a>.
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or e-mail at <a href="/cdn-cgi/l/email-protection#1563707b706f7c743b666170657d707b557065743b727a63"><span class="__cf_email__" data-cfemail="cdbba8a3a8b7a4ace3beb9a8bda5a8a38da8bdace3aaa2bb">[email protected]</span></a>, or for Puerto Rico, contact 
Sergio Bosques at tel.: (787) 977-5838 or e-mail at 
<a href="/cdn-cgi/l/email-protection#90f2ffe3e1e5f5e3bee3f5e2f7f9ffd0f5e0f1bef7ffe6"><span class="__cf_email__" data-cfemail="23414c50525646500d504651444a4c634653420d444c55">[email protected]</span></a>.
    For EPA Region 3, contact Chuck Schadel at tel.: (215) 814-5761 or 
e-mail at <a href="/cdn-cgi/l/email-protection#acdfcfc4cdc8c9c082cfc4d9cfc7ecc9dccd82cbc3da"><span class="__cf_email__" data-cfemail="cebdada6afaaaba2e0ada6bbada58eabbeafe0a9a1b8">[email protected]</span></a>.
    For EPA Region 4, contact Michael Mitchell at tel.: (404) 562-9303 
or e-mail at <a href="/cdn-cgi/l/email-protection#b4d9ddc0d7dcd1d8d89ad9ddd7dcd5d1d8f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="9ff2f6ebfcf7faf3f3b1f2f6fcf7fefaf3dffaeffeb1f8f0e9">[email protected]</span></a>.
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at <a href="/cdn-cgi/l/email-protection#2b494e4747054959424a45486b4e5b4a054c445d"><span class="__cf_email__" data-cfemail="65070009094b07170c040b06250015044b020a13">[email protected]</span></a>.
    For EPA Region 6, contact Suzanna Perea at tel.: (214) 665-7217 or 
e-mail at: <a href="/cdn-cgi/l/email-protection#deaebbacbbbff0adaba4bfb0b0bf9ebbaebff0b9b1a8"><span class="__cf_email__" data-cfemail="7d0d180f181c530e08071c13131c3d180d1c531a120b">[email protected]</span></a>.
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
e-mail at: <a href="/cdn-cgi/l/email-protection#610c001515090416124f0c00130a210411004f060e17"><span class="__cf_email__" data-cfemail="b6dbd7c2c2ded3c1c598dbd7c4ddf6d3c6d798d1d9c0">[email protected]</span></a>.
    For EPA Region 8, contact Amy Clark at tel.: (303) 312-7014 or e-
mail at: <a href="/cdn-cgi/l/email-protection#afccc3ceddc481cec2d6efcadfce81c8c0d9"><span class="__cf_email__" data-cfemail="02616e6370692c636f7b426772632c656d74">[email protected]</span></a>.
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
e-mail at <a href="/cdn-cgi/l/email-protection#b5d7c7dad8d9d0cc9bd0c0d2d0dbd0f5d0c5d49bd2dac3"><span class="__cf_email__" data-cfemail="6406160b0908011d4a011103010a01240114054a030b12">[email protected]</span></a>.
    For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or 
e-mail at <a href="/cdn-cgi/l/email-protection#ef998e84808cc182869c878eaf8a9f8ec1888099"><span class="__cf_email__" data-cfemail="87f1e6ece8e4a9eaeef4efe6c7e2f7e6a9e0e8f1">[email protected]</span></a>.

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 and * * 
* recreation in and on the water.'' 33 U.S.C. 1251(a)(2)). To achieve 
these goals, the CWA requires EPA to control discharges of pollutants 
from point sources through the issuance of National Pollutant Discharge 
Elimination System (``NPDES'') permits.
    The Water Quality Act of 1987 (WQA) added section 402(p) to the 
Clean Water Act (CWA), which directed EPA to develop a phased approach 
to regulate stormwater discharges under the NPDES program. 33 U.S.C. 
1342(p). EPA published a final regulation in the Federal Register, 
often called the ``Phase I Rule'', on November 16, 1990, establishing 
permit application requirements for, among other things, ``storm water 
discharges associated with industrial activity.'' See 55 FR 47990. EPA 
defines the term ``storm water discharge associated with industrial 
activity'' in a comprehensive manner to cover a wide variety of 
facilities. See id. 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). The second 
rule implementing section 402(p), often called the Phase II Rule, was 
published in the Federal Register on December 8, 1999. It requires 
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 issue this draft 
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 to 
meet technology-based effluent limits established under Section 301 
and, where applicable, Section 306. Effluent limitations guidelines 
(ELGs), and New Source Performance Standards (NSPS) are technology-
based effluent limitations that are based on the degree of control that 
can be achieved using various levels of pollutant control technology as 
defined in Subchapter III of the CWA.
    Once a new national standard is established in accordance with 
these sections, NPDES permits must incorporate limits based on such 
technology-based standards. See CWA section 301 and 306, 33 U.S.C. 1311 
and 1316, and 40 CFR 122.44(a)(1). Prior to the issuance of such 
national standards, permit authorities are required to incorporate 
technology-based limits on a best professional judgment basis. CWA 
section 402(a)(1); 40 CFR 125.3(a)(2)(ii)(B). On December 1, 2009, EPA 
published final regulations establishing technology-based Effluent 
Limitations Guidelines (ELGs) and New Source Performance Standards 
(NSPS) for the Construction & Development (C&D) point source category. 
See 40 CFR Part 450, and 74 FR 62996 (December 1, 2009). The 
Construction & Development Rule, or ``C&D rule'', became effective on 
February 1, 2010; therefore all NPDES construction permits issued by 
EPA or states after this date must incorporate the C&D rule 
requirements. Because EPA will be issuing its new CGP after the 
effective date of the C&D rule, the

