Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76743

preclude the institution of legal action 

or relieve permittees from any 

responsibilities, liabilities, or penalties 

for other, unauthorized discharges of oil 

and hazardous materials that are 

covered by section 311 of the Act. 

Endangered Species Act 

The Endangered Species Act (ESA) 

imposes important requirements upon, 

federal agencies regarding endangered 

species of fish, wildlife, or plants that 

have been designated as critical. Its 

implementing regulations (50 CFR Part 

402) require the Regional Administrator 

to ensure, in consultation with the 

Secretaries of Interior and Commerce, 

that any action authorized, funded or 

carried out by EPA is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

adversely affect its critical habitat [40 

CFR 122.49(c)]. Implementing 

regulations for the ESA establish a 

process by which agencies consult with 

one another to ensure that issues and 

concerns of both the NMFS and the 

USFWS collectively are addressed. The 

NMFS and USFWS have responded to 

EPA’s initiation of the coordination 

process under the regulations set forth 

by section 7 of the Endangered Species 

Act. The species identified by NMFS 

and USFWS as threatened or 

endangered species within the permit 

coverage area have been assessed for 

potential effects from the activities 

covered by the proposed permit in a 

biological assessment incorporated in 

the draft SEIS. This biological 

assessment was submitted to the NMFS 

and USFWS along with the proposed 

permit for consistency review and 

concurrence on the Region’s finding of 

no adverse effect. This coordination is 

appended to the final EIS. Concurrence 

from the USFWS and the NMFS was 

received on October 10, 2004, and 

November 16, 2004, respectively. Both 

agencies stated that EPA’s proposed 

action to reissue the general permit is 

not likely to affect resources protected 

under the ESA. 

The NMFS, in association with the 

Gulf of Mexico Fishery Management 

Council, administers the Essential Fish 

Habitat (EFH) requirements established 

by the Magnuson-Stevens Fishery 

Conservation and Management Act. 

Federal agencies are required to consult 

with NMFS on any activity that may 

adversely effect fisheries. EFH 

coordination with NMFS occurred in 

conjunction with the SEIS which 

contains the EFH assessment 

information. EPA requested comments 

from NMFS on the EFH assessment and 

finding of minimal effects. The NMFS 

offered comments which included 

recommendations for minimizing 

potential adverse impacts of the 

discharges. Comments were fully 

considered and responded to by EPA in 

the FSEIS. 

Ocean Discharge Criteria Evaluation 

For discharges into waters located 

seaward of the inner boundary of the 

territorial seas, the CWA Section 403 

requires that NPDES permits consider 

guidelines for determining the potential 

degradation of the marine environment. 

The guidelines, or Ocean Discharge 

Criteria (40 CFR Part 125, subpart M), 

are intended to ‘‘prevent unreasonable 

degradation of the marine environment 

and to authorize imposition of effluent 

limitations, including a prohibition of 

discharge, if necessary, to ensure this 

goal’’ (45 FR 65942, October 3, 1980). 

A final ODCE determination of no 

unreasonable degradation has been 

made by Region 4 based comments and 

information submitted during the public 

comment period for the proposed 

general permit. The potential effects of 

discharges under the proposed permit 

limitations and conditions are assessed 

in this document available from Region 

4. The ODCE states that, based on the 

available information, the permit 

limitations are sufficient to determine 

that no unreasonable degradation 

should result from the permitted 

discharges. 

Marine Protection, Research, and 

Sanctuaries Act 

No marine sanctuaries as designated 

by the Marine Protection, Research, and 

Sanctuaries Act exist in the area to 

which the OCS permit applies. 

Regulatory Flexibility Act 

After review of the facts presented 

above, I hereby certify, pursuant to the 

provisions of 5 U.S.C. 605(b), that these 

proposed general permits will not have 

a significant impact on a substantial 

number of small entities. This 

certification is based on the fact that the 

vast majority of the parties regulated by 

this permit have greater than 500 

employees and are not classified as 

small businesses under the Small 

Business Administration regulations 

established at 49 FR 5024 et seq.

(February 9, 1984). For those operators 

having fewer than 500 employees, this 

permit issuance will not have 

significant economic impact. These 

facilities are classified as Major Group 

13—Oil and Gas Extraction SIC Crude 

Petroleum and Natural Gas.

James D. Giattina, 

Director, Water Management Division.

[FR Doc. 04–27987 Filed 12–21–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7851–6] 

Final Modification of National Pollutant 

Discharge Elimination System 

(NPDES) General Permit for Storm 

Water Discharges From Construction 

Activities; Notice

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Notice of general permit 

modification. 

SUMMARY: Today’s action provides 

notice of modification of permit 

conditions specific to construction 

activities covered under EPA’s National 

Pollutant Discharge Elimination System 

(NPDES) General Permit for Storm 

Water Discharges from Construction 

Activities. The general permit is 

available for use where EPA is the 

NPDES permitting authority in EPA 

Regions 1–3 and 5–10. Coverage under 

the general permit authorizes the 

discharge of storm water from 

construction activities consistent with 

the terms of the permit. The revisions 

clarify that only sites covered by this 

permit can be subject to noncompliance 

with the permit. In addition, this 

modification includes correction of a 

typographical error in the permit and a 

corresponding error in the fact sheet.

DATES: This permit modification is 

effective on January 21, 2005. In 

accordance with 40 CFR 23.2, this 

action is considered issued for purposes 

of judicial review as of 1 p.m. eastern 

standard time (e.s.t.) on January 5, 2005. 

