[Federal Register Volume 69, Number 245 (Wednesday, December 22, 2004)]
[Notices]
[Pages 76743-76749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27995]


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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.

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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 
e-mail <a href="/cdn-cgi/l/email-protection#b3d5d2c6dfd89dd9d2d0d8f3d6c3d29dd4dcc5"><span class="__cf_email__" data-cfemail="462027332a2d682c27252d0623362768212930">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

[[Page 76744]]

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 <a href="/cdn-cgi/l/email-protection#83eef6f1f3ebfaadf7ebe6efeee2c3e6f3e2ade4ecf5"><span class="__cf_email__" data-cfemail="fa978f888a9283d48e929f96979bba9f8a9bd49d958c">[email protected]</span></a>.
    For EPA Region 2, contact Stephen Venezia: telephone number (212) 
637-3856 or e-mail <a href="/cdn-cgi/l/email-protection#bfc9dad1dac5d6de91cccbdacfd7dad1ffdacfde91d8d0c9"><span class="__cf_email__" data-cfemail="d2a4b7bcb7a8bbb3fca1a6b7a2bab7bc92b7a2b3fcb5bda4">[email protected]</span></a> or, for Puerto Rico, Sergio 
Bosques: telephone number (787) 977-5838 or e-mail 
<a href="/cdn-cgi/l/email-protection#0c6e637f7d79697f227f697e6b65634c697c6d226b637a"><span class="__cf_email__" data-cfemail="e1838e9290948492cf92849386888ea1849180cf868e97">[email protected]</span></a>.
    For EPA Region 3, contact Paula Estornell: telephone number (215) 
814-5632 or e-mail <a href="/cdn-cgi/l/email-protection#f6938582998498939a9ad88697839a97b6938697d8919980"><span class="__cf_email__" data-cfemail="46233532293428232a2a683627332a270623362768212930">[email protected]</span></a>.
    For EPA Region 5, contact Brian Bell: telephone (312) 886-0981 or 
e-mail <a href="/cdn-cgi/l/email-protection#d6b4b3babaf8b4a4bfb7b8b596b3a6b7f8b1b9a0"><span class="__cf_email__" data-cfemail="5133343d3d7f332338303f32113421307f363e27">[email protected]</span></a>.
    For EPA Region 6, contact Brent Larsen: telephone (214) 665-7523 or 
e-mail <a href="/cdn-cgi/l/email-protection#9ff3feedecfaf1b1fdedfaf1ebdffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="ea868b98998f84c488988f849eaa8f9a8bc48d859c">[email protected]</span></a>.
    For EPA Region 7, contact Mark Matthews: telephone (913) 551-7635 
or e-mail <a href="/cdn-cgi/l/email-protection#dbb6baafafb3beaca8f5b6baa9b09bbeabbaf5bcb4ad"><span class="__cf_email__" data-cfemail="5c313d282834392b2f72313d2e371c392c3d723b332a">[email protected]</span></a>.
    For EPA Region 8, contact Greg Davis: telephone (303) 312-6082 or 
e-mail <a href="/cdn-cgi/l/email-protection#eb8f8a9d8298c58c998e8c849992ab8e9b8ac58c849d"><span class="__cf_email__" data-cfemail="d6b2b7a0bfa5f8b1a4b3b1b9a4af96b3a6b7f8b1b9a0">[email protected]</span></a>.
    For EPA Region 9, contact Eugene Bromley: telephone (415) 972-3510 
or e-mail <a href="/cdn-cgi/l/email-protection#fd9f8f9290919884d398889a989398bd988d9cd39a928b"><span class="__cf_email__" data-cfemail="86e4f4e9ebeae3ffa8e3f3e1e3e8e3c6e3f6e7a8e1e9f0">[email protected]</span></a>.
    For EPA Region 10, contact Misha Vakoc: telephone (206) 553-6650 or 
e-mail <a href="/cdn-cgi/l/email-protection#6b1d0a00040845060218030a2b0e1b0a450c041d"><span class="__cf_email__" data-cfemail="9fe9fef4f0fcb1f2f6ecf7fedffaeffeb1f8f0e9">[email protected]</span></a>.

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

[[Page 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 non-compliance 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

[[Page 76746]]

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 well-founded 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 Sec.  
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 (Sec.  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 construction-related 
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 Sec.  2.3.D's reservation of enforcement authority for 
permit noncompliance as a statement

[[Page 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 Sec.  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 Sec.  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 Sec.  1.2, 1.3, and Appendix B prohibit coverage. 
Therefore, EPA considers Sec.  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 <greek-i> 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.

[[Page 76748]]

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 rule-making 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.


[[Page 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


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