[[Page 22886]]

Agency is required by the CWA and 40 CFR 122.44(a)(1) to incorporate 
into its new CGP all applicable C&D rule requirements.

B. Vacature of the C&D Rule Numeric Limit and Implications for This 
Permit

    The C&D rule was finalized on December 1, 2009, and included non-
numeric requirements for erosion and sediment control, stabilization, 
and pollution prevention (see 40 CFR 450.21(a) thru (f)), and, for the 
first time, a numeric limitation on the discharge of turbidity from 
active construction sites (see 40 CFR 450.22). Since its promulgation, 
EPA discovered that the data used to calculate the numeric limit for 
turbidity were misinterpreted, and that it was necessary to recalculate 
the numeric limit.
    On August 12, 2010, EPA filed a motion with the U.S. Court of 
Appeals for the Seventh Circuit, requesting the Court issue an order 
vacating and remanding to the Agency limited portions of the final C&D 
rule. To address the specific issues raised by petitioners, the motion 
also provided that EPA:

    <bullet> ``May address (and if necessary take further regulatory 
action on) certain impacts of the final rule specific to linear gas 
and electricity utility projects.''
    <bullet> Will ``solicit site specific information regarding the 
applicability of a numeric limit'' to cold weather sites and to 
small sites that are part of a larger plan of development that is 
subject to the numeric limit.

    On August 24, 2010, the U.S. Court of Appeals for the Seventh 
Circuit remanded the matter to EPA but did not vacate the numeric 
limit. On September 9, 2010, the National Association of Home Builders 
(NAHB) filed a motion for clarification (which EPA did not oppose) 
asking the Court to (1) vacate the limit and (2) hold the case in 
abeyance instead of remanding the matter to EPA. On September 20, 2010, 
the Court granted the motion in part by ruling to hold the matter in 
abeyance pending EPA consideration of the numeric limit and the other 
remand issues, but the Court did not vacate the numeric limit. Instead, 
the Court stated that ``EPA may make any changes to the limit it deems 
appropriate, as authorized by law.''
    EPA issued a direct final rule staying the current numeric limit 
and a companion proposed rule proposing a stay, and the stay took 
effect on January 4, 2011, resulting in an indefinite postponement of 
the implementation of the 280 NTU limit. The Agency is currently 
preparing to issue a proposed rule proposing the recalculated limit and 
a one-year extension to the first phase-in date for complying with the 
numeric limit. EPA will seek public comment on this recalculated limit 
and the one-year extension of the first phase-in date, and persons who 
wish to comment on the recalculated limit and extension should submit 
comments on that proposal. EPA plans to promulgate the recalculated 
numeric limit and the one-year extension of the first phase-in date 
prior to the final issuance of the new CGP. Therefore, if the numeric 
limit and one-year extension are promulgated and become effective prior 
to the issuance of the final CGP, EPA must by law incorporate the 
applicable numeric limit and new first phase-in date from the ELGs and 
standards into the final CGP. With this in mind, EPA has included a 
placeholder reference to the final numeric limit, which will be 
replaced by the recalculated numeric limit in the final permit if it is 
promulgated prior to permit issuance. With respect to the first phase-
in date for complying with the limit (i.e., August 1, 2011), EPA notes 
in the proposed permit that this date may change depending on the 
outcome of the proposed extension.