Under section 509(b)(1) of the Clean 

Water Act (CWA), judicial review of the 

Agency’s actions relating to the issuance 

or denial of an NPDES permit is 

available in the United States Court of 

Appeals within 120 days after the 

decision is final for the purposes of 

judicial review. Under CWA section 

509(b)(2), the modifications issued 

today may not be challenged later in 

civil or criminal proceedings brought by 

EPA to enforce these requirements.

FOR FURTHER INFORMATION CONTACT: Jack 

Faulk: telephone 202–564–0768 or email faulk.jack@epa.gov.

SUPPLEMENTARY INFORMATION:

76744 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 

I. General Information 

A. How Can I Get Copies of This 

Document and Other Related Materials? 

1. Docket. EPA has established an 

official public docket for the 

Construction General Permit under 

Docket ID Number OW–2002–0055. The 

official public docket consists of the 

documents specifically referenced in the 

Construction General Permit, any public 

comments received, the proposed 

modification, and other information 

related to the permit. 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 B135, 1301 

Constitution Ave., NW., Washington, 

DC. The EPA Docket Center 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 Water Docket is (202) 

566–2426. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/.

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.epa.gov/edocket/

to 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. 

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.A.1. Once 

in the system, select ‘‘search,’’ then key 

in the appropriate docket identification 

number. 

B. Who Are the EPA Regional Contacts 

for This Permit? 

For EPA Region 1, contact Thelma 

Murphy: telephone number (617) 918–

1615 or e-mail murphy.thelma@epa.gov.

For EPA Region 2, contact Stephen 

Venezia: telephone number (212) 637–

3856 or e-mail venezia.stephen@epa.gov

or, for Puerto Rico, Sergio Bosques: 

telephone number (787) 977–5838 or email bosques.sergio@epa.gov.

For EPA Region 3, contact Paula 

Estornell: telephone number (215) 814–

5632 or e-mail estornell.paula@epa.gov.

For EPA Region 5, contact Brian Bell: 

telephone (312) 886–0981 or e-mail 

bell.brianc@epa.gov.

For EPA Region 6, contact Brent 

Larsen: telephone (214) 665–7523 or email larsen.brent@epa.gov.

For EPA Region 7, contact Mark 

Matthews: telephone (913) 551–7635 or 

e-mail matthews.mark@epa.gov.

For EPA Region 8, contact Greg Davis: 

telephone (303) 312–6082 or e-mail 

davis.gregory@epa.gov.

For EPA Region 9, contact Eugene 

Bromley: telephone (415) 972–3510 or email bromley.eugene@epa.gov.

For EPA Region 10, contact Misha 

Vakoc: telephone (206) 553–6650 or email vakoc.misha@epa.gov.

II. Background 

A. Why Is This Information Being 

Published in the Federal Register? 

EPA issues NPDES permits under the 

authority of Clean Water Act (CWA) 

section 402, 33 U.S.C. section 1342. 

Consistent with that authority, EPA 

Regions 1–3 and 5–10 issued their final 

NPDES construction general permits 

(commonly referred to collectively as 

the CGP) for discharges from large (five 

acres or more) and small (one to five 

acres) construction activities on July 1, 

2003 (68 FR 39087) and August 4, 2003 

(68 FR 45817). The CGP and 

accompanying fact sheet are available 

on EPA’s Internet Web site at: http://

www.epa.gov/npdes/cgp. Operators of 

both large and small construction sites 

in areas where EPA is the NPDES 

permitting authority may be eligible to 

obtain coverage under the CGP for 

allowable storm water and non-storm 

water discharges. See Section II.B. 

The NPDES regulations at 40 CFR 

124.5(a) specify that permits may be 

modified at the request of any interested 

person (including the permittee) or 

upon the Director’s (in this instance, 

EPA’s) initiative. As discussed in more 

detail below, the modifications EPA is 

making through this notice are due in 

part to a settlement agreement with 

certain petitioners that filed suit in 

response to EPA’s July 1, 2003 issuance 

of the CGP. 

Where EPA decides to modify a 

permit under 40 CFR 122.62, a draft 

permit, incorporating the proposed 

changes, is generally prepared and 

subjected to public notice and an 

opportunity for public comment 

consistent with 40 CFR 124.10. During 

the public comment period, any 

interested person may submit written 

comments on the draft permit and may 

request a public hearing. Any request 

for public hearing shall be in writing 

and shall state the nature of the issues 

proposed to be raised in the hearing. All 

comments will be considered in making 

the final decision with responses 

documented in the administrative 

record and available to the public. 

EPA provided public notice in the 

Federal Register of its proposed 

modifications to the CGP. (69 FR 55818, 

September 16, 2004). Comments on the 

proposed modifications were due to 

EPA no later than October 18, 2004. 

EPA did not receive a request for public 

hearing. 

Pursuant to 40 CFR 124.5(c)(2), when 

a permit is modified, only those 

conditions subject to modification are 

reopened. All other aspects of the 

existing permit shall remain in effect for 

the duration of the unmodified permit. 

As such, EPA reviewed and considered 

comments submitted in response to the 

modifications proposed in the 

September 16, 2004 Federal Register

notice. 

B. Who Is Covered Under This Modified 

Permit? 

The CGP is available only in those 

areas where EPA is the NPDES 

permitting authority. Coverage is 

obtained by meeting all eligibility 

criteria and submission of a complete 

and accurate Notice of Intent (NOI) to 

EPA as detailed in the CGP. 

Specifically, operators of large and 

small construction activities within the 

areas listed below may be eligible to 

obtain coverage under this permit for 

allowable storm water and non-storm 

water discharges and as such may be 

affected by this notice: 

EPA Region 1: The States of 

Massachusetts and New Hampshire; 

Indian Country in the States of 

Connecticut, Massachusetts, and Rhode 

Island; and Federal facilities in 

Vermont. 

EPA Region 2: The Commonwealth of 

Puerto Rico and Indian Country in the 

State of New York. 

EPA Region 3: District of Columbia; 

and Federal facilities in the State of 

Delaware. 

EPA Region 5: Indian Country in the 

States of Michigan, Minnesota, and 

Wisconsin, except the Sokaogon 

Chippewa (Mole Lake) Community. 

EPA Region 6: The State of New 

Mexico; Indian Country in the States of 

Louisiana, Oklahoma, Texas, and New 

Mexico (except Navajo Reservation 

Lands [see EPA Region 9] and Ute 

Mountain Reservation Lands (see EPA 

Region 8)); discharges in the State of 

Oklahoma that are not under the 

authority of the Oklahoma Department 

of Environmental Quality, including 

activities associated with oil and gas 

exploration, drilling, operations, and 

pipelines (includes SIC Groups 13 and 

46, and SIC codes 492 and 5171), and 

point source discharges associated with 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76745

agricultural production, services, and 

silviculture (includes SIC Groups 01, 02, 

07, 08, 09); and discharges in the State 

of Texas that are not under the authority 

of the Texas Commission on 

Environmental Quality (formerly the 

Texas Natural Resource Conservation 

Commission), including activities 

associated with the exploration, 

development, or production of oil or gas 

or geothermal resources, including 

transportation of crude oil or natural gas 

by pipeline. 

EPA Region 7: Indian Country in the 

States of Iowa, Kansas, and Nebraska 

(except Pine Ridge Reservation Lands 

(see EPA Region 8)). 

EPA Region 8: Federal facilities in 

Colorado; Indian Country in Colorado 

(as well as the portion of the Ute 

Mountain Reservation located in New 

Mexico), Montana, North Dakota (as 

well as that portion of the Standing 

Rock Reservation located in South 

Dakota and excluding the portion of the 

lands within the former boundaries of 

the Lake Traverse Reservation, which is 

covered under the permit for areas of 

South Dakota), South Dakota (as well as 

the portion of the Pine Ridge 

Reservation located in Nebraska and the 

portion of the lands within the former 

boundaries of the Lake Traverse 

Reservation located in North Dakota and 

excluding the Standing Rock 

Reservation which is covered under the 

permit for areas of North Dakota), Utah 

(except Goshute and Navajo Reservation 

lands (see EPA Region 9)), and 

Wyoming. 

EPA Region 9: The Islands of 

American Samoa and Guam, Johnston 

Atoll, Midway/Wake Islands and 

Commonwealth of the Northern Mariana 

Islands; Indian Country in Arizona (as 

well as Navajo Reservation lands in 

New Mexico and Utah), California, and 

Nevada (as well as the Duck Valley 

Reservation in Idaho, the Fort 

McDermitt Reservation in Oregon, and 

the Goshute Reservation in Utah). 

EPA Region 10: The States of Alaska 

and Idaho; Indian Country in Alaska, 

Idaho (except Duck Valley Reservation 

(see EPA Region 9)), Washington, and 

Oregon (except for Fort McDermitt 

Reservation (see EPA Region 9)); and 

Federal facilities in Washington.

III. Today’s Action 

A. What Are the Final Permit (and Fact 

Sheet) Modifications? 

EPA has considered all comments 

received and is modifying the permit 

and fact sheet consistent with the 

changes proposed in the Federal 

Register at 69 FR 55818 (September 16, 

2004). Modifications described in 

III.A.1, III.A.2, and III.A.3 are identical 

to those proposed. As originally issued 

on July 1, 2003, the CGP suggested that 

construction site operators could be said 

to be violating the permit even in those 

instances when the operator is not 

covered, or not yet covered, by that 

permit (e.g., before the operator submits 

a Notice of Intent (NOI) to be covered). 

As discussed in III.B., EPA is modifying 

this permit language to be consistent 

with the Agency’s intent and its goals 

regarding protection of water quality. 

Two technical corrections, identified in 

III.A.4. and III.A.5., are modified as 

proposed. EPA received no comments 

on those two corrections. Accordingly, 

EPA hereby notices the following 

modifications: 

1. On page 7, in section 2.3.D of the 

CGP, Late Notifications, third sentence, 

strike the phrase ‘‘or permit 

noncompliance’’ so that section 2.3.D 

now reads: ‘‘Late Notifications: 

Operators are not prohibited from 

submitting NOIs after initiating clearing, 

grading, excavation activities, or other 

construction activities. When a late NOI 

is submitted, authorization for 

discharges occurs consistent with 

Subpart 2.1. The Agency reserves the 

right to take enforcement action for any 

unpermitted discharges that occur 

between the commencement of 

construction and discharge 

authorization.’’

2. On page D–3 in Appendix D of the 

CGP, section D.3, second sentence, 

strike the phrase ‘‘or permit 

noncompliance’’ so that section D.3 of 

Appendix D now reads: ‘‘Late 

Notifications: Operators are not 

prohibited from submitting waiver 

certifications after initiating clearing, 

grading, excavation activities, or other 

construction activities. The Agency 

reserves the right to take enforcement 

for any unpermitted discharges that 

occur between the time construction 

commenced and waiver authorization is 

granted.’’

