[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Notices]
[Pages 12286-12293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4822]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9640-8; EPA-HQ-OW-2010-0782]


Final National Pollutant Discharge Elimination System (NPDES) 
General Permit for Stormwater Discharges from Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit issuance.

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SUMMARY: EPA's Regional Offices are issuing their final 2012 National 
Pollutant Discharge Elimination System general permit for stormwater 
discharges from large and small construction activities. This 
construction general permit includes new requirements that implement 
the technology-based Effluent Limitation Guidelines and New Source 
Performance Standards, which were issued by EPA for the construction 
and development industry on December 1, 2009. The permit also includes 
new water quality-based requirements for construction sites discharging 
stormwater to waters requiring additional pollutant control. EPA is 
issuing this construction general permit for five (5) years, during 
which time the permit will provide coverage to eligible existing and 
new construction projects in all areas of the country where EPA is the 
National Pollutant Discharge Elimination System permitting authority, 
including Idaho, Massachusetts, New Hampshire, and New Mexico, Indian 
Country Lands, Puerto Rico, Washington, DC, and U.S. territories and 
protectorates.

DATES: The permit became effective on February 16, 2012. This effective 
date is necessary to provide dischargers with the immediate opportunity 
to comply with Clean Water Act requirements in light of the expiration 
of the 2008 CGP on February 15, 2012. In accordance with 40 CFR part 
23, this permit shall be considered issued for the purpose of judicial 
review on March 1, 2012. Under section 509(b) of the Clean Water Act, 
judicial review of this general permit can be had by filing a petition 
for review in the United States Court of Appeals within 120 days after 
the permit is considered issued for purposes of judicial review. Under 
section 509(b)(2) of the Clean Water Act, the requirements in this 
permit may not be challenged later in civil or criminal proceedings to 
enforce these requirements. In addition, this permit may not be 
challenged in other agency proceedings. Deadlines for submittal of 
notices of intent are provided in Part 1.4.2 of the permit. This permit 
also provides additional dates for compliance with the terms of these 
permits.

FOR FURTHER INFORMATION CONTACT: For further information on the final 
NPDES general permit, contact the appropriate EPA Regional office 
listed in Section I.G, or you can send an email to <a href="/cdn-cgi/l/email-protection#f5969285b5908594db929a83"><span class="__cf_email__" data-cfemail="86e5e1f6c6e3f6e7a8e1e9f0">[email protected]</span></a>. You may 
also contact Greg Schaner, EPA Headquarters, Office of Water, Office of 
Wastewater Management at tel.: 202-564-0721, Erika Farris, EPA 
Headquarters, Office of Water, Office of Wastewater Management at tel.: 
202-564-7548, or Jeremy Bauer, EPA Headquarters, Office of Water, 
Office of Wastewater Management at tel: 202-564-2775.

[[Page 12287]]


SUPPLEMENTARY INFORMATION: This supplementary information is organized 
as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of these documents and other related 
information?
    C. Who are the EPA regional contacts for this final permit?
II. Background of Permit
    A. Statutory and Regulatory History
    B. Stay of the C&D Rule Numeric Limit and Implications for this 
Permit
III. Summary of the Final CGP
    A. Non-Numeric C&D Rule Requirements
    B. Numeric C&D Rule Requirements
    C. Water Quality-Based Effluent Limits
    D. Summary of Significant Changes from the 2008 CGP
    E. Construction Projects Eligible for Permit Coverage
    F. Geographic Coverage
IV. Implementation Assistance
V. National Environmental Review Act (NEPA)
VI. Executive Orders 12866 and 13563
VII. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations
VIII. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
IX. Analysis of Economic Impacts

I. General Information

A. Does this action apply to me?

    The final 2012 construction general permit (also referred to as 
``CGP'' or ``2012 CGP'') applies to the following construction 
activities:

                             Table 1--Entities Potentially Regulated by this Permit
----------------------------------------------------------------------------------------------------------------
                                                                                         North American Industry
                    Category                          Examples of Affected Entities       Classification System
                                                                                               (NAICS) Code
----------------------------------------------------------------------------------------------------------------
Industry.......................................  Construction site operators disturbing 1 or more acres of land,
                                                  or less than 1 acre but part of a larger common plan of
                                                  development or sale if the larger common plan will ultimately
                                                  disturb 1 acre or more, and performing the following
                                                  activities:
                                                ----------------------------------------------------------------
                                                 Construction of Buildings.............                      236
                                                 Heavy and Civil Engineering                                 237
                                                  Construction.
----------------------------------------------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your facility is regulated by this action, you 
should carefully examine the definition of ``construction activity'' 
and ``small construction activity'' in existing EPA regulations at 40 
CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have 
questions regarding the applicability of this action to a particular 
entity, consult one of the persons listed for technical information in 
the preceding FOR FURTHER INFORMATION CONTACT section.
    Coverage under this permit is available to operators of eligible 
projects located in those areas where EPA is the permitting authority 
and has opted to make this general permit available for use. A list of 
eligible areas is included in Appendix B of the final CGP. Eligibility 
for coverage under the 2012 CGP is limited to operators of stormwater 
discharges from ``new projects'', ``existing projects'', and ``new 
operators of a new or existing project''. A ``new project'' is a 
construction project that commenced or will commence construction 
activities on or after February 16, 2012. An ``existing project'' is a 
construction project that commenced construction prior to February 16, 
2012. A ``new operator of a new or existing project'' is an operator 
that replaces an existing operator on a construction project through 
transfer or ownership and/or operation. EPA notes that the permit also 
provides coverage for ``emergency-related projects'', which are 
construction projects that are carried out in response to a public 
emergency, and that require immediate authorization to avoid imminent 
endangerment to human health or the environment, or to reestablish 
essential public services.

B. How can I get copies of these documents and other related 
information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2010-0782. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Although all documents in the docket are listed in an index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available in hard 
copy at the EPA Docket Center Public Reading Room, open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744 and the 
telephone number for the Water Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the United States government on-line source for 
Federal regulations at http://www.regulations.gov.
    Electronic versions of this final permit and fact sheet are 
available on EPA's NPDES Web site at http://www.epa.gov/npdes/stormwater/cgp.
    An electronic version of the public docket is available through the 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. For additional information about EPA's 
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the Docket Facility identified in Section 
I.B.1.

C. Who are the EPA regional contacts for this final permit?

    For EPA Region 1, contact Newton Tedder at tel.: (617) 918-1038 or 
email at <a href="/cdn-cgi/l/email-protection#cabeafaeaeafb8e4a4afbdbea5a48aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="1c68797878796e3272796b6873725c796c7d327b736a">[email protected]</span></a>.
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or email at <a href="/cdn-cgi/l/email-protection#a9dfccc7ccd3c0c887daddccd9c1ccc7e9ccd9c887cec6df"><span class="__cf_email__" data-cfemail="06706368637c6f6728757263766e63684663766728616970">[email protected]</span></a>, or for Puerto Rico, contact Sergio 
Bosques at tel.: (787) 977-5838 or email at <a href="/cdn-cgi/l/email-protection#3d5f524e4c48584e134e584f5a54527d584d5c135a524b"><span class="__cf_email__" data-cfemail="90f2ffe3e1e5f5e3bee3f5e2f7f9ffd0f5e0f1bef7ffe6">[email protected]</span></a>.

[[Page 12288]]

