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[Federal Register Volume 78, Number 62 (Monday, April 1, 2013)]
[Proposed Rules]
[Pages 19434-19442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07097]

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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.

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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

[[Page 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:

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                                                                                         North American industry
                    Category                         Examples of regulated entities       classification system
                                                                                               (NAICS) code
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Industry.......................................      Construction activities required to obtain NPDES permit
                                                         coverage and performing the following activities:
                                                ----------------------------------------------------------------
                                                 Construction of buildings, including                        236
                                                  building, developing and general
                                                  contracting.
                                                 Heavy and civil engineering                                 237
                                                  construction, including land
                                                  subdivision.
----------------------------------------------------------------------------------------------------------------

    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;

[[Page 19436]]

     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 polymer-aided 
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 site-
specific 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 Sec.  450.22(a) and 
Sec.  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

[[Page 19437]]

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.

[[Page 19438]]

    (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 up-slope 
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

[[Page 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 cost-effective 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

[[Page 19440]]

should have flexibility to address site-specific 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-for-profit 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 non-
numeric 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 
non-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, 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 non-numeric 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 non-

[[Page 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 non-numeric 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

0
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

0
2. Section 450.11 is amended by adding paragraph (b) to read as 
follows:

Sec.  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

0
3. Section 450.21 is amended by:
0
a. Revising paragraphs (a)(1), (a)(2), (a)(6) and (a)(7).
0
b. Adding paragraph (a)(8).
0
c. Revising paragraph (b).
0
d. Revising paragraph (d)(2).

Sec.  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

[[Page 19442]]

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
* * * * *

Sec.  450.22  [Amended]

0
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
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