3. On page D–3 in Appendix D of the 

CGP, in the paragraph following section 

D.3, third sentence, strike the phrase ‘‘or 

permit noncompliance’’ so that section 

D.3 of Appendix D now reads: 

‘‘Submittal of a waiver certification is an 

optional alternative to obtaining permit 

coverage for discharges of storm water 

associated with small construction 

activity, provided you qualify for the 

waiver. Any discharge of storm water 

associated with small construction 

activity not covered by either a permit 

or a waiver may be considered an 

unpermitted discharge under the Clean 

Water Act. As mentioned above, EPA 

reserves the right to take enforcement 

for any unpermitted discharges that 

occur between the time construction 

commenced and either discharge 

authorization is granted or a complete 

and accurate waiver certification is 

submitted. EPA may notify any operator 

covered by a waiver that they must 

apply for a permit. EPA may notify any 

operator who has been in noncompliance with a waiver that they may 

no longer use the waiver for future 

projects. Any member of the public may 

petition EPA to take action under this 

provision by submitting written notice 

along with supporting justification.’’

4. On page 11, in section 3.11.B of the 

CGP, strike the phrase ‘‘the discharges’’

so that section 3.11.B now reads: ‘‘The 

SWPPP must be amended if during 

inspections or investigations by site 

staff, or by local, state, tribal, or federal 

officials, it is determined that the 

SWPPP is ineffective in eliminating or 

significantly minimizing pollutants in 

storm water discharges from the 

construction site.’’

5. In section 3.11 of the CGP fact 

sheet, strike the phrase ‘‘discharges are’’

and replace it with ‘‘SWPPP is’’ so that 

the sentence now reads: ‘‘The plan must 

also be amended if inspections or 

investigations by site staff, or by local, 

state, tribal, or federal officials 

determine that the SWPPP is ineffective 

in eliminating or significantly 

minimizing pollutants in storm water 

discharges from the construction site.’’

B. What Comments Were Received on 

the Proposed Modification and How Did 

EPA Respond to Those Comments? 

In response to the modifications 

proposed in the Federal Register at 69 

FR 55818 (September 16, 2004), EPA 

received comments from seven parties: 

The Associated General Contractors of 

America (AGC); Centex Homes; Lennar 

Corporation; National Association of 

Homebuilders (NAHB); Pulte Homes, 

Inc.; Richmond American Homes of 

Colorado; and a unified submission 

from the State of New York and the New 

York State Department of 

Environmental Conservation 

(hereinafter, ‘‘New York’’ or ‘‘the 

State’’). All commenters except New 

York supported the modifications as 

proposed although several of these 

parties did comment on EPA’s rationale 

for the modification. 

Details of comments on the proposed 

modification and EPA’s responses 

follow. 

1. One Commenter Believes EPA Failed 

To Provide a Sound and Reasoned Basis 

for the Proposed Modification 

New York claims that EPA has failed 

to provide a sound and reasoned basis 

for the proposed modification to the 

76746 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 

CGP. The State argues that by allowing 

the late filing of NOIs and by 

conditioning discharge authorization 

upon subjecting the operator to 

potential liability for past permit 

violations, EPA chose the ‘‘less drastic 

alternative’’ to prohibiting late NOIs and 

CGP coverage altogether for the late 

notifier. The State further asserts that 

EPA provided clear notice to late filing 

operators that coverage under the CGP 

would come at the price of being 

vulnerable to liability for past permit 

violations. According to the State, 

nothing would then prevent those 

operators from opting to apply for an 

individual permit if the CGP’s liability 

conditions are considered unfair or 

onerous. 

Against the backdrop of what the 

State views as EPA’s valid interest in 

preserving its enforcement authority for 

past permit noncompliance, the State 

asserts that the Agency’s proposed 

modification is not supported by a wellfounded justification. The State appears 

to disagree with EPA’s characterization 

of the SWPPP as an eligibility criterion, 

and the Agency’s conclusion that 

‘‘permit requirements do not apply prior 

to the submission of an NOI and prior 

to the operator’s obtaining authorization 

to discharge storm water.’’ See 69 FR 

55820 (September 16, 2004). They first 

allege that § 2.3.D of the CGP makes it 

clear that violations occurring between 

commencement of construction and 

discharge authorization constitute 

permit noncompliance. The State next 

cites the omission of the SWPPP 

preparation requirements from the CGP 

eligibility sections (§ 1.2, 1.3, 

Appendices A and B, Part 3) to support 

the view that the requirement to prepare 

a SWPPP is not an eligibility criterion, 

but rather a permit condition. Lastly, the 

State recalls one of EPA’s specific 

responses to a comment that defended 

the importance of retaining enforcement 

authority against late notifiers: ‘‘* * * 

significant discharges of sediment can 

occur during the initial days of a 

construction project, making the need to 

have a SWPPP in place an[d] 

operational critical for the protection of 

water resources.’’

EPA does not disagree with the State 

that the Agency’s choice in allowing late 

filers to seek coverage under the CGP 

constituted a less severe alternative than 

a complete ban for such operators, and 

that the permit served to alert late filers 

that they will not be relieved of prior 

Clean Water Act violations. However, 

EPA disagrees with the State’s 

contention that the Agency does not 

have a sound and reasoned basis for 

today’s modification. First, EPA 

disagrees with the State’s implicit 

suggestion that retention of the widest 

possible enforcement discretion for late 

filers is advisable or even necessary. It 

was not EPA’s original intent in 

retaining the availability of CGP 

coverage for late notifiers to retain the 

widest enforcement discretion possible. 

Rather, EPA has attempted to strike an 

appropriate balance between (a) 

encouraging late filers to adhere to the 

terms of the CGP despite their failure to 

file the NOI in a timely manner, and (b) 

the commands of the CWA and its 

implementing regulations, including the 

prohibition against certain discharges 

without a permit, and the requirement 

for certain potential dischargers to seek 

permit coverage. It is by this strategy 

that EPA hopes to provide helpful 

incentives for late filers to seek coverage 

under the permit and to initiate as soon 

as possible on-site storm water controls 

critical to minimizing constructionrelated runoff. It is EPA’s opinion that 

the 2003 CGP, which suggested the 

possibility of retroactive enforcement of 

any permit noncompliance that 

occurred prior to filing the late NOI, had 

the potential to have the opposite effect 

and may have discouraged late filers 

from instituting important pollution 

prevention measures. In this sense, EPA 

acknowledges that it did not fully 

account for the potential negative effect 

of the CGP’s original ‘‘permit 

noncompliance’’ language on 

encouraging after-the-fact compliance 

with the CGP. 

In addition, it is EPA’s expectation 

that the CGP will continue to be the 

primary tool for covering thousands of 

construction discharge sources with 

permits. Individual permits will of 

course continue to be an option for the 

permit authority and the operator. 

Considering the large number of sources 

that will need to be permitted in the 

coming years, however, EPA fully 

anticipates that the CGP will remain the 

primary permitting vehicle. Today’s 

permit modifications represent an 

important step in reducing EPA’s 

concern that retaining the current 

‘‘permit noncompliance’’ language 

would potentially make the CGP option 

more unpalatable to late filing operators 

than necessary, thus, driving late filing 

operators towards either individual 

permits or attempts to evade regulation 

altogether by declining to notify EPA of 

their construction activities. 

In addition, if EPA had decided to 

retain the ‘‘permit noncompliance’’

language, which the Agency views as 

pushing many late filers towards 

seeking coverage under individual 

permits, EPA is concerned that further 

delays in permit coverage and the 

environmental benefits associated with 

implementation of the best management 

practices would likely result. The 

NPDES regulations provide that 

individual permit applications for storm 

water discharges associated with 

construction activity be submitted 90 

days or more in advance of 

commencement of construction 

activities. Among the challenges with 

late filers is the fact that construction at 

these sites has already commenced and 

discharges may already have occurred. 

As such, EPA believes it is generally in 

the best interest of protecting the 

receiving waters to encourage operators 

to conduct their activities in 

conformance with the CGP as 

expeditiously as practicable.

Second, EPA did not mean to suggest, 

through these modifications, that the 

Agency does not take recalcitrant 

operators seriously. Late notifiers, i.e., 

construction site operators that fail to 

obtain timely permit coverage, may be 

liable under CWA Sections 301 (e.g., 

unpermitted discharges) and 308 

(records and reporting, inspections). As 

EPA indicated in the September 16, 

2004 Federal Register Notice, failure to 

make a timely submission for permit 

coverage may constitute a violation of 

40 CFR 122.21(c)(1). Although EPA 

would exercise its discretion in 

deciding which situations warrant 

enforcement of this provision, the 

Agency does not view filing of a late 

NOI as a shield from the requirements 

of 40 CFR 122.21(c)(1). Moreover, the 

modifications EPA is making to the CGP 

do not limit operator liability to 

violations for discharging without a 

permit. 

Third, EPA is not convinced by New 

York’s arguments opposing EPA’s 

rationale for making the modifications 

discussed herein. In the proposal, EPA 

explained that the Agency did not 

intend for operators who fail to meet the 

eligibility requirements of the CGP to be 

subject simultaneously to actions 

asserting improper failure to obtain 

necessary permit coverage and for 

violations of the CGP itself for the same 

period of time. Therefore, as EPA 

further clarified, the fact that an 

operator fails to make itself eligible for 

CGP coverage should not make it subject 

to potential enforcement action for 

noncompliance with a permit to which 

it was never subject. EPA disagrees with 

the State’s characterization of several of 

the CGP’s provisions and one of the 

Agency’s quoted response to comment 

as offering any real substantive or 

convincing reasons to abandon today’s 

permit modification. First, the State 

interprets § 2.3.D’s reservation of 

enforcement authority for permit 

noncompliance as a statement 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76747

supporting its belief that any violation 

of the permit’s requirements during this 

period constitute ‘‘permit 

noncompliance.’’ By relying on this 

statement, however, the State appears to 

have forgotten that this is one of the 

very provisions EPA proposed to 

modify. Regardless of the authority EPA 

may have reserved for itself in the 

previous CGP, EPA has decided that, for 

the reasons stated above, this language 

should be changed. The State offers no 

argument suggesting that the position it 

believes EPA should take is compelled 

by any legal authority. 

EPA also disagrees with the State’s 

characterization of the SWPPP 

preparation requirement as a permit 

condition, and not an eligibility 

criterion. The State references several 

sections which address permit 

eligibility (i.e., CGP § 1.2, 1.3, 

Appendices A and B). It is true that 

most of these provisions do not 

specifically describe the preparation of 

a SWPPP as an eligibility condition for 

coverage under the CGP. However, the 

State appears to have overlooked 

sections 1.3.A.3.c, 1.3.C.5 and 1.3.C.6. 

Each of these provisions refer to 

eligibility requirements that must be 

satisfied through the SWPPP. Nor does 

the State reference § 3.1.A which 

specifies that ‘‘[a] SWPPP must be 

prepared prior to submission of an 

NOI’’, or Section IV of the NOI form 

which asks whether ‘‘the SWPPP has 

been prepared in advance of filing this 

NOI.’’ The failure to prepare a SWPPP 

prior to submission of an NOI makes the 

operator ineligible for permit coverage, 

in the same way that the operator’s 

failure to abide by any of the other 

requirements in § 1.2, 1.3, and 

Appendix B prohibit coverage. 