    For EPA Region 3, contact Chuck Schadel at tel.: (215) 814-5761 or 
email at <a href="/cdn-cgi/l/email-protection#a8dbcbc0c9cccdc486cbc0ddcbc3e8cdd8c986cfc7de"><span class="__cf_email__" data-cfemail="a8dbcbc0c9cccdc486cbc0ddcbc3e8cdd8c986cfc7de">[email protected]</span></a>.
    For EPA Region 4, contact Michael Mitchell at tel.: (404) 562-9303 
or email at <a href="/cdn-cgi/l/email-protection#aec3c7dacdc6cbc2c280c3c7cdc6cfcbc2eecbdecf80c9c1d8"><span class="__cf_email__" data-cfemail="9cf1f5e8fff4f9f0f0b2f1f5fff4fdf9f0dcf9ecfdb2fbf3ea">[email protected]</span></a>.
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or 
email at <a href="/cdn-cgi/l/email-protection#dcbeb9b0b0f2beaeb5bdb2bf9cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="2143444d4d0f435348404f42614451400f464e57">[email protected]</span></a>.
    For EPA Region 6, contact Suzanna Perea at tel.: (214) 665-7217 or 
email at <a href="/cdn-cgi/l/email-protection#dcacb9aeb9bdf2afa9a6bdb2b2bd9cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="d4a4b1a6b1b5faa7a1aeb5babab594b1a4b5fab3bba2">[email protected]</span></a>.
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
email at <a href="/cdn-cgi/l/email-protection#fd909c898995988a8ed3909c8f96bd988d9cd39a928b"><span class="__cf_email__" data-cfemail="107d716464787567633e7d71627b507560713e777f66">[email protected]</span></a>.
    For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or 
email at <a href="/cdn-cgi/l/email-protection#93f7f2e5fae0bdf4e1f6f4fce1ead3f6e3f2bdf4fce5"><span class="__cf_email__" data-cfemail="d7b3b6a1bea4f9b0a5b2b0b8a5ae97b2a7b6f9b0b8a1">[email protected]</span></a>.
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
email at <a href="/cdn-cgi/l/email-protection#b1d3c3dedcddd4c89fd4c4d6d4dfd4f1d4c1d09fd6dec7"><span class="__cf_email__" data-cfemail="f597879a9899908cdb908092909b90b5908594db929a83">[email protected]</span></a>.
    For EPA Region 10, contact Margaret McCauley at tel.: (206) 553-
1772 or email at <a href="/cdn-cgi/l/email-protection#c4a9a7a7a5b1a8a1bdeaa9a5b6a3a5b6a1b084a1b4a5eaa3abb2"><span class="__cf_email__" data-cfemail="fb9698989a8e979e82d5969a899c9a899e8fbb9e8b9ad59c948d">[email protected]</span></a>.

II. Background of Permit

A. Statutory and Regulatory History

    The Clean Water Act (``CWA'') establishes a comprehensive program 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The CWA also 
includes the objective of attaining ``water quality which provides for 
the protection and propagation of fish, shellfish and wildlife and * * 
* recreation in and on the water.'' 33 U.S.C. 1251(a)(2)). To achieve 
these goals, the CWA requires EPA to control discharges of pollutants 
from point sources through the issuance of National Pollutant Discharge 
Elimination System (``NPDES'') permits.
    The Water Quality Act of 1987 (WQA) added section 402(p) to the 
Clean Water Act (CWA), which directed EPA to develop a phased approach 
to regulate stormwater discharges under the NPDES program. 33 U.S.C. 
1342(p). EPA published a final regulation in the Federal Register, 
often called the ``Phase I Rule'', on November 16, 1990, establishing 
permit application requirements for, among other things, ``storm water 
discharges associated with industrial activity.'' See 55 FR 47990. EPA 
defines the term ``storm water discharge associated with industrial 
activity'' in a comprehensive manner to cover a wide variety of 
facilities. See id. Construction activities, including activities that 
are part of a larger common plan of development or sale, that 
ultimately disturb at least five acres of land and have point source 
discharges to waters of the U.S. were included in the definition of 
``industrial activity'' pursuant to 40 CFR 122.26(b)(14)(x). The second 
rule implementing section 402(p), often called the Phase II Rule, was 
published in the Federal Register on December 8, 1999. It requires 
NPDES permits for discharges from construction sites disturbing at 
least one acre but less than five acres, including sites that are part 
of a larger common plan of development or sale that will ultimately 
disturb at least one acre but less than five acres, pursuant to 40 CFR 
122.26(b)(15)(i). See 64 FR 68722. EPA is proposing to issue this final 
CGP under the statutory and regulatory authority cited above.
    NPDES permits issued for construction stormwater discharges are 
required under Section 402(a)(1) of the CWA to include conditions to 
meet technology-based effluent limits established under Section 301 
and, where applicable, Section 306. Effluent limitations guidelines 
(ELGs) and New Source Performance Standards (NSPS) are technology-based 
effluent limitations that are based on the degree of control that can 
be achieved using various levels of pollutant control technology as 
defined in Subchapter III of the CWA.
    Once a new national standard is established in accordance with 
these sections, NPDES permits must incorporate limits based on such 
technology-based standards. See CWA sections 301 and 306, 33 U.S.C. 
1311 and 1316, and 40 CFR 122.44(a)(1). Prior to the issuance of such 
national standards, permitting authorities are required to incorporate 
technology-based limits on a best professional judgment basis. CWA 
section 402(a)(1); 40 CFR 125.3(a)(2)(ii)(B). On December 1, 2009, EPA 
published final regulations establishing technology-based Effluent 
Limitations Guidelines (ELGs) and New Source Performance Standards 
(NSPS) for the Construction & Development (C&D) point source category. 
See 40 CFR Part 450, and 74 FR 62996 (December 1, 2009). The 
Construction & Development Rule, or ``C&D rule'', became effective on 
February 1, 2010; therefore, all NPDES construction permits issued by 
EPA or states after this date must incorporate the C&D rule 
requirements. Because EPA will be issuing its new CGP after the 
effective date of the C&D rule, the Agency is required by the CWA and 
40 CFR 122.44(a)(1) to incorporate into its new CGP all applicable C&D 
rule requirements.

B. Stay of the C&D Rule Numeric Limit and Implications for this Permit

    The C&D rule was finalized on December 1, 2009, and included non-
numeric requirements for erosion and sediment control, stabilization, 
and pollution prevention (see 40 CFR 450.21(a) thru (f)), and, for the 
first time, a numeric limitation on the discharge of turbidity from 
active construction sites (see 40 CFR 450.22). Since its promulgation, 
EPA discovered that the data used to calculate the numeric limit for 
turbidity were misinterpreted, and that it was necessary to recalculate 
the numeric limit.
    On August 12, 2010, EPA filed a motion with the U.S. Court of 
Appeals for the Seventh Circuit, requesting the Court issue an order 
vacating and remanding to the Agency limited portions of the final C&D 
rule, specifically the numeric turbidity limit. To address the specific 
issues raised by petitioners, the motion also provided that EPA:
    <bullet> ``May address (and if necessary take further regulatory 
action on) certain impacts of the final rule specific to linear gas and 
electricity utility projects.''
    <bullet> Will ``solicit site specific information regarding the 
applicability of a numeric limit'' to cold weather sites and to small 
sites that are part of a larger plan of development that is subject to 
the numeric limit.
    On August 24, 2010, the U.S. Court of Appeals for the Seventh 
Circuit remanded the matter to EPA but did not vacate the numeric 
limit. On September 9, 2010, the National Association of Home Builders 
(NAHB) filed a motion for clarification (which EPA did not oppose) 
asking the Court to (1) vacate the limit and (2) hold the case in 
abeyance instead of remanding the matter to EPA. On September 20, 2010, 
the Court granted the motion in part by ruling to hold the matter in 
abeyance pending EPA consideration of the numeric limit and the other 
remand issues, but the Court did not vacate the numeric limit. Instead, 
the Court stated that ``EPA may make any changes to the limit it deems 
appropriate, as authorized by law.''
    On November 5, 2010, EPA issued a direct final regulation and a 
companion proposed regulation to stay the numeric limitation at 40 CFR 
450.22 indefinitely. The stay took effect on January 4, 2011, resulting 
in an indefinite postponement of the implementation of the 280 NTU 
limit. Since the numeric portion of the rule was stayed, EPA and the 
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). However, the remainder of the regulation is still in 
effect and must be incorporated into newly issued permits.
    EPA notes that it published a Federal Register notice on January 3, 
2012

[[Page 12289]]

requesting additional data on the performance of technologies in 
controlling turbidity in stormwater discharges from construction sites. 
The notice also requests information on other topics relevant to 
establishing numeric effluent limitations for stormwater discharges 
from these sites, including sample collection, applicability to linear 
electric transmission line construction, cold weather considerations, 
and the ability of small sites to meet a numeric standard. See 77 FR 
112 (January 3, 2012).
    The final CGP is directly affected by the stay in that, due to the 
stay, the permit does not need to include the numeric turbidity limit. 
When EPA issued the draft permit for public comment, the Agency was 
uncertain whether its work to complete the recalculation of the numeric 
turbidity limit would be completed in time to incorporate into the 
final permit. To be able to implement the yet-to-be promulgated 
turbidity limit in the final permit, EPA included in the draft permit a 
placeholder for the effluent limit, as well as proposed implementation 
requirements such as turbidity monitoring and reporting protocols. 
Because EPA is still in the process of collecting data to support the 
recalculation of the numeric turbidity limit, and therefore a final 
numeric turbidity limit is not yet available to implement, the Agency 
has finalized the CGP without the numeric limit and related monitoring 
and reporting requirements. EPA has, however, implemented the remaining 
portion of the C&D rule that was not affected by the stay of the 
numeric limit.

III. Summary of the Final CGP

    Today's final permit includes new requirements that implement the 
portions of the effluent limitations guidelines and new source 
performance standards in the C&D rule that are unaffected by the stay 
of the numeric turbidity limit. Under these rules, site operators are 
required to install and implement stormwater measures to accomplish 
erosion and sediment control, pollution prevention, and stabilization. 
For sites that discharge to waters where additional controls are 
necessary to ensure compliance with applicable water quality standards, 
the final permit includes new water quality-based effluent limits. This 
section summarizes the C&D rule requirements upon which the permit's 
technology-based requirements are based, and highlights the significant 
new permit provisions included in the final permit.

A. Non-Numeric C&D Rule Requirements

    The non-numeric effluent limitations in the C&D rule are designed 
to prevent the mobilization and discharge of sediment and sediment-
bound pollutants, such as nutrients, and to prevent or minimize 
exposure of stormwater to construction materials, debris, and other 
sources of pollutants on construction sites. In addition, these non-
numeric effluent limitations limit the generation of dissolved 
pollutants. For background, soil on construction sites can contain a 
variety of pollutants such as nutrients, organics, pesticides, 
herbicides, and metals. These pollutants may be present naturally in 
the soil, such as arsenic or selenium, or they may have been 
contributed by previous activities on the site, such as agriculture or 
industrial activities. These pollutants, once mobilized by stormwater, 
can detach from the soil particles and become dissolved pollutants. 
Once dissolved, these pollutants would not be removed by down-slope 
sediment controls. Source control through minimization of soil erosion 
is therefore the most effective way of controlling the discharge of 
these pollutants.
    The non-numeric effluent limits in the C&D rule, upon which the 
technology-based requirements in the final CGP are based, include the 
following:
    <bullet> Erosion and Sediment Controls: Permittees are required to 
design, install, and maintain effective erosion and sediment controls 
to minimize the discharge of pollutants. At a minimum, such controls 
must be designed, installed, and maintained to:
    1. Control stormwater volume and velocity within the site to 
minimize soil erosion;
    2. Control stormwater discharges, including both peak flowrates and 
total stormwater volume, to minimize erosion at outlets and to minimize 
downstream channel and streambank erosion;
    3. Minimize the amount of soil exposed during construction 
activity;
    4. Minimize the disturbance of steep slopes;
    5. Minimize sediment discharges from the site. The design, 
installation and maintenance of erosion and sediment controls must 
address factors such as the amount, frequency, intensity, and duration 
of precipitation, the nature of resulting stormwater runoff, and soil 
characteristics, including the range of soil particle sizes expected to 
be present on the site;
    6. Provide and maintain natural buffers around surface waters, 
direct stormwater to vegetated areas to increase sediment removal, and 
maximize stormwater infiltration, unless infeasible; and
    7. Minimize soil compaction and, unless infeasible, preserve 
topsoil.
    <bullet> Soil Stabilization Requirements: Permittees are required 
to, at a minimum, initiate soil stabilization measures 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 and vegetative stabilization 
measures must be initiated as soon as practicable.
    <bullet> Dewatering Requirements: Permittees are required to 
minimize the discharge of pollutants from dewatering trenches and 
excavations. Discharges are prohibited unless managed by appropriate 
controls.
    <bullet> Pollution Prevention Measures: Permittees are required to 
design, install, implement, and maintain effective pollution prevention 
measures to minimize the discharge of pollutants. At a minimum, such 
measures must be designed, installed, implemented and maintained to:
    1. Minimize the discharge of pollutants from equipment and vehicle 
washing, wheel wash water, and other wash waters. Wash waters must be 
treated in a sediment basin or an alternative control that provides 
equivalent or better treatment prior to discharge;
    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; and
    3. Minimize the discharge of pollutants from spills and leaks and 
implement chemical spill and leak prevention and response procedures.
    <bullet> Prohibited Discharges: The following discharges from 
regulated construction sites are prohibited:
    1. Wastewater from washout of concrete, unless managed by an 
appropriate control;
    2. Wastewater from washout and cleanout of stucco, paint, form 
release oils, curing compounds, and other construction materials;

[[Page 12290]]

    3. Fuels, oils, or other pollutants used in vehicle and equipment 
operation and maintenance; and
    4. Soaps or solvents used in vehicle and equipment washing.
    <bullet> Surface Outlets: When discharging from basins and 
impoundments, permittees are required to utilize outlet structures that 
withdraw water from the surface, unless infeasible.
    When EPA was writing the C&D rule's final non-numeric effluent 
limits listed above, the Agency intended to provide discretion to 
permitting authorities to determine how best to implement these 
provisions with respect to requiring controls and measures appropriate 
for the conditions in their permitted areas. For example, the preamble 
to the C&D rule explains that ``EPA purposefully drafted the non-
numeric effluent limitations to allow for flexibility in how the 
permitting authority implements the requirement in NPDES permits.'' See 
74 FR 63016. As the permitting authority responsible for issuing 
stormwater permits for construction activities in four states, Indian 
Country, construction by Federal Operators, Washington, DC, and U.S. 
territories/protectorates, EPA believes that it is important in this 
final permit to include requirements that more specifically define what 
EPA believes are appropriate to implement each of the C&D rule's non-
numeric limits. Accordingly, in translating the C&D rule requirements 
into the final CGP, EPA added specificity to many of the C&D rule 
provisions that it believed would benefit from further definition, such 
as the requirements to ``provide and maintain natural buffers'' and to 
``minimize soil compaction'', among others.

B. Numeric C&D Rule Requirements

    As stated above in Section II.B, the numeric turbidity limit 
portion of the C&D rule has been indefinitely stayed. Because a 
recalculated numeric limit has not yet been promulgated, this permit 
does not include a technology-based numeric turbidity limit, nor does 
it include related monitoring and reporting requirements that would 
implement such a limit.

C. Water Quality-Based Effluent Limits

    Because the C&D rule requirements are technology-based, they do not 
account for the level of pollutant control that may be necessary in a 
specific area to meet applicable water quality standards. CWA Section 
301(b)(1)(C) and EPA's regulations at 40 CFR 122.44(d)(1) require 
permitting authorities to include additional or more stringent permit 
requirements when necessary to achieve water quality standards. With 
this requirement in mind, the final CGP includes additional 
requirements that apply to those sites that discharge to waters 
impaired for sediment, sediment-related parameters, or nutrients, 
including nitrogen and phosphorus, which are parameters typically 
associated with stormwater discharges from construction sites, and to 
those sites that discharge to waters requiring enhanced protection 
under a state or tribe's antidegradation requirements. To assist 
construction operators in determining if their site discharges to an 
impaired water, EPA has developed and made available an Internet-based 
tool, which links watershed-based geographical mapping information with 
state and tribal lists of impaired waters. The mapping tool can be 
accessed through the eNOI system at http://cfpub.epa.gov/npdes/stormwater/enoi.cfm.

D. Summary of Significant Changes from the 2008 CGP

    The final permit includes a number of new or modified requirements, 
many of which are related to the implementation of the new C&D rule 
effluent limits, and thus differ from the 2008 CGP. The following list 
summarizes the changes to the CGP:
    1. Structure/Appearance of Permit: EPA attempted to restructure its 
CGP so that it would be better organized to present requirements in a 
generally more readable manner. It is EPA's hope that this structure 
will enhance the permittees' understanding of and compliance with the 
permit's requirements. For instance, the permit's stormwater control 
requirements are organized into distinct and related categories, such 
as erosion and sediment control requirements, stabilization 
requirements, and pollution prevention requirements.
    2. Eligibility for Emergency-Related Construction: EPA provides 
immediate authorization for construction activities required for 
response to public emergencies (e.g., natural disaster such as a 
tornado or hurricane, widespread disruption in essential public 
services). Immediate authorization will enable work that is necessary 
to avoid imminent endangerment to human health or the environment, or 
to reestablish essential public services, to proceed without 
administrative delay. The construction operator must submit an NOI and 
develop a stormwater pollution prevention plan (SWPPP) within 30 
calendar days after commencing earth-disturbing activities, whereas 
typically operators must submit NOIs 14 days prior to commencing earth-
disturbing activities.
    3. Eligibility for Use of Treatment Chemicals: EPA authorizes the 
use of polymers, flocculants, or other treatment chemicals at sites 
provided operators using treatment chemicals comply with the 
requirements in Part 2.1.3.3 of the permit. The use of cationic 
treatment chemicals is not eligible for permit coverage unless the 
applicable EPA Regional Office specifically approves its use together 
with any additional controls necessary to ensure that the use of such 
chemicals does not result in an exceedance of applicable water quality 
standards.
    4. Endangered Species and Historic Properties Requirements: 
Construction operators are required to follow the procedures for 
determining eligibility related to the protection of listed endangered 
or threatened species and their critical habitat and to the 
consideration of impacts to historic properties. See Appendices D and 
E, respectively.
    5. Authorization Process/NOIs: EPA has increased the ``waiting 
period'' from 7 days to 14 days for construction site operators seeking 
coverage under this permit. This new 14-day timeframe is intended to 
better reflect the endangered species-related reviews that must take 
place prior to authorization. EPA also is hoping to maximize the use of 
its electronic NOI, or eNOI, process for authorizing construction 
discharges by requiring that construction operators seek coverage using 
the eNOI system. A ``paper NOI'' will still be allowed, but prior 
approval by the applicable EPA Region is necessary.
    6. Sediment and Erosion Controls: The final permit includes 
specific requirements that implement the C&D rule's sediment and 
erosion control limits. While some of these requirements are already 
included in the 2008 CGP, the final permit includes more detail and 
additional requirements in order to more closely track the language and 
organization of the C&D rule. The following is a list of requirements 
that can be considered significant modifications to the 2008 CGP:
    i. Installation of Sediment Controls Prior to Construction--By the 
time earth-disturbing activities in any given portion of the site have 
begun, operators must install and make operational any downgradient 
sediment controls for the initial site clearing, grading, excavating, 
and other land-disturbing activities, unless infeasible. Following the 
installation of these initial controls, all other stormwater controls 
described in

[[Page 12291]]

the SWPPP must be installed and made operational as soon as conditions 
allow.
    ii. General Maintenance Requirements--The final permit includes 
requirements for initiating work to fix problems on the same day that 
they are found and completing such work by the close of the next work 
day if the problem does not require significant repair or replacement, 
or if the problem can be corrected through routine maintenance.
    iii. Buffer Compliance Alternatives--To implement the C&D rule 
requirement to provide and maintain natural buffers around surface 
waters, unless infeasible, sites must ensure that any discharges 
flowing through the area between the disturbed portions of the property 
and any surface waters located within 50 feet of the property on which 
the construction activities will occur are treated by an area of 
undisturbed natural vegetation and/or additional erosion and sediment 
controls to achieve a reduction in sediment loads equivalent to that 
achieved by 50 feet of undisturbed natural vegetation. Certain 
exemptions to this requirement based on feasibility considerations are 
also provided. Appendix G of the final permit has been added to provide 
guidance to operators in complying with this requirement.
    iv. Perimeter Controls--Operators are required to install sediment 
controls along those perimeter areas of the site that will receive 
stormwater from earth-disturbing activities.
    v. Exit Points--Operators are required to minimize track-out of 
sediment onto streets and other paved areas from vehicles exiting the 
construction site. To comply with this requirement, the operator must 
(1) restrict vehicle use to properly designated exit points, (2) use 
appropriate stabilization techniques and other controls, as necessary, 
at all points that exist onto paved roads, (3) where necessary, use 
additional controls to remove sediment from vehicle tires prior to exit 
and (4) remove tracked-out sediment from paved surfaces by the end of 
the work day in which the track out occurs or by the end of the next 
work day if track-out occurs on a non-work day.
    vi. Storm Drain Inlets--Controls must be installed and maintained 
to remove sediment from the discharge prior to entry into any storm 
drain inlets that carry stormwater flow directly from the site to a 
surface water and that are accessible to the operator.
    vii. Dewatering Practices--Specific controls and discharge 
restrictions apply to sites that will discharge ground water or 
accumulated stormwater removed from excavations, trenches, foundations, 
vaults, or other similar points of accumulation.
    5. Stabilization Requirements: The permit includes modified 
stabilization requirements that define more specifically what EPA 
requires for temporary and final stabilization.
    6. Pollution Prevention: Beyond adopting the specific C&D rule 
requirements for pollution prevention and the prohibition of certain 
discharges, the final permit includes specific control requirements 
that ensure pollutant discharges are eliminated or minimized, depending 
on the source. The pollution prevention requirements restrict the 
discharge of a wide range of construction-related chemicals and 
materials, including fertilizers, at construction sites.
    7. Water Quality-Based Effluent Limits: In addition to general 
requirements that protect water quality in all receiving waters, the 
final permit includes specific requirements that apply to sites 
discharging to waters impaired for common pollutants associated with 
construction activities, such as sediment and nutrients, and to sites 
discharging to high quality waters. For such sites, construction 
activities are subject to additional requirements, including tighter 
stabilization deadlines (complete stabilization within 7 calendar days 
of the temporary or permanent cessation of construction activities) and 
more frequent site inspections. The permit also includes additional 
requirements for waters identified as Tier 2, Tier 2.5, or Tier 3 for 
antidegradation purposes.
    8. Site Inspections: The frequency of inspections generally is 
increased relative to the 2008 CGP. EPA believes that inspections are a 
cost-effective means of ensuring that controls are operating properly 
and thus protecting water quality. The storm event size that triggers 
site inspections for those using a storm-based schedule is also 
decreased from a 0.5 inch storm event to a 0.25 inch storm event. EPA 
has found that most storm events of 0.25 inches or greater do lead to 
discharges, so that inspection is warranted if the operator is using a 
storm-based inspection schedule. For multi-day storms, EPA has also 
clarified that an inspection is required both after the first day of 
the event and after the end of the event. As in the 2008 CGP, operators 
may also choose a fixed inspections schedule that is not storm 
dependent. EPA makes explicit the requirement for permittees to 
visually assess the quality of the discharge (e.g., color, odor, 
floating, settled, or suspended solids) if the site inspection occurs 
during a discharge-generating rain event.
    9. Corrective Actions: Although the 2008 CGP required corrective 
action, it did not include specific requirements instructing the 
permittee as to what conditions trigger specific corrective actions and 
what deadlines apply. The final permit includes specific triggering 
conditions for corrective action as well as deadlines to fix such 
problems and document what was done.
    10. Stormwater Pollution Prevention Plan (SWPPP): The SWPPP 
requirements are modified in accordance with the changes discussed 
above. In general, the requirements are more specific than, but 
consistent with the 2008 CGP.
    11. Notice of Termination: EPA includes additional requirements 
that affect when a site may terminate coverage under the CGP. For 
instance, beyond enabling sites to terminate coverage when earth-
disturbing activities have stopped and the site is stabilized, the 
permit requires the removal of all temporary stormwater controls and 
construction materials, waste, and waste handling devices.

E. Construction Projects Eligible for Permit Coverage

    This final permit provides coverage to eligible operators of ``new 
projects'', ``existing projects'', and ``new operators of existing or 
new projects.'' Operators of new projects must submit a Notice of 
Intent (NOI) to EPA 14 days prior to commencing earth-disturbing 
activities to obtain coverage under this permit. The exception is for 
operators of emergency-related projects, which may commence 
construction activities immediately provided they submit an NOI within 
30 days of commencing such activities. For existing projects, although 
the existing 2008 CGP has expired, operators are authorized under the 
expired permit until they are provided coverage under today's permit, 
in accordance with EPA's regulations at 40 CFR 122.6. A similar 
approach also applies to new projects that commence construction on or 
after February 16, 2012, but no later than March 1, 2012. Within 90 
days of the issuance of this final permit, operators of existing 
projects must complete an NOI for coverage under the new permit. If a 
permitted operator is transferring control of a construction project to 
a new operator, the new operator must submit an NOI 14 days prior to 
the date of transfer.

F. Geographic Coverage

    This permit provides coverage for stormwater discharges from 
construction activities that occur in areas where EPA is the permitting

[[Page 12292]]

authority. The areas of geographic coverage of this permit are listed 
in Appendix B, and include the states of New Hampshire, Massachusetts, 
New Mexico, and Idaho as well as all Indian Country lands, and 
construction by Federal Operators in selected states. Permit coverage 
is also provided in Puerto Rico, the District of Columbia, and the 
Pacific Island territories. The only changes to the 2008 CGP's area of 
coverage is that Indian Country lands in Region 4 are now added to the 
final permit's area of coverage, and due to a phased delegation of the 
NPDES program to the state of Alaska starting in late 2008, EPA now 
retains NPDES permitting authority only for discharges occurring within 
the Denali National Park and Preserve, and in Indian Country located 
within the state of Alaska.
    In addition, because certifications required by Section 401 of the 
Clean Water Act, and for a few states certifications required by the 
Coastal Zone Management Act, were not received in time, new and 
existing construction projects in the following areas are not yet 
eligible for coverage under this permit:
    <bullet> The State of Idaho;
    <bullet> Construction in the State of Washington by Federal 
Operators;
    <bullet> The Fond Du Lac Band and Grand Portage Band of Lake 
Superior Chippewa in Minnesota; and
    <bullet> