19434 Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0082; FRL–9795–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Transportation Conformity Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the 

Commonwealth of Virginia for the 

purpose of amending existing regulation 

9VAC5 Chapter 151 in order to 

incorporate Federal revisions to 

transportation conformity requirements. 

In the Final Rules section of this 

Federal Register, EPA is approving the 

Commonwealth’s SIP submittal as a 

direct final rule without prior proposal 

because EPA views this as a 

noncontroversial submittal and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this action, no further 

activity is contemplated. If EPA receives 

adverse comments, the direct final rule 

will be withdrawn and all public 

comments received will be addressed in 

a subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period. Any parties 

interested in commenting on this action 

should do so at this time. 

DATES: Comments must be received in 

writing by May 1, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0082, by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov 

C. Mail: EPA–R03–OAR–2013–0082, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2013– 

0082. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the Commonwealth’s 

submittal are available at the Virginia 

Department of Environmental Quality, 

629 East Main Street, Richmond, 

Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Becoat, (215) 814–2036, or by 

email at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, ‘‘Approval 

and Promulgation of Air Quality 

Implementation Plans; Virginia; 

Transportation Conformity 

Regulations,’’ that is located in the 

‘‘Rules and Regulations’’ section of this 

Federal Register publication. Please 

note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

Dated: March 20, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2013–07383 Filed 3–29–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 450 

[EPA–HQ–OW–2010–0884; FRL–9794–6] 

RIN 2040–AF44 

Effluent Limitations Guidelines and 

Standards for the Construction and 

Development Point Source Category 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing changes to 

the effluent limitations guidelines and 

standards for the Construction and 

Development point source category. 

EPA is proposing these changes 

pursuant to a settlement agreement to 

resolve litigation. This proposed rule 

would withdraw the numeric discharge 

standards, which are currently stayed, 

and change several of the non-numeric 

provisions of the existing rule. 

DATES: Comments must be received on 

or before May 31, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2010–0884, by one of the following 

methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: OW-Docket@epa.gov, 

Attention Docket Id. No. EPA–HQ–OW– 

2010–0884. 

• Mail: Water Docket, Environmental 

Protection Agency, Docket Number 

EPA–HQ–OW–2010–0884, Mailcode: 

4203M, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460. 

• Hand Delivery: Water Docket, 

USEPA Docket Center, Room 3334, EPA 

West Building, 1301 Constitution Ave. 

NW., Washington, DC 20004. Attention 


sroberts on DSK5SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Proposed Rules 19435 

Docket Id. No. EPA–HQ–OW–2010– 

0884. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2010– 

0884. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the USEPA Docket Center, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jesse W. Pritts at Engineering and 

Analysis Division, Office of Water 

(4303T), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; telephone 

number: 202–566–1038; fax number: 

202–566–1053; email address: 

pritts.jesse@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Regulated Entities 

Entities potentially regulated by this 

action include: 

Category Examples of regulated entities 

North American industry 

classification system 

(NAICS) code 

Industry ................................................ Construction activities required to obtain NPDES permit coverage and performing the following activities: 

Construction of buildings, including building, developing and general contracting.236 

Heavy and civil engineering construction, including land subdivision .............. 237 

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 entities that 

EPA is now aware could potentially be 

regulated by this action. Other types of 

entities not listed in the table could also 

be regulated. To determine whether 

your facility is regulated by this action, 

you should carefully examine the 

applicability criteria at 40 CFR 450.10 

and the definition of ‘‘storm water 

discharges associated with industrial 

activity’’ and ‘‘storm water discharges 

associated with 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 site, consult 

one of the persons listed for technical 

information in the preceding FOR

FURTHER INFORMATION CONTACT section. 

Overview 

This preamble describes the terms, 

acronyms, and abbreviations used in 

this document; the legal authority of 

this proposed rule; background 

information; and a summary of the 

proposed changes. 

Table of Contents 

I. Legal Authority 

II. Purpose & Summary of the Proposed Rule 

III. Statutory and Executive Order Reviews 

I. Legal Authority 

EPA is proposing these regulations 

under the authorities of sections 101, 

301, 304, 306, 308, 401, 402, 501 and 

510 of the Clean Water Act (CWA), 33 

U.S.C. 1251, 1311, 1314, 1316, 1318, 

1341, 1342, 1361 and 1370 and pursuant 

to the Pollution Prevention Act of 1990, 

42 U.S.C. 13101 et seq. 

II. Purpose & Summary of the Proposed 

Rule 

A. Background 

EPA promulgated Effluent Limitations 

Guidelines and Standards for the 

Construction and Development Point 

Source Category (hereafter referred to as 

the ‘‘C&D rule’’) (74 FR 62995, Dec. 1, 

2009). The final rule established 

requirements based on Best Practicable 

Control Technology Currently 

Available, Best Available Technology 

Economically Achievable, Best 

Conventional Pollutant Control 

Technology, and New Source 

Performance Standards based on Best 

Available Demonstrated Control 

Technology. 

The rule included non-numeric 

requirements to: 

• Implement erosion and sediment 

controls; 

• Stabilize soils; 

• Manage dewatering activities; 

• Implement pollution prevention 

measures; 


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• Prohibit certain discharges; and 

• Utilize surface outlets for 

discharges from basins and 

impoundments. 

The December 2009 final rule also 

established a numeric limitation on the 

allowable level of turbidity in 

discharges from certain construction 

sites. The technology basis for the final 

numeric limitation was passive 

treatment controls including polymeraided settling to reduce the turbidity in 

discharges. 

Following promulgation of the 

December 2009 final C&D rule, the 

Wisconsin Home Builders Association, 

the National Association of Home 

Builders (NAHB) and the Utility Water 

Act Group (UWAG) filed petitions for 

review in the U.S. Circuit Courts of 

Appeals for the Fifth, Seventh, and D.C. 

Circuits. The petitions were 

consolidated in the Seventh Circuit. 

Wisconsin Builders Association, et al. v. 

EPA, Case Nos. 09–4113, 10–1247, and 

10–1876 (7th Cir.). On July 8, 2010, the 

petitioners filed their briefs. 

In April 2010, the Small Business 

Administration (SBA) filed with EPA a 

petition for administrative 

reconsideration of several technical 

aspects of the C&D Rule. SBA identified 

potential deficiencies with the dataset 

that EPA used to support its decision to 

adopt the numeric turbidity limitation. 

In June 2010, NAHB also filed a petition 

for administrative reconsideration with 

EPA incorporating by reference SBA’s 

argument regarding the deficiencies in 

the data. 

On August 12, 2010, EPA filed an 

unopposed motion with the Court 

seeking to hold the litigation in 

abeyance until February 15, 2012 (see 

EPA–HQ–OW–2010–0884–0085) and 

asking the Court to remand the record 

to EPA and vacate the numeric 

limitation portion of the rule. In 

addition, EPA agreed to reconsider the 

numeric limitation and to solicit sitespecific information regarding the 

applicability of the numeric effluent 

limitation to cold weather sites and to 

small sites that are part of a larger 

project. 

On August 24, 2010, the Court issued 

an order remanding the matter to the 

Agency but without vacating the 

numeric limitation. Subsequently on 

September 9, 2010, the petitioners filed 

an unopposed motion for clarification or 

reconsideration of the Court’s August 

24, 2010 order, asking the Court again 

to vacate the numeric limitation. On 

September 20, 2010, the Court 

remanded the administrative record to 

EPA, and ordered the case held in 

abeyance until February 15, 2012, but 

did not vacate the numeric limitation. 

EPA added additional information to 

the docket to supplement the 

administrative record for the C&D rule 

(see EPA–HQ–OW–2008–0465–2124 

through EPA–HQ–OW–2008–0465– 

2134) and an updated response to 

comment document (see EPA–HQ–OW– 

2008–0465–2135) during this period. 

In November 2010, EPA issued a 

direct final regulation and a companion 

proposed regulation to stay the numeric 

limitation at 40 CFR 450.22 indefinitely 

(75 FR 68215, November 5, 2010 and 75 

FR 68305, November 5, 2010). The 

proposed rule solicited comment due no 

later than December 6, 2010. Since no 

adverse comments were received, the 

direct final rule took effect on January 

4, 2011. 

States are no longer required to 

incorporate the numeric turbidity 

limitation and monitoring requirements 

found at § 450.22(a) and § 450.22(b) into 

NPDES permits because the numeric 

limitation was stayed. However, the 

remainder of the regulation is still in 

effect and must be incorporated into 

newly issued NPDES permits. 

After issuing the stay of the numeric 

turbidity limitation, EPA continued to 

consult with stakeholders regarding 

next steps with respect to numeric 

discharge standards. EPA published a 

Federal Register notice (77 FR 112, 

January 3, 2012) seeking data on the 

effectiveness of technologies in 

controlling turbidity in discharges from 

construction sites and information on 

other related issues. The Agency is 

currently considering data and 

comments submitted in response to this 

notice. 

EPA also continued to meet with the 

petitioners in an effort to settle the 

litigation over the C&D rule. On 

December 10, 2012, EPA entered into a 

settlement agreement with petitioners to 

resolve the litigation (see Wisconsin 

Builders Association, et al. v. EPA, Case 

Nos. 09–4113, 10–1247, and 10–1876 

(7th Cir.)). The settlement agreement 

provides for EPA to propose for public 

comment certain changes specific to the 

non-numeric portions of the rule, as 

well as withdrawal of the numeric 

limitation, and take final action on the 

proposal. Under the terms of the 

settlement agreement, by April 15, 2013 

EPA is to sign for publication in the 

Federal Register a notice of proposed 

rulemaking, with at least a 30-day 

comment period, to amend the C&D 

Rule in a manner substantially similar 

to Exhibit A, which is attached to the 

Settlement Agreement. The settlement 

then provides that by February 28, 2014, 

EPA will take final action on the 

proposed rule. Under the settlement, if 

EPA takes the above actions by the 

specified dates, and EPA’s final action 

on the proposed rule amends the C&D 

Rule in any manner, then Petitioners 

and EPA will promptly file a joint 

request with the Court asking it to 

dismiss the C&D litigation. In addition, 

if EPA’s final action amends the C&D 

Rule in a manner substantially similar 

to Exhibit A, Petitioners will not seek 

judicial review of those amendments. 

Finally, within 60 days after EPA signs 

the proposal mentioned above, NAHB 

and EPA will file a joint request with 

the Court to dismiss NAHB’s challenge 

to the 2012 Construction General Permit 

(CGP), which EPA issued on February 

16, 2012 (see 77 FR 12286). 

B. Proposed Revisions to 40 CFR Part 

450 

The proposed revisions to 40 CFR part 

450 consist of the following three 

elements: 

• Addition of a definition of 

‘‘infeasible’’ consistent with the 

preamble to the 2009 final rule and 2012 

CGP; 

• Revisions to the effluent limitations 

reflecting the best practicable control 

technology currently available (BPT), 

effluent limitations reflecting the best 

available technology economically 

achievable (BAT), effluent limitations 

reflecting the best conventional 

pollutant control technology (BCT), and 

the new source performance standards 

reflecting the best available 

demonstrated control technology 

(NSPS) found at 40 CFR 450.21, 450,22, 

450.23 and 450.24, respectively; and 

• Withdrawing the numeric turbidity 

effluent limitation and monitoring 

requirements found at 40 CFR 450.22(a) 

and 450.22(b) and reserving these 

subparts. 

EPA is proposing these revisions in 

order to meet the terms of the settlement 

agreement and to make the rules clearer 

and more transparent to the public. As 

written, stakeholders believe, and EPA 

agrees, that there is some ambiguity 

surrounding when and where these 

provisions should apply and what 

exceptions apply. EPA believes that 

these proposed changes will provide 

clarity to permitting authorities on how 

to implement or incorporate these 

provisions into permits. EPA solicits 

comments on the following specific 

changes. 

1. Addition of Definition at 40 CFR 

450.11 

EPA proposes to add a definition of 

infeasible at 40 CFR 450.11(b). Several 

of the provisions of the C&D rule require 

permittees to implement controls, 

unless infeasible. EPA did not provide 

a definition of infeasible in the C&D 


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rule. However, EPA did provide a 

description of what the Agency meant 

by infeasible in the preamble to the C&D 

rule (74 FR 63017), Dec. 1, 2009). This 

discussion stated: 

‘‘By infeasible, EPA means that there is a 

site-specific constraint that makes it 

technically infeasible to implement the 

requirement, or that implementing the 

requirement would be cost-prohibitive. The 

burden is on the permittee to demonstrate to 

the permitting authority that the requirement 

is infeasible.’’ 

Although this discussion described 

EPA’s intention regarding relief from 

specific requirements in the C&D rule in 

cases where a requirement is infeasible, 

there is concern that since this 

description is contained in the preamble 

instead of the rule that there may be 

inconsistent interpretation by 

permitting authorities of what 

constitutes infeasibility. Including a 

definition of what EPA means by 

infeasible in the rule would provide 

clarity and consistency for permittees. 

EPA proposes to add the following 

definition of infeasible, which was 

derived from EPA’s preamble language 

from the 2009 final rule cited above and 

the 2012 CGP: 

Infeasible means not technologically 

possible, or not economically practicable and 

achievable in light of best industry practices. 

EPA solicits comment on the 

inclusion of this proposed definition. 

2. Revision of 40 CFR 450.21(a)(1) 

This requirement, as currently 

written, requires permittees to ‘‘Control 

stormwater volume and velocity within 

the site to minimize soil erosion.’’ EPA 

proposes to amend this requirement as 

follows: 

Control stormwater volume and velocity to 

minimize soil erosion in order to minimize 

pollutant discharges. 

EPA is proposing this change in order 

to link the requirement to control soil 

erosion to the discharge of pollutants. 

EPA is proposing to eliminate the 

‘‘within the site’’ clause because it is 

unnecessary as the regulation applies by 

definition to all discharges from the 

entire construction site. The proposed 

change would continue to allow 

permitting authorities the ability to 

develop permit language to control 

stormwater volume and velocity to 

minimize soil erosion at any location, 

such as on slopes as well as within 

channels and conveyances, that may 

contribute pollutants to discharges from 

the construction site. EPA solicits 

comment on this proposed change. 

(a) Examples of appropriate controls 

for this provision. 

Control of volume and velocity of 

stormwater in conveyances where 

concentrated flow occurs, as well as 

control of volume and velocity of 

overland flow, are necessary to reduce 

mobilization, transport and discharge of 

sediment and other pollutants. EPA 

notes that this requirement reflects 

common practice for water handling on 

construction sites. The need for effective 

erosion control practices is an important 

component of stormwater management 

on construction sites and is well-known 

and described in available references. 

See, for example, the Virginia Erosion 

and Sediment Control Handbook, Third 

Edition, which states at page II–14: 

‘‘The removal of existing vegetative cover 

and the resulting increase in impermeable 

surface area during development will 

increase both the volume and velocity of 

runoff. These increases must be taken into 

account when providing for erosion control.’’ 

Practices described in this handbook, 

also at page II–14, that are appropriate 

for managing the volume and velocity of 

stormwater are described as follows: 

‘‘Keeping slope lengths short and gradients 

low and preserving natural vegetative cover 

can keep stormwater velocities low and limit 

erosion hazards. Runoff from the 

development should be safely conveyed to a 

stable outlet using storm drains, diversions, 

stable waterways, riprapped channels or 

similar measures * * * Conveyance systems 

should be designed to withstand the 

velocities of projected peak discharges. These 

practices should be operational as soon as 

possible after the start of construction.’’ 

Additional examples of appropriate 

controls to address this provision 

include management of concentrated 

flows through the use of channel liners 

or other stabilization measures to 

minimize erosion caused by flowing 

water in channels, use of pipe slope 

drains to move water down slopes to 

minimize erosion, use of check dams in 

channels to reduce flow velocities and 

minimize erosion, and use of sediment 

basins and traps to provide detention 

and reduction in peak flowrates, which 

minimizes downslope erosion. 

Examples of practices to reduce volume 

and velocity of stormwater with respect 

to overland or other non-concentrated 

flow on site include the use of slope 

breaks such as berms to slow water as 

it flows down slopes and the use of 

cover materials such as mulches and 

vegetative stabilization on slopes to 

reduce the velocity of stormwater 

flowing down the slopes. 

During construction, the volume and 

rate of runoff increases, which relates to 

a corresponding increase in the 

discharge of pollutants to receiving 

waters. Erosion of soil particles is 

caused by both rainfall impact energy as 

well as the energy of flowing water. 

Water flowing over soil as overland 

flow, as well as concentrated flow 

overland and in conveyances (such as 

channels), causes detachment of soil 

particles and transport of these particles 

downslope. These particles can be 

discharged from the construction site 

along with the stormwater. While 

removal of some particles in downslope 

sediment controls (e.g., sediment basins) 

can be accomplished, these sediment 

controls are generally not 100% 

effective in removing entrained soil 

particles. Therefore, some portion of soil 

that is mobilized (and the pollutants 

associated with those soil particles) can 

be discharged from the construction site 

even after passing through sediment 

controls. 

Controlling stormwater volume and 

velocity reduces the amount of erosion 

caused by flowing water, and therefore 

can reduce the amount of sediment, 

turbidity and other pollutants 

discharged from the site. For example, 

a particular sediment basin may be 

capable or removing all particles above 

40 microns in diameter through settling. 

If the stormwater flowing to the 

sediment basin during a particular 

storm event contains 1,000 pounds of 

soil, 80% of which is above 40 microns, 

then the basin would remove 80% (or 

800 pounds) of the sediment while 20% 

(or 200 pounds) would not be removed 

and would be discharged. However, if 

during this same storm event upslope 

volume and velocity controls were not 

implemented, then one would expect a 

larger quantity of sediment to be eroded 

and transported to the sediment basin. 

In this scenario, if the total quantity of 

sediment transported to the basin for 

this event is twice as much because 

upslope volume and velocity controls 

were not implemented, then the amount 

of sediment not removed by the basin is 

20% of 2,000 pounds, or 400 pounds. 

This is twice as much as discharged 

from the example where upslope 

controls to reduce erosion were 

implemented. Therefore, reducing the 

volume and velocity of stormwater, 

which reduces the amount of erosion, 

can directly reduce the quantity of 

sediment and associated pollutants that 

are discharged. 

(b) What does EPA not mean by this 

requirement? 

EPA does not intend for this 

requirement to apply once construction 

has ceased and sites have been 

stabilized. This requirement only 

applies during the construction phase, 

and does not apply to post-construction 

conditions. 


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(c) What is the appropriate time for 

implementation of this requirement in 

the construction process? 

The proper time for implementation 

of controls to manage both the total 

volume and velocity of stormwater to 

minimize erosion depends on the nature 

of the control. Some practices (such as 

sediment basins) should be installed 

very early in the construction process so 

that they are functioning and able to 

accept runoff from up-slope disturbed 

areas. Other practices may be installed 

later in the construction process as they 

are needed. For example, a sediment 

basin may be designed to accept water 

from several catchments in a project, all 

of which may not be disturbed at the 

same time. Prior to disturbance of an 

area, it may be appropriate to install a 

channel to divert runoff from the 

disturbed area to the basin. When this 

channel is installed, the need for 

velocity control measures such as a 

channel lining or check dams would 

necessitate that they be installed when 

the channel is constructed. The need for 

specific controls is site-specific, and 

will vary based on the nature of the 

construction activity. 

3. Revision of 40 CFR 450.21(a)(2) 

This requirement, as currently 

written, requires permittees to ‘‘Control 

stormwater discharges, including both 

peak flowrates and total stormwater 

volume, to minimize erosion at outlets 

and to minimize downstream channel 

and streambank erosion.’’ EPA proposes 

to amend this requirement as follows: 

Control stormwater discharges, including 

both peak flowrates and total stormwater 

volume, to minimize channel and 

streambank erosion in the immediate vicinity 

of discharge points. 

EPA is proposing this change because 

the current requirement does not 

differentiate between any contribution 

to increased erosion caused by the 

construction site discharges and those 

caused by other sources. For example, a 

construction site may discharge to a 

stream that is being eroded due to 

changes in flow duration from an upslope development. As currently 

written, this provision could be 

interpreted to require the permittee to 

minimize downstream erosion caused 

by the upslope discharges. It is not 

EPA’s intention for this provision to 

require permittees to address 

streambank and channel erosion that is 

caused by other sources. This revision 

would require permittees to only 

address erosion that occurs in the 

immediate vicinity of permitted outfalls. 

Examples may include scouring of the 

stream bed and erosion of the near and 

far banks at and in the area immediately 

downstream of where an outfall from a 

sediment basin discharges to a stream. 

Permitting authorities can develop 

specific permit language to address this 

erosion, and appropriate controls may 

include the use of stabilized outlets and 

use of detention practices, such as 

sediment basins, to limit peak flowrates 

and flow duration of discharges. EPA 

solicits comment on this proposed 

revision. 

4. Revision of 40 CFR 450.21(a)(6) 

This provision, as currently written, 

requires permittees to ‘‘Provide and 

maintain natural buffers around surface 

waters, direct stormwater to vegetated 

areas to increase sediment removal and 

maximize stormwater infiltration, 

unless infeasible.’’ EPA proposes to 

amend this requirement as follows: 

Provide and maintain natural buffers 

around waters of the United States, direct 

stormwater to vegetated areas and maximize 

stormwater infiltration to reduce pollutant 

discharges, unless infeasible. 

EPA is proposing two changes to this 

provision. The first change would 

replace ‘‘surface waters’’ with ‘‘waters of 

the United States.’’ EPA is proposing 

this change because ‘‘surface waters’’ is 

not defined in the context of the Clean 

Water Act and EPA always intended 

this to simply mean waters of the 

United States. The second proposed 

change to this provision would replace 

‘‘increase sediment removal’’ with ‘‘to 

reduce pollutant discharges’’ and would 

move the location of this phrase within 

the requirement. This proposed change 

would provide clarity that the goal of 

the requirement to direct stormwater to 

vegetated areas and to maximize 

stormwater infiltration is to reduce 

pollutant discharges. EPA solicits 

comment on these proposed changes. 

5. Revision of 40 CFR 450.21(a)(7) 

This provision, as currently written, 

would require permittees to ‘‘Minimize 

soil compaction and, unless infeasible, 

preserve topsoil.’’ EPA proposes to 

amend this requirement, as well as 

separate the two provisions (minimizing 

soil compaction and preserving topsoil) 

into two separate requirements as 

follows: 

Minimize soil compaction. Minimizing soil 

compaction is not required where the 

intended function of a specific area of the 

site dictates that it be compacted. 

Unless infeasible, preserve topsoil. 

Preserving topsoil is not required where the 

intended function of a specific area of the 

site dictates that the topsoil be disturbed or 

removed. 

EPA is proposing to revise this 

provision because, as currently written, 

this requirement does not acknowledge 

that certain areas of the site may require 

compaction. Examples would be 

foundation pads for buildings or road 

subgrade material. Similarly, the 

requirement to preserve topsoil is being 

clarified. Although this requirement 

includes an ‘‘unless infeasible’’ clause, 

EPA believes that it is worth clarifying 

that preservation of topsoil is not 

required (although it may be feasible) 

where the intended function of a 

specific area of the site dictates that the 

topsoil be disturbed or removed. 

EPA solicits comment on these 

proposed changes. 

(a) Discussion of minimizing soil 

compaction and preserving topsoil 

requirements. 

These requirements are designed to 

reduce the amount of soil eroded and 

discharged from the site by reducing the 

amount of runoff generated and by 

providing conditions conducive to 

establishing vegetative stabilization. 

Compacting soil increases the amount of 

runoff produced. This is because 

compacted soil does not allow water to 

infiltrate as rapidly as loose soil. 

Minimizing soil compaction allows for 

infiltration and retention of stormwater 

within the soil, which reduces the 

amount of runoff. Reducing the amount 

of runoff will reduce erosion, and 

therefore reduce the amount of sediment 

and other pollutants that can be 

transported to sediment controls and 

through perimeter controls. Sediment 

controls and perimeter controls are not 

100% effective in removing sediment 

and other pollutants, therefore reducing 

the amount of sediment and runoff 

directed to these controls will reduce 

the amount of pollutants discharged. 

Topsoil improves soil structure and 

provides a favorable growing medium 

for temporary and permanent vegetative 

stabilization measures. Preserving 

topsoil allows for better vegetative 

stabilization when disturbance has 

ceased. Better vegetative stabilization 

reduces erosion rates of the underlying 

soil and also increases the infiltrative 

capacity of the soil. As stated above, 

reducing erosion rates and reducing the 

runoff volume will reduce the amount 

of sediment transported to downslope 

sediment and perimeter controls. 

Sediment controls and perimeter 

controls are not 100% effective in 

removing sediment and other 

pollutants, therefore reducing the 

amount of sediment and runoff directed 

to these controls will reduce the amount 

of pollutants discharged. 

Preservation of topsoil also means 

limiting disturbance and removal of the 

topsoil and associated vegetation. 

Limiting clearing and grading to only 


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Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Proposed Rules 19439 

those areas where necessary to 

accommodate the building footprint is 

an example of topsoil preservation. 

Preserving topsoil in this manner would 

reduce the volume of stormwater 

produced as well as the quantity of 

sediment and other pollutants 

mobilized from these areas of 

preservation, which would reduce the 

amount of pollutants discharged from 

the site. 

Topsoil stockpile areas, if used, 

should be prevented from eroding, 

which can be accomplished by using 

various cover materials. Use of 

temporary vegetative stabilization 

measures for topsoil areas may also be 

considered if the stockpiles are to 

remain on-site for an extended period of 

time before being used. 

(2) What EPA does not mean by this 

requirement. 

EPA notes that the ‘‘minimize soil 

compaction’’ language is meant to apply 

to those areas of the site where soil 

compaction is not necessary for 

structural or stability concerns. For 

example, EPA would not expect 

permittees to minimize compaction in 

areas where soil compaction is 

necessary by design, such as where 

roads, foundations, footings or other 

similar structures are to be built. Rather, 

this requirement is intended to apply to 

other areas of the site, such as those 

where vegetation is to be preserved or 

restored once disturbance has ceased. 

Although not a requirement of this rule, 

minimizing soil compaction may be 

necessary in areas of the site where 

post-construction controls are to be 

designed to infiltrate stormwater. 

Examples of these areas would be areas 

underneath porous pavement systems or 

areas where infiltration basins are to be 

installed. Consideration of soil 

compaction during the construction 

phase would be critical to ensuring 

proper operation of these types of 

practices. 

EPA notes that some projects may be 

designed to be highly impervious after 

construction, and therefore little or no 

vegetation is intended to remain. In 

these cases (and perhaps others), 

preserving topsoil at the site would not 

be feasible since the topsoil would not 

be necessary for establishing vegetation. 

Another case where it may not be 

feasible to preserve topsoil would be if 

the topsoil is of poor quality or 

contaminated such that it would not be 

beneficial for establishing vegetation. 

Although poor topsoil may be improved 

through addition of soil amendments, 

there may be cases where this is not 

feasible. There may also be cases where 

keeping the topsoil on-site would 

conflict with other regulations or 

programs with respect to contaminated 

soils. For some projects where the 

construction envelope may encompass 

the entire land area, there may not be 

space available on-site to stockpile 

topsoil that is removed. In these cases, 

the use of off-site borrow or storage 

areas may be appropriate. In addition, 

topsoil may be sold for use on other 

projects where more topsoil is available 

than needed on-site. An example of an 

instance where it is not feasible to 

preserve all topsoil would be a situation 

where the topsoil is diverted to other 

uses because it is not needed on-site. 

6. Revision of 40 CFR 450.21(b) 

This provision, as currently written, 

would require permittees to stabilize 

disturbed areas. The requirement reads: 

‘‘Stabilization of disturbed areas must, 

at a minimum, be initiated immediately 

whenever any clearing, grading, 

excavating or other earth disturbing 

activities have permanently ceased on 

any portion of the site, or temporarily 

ceased on any portion of the site and 

will not resume for a period exceeding 

14 calendar days. Stabilization must be 

completed within a period of time 

determined by the permitting authority. 

In arid, semiarid, and drought-stricken 

areas where initiating vegetative 

stabilization measures immediately is 

infeasible, alternative stabilization 

measures must be employed as specified 

by the permitting authority.’’ 

EPA proposes to amend this 

requirement as follows: 

Stabilization of disturbed areas must, at a 

minimum, be initiated immediately whenever 

any clearing, grading, excavating or other 

earth disturbing activities have permanently 

ceased on any portion of the site, or 

temporarily ceased on any portion of the site 

and will not resume for a period exceeding 

14 calendar days. In arid, semiarid, and 

drought-stricken areas where initiating 

vegetative stabilization measures 

immediately is infeasible, alternative 

stabilization measures must be employed as 

specified by the permitting authority. 

Stabilization must be completed within a 

period of time determined by the permitting 

authority. In limited circumstances, 

stabilization may not be required if the 

intended function of a specific area of the 

site necessitates that it remain disturbed. 

The changes to this provision include 

re-arranging the requirements for clarity 

as well as providing a potential 

exemption from stabilization for certain 

areas of a site that the permitting 

authority has determined must remain 

disturbed. EPA can envision only 

limited cases where a disturbed area 

would not require stabilization because 

it should remain disturbed. An example 

would be a motocross track where 

unstabilized soil areas are present and 

are intended to remain present. EPA 

believes that permitting authorities 

should have the flexibility to evaluate 

the circumstances surrounding 

individual sites and have some 

flexibility related to this provision for 

these very limited cases. In the vast 

majority of situations, however, 

vegetative or non-vegetative 

stabilization measures would be 

required. EPA solicits comment on these 

proposed changes. 

7. Revision of 40 CFR 450.21(d)(2) 

This provision, as currently written 

would require permittees to ‘‘Minimize 

the exposure of building materials, 

building products, construction wastes, 

trash, landscape materials, fertilizers, 

pesticides, herbicides, detergents, 

sanitary waste and other materials 

present on the site to precipitation and 

to stormwater;’’ 

EPA proposes to amend this 

requirement as follows: 

Minimize the exposure of building 

materials, building products, construction 

wastes, trash, landscape materials, fertilizers, 

pesticides, herbicides, detergents, sanitary 

waste and other materials present on the site 

to precipitation and to stormwater. 

Minimization of exposure is not required in 

cases where the exposure to precipitation 

and to stormwater will not result in a 

discharge of pollutants, or where exposure of 

a specific material or product poses little risk 

of stormwater contamination (such as final 

products and materials intended for outdoor 

use). 

EPA is proposing to amend this 

requirement in order to acknowledge 

that there are certain circumstances 

where it may not be necessary or 

environmentally beneficial to minimize 

exposure of materials to precipitation 

and to stormwater. The first case would 

be those instances where a material is 

not a source of pollutant discharges. An 

example would be an inert material that 

does not leach, erode or otherwise add 

pollutants to precipitation or to 

stormwater. The second case would be 

where the material may contribute 

negligible quantities of pollutants. An 

example would be steel members that 

are part of an electric transmission 

tower. During construction of the tower, 

the material may be stored on the site 

in a staging area or adjacent to the tower 

pad. Although it may be feasible to 

provide cover for the material or 

otherwise minimize exposure of the 

material to precipitation and to 

stormwater, doing so may not be costeffective or beneficial if the material 

would be expected to contribute little or 

no pollutants to stormwater. EPA 

believes that permitting authorities 

should have discretion and permittees 


sroberts on DSK5SPTVN1PROD with PROPOSALS
19440 Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Proposed Rules 

should have flexibility to address sitespecific considerations with respect to 

this requirement. The proposed 

amendment should provide such 

flexibility. EPA solicits comment on 

these proposed changes. 

8. Removal of Numeric Standard and 

Monitoring Provisions at 40 CFR 

450.22(a) and 450.22(b) 

The final proposed change would be 

to remove the numeric discharge 

standard and monitoring requirements 

found at 40 CFR 450.22(a) and 

450.22(b). EPA would effectuate this 

change by deleting the current language 

at paragraphs (a) and (b), which are 

currently stayed, and reserving these 

paragraphs for potential revisions 

should EPA decide to propose 

additional effluent limitations 

guidelines and monitoring requirements 

in a future rulemaking. The stay has 

been in place since January 2011. In 

order to remove the stay or to 

implement a different numeric standard, 

EPA would need to undertake 

rulemaking. EPA is proposing to 

withdraw the numeric limitation but 

reserve the paragraphs in the regulation 

in the event that a numeric limitation is 

proposed and finalized in the future. 

EPA believes that removing the current 

standard that is stayed, but still appears 

in the Code of Federal Regulations, 

would provide clarity to permitting 

authorities that this standard is not 

required to be incorporated into 

permits. EPA continues to be interested 

in data and information regarding 

numeric discharge standards for 

construction sites. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). The action 

does not impose an information 

collection burden because the proposed 

rule changes would affect the effluent 

limitations and standards applicable to 

regulated entities, but would not impose 

any data collection requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure 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. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

The proposed rule would clarify 

applicability of the existing nonnumeric effluent limitations at 40 CFR 

part 450 and provide exemptions to 

some requirements in limited cases. We 

have therefore concluded that today’s 

proposed rule will either not change or 

relieve regulatory burden for all affected 

small entities. We continue to be 

interested in the potential impacts of the 

proposed rule on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

This proposed rule does not contain 

a Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. This proposed rule would 

clarify applicability of the existing nonnumeric effluent limitations at 40 CFR 

part 450 and provide exemptions to 

some requirements in limited cases. The 

proposed rule would not impose new or 

more stringent requirements, and 

therefore this action would not subject 

regulated entities to any costs 

incremental to the existing rule. Thus, 

this rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

proposed rule would clarify 

applicability of the existing nonnumeric effluent limitations at 40 CFR 

part 450 and provide exemptions to 

some requirements in limited cases. 

These requirements apply to all 

governmental entities that undertake 

construction activities regulated at 40 

CFR 122.26, and therefore do not 

significantly or uniquely affect small 

governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule would clarify applicability of the 

existing non-numeric effluent 

limitations at 40 CFR part 450 and 

provide exemptions to some 

requirements in limited cases. Thus, 

Executive Order 13132 does not apply 

to this action. In the spirit of Executive 

Order 13132, and consistent with EPA 

policy to promote communications 

between EPA and State and local 

governments, EPA specifically solicits 

comment on this proposed action from 

State and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This proposed rule would clarify 

applicability of the existing nonVerDate Mar<15>2010 13:27 Mar 29, 2013 Jkt 229001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\01APP1.SGM 01APP1

sroberts on DSK5SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Proposed Rules 19441 

numeric effluent limitations at 40 CFR 

part 450 and provide exemptions to 

some requirements in limited cases. The 

proposed rule would not impose new or 

more stringent requirements, and 

therefore this action would not subject 

regulated entities to any costs 

incremental to the existing rule. Thus, 

Executive Order 13175 does not apply 

to this action. EPA specifically solicits 

additional comment on this proposed 

action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying to 

those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the Order has the potential to influence 

the regulation. This action is not subject 

to EO 13045 because it is based solely 

on technology performance. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. We have 

concluded that this rule is not likely to 

have any adverse energy effects because 

this action would clarify applicability of 

the existing non-numeric effluent 

limitations at 40 CFR part 450 and 

provide exemptions to some 

requirements in limited cases. These 

clarifications or exemptions are not 

expected to require additional energy 

usage by permittees. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations. 

Executive Order (EO) 12898 (59 FR 

7629, February 16, 1994) establishes 

federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low income 

populations from this proposed rule. 

This proposed rule would clarify 

applicability of the existing nonnumeric effluent limitations at 40 CFR 

part 450 and provide exemptions to 

some requirements in limited cases. 

While EPA considers it unlikely, it is 

possible that the changes to some of 

these requirements could result in 

greater pollution discharge to waters of 

the United States. However, EPA does 

not expect the quantity of pollution 

discharges to significantly increase as a 

result of this proposed rule at the 

national level. Furthermore, the primary 

pollutants discharged by this industry, 

which are sediment and turbidity, are 

present in background levels to varying 

quantities in waters of the United States. 

Therefore, the extent, if any, of changes 

in human health or environmental 

effects as a result of this action would 

depend upon waterbody-specific 

conditions and the locations and 

interaction of populations with those 

waterbodies. Due to the varying nature 

and location of construction site 

discharges, and due to the fact that there 

are often other sources of sediment and 

turbidity pollution in waterbodies, it is 

not practicable to quantify the extent to 

which this action would alter levels of 

pollution discharges or whether any 

change in pollution discharges as a 

result of this action would contribute 

disproportionately high and adverse 

human health or environmental effects 

on minority and/or low income 

populations. 

List of Subjects in 40 CFR Part 450 

Environmental protection, 

Construction industry, Land 

development, Water pollution control. 

Dated: March 20, 2013. 

Bob Perciasepe, 

Acting Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 450—CONSTRUCTION AND 

DEVELOPMENT POINT SOURCE 

CATEGORY 

■ 1. The authority citation for part 450 

is revised to read as follows: 

Authority: 33 U.S.C. 1311, 1312, 1314, 

1316, 1341, 1342, 1361 and 1370. 

Subpart A—General Provisions 

■ 2. Section 450.11 is amended by 

adding paragraph (b) to read as follows: 

§ 450.11 General definitions. 

* * * * * 

(b) Infeasible. Infeasible means not 

technologically possible, or not 

economically practicable and achievable 

in light of best industry practices. 

Subpart B—Construction and 

Development Effluent Guidelines 

■ 3. Section 450.21 is amended by: 

■ a. Revising paragraphs (a)(1), (a)(2), 

(a)(6) and (a)(7). 

■ b. Adding paragraph (a)(8). 

■ c. Revising paragraph (b). 

■ d. Revising paragraph (d)(2). 

§ 450.21 Effluent limitations reflecting the 

best practicable technology currently 

available (BPT). 

* * * * * 

(a) * * * 

(1) Control stormwater volume and 

velocity to minimize soil erosion in 

order to minimize pollutant discharges; 

(2) Control stormwater discharges, 

including both peak flowrates and total 

stormwater volume, to minimize 

channel and streambank erosion in the 

immediate vicinity of discharge points; 

* * * * * 

(6) Provide and maintain natural 

buffers around waters of the United 

States, direct stormwater to vegetated 

areas and maximize stormwater 

infiltration to reduce pollutant 

discharges, unless infeasible; 

(7) Minimize soil compaction. 

Minimizing soil compaction is not 

required where the intended function of 

a specific area of the site dictates that it 

be compacted; and 

(8) Unless infeasible, preserve topsoil. 

Preserving topsoil is not required where 


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19442 Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Proposed Rules 

the intended function of a specific area 

of the site dictates that the topsoil be 

disturbed or removed. 

(b) Soil Stabilization. Stabilization of 

disturbed areas must, at a minimum, be 

initiated immediately whenever any 

clearing, grading, excavating or other 

earth disturbing activities have 

permanently ceased on any portion of 

the site, or temporarily ceased on any 

portion of the site and will not resume 

for a period exceeding 14 calendar days. 

In arid, semiarid, and drought-stricken 

areas where initiating vegetative 

stabilization measures immediately is 

infeasible, alternative stabilization 

measures must be employed as specified 

by the permitting authority. 

Stabilization must be completed within 

a period of time determined by the 

permitting authority. In limited 

circumstances, stabilization may not be 

required if the intended function of a 

specific area of the site necessitates that 

it remain disturbed. 

* * * * * 

(d) * * * 

(2) Minimize the exposure of building 

materials, building products, 

construction wastes, trash, landscape 

materials, fertilizers, pesticides, 

herbicides, detergents, sanitary waste 

and other materials present on the site 

to precipitation and to stormwater. 

Minimization of exposure is not 

required in cases where the exposure to 

precipitation and to stormwater will not 

result in a discharge of pollutants, or 

where exposure of a specific material or 

product poses little risk of stormwater 

contamination (such as final products 

and materials intended for outdoor use); 

and 

* * * * * 

§ 450.22 [Amended] 

■ 4. Section 450.22 is amended by 

removing and reserving paragraphs (a) 

and (b). 

[FR Doc. 2013–07097 Filed 3–29–13; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 20 

[EB Docket No. 08–51; DA 13–430] 

Public Safety and Homeland Security 

Bureau Seeks To Refresh the Record 

Regarding Options for Addressing 

Non-Emergency Calls to 911 From 

Non-Service Initialized Handsets 

AGENCY: Federal Communications 

Commission. 

ACTION: Request for Comments. 

SUMMARY: In this document, the Federal 

Communication Commission’s 

(Commission) Public Safety and 

Homeland Security Bureau (PSHSB) 

seeks to refresh the record regarding the 

nature and extent of fraudulent 911 calls 

made from Non-Service Initialized (NSI) 

devices; concerns with blocking NSI 

devices used to make fraudulent 911 

calls, and suggestions for making this a 

more viable option for carriers; and 

other possible solutions to the problem 

of fraudulent 911 calls from NSI 

devices. 

DATES: Comments are due on or before 

May 16, 2013 and reply comments are 

due on or before May 31, 2013. 

ADDRESSES: You may submit comments, 

identified by PS Docket No. 08–51 by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

• People with Disabilities: Contact the 

Commission to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

U.S. Postal Service first-class, 

Express, and Priority mail should be 

addressed to 445 12th Street SW., 

Washington DC 20554. 

To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an email to 

fcc504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0530 (voice), 202–418–0432 (TTY). 

FOR FURTHER INFORMATION CONTACT: Eric 

Ehrenreich, Policy and Licensing 

Division, Public Safety and Homeland 

Security Bureau, at (202) 418–1726 or 

Eric.Ehrenreich@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Federal Communication 

Commission’s Public Notice in PS 

Docket No. 08–51, DA 13–430, released 

on March 14, 2013. This document is 

available to the public at http:// 

www.fcc.gov/document/pshsb-seeksrefresh-non-emergency-911-calls-nsihandset-record. 

Synopsis of the Public Notice 

1. The Commission’s rules require 

commercial mobile radio service 

(CMRS) providers subject to the 

Commission’s 911 rules to forward all 

wireless 911 calls, including those 

originated from ‘‘non-serviceinitialized’’ (NSI) handsets, to Public 

Safety Answering Points (PSAPs). In 

2008, nine public safety organizations 

and a software development firm 

(Petitioners) filed a petition for notice of 

inquiry to address the problem of 

fraudulent non-emergency 911 calls 

placed to PSAPs from NSI handsets. The 

Commission granted this petition and 

issued a Notice of Inquiry in April 2008 

to enhance its understanding of the 

extent of the problem and to explore 

potential solutions. Specifically, the 

Commission requested comment in 

three areas: (1) The nature and extent of 

fraudulent 911 calls made from NSI 

devices; (2) concerns with blocking NSI 

devices used to make fraudulent 911 

calls, and suggestions for making this a 

more viable option for carriers; and (3) 

other possible solutions to the problem 

of fraudulent 911 calls from NSI 

devices. 

2. In light of the concerns raised by 

Petitioners regarding fraudulent nonemergency 911 calls, one of the options 

on which the Notice of Inquiry (73 FR 

28,116), sought comment was whether 

the Commission should eliminate the 

911 call-forwarding requirement for NSI 

devices. In response, a number of public 

safety commenters advocated for the 

Commission to eliminate the 

requirement. However, other 

commenters, including Petitioners, 

other public safety entities, and 

commercial carriers, took the opposite 

view, arguing that the public had come 

to rely on the fact that NSI devices are 

911-capable and that eliminating the 

call-forwarding requirement could lead 

to tragic results given this public 

reliance. 

3. In a recently filed ex parte, 

however, NENA: The 9–1–1 Association 

(NENA), one of the original Petitioners, 

has revised its earlier-stated position on 

this issue. NENA states that based on its 

‘‘members’ experience since 2008 * * * 

we now can support the reversal of the 

‘all calls’ rule.’’ According to NENA, 

‘‘PSAPs face an ever-growing onslaught 


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