[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Notices]
[Pages 53494-53498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25123]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8970-1, EPA-HQ-OW-2008-0238]


Modification to 2008 National Pollutant Discharge Elimination 
System (NPDES) General Permit for Stormwater Discharges From 
Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are proposing 
for public comment a modification to the 2008 National Pollutant 
Discharge Elimination System (NPDES) general permits for stormwater 
discharges associated with construction activity in order to extend by 
one-year the expiration date of the permit. Hereinafter, these NPDES 
general permits will be referred to as ``permit'' or ``2008 
construction general permit'' or ``2008 CGP.'' The 2008 CGP was 
originally issued for a period not to exceed two (2) years. Today, EPA 
proposes to modify the CGP in order to extend the 2 year term of the 
2008 CGP by one year so that it expires on June 30, 2011, instead of 
June 30, 2010. If EPA finalizes this action, the 2008 CGP will be in 
effect for a period of three (3) years. By Federal law, no NPDES permit 
may be issued for a period that exceeds five (5) years.

DATES: Comments on EPA's proposal, including the draft permit, must be 
postmarked by November 18, 2009. If finalized as proposed, EPA would be 
extending the expiration date of the 2008 CGP until midnight June 30, 
2011.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. To send comments directly to the docket 
for this notice, go to the Federal Docket Management System (FDMS) at 
http://www.Regulations.gov and enter Docket ID No. EPA-HQ-OW-2008-0238 
in the Search Box under ``Comment or Submission.'' Comments may be sent 
by electronic mail (e-mail) to <a href="/cdn-cgi/l/email-protection#a8c7df85ccc7cbc3cddce8cdd8c986cfc7de"><span class="__cf_email__" data-cfemail="335c441e575c50585647735643521d545c45">[email protected]</span></a>, Attention Docket ID 
No. EPA-HQ-OW-2008-0238. To send comments by mail in hard copy or via a 
Disk or CD/ROM, use the following address: Water Docket, Environmental 
Protection Agency, mailcode: 2822T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2008-0238. To 
send comments by hand delivery or courier, deliver your comments to: 
Public Reading Room, Room B102, EPA West Building, 1301 Constitution 
Avenue, NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-
2008-0238. Further instructions for submitting comments are provided in 
Section I.C.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Water Permits Division, 
Office of Wastewater Management (Mail Code: 4203M), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., EPA East, Washington, 
DC 20460; telephone number: (202) 564-0721; fax number: (202) 564-6431; 
e-mail address: <a href="/cdn-cgi/l/email-protection#95e6f6fdf4fbf0e7bbf2e7f0f2d5f0e5f4bbf2fae3"><span class="__cf_email__" data-cfemail="d2a1b1bab3bcb7a0fcb5a0b7b592b7a2b3fcb5bda4">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    If a discharger chooses to apply to for coverage under the 2008 
CGP, the permit provides specific requirements for preventing 
contamination of stormwater discharges from the following construction 
activities:

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

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your facility is affected by this action, you 
should carefully examine the definition of ``construction activity'' 
and ``small construction activity'' in existing EPA regulations at 40 
CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed for technical information in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Eligibility for coverage under the 2008 CGP is limited to operators 
of ``new projects'' or ``unpermitted ongoing projects.'' A ``new 
project'' is one that commences after the effective date of the 2008 
CGP. An ``unpermitted ongoing project'' is one that commenced prior to 
the effective date of the 2008 CGP, yet never received authorization to 
discharge under the 2003 CGP or any other NPDES permit covering its 
construction-related stormwater discharges. This permit is effective 
only in those areas where EPA is the permitting authority. A list of 
eligible areas is included in Appendix B of the 2008 CGP.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2008-0238. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Although all documents in the docket are listed in an index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available 
electronically through www.regulations.gov and in hard copy at the EPA 
Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744 and the telephone

[[Page 53495]]

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/. Electronic versions of the 
final permit and fact sheet are available at EPA's stormwater Web site 
http://www.epa.gov/npdes/stormwater.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov/fdmspublic/component/main 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once in the system, select 
``search'', then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.B.1.
    Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark all of the information that you 
claim to be CBI. For CBI information on computer disks mailed to EPA, 
mark the surface of the disk as CBI. Also identify electronically the 
specific information contained in the disk or that you claim is CBI. In 
addition to one complete version of the specific information claimed as 
CBI, you must submit a copy that does not contain the information 
claimed as CBI for inclusion in the public document. Information so 
marked will not be disclosed except in accordance with procedures set 
forth in 40 CFR Part 2.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. To ensure that EPA can read, understand, 
and therefore properly respond to comments, the Agency would prefer 
that commenters cite, where possible, the paragraph(s) or section in 
the fact sheet or permit to which each comment refers. Please ensure 
that your comments are submitted within the specified comment period. 
Comments received after the close of the comment period will be marked 
``late.'' EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. The system is an ``anonymous access'' system, which 
means EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. In contrast to EPA's electronic public docket, EPA's e-
mail system is not an ``anonymous access'' system. If you send an e-
mail comment directly to the Docket without going through EPA's 
electronic public docket, EPA's e-mail system automatically captures 
your e-mail address. E-mail addresses that are automatically captured 
by EPA's e-mail system are included as part of the comment that is 
placed in the official public docket, and made available in EPA's 
electronic public docket.
    iii. Disk or CD-ROM. These electronic submissions will be accepted 
in Microsoft Word or ASCII file format. Avoid the use of special 
characters and any form of encryption.
    2. By mail. Send the original and three copies of your comments.
    3. By Hand Delivery or Courier. Such deliveries are only accepted 
during the Docket's normal hours of operation as identified in Section 
I.B.

D. Public Hearings

    EPA has not scheduled any public hearings to receive public comment 
concerning the proposed permit. All persons will continue to have the 
right to provide written comments during the public comment period. 
However, interested persons may request a public hearing pursuant to 40 
CFR 124.12 concerning the proposed permit. Requests for a public 
hearing must be sent or delivered in writing to the same address as 
provided above for public comments prior to the close of the comment 
period. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
EPA shall hold a public hearing if it finds, on the basis of requests, 
a significant degree of public interest in a public hearing on the 
proposed permit. If EPA decides to hold a public hearing, a public 
notice of the date, time and place of the hearing will be made at least 
30 days prior to the hearing. Any person may provide written or oral

[[Page 53496]]

statements and data pertaining to the proposed permit at the public 
hearing.

E. Finalizing This Action

    This action will not be finalized until after all significant 
public comments have been considered and addressed. EPA's response to 
public comments received will be included in the docket as part of the 
final action. Once the final permit becomes effective, operators of new 
and unpermitted ongoing construction projects may seek authorization 
under the new 2008 CGP prior to the midnight June 30, 2011 expiration 
date.

C. Who Are the EPA Regional Contacts for This Permit?

    For EPA Region 1, contact Jessica Hing at tel.: (617) 918-1560 or 
e-mail at <a href="/cdn-cgi/l/email-protection#cda5a4a3aae3a7a8bebea4aeac8da8bdace3aaa2bb"><span class="__cf_email__" data-cfemail="771f1e1910591d1204041e14163712071659101801">[email protected]</span></a>.
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or e-mail at <a href="/cdn-cgi/l/email-protection#483e2d262d322129663b3c2d38202d26082d3829662f273e"><span class="__cf_email__" data-cfemail="b7c1d2d9d2cdded699c4c3d2c7dfd2d9f7d2c7d699d0d8c1">[email protected]</span></a>, or for Puerto Rico, contact 
Sergio Bosques at tel.: (787) 977-5838 or e-mail at 
<a href="/cdn-cgi/l/email-protection#3a5855494b4f5f4914495f485d53557a5f4a5b145d554c"><span class="__cf_email__" data-cfemail="51333e22202434227f22342336383e113421307f363e27">[email protected]</span></a>.
    For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 
or e-mail at <a href="/cdn-cgi/l/email-protection#84e9ede8e8e1f6aae3e5f6f6edf7ebeac4e1f4e5aae3ebf2"><span class="__cf_email__" data-cfemail="214c484d4d44530f4640535348524e4f614451400f464e57">[email protected]</span></a>.
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at <a href="/cdn-cgi/l/email-protection#fa989f9696d49888939b9499ba9f8a9bd49d958c"><span class="__cf_email__" data-cfemail="0e6c6b6262206c7c676f606d4e6b7e6f20696178">[email protected]</span></a>.
    For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or 
e-mail at: <a href="/cdn-cgi/l/email-protection#c3afa2b1b0a6adeda1b1a6adb783a6b3a2eda4acb5"><span class="__cf_email__" data-cfemail="b9d5d8cbcadcd797dbcbdcd7cdf9dcc9d897ded6cf">[email protected]</span></a>.
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
e-mail at: <a href="/cdn-cgi/l/email-protection#5f323e2b2b373a282c71323e2d341f3a2f3e71383029"><span class="__cf_email__" data-cfemail="d6bbb7a2a2beb3a1a5f8bbb7a4bd96b3a6b7f8b1b9a0">[email protected]</span></a>.
    For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-
mail at: <a href="/cdn-cgi/l/email-protection#ceaaafb8a7bde0a9bcaba9a1bcb78eabbeafe0a9a1b8"><span class="__cf_email__" data-cfemail="e38782958a90cd849186848c919aa3869382cd848c95">[email protected]</span></a>.
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
e-mail at <a href="/cdn-cgi/l/email-protection#5b39293436373e22753e2e3c3e353e1b3e2b3a753c342d"><span class="__cf_email__" data-cfemail="cfadbda0a2a3aab6e1aabaa8aaa1aa8faabfaee1a8a0b9">[email protected]</span></a>.
    For EPA Region 10, contact Dick Hetherington at tel.: (206) 553-
1941 or e-mail at <a href="/cdn-cgi/l/email-protection#81e9e4f5e9e4f3e8efe6f5eeefafe5e8e2eac1e4f1e0afe6eef7"><span class="__cf_email__" data-cfemail="2c44495844495e45424b5843420248454f476c495c4d024b435a">[email protected]</span></a>.

II. Background of Permit

A. Statutory and Regulatory History

    The Clean Water Act (``CWA'') establishes a comprehensive program 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The CWA also 
includes the objective of attaining ``water quality which provides for 
the protection and propagation of fish, shellfish and wildlife.'' 33 
U.S.C. 1251(a)(2)). To achieve these goals, the CWA requires EPA to 
control discharges through the issuance of National Pollutant Discharge 
Elimination System (``NPDES'') permits, which may be issued for fixed 
terms that may not exceed five (5) years. 33 U.S.C. 1342(b)(1)(B).
    Section 405 of the Water Quality Act of 1987 (WQA) added section 
402(p) of the Clean Water Act (CWA), which directed EPA to develop a 
phased approach to regulate stormwater discharges under the NPDES 
program. EPA published a final regulation in the Federal Register on 
the first phase of this program on November 16, 1990, establishing 
permit application requirements for ``storm water discharges associated 
with industrial activity.'' See 55 FR 47990. EPA defined the term 
``storm water discharge associated with industrial activity'' in a 
comprehensive manner to cover a wide variety of facilities. 
Construction activities, including activities that are part of a larger 
common plan of development or sale, that ultimately disturb at least 
five acres of land and have point source discharges to waters of the 
U.S. were included in the definition of ``industrial activity'' 
pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the stormwater program 
was published in the Federal Register on December 8, 1999, and required 
NPDES permits for discharges from construction sites disturbing at 
least one acre, but less than five acres, including sites that are part 
of a larger common plan of development or sale that will ultimately 
disturb at least one acre but less than five acres, pursuant to 40 CFR 
122.26(b)(15)(i). See 64 FR 68722. EPA is proposing to extend the 
expiration date of the 2008 CGP under the statutory and regulatory 
authority cited above.
    NPDES permits issued for construction stormwater discharges are 
required under Section 402(a)(1) of the CWA to include conditions for 
meeting technology-based effluent limits established under Section 301 
and, where applicable, Section 306. Once an effluent limitations 
guideline or new source performance standard is promulgated in 
accordance with these sections, NPDES permits are required to 
incorporate limits based on such limitations and standards. See 40 CFR 
122.44(a)(1). Prior to the promulgation of national effluent 
limitations and standards, permitting authorities incorporate 
technology-based effluent limitations on a best professional judgment 
basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

B. Summary of 2008 CGP

    EPA announced the issuance of the 2008 CGP on July 14, 2008. See 73 
FR 40338. Construction operators choosing to be covered by the 2008 CGP 
must certify in their notice of intent (NOI) that they meet the 
requisite eligibility requirements, described in Part 1.3 of the 
permit. If eligible, operators are authorized to discharge under this 
permit in accordance with Part 2. Permittees must install and implement 
control measures to meet the effluent limits applicable to all 
dischargers in Part 3, and must inspect such stormwater controls and 
repair or modify them in accordance with Part 4. The permit in Part 5 
requires all construction operators to prepare a stormwater pollution 
prevention plan (SWPPP) that identifies all sources of pollution, and 
describes control measures used to minimize pollutants discharged from 
the construction site. Part 6 details the requirements for terminating 
coverage under the permit.
    The 2008 CGP permit provides coverage for discharges from 
construction sites that occur in areas not covered by an approved State 
NPDES program. EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 issued the 
2008 CGP to replace the expired 2003 CGP for operators of new and 
unpermitted ongoing construction projects. The geographic coverage and 
scope of the 2008 CGP is listed in Appendix B of the permit.

C. What Is EPA's Rationale for the Modification of the 2008 CGP for a 
One-Year Extension of the Expiration Date?

    As stated, EPA proposes to modify the 2008 CGP by extending, by one 
year, the expiration date of the 2008 CGP. This proposed action is 
necessary due to EPA's schedule for finalizing effluent limitations 
guidelines (ELG) and new source performance standards (NSPS) 
(hereinafter, ELG) for the construction and development (C&D) point 
source category, and the anticipated timeframes associated with issuing 
a new CGP that incorporates the substantive requirements of the C&D 
ELG. The permit modification for the proposed one-year extension of the 
2008 CGP is based on actions and initiatives the Agency is undertaking 
or planning to undertake and the resulting resource demands they are 
placing on EPA's NPDES stormwater program. The cumulative impact of 
these new initiatives will limit the Agency's ability to meet a current 
seven-month timeframe to incorporate the requirements of the C&D ELG 
into a new CGP before midnight June 30, 2010.
    EPA is required by court order to publish and promulgate proposed 
ELGs and NSPSs for the C&D point source category by December 1, 2008 
and publish and promulgate final ELGs for the C&D point source category 
by December 1, 2009. See NRDC, et al. v. U.S. EPA, No CV-0408307 (C.D. 
Cal.) (Permanent Injunction and Judgment, December 5, 2006). Any NPDES 
permit

[[Page 53497]]

issued after the effective date of the C&D ELG, whether issued by EPA 
or an authorized state, must incorporate the substantive technology-
based requirements of the ELG into the permit. The expiration of the 
2008 CGP on midnight June 30, 2010, currently gives EPA approximately 
seven months to propose and finalize a new CGP, which incorporates the 
C&D ELG requirements, before midnight June 30, 2010. For a number of 
reasons, EPA needs more time to incorporate the C&D ELG into a new CGP 
and to finalize the permit by midnight June 30, 2010.
    The current seven-month timeframe to propose and finalize a new 
permit is impracticable based on EPA's past experience in issuing 
stormwater general permits, in general, and with the construction 
general permit specifically. In the past, EPA required an estimated 
eighteen months to propose and finalize the 2003 CGP, and a similar 
amount of time for the previous construction general permits. While EPA 
does not believe the 2008 Multi-Sector General Permit (MSGP) for 
stormwater discharges associated with industrial activities is typical, 
that permit required almost three years to finalize. Beyond 
incorporating updated modifications to the permit based on changes to 
the technology-based and water quality-based effluent limitations into 
the permit, EPA is required to conduct many additional tasks that are 
automatically required of final Federal actions, such as conducting 
consultations under the Endangered Species Act and National Historic 
Properties Act, obtaining CWA section 401 certifications for the permit 
from States and Indian Country lands, providing the public with an 
opportunity to comment, and responding to all comments received during 
the public comment period. Separately, these tasks have historically 
required more than seven months. The combined effect of these tasks 
that are each necessary to issue a general permit on EPA's schedule for 
permit issuance is to make a seven-month permit issuance timeframe 
impracticable.
    EPA is undertaking or planning to undertake actions that are 
putting new demands on the Agency's resources in the NPDES stormwater 
program. These new required actions and initiatives will compete for 
the Agency's resources needed to issue a new CGP. The Agency did not 
expect these additional required actions or initiatives when the 2008 
CGP was issued in July 2008. For instance, in October 2008, the 
National Research Council (NRC) of the National Academy of Sciences 
released its report on EPA's national stormwater program (Urban 
Stormwater Management in the United States, October 2008) (available at 
http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf), which 
recommended a number of fundamental changes to the way in which EPA's 
stormwater program under the CWA is effectuated. The NRC report states 
that stormwater discharges from the built environment remains one of 
the greatest challenges of modern water pollution control, ``as this 
source of contamination is a principal contributor to water quality 
impairment of waterbodies nationwide.'' The NRC found that the current 
regulatory approach by EPA under the CWA is not adequately controlling 
all sources of stormwater discharge that are contributing to waterbody 
impairment. NRC recommended that EPA address stormwater discharges from 
impervious land cover and promote practices that harvest, infiltrate, 
and evapotranspirate stormwater to prevent it from being discharged, 
which is critical to reducing the volume and pollutant loading to our 
Nation's waters. Since the release of the NRC report, EPA has devoted 
significant resources to the consideration of the report's 
recommendations and to a determination of the best ways to strengthen 
controls on stormwater discharges nationwide. EPA anticipates expending 
significant resources in both the short and long term in addressing the 
NRC's recommendations. The resource demands on the Agency that are 
necessary to respond to the report's recommendations were not present 
when EPA issued the final 2008 CGP, and were not fully factored into 
the anticipated timeline for issuing a CGP that incorporates the C&D 
ELG by midnight June 30, 2010.
    In addition, on May 12, 2009, President Obama signed Executive 
Order (E.O.) 13508, Chesapeake Bay Protection and Restoration 
(available at, http://executiveorder.chesapeakebay.net/default.aspx). 
The President's E.O., under section 202(a), directed EPA to define the 
next generation of tools and actions to restore water quality in the 
Chesapeake Bay and describe the changes to be made to regulations, 
programs, and policies to implement these actions. EPA issued a draft 
202(a) Report on September 9, 2009. EPA will finalize the section 
202(a) Report in November 2009 and issue a final strategy for 
protecting and restoring the Chesapeake Bay on May 12, 2010. The 
completion of these tasks and any resulting regulatory or programmatic 
actions that are necessary to carry out the E.O. are a high priority 
for the federal government, and will consume resources that will not be 
available to issue a new CGP by midnight June 30, 2010.
    For the reasons discussed above, EPA proposes to modify the 2008 
CGP in order to extend the current midnight June 30, 2010 expiration 
date by one year to midnight June 30, 2011. This will give EPA 
approximately the same time period, eighteen months, which the Agency 
required to issue the 2003 CGP. EPA requests comments on this proposed 
modification of the 2008 CGP to extend the expiration date to midnight 
June 30, 2011.
    EPA believes it is imperative that EPA has sufficient time to 
incorporate the C&D ELG into the CGP and issue a new CGP prior to the 
existing permit's expiration date. If EPA does not issue a new CGP 
before expiration of the existing permit, no new construction projects 
may be permitted under the CGP, leaving individual NPDES permits as the 
only available option for permitting new projects. The sole reliance on 
individual permits will mean that discharge authorizations will be 
delayed due to the greater amount of time and Agency resources that are 
required for developing and issuing individual permits. In turn, 
construction projects that need to begin construction activity on or 
after midnight June 30, 2010 will be delayed for an uncertain amount of 
time until EPA can review their individual permit application and issue 
the necessary permits. Rather than risk detrimental delays to new 
construction projects, with no clear benefit to our nation's surface 
waters, EPA has decided that it is advisable to instead modify the 2008 
CGP to extend the expiration date by 1 year to midnight June 30, 2011.

D. EPA's Authority To Modify NPDES Permits

    EPA regulations establish when the permitting authority may make 
modifications to existing NPDES permits. In relevant part, EPA 
regulations state that ``[w]hen the Director receives any information * 
* * he or she may determine whether or not one or more of the causes 
listed in paragraph (a) * * * of this section for modification * * * 
exist. If cause exists, the Director may modify * * * the permit 
accordingly, subject to the limitations of 40 CFR 124.5(c).'' 40 CFR 
122.62. For purposes of this Federal Register notice, the relevant 
cause for modification is at 40 CFR 122.62(a)(2), which states a permit 
may be modified when ``[t]he Director has received new information'' 
and that information was not available at the time of permit

[[Page 53498]]

issuance * * * and would have justified the application of different 
permit conditions at the time of issuance.'' Pursuant to EPA 
regulations, ``[w]hen a permit is modified, only the conditions subject 
to the modification are reopened.'' 40 CFR 122.62.
    In the case of the 2008 CGP, a permit modification is justified 
based on the new information EPA has received since issuance of the 
2008 CGP in July 2008, described above in Section II.C, EPA is 
undertaking or planning to undertake actions that are putting new 
demands on the Agency's resources in the NPDES stormwater program. The 
contents and the resulting resource demands of the NRC Report and the 
Chesapeake Bay E.O. were not available at the time of issuance of the 
2008 CGP. Meeting these new demands while implementing new effluent 
guidelines and new source performance standards is not practical in a 
seven-month time period. If this information was available at the time 
of permit issuance, it would have justified EPA establishing an 
expiration date for the 2008 CGP later than midnight June 30, 2010. As 
a result, cause exists under EPA regulations to justify modification of 
the 2008 CGP to extend the expiration date of the permit from midnight 
June 30, 2010 to midnight June 30, 2011.

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

    Dated: October 9, 2009.
Ira Leighton,
Acting Regional Administrator, EPA Region 1.
    Dated: October 9, 2009.
Jose C. Font,
Acting Division Director, Caribbean Environmental Protection Division, 
EPA Region 2.
    Dated: October 8, 2009.
Kevin Bricke,
Acting Division Director, Division of Environmental Planning & 
Protection, EPA Region 2.
    Dated: October 9, 2009.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
    Dated: October 9, 2009.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
    Dated: October 9, 2009.
Bill Luthans,
Acting Director, Water Quality Protection Division, EPA Region 6.
    Dated: October 8, 2009.
Karen A. Flournoy,
Acting Director, Wetlands and Pesticides Division, EPA Region 7.
    Dated: October 8, 2009.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships & Regulatory 
Assistance, EPA Region 8.
    Dated: October 9, 2009.
Alexis Strauss,
Director, Water Division, EPA Region 9.
    Dated: October 9, 2009.
Christine Psyk,
Acting Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E9-25123 Filed 10-16-09; 8:45 am]
BILLING CODE 6560-50-P


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