MEMORANDUM

To: File

From: Greg Schaner, Attorney Adviser, U.S. EPA

Re: Summary of Changes Made to EPA’s Draft Construction General Permit at the Request of OMB or other Federal Agencies

This memorandum includes a summary of changes made to EPA’s draft Construction General Permit (CGP) in response to comments received during Inter

- Agency review. The draft CGP was submitted to the Office of Management & Budget (OMB) on December 17 , 2010 fo r the initiation of formal review. OMB closed its review on April 8, 2011

.
The following includes a part

- by

- part summary of the changes made to the draft permit

. This list does not include changes initiated by EPA during Inter

- Agency review to improve clar ity or consistency , or to correct errors

.

Part 1

Part 1.2

– Added following sentence: “The secondary operator is responsible for complying with all aspects of the permit related to the earth

- disturbing activities at the
site.”

Part 1.3.1.8

– Added the un derlined text: “You have complied with any specific requirements for your construction project respecting your eligibility imposed by the state, Indian tribe, or territory listed in Part 10 of this permit.”

Part 1.4.2.3

– Added the underlined text: “Storm water discharges associated with construction activities that have been covered under an individual NPDES permit or a different NPDES general permit, unless authorized in writing by EPA .”

Part 1.5

– Added the underlined text: “To be covered under this permit, you must submit to EPA a complete and accurate NOI prior to commencing construction activities, except for emergency

- related construction activities, in which case the NOI must be
sub mitted within 7 days after the commencement of earth

- disturbing activities (see Part 1.3.2). ”

Table 1

- 1

– Added the underlined text to the explanation of the NOI deadline for “previously permitted new sources”: “By no later than [90 DAYS AFTER PERMIT ISSU ANCE],
i f earth

- disturbing activities commenced after February 1, 2010 and prior to [DATE OF PERMIT ISSUANCE], and the operator is currently covered under the 2003 or 2008 CGPs

. Provided you submit your NOI by this deadline , your coverage under the 2003 o r 2008 CGP will be automatically continued under those permits until you have been granted coverage under this permit or an alternative NPDES permit, or you are denied coverage under this permit .”

### Page 2 of 8 Deleted the following text from the explanation of the NO I deadline for “existing permitted discharger”: “By no later than [90 DAYS AFTER PERMIT ISSUANCE]. Your coverage under the 2003 or 2008 CGP will be automatically continued under those permits until you have been granted coverage under this permit or an a lternative NPDES permit, or you are denied coverage under this permit , or your termination of coverage under the 2003 or 2008 CGP prior to [90 DAYS AFTER PERMIT ISSUANCE], whichever is
earlier .”

Part 2

Part 2.1.1.1.a

– Deleted the following text: “All ar eas where earth

- disturbing activities will occur (described in your SWPPP consistent with Parts 8.2.4 and 8.2.5)”.

Added the following text: “All marking devices should be removed after construction has been completed, after all areas that were disturbed have been stabilized, and once the site meets the criteria for terminating permit coverage in Part 9.2.”

Part 2.1.1.2

– Added the following text: “Avoid earth

- disturbing activities on steep slopes (i.e., slopes of 15% or greater), unless infeasible or in consistent with the requirements of the project. ”

Part 2.1.2.3

– Deleted following provision: “You are required to preserve areas of native topsoil on your site, unless infeasible. Where disturbance to such soils is unavoidable, you should stockpile and reapply such soils consistent with Part 2.1.3.5.”

Part 2.1.1.4

– Made the following changes: “Limit construction of stream crossings on your site to the minimum necessary to provide access to your construction site, and to install required infrastructure. Where stream crossings are required for your pro ject, you must comply with any limits to such activity covered by a CWA Part 404 permit. Note that the CWA Part 404 permit must have been obtained prior to commencement of
earth

- disturbing activity on your site any discharge of dredge or fill materials to waters of
the U.S. ”

Part 2.1.3.2.a

– Added following text: “ Note that this requirement does not apply to earth disturbances related to initial site clearing and establishing entry, exit, and access of the site, which may require that stormwater controls be installed immediately after the earth
disturbance. ”

Added following request for comments: “EPA requests comments on whether there are other situations where it would be infeasible or impractical to install and make operational all stormwater controls before commencing earth disturbances. If so, please
describe these situations.”

Part 2.1.3.4.a.i

– Made the following changes: “ Where track

- out of sediment occurs at your site onto sweep, shovel, or vacuum streets, sidewalks, and other paved areas, by
the end of the same work day in which the track

- out is discovered you must sweep, shovel, or vacuum these surfaces regularly to remove track

- out material or other sediment deposits , but not less than once per day .”

### Page 3 of 8 Part 2.1.3.4.a.ii

– Added the following lang uage: “ Immediately begin to remove sediment that has been deposited in or near any stormwater conveyance channel or
storm drain inlet and complete the removal by the close of the next full work day .”

Part 2.1.3.5

– Made the following changes: “ Where disturbance to native topsoil will occur at your site, unless infeasible, you should stockpile and reuse it in areas that will be stabilized with vegetation if applicable. To maximize the native topsoil’s continued function, when stockpiling native topsoil, you should mound the soil (e.g., no higher than 4 feet high for less than 1 year, and preferably for less than 6 months) and cover to prevent soil erosion and weed growth. As a guideline, soil should be mounded no higher than 4 feet high for less than 1 year, and preferably for less than 6 months .”

Part 2.1.3.7.a

– Added following request for comments: “ EPA requests comment on the feasibility of the requirement to stabilize entrance and exit points for a minimum of 50
feet. If this distance is no t practicable at sites, explain why and what would you suggest as a minimum threshold for stabilizing these areas and for what size sites.”

Part 2.1.3.8

– Made the following changes: “ If you are using any of the following stormwater controls at your site

, as they are described below , you must comply with any applicable requirements for underground injection wells in the Safe Drinking Water Act and EPA’s implementing regulations at 40 CFR Parts 144

- 147 consult with your state or EPA Regional Underground In jection Control (UIC) Program Director with primary authority for implementing the requirements for Class V wells in the Underground Injection Control (UIC) program to determine if you are subject to the Class V UIC regulations under the Safe Drinking Wate r Act

. ”

Part 2.1.4.1

– Deleted the following text: “ Complete stabilization of stormwater conveyance channels immediately after their installation and before the first predicted storm event, or within 7 days, whichever is sooner.”

Part 2.1.4.3

– Added the following language: “ For any storm drain inlets that are located on your site or that receive stormwater discharges from your site, and for which you have

access, you must comply with the following:

a. Inlet protection measures. You must install inlet protection measures that remove sediment from your discharge prior to entry into the storm drain inlets. Examples of inlet protection measures include excavations around the perimeter of the drop inlet, fabric barriers around inlet ent rance, block and gravel protection, stone

- filled bag berms, and sandbags.

b. Maintenance requirements. Clean, or remove and replace, the protection measures as sediment accumulates, the filter becomes clogged, and/or performance is compromised. The protec tion measures must be serviced, cleaned, or removed and replaced when sediment has filled to 1⁄2 of the capacity of available storage.

Part 2.1.4.4.a

– Made the following changes: “For any sediment basins or impoundments installed at the site, in order to m inimize the discharge of pollutants, you must utilize outlet structures that withdraw water from the surface, unless infeasible. For example, you would not be required to use such an outlet structure for a small sediment trap installed at your site. Provi de a stabilized emergency overflow for storm events that exceed the 2

- year, 24

- hour storm, unless infeasible. If it is infeasible for you to meet this requirement, you must document why this is so in your SWPPP;

### Page 4 of 8 Part 2.1.4.5.b

– Added the following langua ge: “Use treatment chemicals in accordance with dosing specifications and application rates provided by the manufacturer or supplier , or document departures from the manufacturer specifications where appropriate .”

Part 2.1.4.5.c.vi

– Made the following ch anges: “Do not discharge cationic polymers, except for chitosan, except in compliance with state and/or local requirements designed to protect water quality from such discharges is prohibited .”

Part 2.1.4.5.d

– Deleted the following provision: “You may r e

- apply or dispose of treatment residuals as long as no discharge of such sediments from your site is possible.”

Part 2.1.4.5

– Added the following request for comment: EPA is interested in comments regarding the above proposed requirements on the use of chemicals for stormwater control. EPA is also interested specifically in whether commenters believe that it is necessary to require residual testing in connection with the use of chitosan, and whether a maximum dosage rate should be included in the permit

. Part 2.2.1.2

– Added the following request for comment: EPA requests comment generally on the practicability of these timeframes. EPA requests comment on specific instances when the 7

- day deadline to complete certain aspects of stabilization may not be practicable or where exceptions should be provided.

Parts 2.2.1.3/2.2.1.4

– Added the following request for comment: EPA requests comments on the above stabilization requirements applicable to sensitive areas and arid and semi

arid areas. Specifically r egarding sensitive areas, EPA is interested in comment on treating as a sensitive area for stabilization purposes sites that will conduct construction activities in critical habitat areas or areas where listed endangered species exist.

Part 2.2.1.2.d

– D eleted following provision: “In accordance with Executive Order 13112, you must use only groundcover that is free of noxious or exotic weeds, and must not use noxious weeds referenced by the Natural Resources Conservation Service (NRCS) state noxious weed list. See list of federal and state noxious weeds at http://plants.usda.gov/java/noxious Driver. You must also use native plant species, unless infeasible. Refer to http://plants.usda.gov/checklist.html for a searchable list of native plant species by state.”

Part 2.3.2.1.b

– Added the following language: “ For on

- site fueling and maintenance, you must provide secondar y containment structures or other similarly effective means of preventing the discharge of spilled or leaked chemicals from the area designated for this activity.” Similar changes were also made to Parts 2.3.2.2.b and 2.3.2.3.b.
Added the following request for comment: EPA requests comment on the practicability of providing secondary containment or cover for fueling and maintenance areas on the site, and whether having provisions like spill kits available at the site is sufficien t. Please identify specifically the situations where this requirement may not be practical. (Note: A similar request for comment was added for Part 2.3.2.3.b.)

Part 2.3.2.4.d

– Made the following changes: “ At least once per week, you must inspect
any co ntainers or pits used for washout to ensure structural integrity, adequate holding capacity, and to check for leaks. If there are signs of a leak or of holes or other gaps in the containers or pits that could lead to a discharge, repair them i mmediately pr ior to further use, and take the corrective action required in Part 6.3.2. For concrete washout areas, remove hardened concrete waste whenever necessary to avoid overflows, such as whenever the hardened concrete has accumulated to a height of 1⁄2 of the con tainer or pit. You must document maintenance procedures in your SWPPP as described in Part 8.2.12.”

### Page 5 of 8 Part 2.3.4

– Made the following changes: “You are prohibited required to minimize from discharges of fertilizers containing nitrogen and phosphorus , with t he exception of compost, manure, or other natural fertilizers. ”

Part 3

Part 3

– Added the following note: If EPA has not finalized its recalculation of the C&D rule’s numeric turbidity limit prior to the final issuance of this permit, the numeric limit a nd associated monitoring requirements will not be included in the permit.

Part 3.3.1

– Added the following request for comment: EPA requests comment on whether the permit should include a minimum rainfall amount associated with this requirement below whic h no sampling is required. The Agency has some concerns about this approach, for instance how it would be implemented in the field prior to the permittee knowing how much precipitation will end up falling, but is interested in feedback on this issue.

Part 3.3.2

– Added the following language: “You may take more than 3 samples in a given day provided the samples, taken as a whole, are representative of your discharge for that day. You must use all valid sample results in calculating compliance with the

nu meric limit.”

Part 3.3.3

– Added the following request for comment: The Agency’s preference is to limit the use of representative monitoring to linear

- type projects. However, EPA requests comment on whether there are other specific situations where the p ermit should allow representative samples for other types of construction projects.

Part 3.3.6.2

– Added the following language: “ If you will analyze your sample results on site , use a field

- calibrated nephelometer or turbidity meter (also referred to as a “turbidimeter”).”

Part 3.3.6.3

– Made the following change: “ Wear gloves to prevent contamination of the sample; and Comply with additional requirements in accordance with 40 CFR Part 136 procedures and manufacturer’s specifications.”

Part 3.3.8

– Added the following request for comment: EPA requests comment on whether allowance should be made in the permit for quarterly reporting for those sites where no exceedances occur.

Part 3.3.9.3.c

– Made the following changes: “ Arithmetic average of samples taken on each day of discharge, Result of each individual sample taken in NTUs on this date, or, if there was no discharge during the sampling period for that discharge point indicate “no discharge.” You are required to report all sampling results, includ ing those that reflect samples taken beyond the minimum amount required in Part 3.3.2. You must also indicate in your report if there were days when a discharge occurred, but you were not able to take the minimum required 3 samples;”

Part 4

Part 4.2.2.1

– Added the following request for comment: EPA requests comment on the practical utility of benchmark monitoring and whether it is an appropriate tool for use in assessing the effectiveness of construction stormwater controls in not contributing to existi ng impairments. EPA also requests comment on whether benchmark monitoring should be required for impaired waters regardless of whether or not a TMDL has been approved or established, or only for those impaired waters without an approved or

### Page 6 of 8 established TMD L. EPA solicits feedback on the 10

- acre disturbance threshold in Part 4.2.2.1 below which no benchmark monitoring is required. Among other things, EPA is interested in whether the disturbance threshold should be set at a different size, either lower or h igher. EPA also requests comment on the specific benchmark levels in Appendix J, which are based on low

- flow conditions rather than conditions likely to be present during stormwater discharges. EPA also requests comment on whether use of nitrogen or phos phorous fertilizer on vegetative cover for stabilization would impact ability to achieve benchmark levels and if so, should the benchmark provisions include an exception for this situation. EPA also requests comment on whether it should account for natura l variability in stormwater discharges in establishing benchmark requirements, and if so, how. Finally, i n addition to requiring benchmark monitoring for discharges to sediment and nutrient

- impaired waters, EPA also welcomes comment on how benchmark monit oring might be used for discharges to waters that are habitat for listed fish species (e.g., white sturgeon, sockey salmon).

Part 4.2.2.3

– Added the following request for comment: EPA requests comment on the practicability of conducting daily visual exam inations as proposed above, and on the practicability of the timeframes for stabilization in Part 4.2.2.2.

Part 5

Part 5.1.2

– Made the following edits: “... If there is a discharge from your site on multiple days, you are required to conduct an inspection within 24 hours of the end of the storm for each day that the discharge occurs

.

Part 6

Part 6.3

– Added the following language: “You must complete the following corrective actions in accordance with the deadlines specified in this Part. However, if ba sed on further analysis of the site conditions, you find that the source of the problem or violation is unrelated to your construction activity, you do not have to comply with the following required corrective actions and deadlines, and must document the r easons supporting your conclusion in Part 6.4.2.3. ”

Part 6.3.1.3

– Added the following request for comment: EPA requests comment on whether there is a level of chitosan residual below which the proposed corrective action would not be necessary.

Part 6.3.2

– Made the following changes: Make every effort to minimize the prohibited discharge (Part 6.3.2.1); Initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work day, if t he problem can be easily fixed through a quick repair or the performance of regular maintenance of the stormwater control or pollution prevention measure (e.g., accumulated sediment on roads not swept up, perimeter controls knocked down, piles of graded or discarded soil left unstabilized or uncontained, spent fuels/oils dumped in leaky construction waste bin) (Part 6.3.2.2); Take immediate action to prevent, by the end of the same day the problem is discovered, the discharge, or the continuation of the dis charge, from reaching a stormwater conveyance channel or water of the U.S.

Part 6.3.2.4

– Added the following request for comment: EPA requests comment on whether there are situations when the 7

- day deadline is not feasible. Please provide specific examp les, and suggest alternative timeframes.

### Page 7 of 8 Part 6.4.2

– Added the following language: “ If you conclude that, based on further analysis of the site conditions, the source of the problem or violation is unrelated to your construction activity, you must docume nt this fact and the reasons supporting your conclusion.”

Part 8

Part 8.2.6.1

– Made the following changes: “ The SWPPP must document efforts you take to avoid disturbing existing steep slopes on your site, including alternatives that were considered and reasons why avoiding such slopes is infeasible for your site. If avoiding disturbance to such steep slopes is considered infeasible, or inconsistent with the requirements of the project , you must document how you intend to comply with the Part 2.1.4.2 req uirements applicable to steep slope disturbances.” Part 8.3

– Added the following note: “(Note: Information covered by a claim of confidentiality will be disclosed by EPA only to the extent of, and by means of, the procedures set forth in 40 CFR Part 2, Subpart B. In general, submitted information protected by a business confidentiality claim may be disclosed to other employees, officers, or authorized representatives of the United States concerned with implementing the CWA. The authorized representatives include employees of other executive branch agencies, who may review CBI during the course of reviewing draft regulations.)”

Part 8.4.1.1

– Added the following language: “ You do not need to modify your SWPPP if the estimated dates provided for Part 8.2.4 change during the course of construction;”

Part 9

Part 9.2.1.2

– Added the following language: “ You have removed and properly disposed of all construction materials, waste and waste handling devices, and have removed all equipment and vehicles that were used during construction, unless intended for long

term use following your termination of permit coverage ;”

Part 9.2.1.3

– Made the following changes: “You have removed all stormwater controls that were installed and maintained during construction, including except those that are not intended for long

- term use following your termination of permit coverage ;”

Part 9.2.1.4

– Made the following addition: “ You have removed all potential pollutants and pollutant

- generating activities associated with constr uction, unless needed for long

term use following your termination of permit coverage ;”

Part 9.2.1.5

– Made the following changes: “ If during your permit coverage, you installed and were responsible for the implementation of a stormwater control (e.g., sediment basin) that was designed to receive stormwater runoff from multiple sites, and construction at those sites is either ongoing o r planned for the future, you must have transferred authority for maintenance of all such stormwater controls to another entity (e.g., another permitted operator) before you are eligible to terminate your permit coverage. In the transfer of authority, you must indicate that the entity now responsible for maintenance has obtained permit coverage for its portion of the construction activity You must identify who is responsible for ongoing maintenance of any stormwater controls left on the site for long

- term u se following your termination of permit coverage;

or ”

Part 9.2.1.6

– Deleted the following requirement: “If you are subject to the long

- term stormwater management requirements in Part 438 of the Energy Independence and

### Page 8 of 8 Security Act of 2007 for constructio n activities at a Federal Facility that has a footprint of 5,000 square feet or more, you certify that such requirements have been met; and”

Part 9.2.1.7

– Deleted the following requirement: “ If you are subject to the control requirements for stormwater discharges from newly developed, redeveloped, or developed sites in an applicable state, tribal, or local ordinance or other similar instrument, you certify that such requirements have been met; or ”