III. Summary of the Draft CGP

    As stated above, the draft permit proposed today includes new 
requirements that implement the effluent limitations guidelines and new 
source performance standards in the C&D rule. These proposed new 
requirements would require site operators to install and implement 
stormwater measures to accomplish erosion and sediment control, 
pollution prevention, and stabilization, and, for certain larger 
construction sites, to meet a recalculated numeric turbidity limit and 
conduct compliance monitoring of their stormwater discharges. For sites 
that discharge to waters where additional controls are necessary to 
ensure compliance with applicable water quality standards, the draft 
permit includes new water quality-based effluent limits. This section 
summarizes the C&D rule requirements upon which the permit's proposed 
technology-based requirements are based, and highlights the significant 
new permit provisions included in the draft permit.

A. Non-Numeric C&D Rule Requirements

    The non-numeric effluent limitations in the C&D rule are designed 
to prevent the mobilization and discharge of sediment and sediment-
bound pollutants, such as metals and nutrients, and to prevent or 
minimize exposure of stormwater to construction materials, debris, and 
other sources of pollutants on construction sites. In addition, these 
non-numeric effluent limitations limit the generation of dissolved 
pollutants. For background, soil on construction sites can contain a 
variety of pollutants such as nutrients, organics, pesticides, 
herbicides, and metals. These pollutants may be present naturally in 
the soil, such as arsenic or selenium, or they may have been 
contributed by previous activities on the site, such as agriculture or 
industrial activities. These pollutants, once mobilized by stormwater, 
can detach from the soil particles and become dissolved pollutants. 
Once dissolved, these pollutants would not be removed by down-slope 
sediment controls. Source control through minimization of soil erosion 
is therefore the most effective way of controlling the discharge of 
these pollutants.
    The non-numeric effluent limits in the C&D rule, upon which certain 
technology-based requirements in the draft CGP are based, include the 
following:
    <bullet> Erosion and Sediment Controls: Permittees are required to 
design, install, and maintain effective erosion and sediment controls 
to minimize the discharge of pollutants. At a minimum, such controls 
must be designed, installed, and maintained to:
    1. Control stormwater volume and velocity within the site to 
minimize soil erosion;
    2. Control stormwater discharges, including both peak flowrates and 
total stormwater volume, to minimize erosion at outlets and to minimize 
downstream channel and streambank erosion;
    3. Minimize the amount of soil exposed during construction 
activity;
    4. Minimize the disturbance of steep slopes;
    5. Minimize sediment discharges from the site. The design, 
installation and maintenance of erosion and sediment controls must 
address factors such as the amount, frequency, intensity, and duration 
of precipitation, the nature of resulting stormwater runoff, and soil 
characteristics, including the range of soil particle sizes expected to 
be present on the site;
    6. To increase sediment removal and maximize stormwater 
infiltration, provide and maintain natural buffers around surface 
waters and direct stormwater to vegetated areas, unless infeasible; and
    7. Minimize soil compaction and, unless infeasible, preserve 
topsoil.
    <bullet> Soil Stabilization Requirements: Permittees are required 
to, at a minimum, initiate soil stabilization measures immediately 
whenever any clearing, grading, excavating, or other earth disturbing 
activities have

[[Page 22887]]

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. Stabilization must be completed within a period of time 
determined by the permitting authority. In arid, semiarid, and drought-
stricken areas where initiating vegetative stabilization measures 
immediately is infeasible, vegetative stabilization measures must be 
initiated as soon as practicable.
    <bullet> Dewatering Requirements: Permittees are required to 
minimize the discharge of pollutants from dewatering trenches and 
excavations. Discharges are prohibited unless managed by appropriate 
controls.
    <bullet> Pollution Prevention Measures: Permittees are required to 
design, install, implement, and maintain effective pollution prevention 
measures to minimize the discharge of pollutants. At a minimum, such 
measures must be designed, installed, implemented and maintained to:
    1. Minimize the discharge of pollutants from equipment and vehicle 
washing, wheel wash water, and other wash waters. Wash waters must be 
treated in a sediment basin or an alternative control that provides 
equivalent or better treatment prior to discharge;
    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; and
    3. Minimize the discharge of pollutants from spills and leaks and 
implement chemical spill and leak prevention and response procedures.
    <bullet> Prohibited Discharges: The following discharges from 
regulated construction sites are prohibited:
    1. Wastewater from washout of concrete, unless managed by an 
appropriate control;
    2. Wastewater from washout and cleanout of stucco, paint, form 
release oils, curing compounds, and other construction materials;
    3. Fuels, oils, or other pollutants used in vehicle and equipment 
operation and maintenance; and
    4. Soaps or solvents used in vehicle and equipment washing.
    <bullet> Surface Outlets: When discharging from basins and 
impoundments, permittees are required to utilize outlet structures that 
withdraw water from the surface, unless infeasible.
    When EPA was writing the C&D rule's final non-numeric effluent 
limits listed above, it intended to provide discretion to permitting 
authorities to determine how best to implement these provisions with 
respect to requiring controls and measures appropriate for the 
conditions in their permitted areas. For example, in the preamble to 
the C&D rule, EPA states ``* * * in the erosion and sediment control 
section * * * EPA simply required that permittees `minimize the 
disturbance of steep slopes' leaving it up to the permitting authority 
to determine the specific requirements applicable to owners or 
operators of C&D sites to minimize disturbance of steep slopes in order 
to minimize the discharge of pollutants from the site.'' See 74 FR 
63016. As the permitting authority responsible for issuing stormwater 
permits for construction activities in four States, Indian Country 
lands, Federal facilities, Washington, DC, and U.S. territories/
protectorates, EPA believes that it is important in this draft permit 
to include requirements that more specifically define what is necessary 
to implement each of the C&D rule's non-numeric limits. Accordingly, in 
translating the C&D rule requirements into the draft CGP, EPA added 
specificity to many of the C&D rule provisions that it believed call 
for further definition, such as the requirements to ``Provide and 
maintain natural buffers'', ``Minimize steep slopes'', and ``Minimize 
soil compaction'', among others. In EPA's view, adding specificity to 
the C&D rule-based requirements in the CGP will assist permittees in 
understanding the Agency's view of what is required to comply with the 
permit.

B. Numeric C&D Rule Requirements

    The C&D rule at 40 CFR 450.22 requires compliance for certain sites 
with a numeric turbidity limit. Compliance with the numeric turbidity 
limit is to be accomplished in two phases and applies to construction 
activities as follows:
    <bullet> Any construction activities that will occur on or after 
August 1, 2011, which disturb 20 or more acres of land at one time, 
including non-contiguous land disturbances that take place at the same 
time and are part of a larger common plan of development or sale; and
    <bullet> Any construction activities that will occur on or after 
February 2, 2014, and disturb 10 or more acres of land at one time, 
including non-contiguous land disturbances that take place at the same 
time and are part of a larger common plan of development or sale.

See 40 CFR 450.22(a). The C&D rule established an exception from the 
numeric limit for sites that receive an amount of precipitation that in 
any day is larger than the local 2-year, 24-hour storm. See 40 CFR 
450.22(b). In addition to promulgating a numeric limit, the C&D rule 
also requires monitoring consistent with requirements established by 
the permitting authority. See 40 CFR 450.22(a)(2). The rule specifies 
that each sample must be analyzed for turbidity in accordance with the 
requirements established by the permitting authority. See id.
    As stated previously, the 280 NTU numeric limit that was originally 
promulgated has been found to be based on data that was misinterpreted. 
EPA has issued a stay of the 280 NTU numeric limit, which indefinitely 
postpones the application of this limit in permits. EPA also intends to 
propose and finalize a recalculated numeric limit. In accordance with 
the Agency's plan, once a recalculated limit and extension of the first 
phase-in date are promulgated, they would replace the 280 NTU limit and 
the August 1, 2011 phase-in date, respectively. Assuming the stay of 
the 280 NTU limit is in effect, the CWA does not require states whose 
construction stormwater permits expire prior to the promulgation of the 
new, corrected numeric limit to include the stayed numeric limit of 280 
NTU in their construction stormwater permit. However, if any state 
permits expire after the effective date of a final rule containing the 
recalculated numeric limit, those states would be required under the 
CWA to incorporate the new numeric effluent limit into their 
construction stormwater permits.
    The draft permit implements the numeric effluent limit provisions 
of the C&D rule by including provisions explaining which sites are 
required to comply with the numeric limit and the two phase-in dates 
for compliance (while noting the possibility that the first phase-in 
date may change), the exceptions where the numeric limit does not 
apply, sampling and analysis requirements for compliance monitoring, 
and requirements to report sampling data to EPA. The draft permit 
includes a placeholder reference for the actual numeric limit itself, 
which EPA plans to promulgate prior to the expiration of the 2008 CGP, 
so that the numeric limit may be incorporated into the new CGP prior to 
issuance.

C. Water Quality-Based Effluent Limits

    Because the C&D rule requirements are technology-based, they do not 
account for the level of pollutant control that may be necessary in a 
specific area to meet applicable water quality standards. EPA's 
regulations at 40 CFR 122.44(d)(1) require permitting authorities to 
include additional or more stringent permit requirements when necessary 
to achieve water quality

[[Page 22888]]

standards. With this requirement in mind, the draft CGP includes 
additional requirements that apply to those sites that discharge to 
waters impaired for sediment, sediment-related parameters, or 
nutrients, including nitrogen and phosphorus, which are parameters 
typically associated with stormwater discharges from construction 
sites, and to those sites that discharge to waters requiring enhanced 
protection under a State or Tribe's antidegradation requirements.

D. Summary of Significant Proposed Changes to the CGP

    The draft CGP includes a number of new or modified requirements, 
many of which are related to the implementation of the new C&D rule 
effluent limits, and thus differ from the 2008 CGP. The following list 
summarizes the proposed changes to the CGP:
    1. Structure/Appearance of Permit: EPA attempted to restructure its 
CGP so that it would be better organized to present requirements in a 
generally more readable manner. It is EPA's hope that this structure 
will enhance the permittees' understanding of and compliance with the 
permit's requirements. For instance, the permit's stormwater control 
requirements are organized into distinct and related categories, such 
as erosion and sediment control requirements, stabilization 
requirements, and pollution prevention requirements. Within the erosion 
and sediment control requirements of the permit, EPA has organized the 
section to reflect the general sequence of the construction process. 
For example, the proposed permit places in separate sections 
requirements that apply to the site planning phase, which should occur 
prior to earth-disturbance, followed by requirements affecting the 
selection, design, and installation of stormwater controls. Similarly, 
in the pollution prevention section, EPA organizes the requirements 
based on where in the construction sequence they would apply. 
Therefore, there are requirements relating to (1) where pollution-
generating activities may be placed, (2) how to design stormwater 
controls, (3) what performance standards to meet during construction, 
and (4) how to maintain required stormwater controls.
    2. Eligibility for Emergency-Related Construction: EPA proposes to 
provide immediate authorization for construction activities required 
for response to public emergencies (e.g., tornado, hurricane, 
flooding). Immediate authorization would enable work that is necessary 
to avoid imminent endangerment to human health or the environment to 
proceed without administrative delay. The construction operator must 
still comply with the terms of the permit, and must submit an NOI 
within 7 days of commencing earth-disturbing activities, whereas 
typically operators must submit NOIs 30 days prior to commencing earth-
disturbing activities. The operator is then required to develop its 
stormwater pollution prevention plan (SWPPP) within 7 days of 
submitting the NOI.
    3. Authorization Process/NOIs: EPA proposes to increase the 
``waiting period'' from 7 days to 30 days for new projects. This new 
timeframe is intended to better reflect the endangered species-related 
reviews that must take place prior to authorization. EPA also proposes 
to maximize the use of its electronic NOI, or eNOI, process for 
authorizing construction discharges by requiring that construction 
operators seek coverage using the eNOI system. Certain case-by-case 
exceptions, i.e., instances in which a ``paper NOI'' will be allowed, 
will still exist, but approval by the applicable EPA Region will be 
necessary first.
    4. Sediment and Erosion Controls: The draft permit includes 
specific requirements that implement the C&D rule's sediment and 
erosion control limits. While many of these requirements are already 
included in the 2008 CGP, the draft permit includes more detail in 
order to properly implement the C&D rule. The following is a list of 
requirements that can be considered significant modifications to the 
2008 CGP:
    i. Buffer Compliance Alternatives--To implement the C&D rule 
requirement to provide and maintain natural buffers around surface 
waters, unless feasible, sites must ensure that any discharges flowing 
through the area between the disturbed portions of the site and any 
waters of the U.S. are treated by an area of undisturbed natural 
vegetation that alone or supplemented by erosion and sediment controls 
achieves a reduction in sediment loads equivalent to that achieved by 
50 feet of undisturbed natural vegetation. Appendix M of the draft 
permit has been added to provide guidance to operators in complying 
with this requirement.
    ii. Installation of Sediment Controls Prior to Construction--
Operators must install and make operational all sediment controls prior 
to conducting earth-disturbing activities.
    iii. Sediment Removal Requirements--Operators are specifically 
required to remove deposited sediment on the site, tracked out of the 
site, or accumulated near sediment controls before it compromises the 
effectiveness of on-site controls and/or is discharged to surface 
waters.
    iv. Entrance and Exit Points--Any entrance and exit points created 
on the site must be stabilized for a minimum of 50 feet into the site.
    v. Storm Drain Inlets--Controls must be installed and maintained to 
protect any storm drain inlets to which the site discharges and that 
are accessible to the operator.
    vi. Chemical Treatment--Where operators plan to employ treatment 
chemicals to reduce sediment discharges, they are subject to specific 
use restrictions and stormwater control design requirements.
    vii. Dewatering Practices--Specific controls and discharge 
restrictions apply to sites that will discharge groundwater or 
accumulated stormwater removed from excavations, trenches, foundations, 
vaults, or other points of accumulation associated with construction 
activity.
    5. Stabilization Requirements: The permit includes modified 
stabilization requirements that define more specifically what EPA 
requires for temporary and final stabilization. Criteria are proposed 
for both vegetative and non-vegetative stabilization that are based on 
the Revised Universal Soil Loss Equation's (RUSLE) cover management 
factor, or ``C-factor''. EPA has provided guidance in Appendix H to 
assist permittees in understanding what stabilization measures meet the 
requirements of the draft permit.
    6. Pollution Prevention: Beyond adopting the specific C&D rule 
requirements for pollution prevention and the prohibition of certain 
discharges, the draft permit includes specific location restrictions 
(e.g., locate pollutant-generating activities outside of any buffers 
established under the permit and set back from stormwater conveyance 
channels) and design standards (e.g., install secondary containment or 
cover activities). The pollution prevention requirements also include a 
proposal to restrict the discharge of fertilizers at construction 
sites.
    7. Numeric Turbidity Limit: EPA proposes that it will include 
whatever numeric turbidity limit is effective under the C&D rule, at 
the time of final permit issuance, as well as applicability (i.e., 
phase-in dates), sampling, and reporting requirements.
    8. Water Quality-Based Effluent Limits: The draft permit includes 
specific requirements that apply to sites discharging to waters 
impaired for common pollutants associated with construction activities, 
such as sediment and nutrients. For such sites,

[[Page 22889]]

construction activities are subject to additional requirements, 
including tighter stabilization deadlines (immediately initiate 
stabilization if construction in an area is inactive for 7 days, as 
opposed to 14 days) and more frequent site inspections. For sites 
disturbing 10 or more acres at a time, the permittees would be subject 
to the additional requirement to conduct benchmark monitoring of their 
discharge based on benchmarks that are tied to the receiving water's 
water quality criteria. The permit also proposes to include additional 
requirements for waters identified as Tier 2, Tier 2.5, or Tier 3 for 
antidegradation purposes.
    9. Site Inspections: EPA proposes to make explicit the requirement 
for permittees to visually assess the quality of the discharge (e.g., 
color, odor, floating, settled, or suspended solids) if the site 
inspection occurs during a discharge-generating rain event.
    10. Corrective Actions: Although the 2008 CGP requires corrective 
action, it does not include specific requirements instructing the 
permittee as to what conditions trigger specific corrective actions and 
what deadlines apply. The draft permit includes specific triggering 
conditions for corrective action as well as deadlines to fix such 
problems and document what was done.
    11. Stormwater Pollution Prevention Plan (SWPPP): The SWPPP 
requirements are modified in accordance with the proposed changes 
discussed above. In general, the requirements are more specific, but 
consistent with the current permit.
    12. Notice of Termination: EPA proposes to include additional 
requirements that affect when a site may terminate coverage under the 
CGP. For instance, beyond enabling sites to terminate coverage when 
earth-disturbing activities have stopped and the site is stabilized, 
the permit would require the removal of all temporary stormwater 
controls and construction materials, waste, and waste handling devices.

E. Permit Provisions for Which EPA is Soliciting Comment

    While EPA encourages the public to review and comment on all 
provisions of the draft permit, EPA has included in the body of the 
draft CGP several specific requirements on which it requests feedback. 
The following list summarizes these specific requests for comment, and 
where they are included in the permit:
    1. How to submit your NOI--Request for comment on the transition to 
a ``paperless'' NOI system for the CGP. Part 1.5.2.
    2. Natural buffers and equivalent sediment controls--Request for 
comment on the buffer compliance alternatives. Part 2.1.2.1.
    3. General design requirements/required design factors--Request for 
comment on the concept, not included in the proposal, to adopt a 
minimum design storm standard for designing stormwater controls. Part 
2.1.3.1.a.
    4. Install stormwater controls before construction starts--Request 
for comment on whether there are situations in which it would be 
infeasible or impracticable to make operators install all stormwater 
controls before commencing earth disturbances. Part 2.1.3.2.a.
    5. Stabilize construction entrance and exit points--Request for 
comment on the feasibility of stabilizing entrance and exit points for 
a minimum of 50 feet. Part 2.1.4.1.a.
    6. Chemical treatment--Request for comment on the draft permit's 
restrictions on the use of polymers, flocculants, or other treatment 
chemicals to enhance sediment removal. Part 2.1.4.6.
    7. Deadline to complete stabilization activities--Request for 
comment on the practicability of the stabilization timeframes. Part 
2.2.1.2.
    8. Stabilization deadlines for arid/semi-arid areas and sensitive 
areas--Request for comment on the proposed deadlines for initiating and 
completing stabilization of exposed areas of the site in arid and semi-
arid areas. EPA also requests comment on treating as a sensitive area 
for stabilization purposes sites that will conduct construction 
activities in critical habitat areas or areas where listed endangered 
species exist. Part 2.2.1.4.
    9. Criteria for stabilization/vegetative stabilization--Request for 
comment on whether the C-factor stabilization criteria should be used 
as the sole option for complying with the permit's stabilization 
requirements, as opposed to allowing, as the draft permit does, 
permittees to choose either the C-factor method or the 70 percent areal 
cover approach. Part 2.2.2.1.
    10. Pollution prevention standards for fueling and maintenance of 
equipment and vehicles--Request for comment on the practicability of 
providing secondary containment or cover for fueling and maintenance 
areas on the site. Part 2.3.2.1.b.
    11. Pollution prevention standards for staging and storage areas--
Request for comment on the practicability of providing secondary 
containment or cover for staging and storage areas on the site. Part 
2.3.2.3.b.
    12. Types of discharge conditions requiring sampling--Request for 
comment on whether the permit should include a minimum rainfall amount 
below which no sampling is required. Part 3.3.1.1.
    13. Sampling frequency--Request for comment on the sampling 
frequency specified, and on the alternative option of requiring samples 
to be taken once every 2 hours following the first sample. Part 3.3.2.
    14. Sampling location--Request for comment on whether the permit 
should allow representative samples for other types of construction 
projects. Part 3.3.3.4.
    15. Actions required if you violate the numeric turbidity limit--
Request for comment on whether the permit should require immediate 
notification of EPA for extremely high turbidity levels. Part 3.3.8.
    16. Reporting turbidity sample results to EPA--Request for comment 
on whether allowances should be made in the permit for quarterly 
reporting for sites that have not exceeded the turbidity limit. Part 
3.3.9.
    17. Discharge limitations for impaired waters--Request for comment 
on the way in which this permit determines whether there is a discharge 
to impaired waters. Part 4.2.
    18. Requirements for discharges to sediment or nutrient-impaired 
waters without an EPA-approved or established TMDL/water quality 
benchmark monitoring--Request for comment on whether benchmark 
monitoring is an appropriate tool for assessing the effectiveness of 
controls in not contributing to impairments, and request for comments 
on the 10-acre threshold for requiring sites to conduct benchmark 
monitoring. EPA also requests comment on how benchmark monitoring might 
be used for discharges to waters that are habitat for listed fish 
species (e.g., white sturgeon, sockeye salmon). Part 4.2.2.1.
    19. Daily visual examination--Request for comment on the 
appropriateness of daily visual examinations. Part 4.2.2.3.b.
    20. Requirements for discharges to sediment or nutrient-impaired 
waters without an EPA-approved or established TMDL--Request for comment 
on the proposed additional requirements on sites discharging to 
sediment or nutrient-impaired waters. Also request for comment on 
whether the focus should be expanded to cover certain biological 
impairments attributable to sediment or nutrients. Part 4.2.2.

[[Page 22890]]

    21. Requirements for inspections--Request for comment on the 
proposed application of the same inspection requirements for linear 
projects as to other types of construction projects. Part 5.1.4.
    22. Residual chitosan testing--Request for comment on whether there 
is a level of chitosan residual below which corrective action would not 
be necessary. Part 6.3.1.3.
    23. Requirement to install and make operational corrective action 
stormwater controls--Request for comment on whether the 7-day timeframe 
is feasible. Part 6.3.2.4.
    24. Reporting to EPA--Request for comments on whether the deadline 
for reporting to EPA is reasonable, or whether a different deadline is 
more appropriate. Part 6.6.
    25. Person(s) responsible for developing SWPPP--Request for comment 
on whether the owner of the site should bear the initial requirement to 
develop the SWPPP. Part 8.1.2.
    26. Turbidity benchmarks--Request for comment on how the proposed 
methodology used to establish benchmarks for waters impaired for 
turbidity for which the underlying water quality criterion is based on 
natural background levels of turbidity. Appendix J.

F. Construction Projects Eligible for Permit Coverage

    This draft permit provides coverage to eligible operators of ``new 
sources'', ``existing permitted dischargers'', ``existing unpermitted 
dischargers'', ``new operators of new sources and existing permitted 
dischargers'', and ``emergency-related projects.'' Although the 
existing 2008 CGP will have expired, existing permitted dischargers 
authorized under that permit will continue to be authorized to 
discharge under that permit, in accordance with EPA's regulations at 40 
CFR 122.6, for a period of 90 days after the issuance of the new 
permit. Within 90 days of the issuance of the new CGP, owners/operators 
of permitted ongoing projects must submit a complete Notice of Intent 
(NOI) for coverage under the new permit. New operators of new sources 
or existing permitted dischargers that were authorized under the 
existing 2008 permit prior to its expiration date must submit a 
complete NOI for coverage under the new permit a minimum of 30 days 
prior to the date that the transfer will take place to the new owner/
operator. Operators of emergency-related projects are required to 
submit their completed NOIs within 7 days of commencing earth-
disturbing activities.

G. Geographic Coverage

    This permit provides coverage for stormwater discharges from 
construction activities that occur in areas not covered by an approved 
State NPDES program. The areas of geographic coverage of this permit 
are listed in Appendix B, and include the States of New Hampshire, 
Massachusetts, New Mexico, and Idaho as well as all Indian Country 
lands, and federal facilities in selected states. Permit coverage is 
also provided in Puerto Rico, the District of Columbia, and the Pacific 
Island territories. The only changes to the current permit's area of 
coverage is that Indian Country lands in Region 4 are now added to the 
draft permit's area of coverage, and due to a phased delegation of the 
NPDES program to the State of Alaska starting in late 2008, EPA now 
retains NPDES permitting authority only for discharges occurring within 
the Denali National Park and Preserve, and in Indian Country located 
within the State of Alaska.

IV. Notice of Intent To Prepare an Environmental Assessment (EA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges From Large and Small 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 EPA's regulations for implementing NEPA (40 CFR 
Part 6), EPA plans to prepare an Environmental Assessment (EA) to 
analyze the potential environmental impacts of the new CGP. The EA will 
consider the potential environmental impacts from the discharge of 
pollutants in stormwater discharges associated with construction 
activity where EPA is the permitting authority to determine whether to 
prepare an Environmental Impact Statement (EIS).
    This notice initiates the scoping process by inviting comments from 
Federal, State, and local agencies, Indian tribes, and the public to 
help identify the environmental issues and reasonable alternatives to 
be examined in the EA. The scoping process will inform the preparation 
and issuance of the draft/preliminary EA, which will be made available 
for public comment.
    To ensure that EPA has an opportunity to fully consider your 
comments and to facilitate EPA's prompt preparation of the EA, scoping 
comments should be received on or before May 25, 2011. You may submit 
scoping comments to the Docket ID No. EPA-HQ-OW-2010-0782 by any of the 
following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments by clicking on ``Help'' or ``FAQs.''
    <bullet> Mail: U.S. Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Mail Code: 2252A, Washington, 
DC 20460.
    <bullet> Courier: U.S. Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Rm <greek-i> 7241C, 
Washington, DC 20004, between 9 a.m. and 5 p.m. Eastern time, Monday 
through Friday, except Federal holidays.
    <bullet> Fax: 202-564-0072.
    For further information regarding scoping contact: Jessica Trice, 
NEPA Compliance Division, Office of Federal Activities, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Mail 
Code: 2252A, Washington, DC 20460. Telephone: (202) 564-6646.

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

    Executive Order (EO) 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 determined that this draft CGP will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The permit provisions in this permit include new 
requirements for erosion and sediment control and pollution prevention, 
and result in an increase in the level of environmental protection. The 
requirements in this permit apply equally to all construction projects 
that disturb one or more acres in areas where EPA is the permitting 
authority, and therefore do not disproportionately and adversely affect 
minority or low-income populations.

[[Page 22891]]

VI. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    In compliance with Executive Order 13175, EPA is in the process of 
consulting with tribal officials to gain an understanding of and, where 
necessary, to address the tribal implications of the draft CGP. In the 
course of this consultation, EPA plans to undertake the following 
activities:
    1. Provide education and outreach on the draft CGP;
    2. Hold national conference call(s) to discuss issues and concerns 
of the tribes and document discussions held in this call;
    3. Solicit comment on the draft permit; and
    4. Provide feedback through a written communication explaining how 
tribal issues and concerns were considered in the final action. This 
communication will be completed and made available to the tribes at the 
same time the permit is promulgated and the other responses to the 
comments are published.

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

    Dated: April 12, 2011.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
    Dated: April 12, 2011.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA 
Region 2.
    Dated: April 12, 2011.
Kevin Bricke,
Acting Director, Division of Environmental Planning & Protection, EPA. 
Region 2.
    Dated: April 12, 2011.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
    Dated: April 12, 2011.
Douglas Mundrick,
Acting Director, Water Protection Division, EPA Region 4.
    Dated: April 12, 2011.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
    Dated: April 12, 2011.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
    Dated: April 12, 2011.
Jamie Green,
Acting Director, Water, Wetlands and Pesticides Division, EPA Region 7.
    Dated: April 11, 2011.
Stephen S. Tuber,
Assistant Regional Administrator, EPA Region 8.
    Dated: April 11, 2011.
Alexis Strauss,
Director, Water Division, EPA Region 9.
    Dated: April 11, 2011.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2011-9929 Filed 4-22-11; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>