Therefore, EPA considers § 3.1.A to act 

as an eligibility requirement for 

coverage under the CGP. This is not to 

say that EPA would not also treat the 

SWPPP provisions as permit 

requirements after authorization under 

the CGP has been obtained. The point 

here is that the State’s reading of the 

CGP terms is more cramped than EPA’s 

preferred reading, and the Agency 

declines to follow the State’s suggestion 

on this matter. 

In addition, EPA does not agree with 

the State’s reading of EPA’s response to 

comment concerning the critical 

importance of having a SWPPP ‘‘in 

place an[d] operational.’’ The original 

comment sought some ‘‘reasonable’’

grace period (e.g., the commenter 

suggested 30 days) during which EPA 

would not seek enforcement action 

against late notifiers in order to avoid 

discouraging them from filing an NOI. 

EPA responded that enforcement 

actions are discretionary, not mandatory 

for each violation; that the Agency takes 

into account the ‘‘reasonableness of the 

violator’s action’’ when determining its 

response; and that the SWPPP being in 

place and operational prior to discharge 

is critical to the protection of water 

resources since ‘‘significant discharges 

of sediment can occur during the initial 

days of a construction project.’’ CGP 

Comment Response Document at 42 (ID 

# 294). This response was intended to 

stand for the principle that the existence 

or absence of a SWPPP is an important 

indicator of the reasonableness of a late 

notifier’s actions and will affect how 

and whether enforcement action is 

taken. For instance, the fact that a late 

notifier had not yet developed a SWPPP 

may result in EPA seeking a higher 

penalty level for a CWA violation for 

failure to obtain a permit prior to 

discharge, as compared to a situation 

where a SWPPP appears to have been 

developed in good faith. Again, EPA 

generally views the requirement to 

complete the development of a SWPPP 

prior to NOI submission as an eligibility 

criterion for coverage under the CGP, as 

opposed to a potential violation of the 

permit itself. The State appears to 

believe that this comment response as 

suggesting that EPA intended to retain 

authority to pursue enforcement against 

the failure to prepare a SWPPP as a 

permit violation in addition to the 

failure to obtain discharge 

authorization. The State has read too 

much into this response. Indeed, there 

is nothing in this comment response 

that is incompatible with the action EPA 

is taking today. 

2. One Commenter Noted That the 

Proposed Modification Is the Product of 

a Settlement of Litigation 

New York notes in its comments that 

the proposed modification is the 

product of a settlement between EPA 

and ‘‘Construction Industry Petitioners’’

in Wisconsin Builders Ass’n v. EPA,

United States Court of Appeals for the 

Seventh Circuit, Case No. 03–2908 (and 

consolidated cases). The commenter is 

correct in stating that EPA modified its 

settlement agreement with these 

petitioners in response to objections by 

the State and the Natural Resources 

Defense Council (NRDC). In its original 

settlement agreement, EPA planned to 

modify the CGP consistent with 

procedures for minor permit 

modifications [40 CFR 122.63(a)]. That 

is, EPA believed that the use of the term 

‘‘permit noncompliance’’ had been 

included in the CGP inadvertently and 

inappropriately and that a minor 

modification was appropriate to correct 

this sort of error. Consistent with 40 

CFR 122.63, minor modifications do not 

require public notice. 

Subsequent to the State and NRDC’s 

objection to the settlement, EPA opted 

to prepare a draft permit and public 

notice that permit consistent with 40 

CFR 122.62 rather than debate whether 

the proposed changes were minor, as 

defined in 122.63.

3. Concerns Regarding ‘‘Double 

Jeopardy’’

Several commenters suggested that as 

currently worded, the CGP puts 

dischargers in ‘‘double jeopardy’’ for 

failing to obtain a storm water permit 

before commencement of construction. 

Commenters argue that a facility could 

then be fined both for failure to obtain 

permit coverage and failure to comply 

with permit requirements. EPA 

generally agrees with the commenters’

concern to the extent that the Agency 

did not (and does not) intend to enforce 

against an operator for failure to obtain 

permit coverage while at the same time 

asserting permit violations for the same 

period during which the operator is not 

covered by the CGP. EPA retains the 

discretion, however, to bring an 

enforcement action for failure to obtain 

permit coverage while simultaneously 

bringing an action against the same 

operator for any discharges that occur 

while the operator lacks such permit 

coverage. 

4. Comments Suggesting That EPA’s 

Rationale for Violations Associated 

With Failure To Obtain Permit Coverage 

Is Incomplete 

Several commenters expressed their 

concern that the proposed modification 

suggests that operators who fail to 

submit a timely NOI under the CGP 

would be in violation of 40 CFR 

122.21(c)(1) for failure to submit a 

permit application at least 90 days 

before the date on which construction is 

to commence.’’ Commenters believe this 

rationale is incomplete in that the CGP 

provides an alternative permit option, 

one for which a notice of intent is due 

only seven days prior to commencement 

of construction activity, consistent with 

general permit regulations at 

122.28(b)(2)(i). Commenters are 

generally correct in noting that the 

Federal regulations provide that a notice 

of intent offers an option to the 

individual permit application. However, 

an operator who fails to submit a 

general permit notice of intent should 

not assume that s/he will be treated as 

if s/he were going to be following terms 

of the general permit. In fact, failure to 

submit a timely notice of intent may 

imply instead that an operator has opted 

not to be covered by that general permit. 

76748 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 

Regardless, it was not EPA’s intent to 

define every aspect of future 

enforcement actions through today’s 

permit modifications. The concerns 

raised by commenters described 

immediately above are outside the scope 

of today’s action. Although EPA may 

provide guidance addressing these 

specific concerns in the future, EPA 

declines to provide further response 

through today’s notice. 

5. Comments Asserting That Entities 

Cannot Be in Violation of the CWA or 

40 CFR 122.21(c)(1) if They Have No 

Discharge of Storm Water 

Various commenters asserted that 

operators cannot be said to be in 

violation of the CWA or 40 CFR 

122.21(c)(1) in the absence of an actual 

discharge of storm water. These 

assertions are outside the scope of 

today’s action. Although EPA may 

provide guidance addressing these 

specific concerns in the future, EPA 

declines to respond to this issue through 

today’s notice. 

C. Can I Apply for an Individual Permit? 

Can I Appeal the Permit Decision? 

Yes. Persons affected by this permit 

action may apply for an individual 

permit as specified at 40 CFR 122.21 

(and authorized at 40 CFR 122.28), and 

then petition the Environmental 

Appeals Board to review any condition 

of the individual permit (40 CFR 

124.19). 

D. Executive Order 12866

Under Executive Order 12866 (58 FR 

51735 (October 4, 1993)), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or Tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. It has been determined that this 

final rule is not a significant regulatory 

action under the terms of Executive 

Order 12866 and is therefore not subject 

to OMB review. 

E. 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 Procedures 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. Issuance of an NPDES 

general permit is not a rulemaking and, 

accordingly, is not subject to rulemaking 

requirements, under APA section 553 or 

any other law. Therefore, it is thus not 

subject to the RFA requirements. The 

APA defines two broad, mutually 

exclusive categories of agency action—

‘‘rules’’ and ‘‘orders.’’ Its definition of 

‘‘rule’’ encompasses ‘‘an agency 

statement of general or particular 

applicability and future effect designed 

to implement, interpret, or prescribe law 

or policy or describing the organization, 

procedure, or practice requirements of 

an agency * * *’’ APA section 551(4). Its 

definition of ‘‘order’’ is residual: ‘‘a final 

disposition * * * of an agency in a 

matter other than rule making but 

including licensing.’’ APA section 

551(6) (emphasis added). The APA 

defines ‘‘license’’ to ‘‘include * * * an 

agency permit * * *’’ APA section 

551(8). The APA thus categorizes a 

permit as an order, which by the APA’s 

definition is not a rule. Section 553 of 

the APA establishes ‘‘rule making’’

requirements. The APA defines ‘‘rule 

making’’ as ‘‘the agency process for 

formulating, amending, or repealing a 

rule.’’ APA section 551(5). By its terms, 

then, section 553 applies only to ‘‘rules’’

and not also to ‘‘orders,’’ which include 

permits. 

F. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their ‘‘regulatory actions’’ on State, 

local, and tribal governments and the 

private sector. UMRA uses the term 

‘‘regulatory actions’’ to refer to 

regulations. (See, e.g., UMRA section 

201, ‘‘Each agency shall * * * assess 

the effects of Federal regulatory actions 

* * * (other than to the extent that such 

regulations incorporate requirements 

specifically set forth in law)’’ (emphasis 

added)). UMRA section 102 defines 

‘‘regulation’’ by reference to 2 U.S.C. 

658 which in turn defines ‘‘regulation’’

and ‘‘rule’’ by reference to section 

601(2) of the Regulatory Flexibility Act 

(RFA). That section of the RFA defines 

‘‘rule’’ as ‘‘any rule for which the agency 

publishes a notice of proposed 

rulemaking pursuant to section 553(b) of 

[the Administrative Procedure Act 

(APA)], or any other law. * * *’’ As 

discussed in the RFA section of this 

notice, NPDES general permits are not 

‘‘rules’’ under the APA and thus not 

subject to the APA requirement to 

publish a notice of proposed 

rulemaking. NPDES general permits are 

also not subject to such a requirement 

under the CWA. While EPA publishes a 

notice to solicit public comment on 

draft general permits, it does so 

pursuant to the CWA section 402(a) 

requirement to provide ‘‘an opportunity 

for a hearing.’’ Thus, NPDES general 

permits and modifications thereto are 

not ‘‘rules’’ for RFA or UMRA purposes. 

G. Paperwork Reduction Act 

EPA has reviewed the requirements 

imposed on regulated facilities resulting 

from the final modification of the 

construction general permit under the 

Paperwork Reduction Act of 1980, 44 

U.S.C. 3501 et seq. The information 

collection requirements of the 

construction general permit for small 

and large construction activities have 

already been approved by the Office of 

Management and Budget (OMB) (OMB 

Control Nos. 2040–0211 and 2040–0188, 

respectively) in previous submissions 

made for the NPDES permit program 

under the provisions of the Clean Water 

Act.

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76749

Signed and issued this 15th day of 

December, 2004. 

Linda M. Murphy, 

Director, Office of Ecosystem Protection, 

Region I.

Signed and issued this 14th day of 

December, 2004. 

Walter Mugdan, 

Director, Division of Environmental Planning 

and Protection, Region II.

Signed and issued this 14th day of 

December, 2004. 

Carl Soderberg, 

Director, Caribbean Environmental Protection 

Division, Region II.

Signed and issued this 14th day of 

December, 2004. 

Jon M. Capacasa, 

Director, Water Protection Division, Region 

III.

Signed and issued this 13th day of 

December, 2004. 

Timothy C. Henry, 

Acting Director, Water Division, Region V.

Signed and issued this 14th day of 

December, 2004. 

Jane B. Watson, 

Acting Director, Water Quality Protection 

Division, Region VI.

Signed and issued this 15th day of 

December, 2004. 

Leo J. Alderman, 

Director, Water, Wetlands, and Pesticides 

Division, Region VII.

Signed and issued this 14th day of 

December, 2004. 

Judy Wong, 

Director, Water Program, Region VIII.

Signed and issued this 10th day of 

December, 2004. 

Alexis Strauss, 

Director, Water Division, Region IX.

Signed and issued this 13th day of 

December, 2004. 

Michael J. Lidgard, 

Acting Director, Office of Water and 

Watersheds, Region X.

[FR Doc. 04–27995 Filed 12–21–04; 8:45 am] 

BILLING CODE 6560–50–P

EXPORT-IMPORT BANK OF THE 

UNITED STATES 

Economic Impact Policy 

This notice is to inform the public 

that the Export-Import Bank of the 

United States has received an 

application to finance the export of 

approximately $27 million in U.S. 

equipment, technology and services to a 

facility in Greece that will fabricate 

photovoltaic modules. The U.S. exports 

will enable the Greek facility to fabricate 

modules that will generate a total of 

approximately 5 megawatts of electricity 

per year. Initial production is expected 

to commence in 2005. Available 

information indicates that this new 

production will be consumed primarily 

in Europe. Interested parties may submit 

comments on this transaction by e-mail 

to economic.impact@exim.gov or by 

mail to 811 Vermont Avenue, NW., 

Room 1238, Washington, DC 20571, 

within 14 days of the date this notice 

appears in the Federal Register.

Helene S. Walsh, 

Director, Policy Oversight and Review.

[FR Doc. 04–27931 Filed 12–21–04; 8:45 am] 

BILLING CODE 6690–01–P

FEDERAL HOUSING FINANCE BOARD

[No. 2004–N–12] 

Federal Home Loan Bank Members 

Selected for Community Support 

Review

AGENCY: Federal Housing Finance 

Board.

ACTION: Notice.

SUMMARY: The Federal Housing Finance 

Board (Finance Board) is announcing 

the Federal Home Loan Bank (Bank) 

members it has selected for the 2004–05 

fourth quarter review cycle under the 

Finance Board’s community support 

requirements regulation. This notice 

also prescribes the deadline by which 

Bank members selected for review must 

submit Community Support Statements 

to the Finance Board.

DATES: Bank members selected for the 

review cycle under the Finance Board’s 

community support requirements 

regulation must submit completed 

Community Support Statements to the 

Finance Board on or before March 4, 

2005.

ADDRESSES: Bank members selected for 

the 2004–05 fourth quarter review cycle 

under the Finance Board’s community 

support requirements regulation must 

submit completed Community Support 

Statements to the Finance Board either 

by regular mail at the Federal Housing 

Finance Board, Office of Supervision, 

Community Investment and Affordable 

Housing, 1777 F Street, NW., 

Washington, DC 20006, or by electronic 

mail at FITZGERALDE@FHFB.GOV.

FOR FURTHER INFORMATION CONTACT:

Emma J. Fitzgerald, Program Analyst, 

Office of Supervision, Community 

Investment and Affordable Housing, by 

telephone at (202) 408–2874, by 

electronic mail at 

FITZGERALDE@FHFB.GOV, or by 

regular mail at the Federal Housing 

Finance Board, 1777 F Street, NW., 

Washington, DC 20006.

SUPPLEMENTARY INFORMATION: 

I. Selection for Community Support 

Review 

Section 10(g)(1) of the Federal Home 

Loan Bank Act (Bank Act) requires the 

Finance Board to promulgate 

regulations establishing standards of 

community investment or service Bank 

members must meet in order to 

maintain access to long-term advances. 

See 12 U.S.C. 1430(g)(1). The 

regulations promulgated by the Finance 

Board must take into account factors 

such as the Bank member’s performance 

under the Community Reinvestment Act 

of 1977 (CRA), 12 U.S.C. 2901 et seq., 

and record of lending to first-time 

homebuyers. See 12 U.S.C. 1430(g)(2). 

Pursuant to section 10(g) of the Bank 

Act, the Finance Board has promulgated 

a community support requirements 

regulation that establishes standards a 

Bank member must meet in order to 

maintain access to long-term advances, 

and review criteria the Finance Board 

must apply in evaluating a member’s 

community support performance. See

12 CFR part 944. The regulation 

includes standards and criteria for the 

two statutory factors—CRA performance 

and record of lending to first-time 

homebuyers. 12 CFR 944.3. Only 

members subject to the CRA must meet 

the CRA standard. 12 CFR 944.3(b). All 

members, including those not subject to 

CRA, must meet the first-time 

homebuyer standard. 12 CFR 944.3(c). 

Under the rule, the Finance Board 

selects approximately one-eighth of the 

members in each Bank district for 

community support review each 

calendar quarter. 12 CFR 944.2(a). The 

Finance Board will not review an 

institution’s community support 

performance until it has been a Bank 

member for at least one year. Selection 

for review is not, nor should it be 

construed as, any indication of either 

the financial condition or the 

community support performance of the 

member. 

Each Bank member selected for 

review must complete a Community 

Support Statement and submit it to the 

Finance Board by the March 4, 2005 

deadline prescribed in this notice. 12 

CFR 944.2(b)(1)(ii) and (c). On or before 

January 31, 2005, each Bank will notify 

the members in its district that have 

been selected for the 2004–05 fourth 

quarter community support review 

cycle that they must complete and 

submit to the Finance Board by the 

deadline a Community Support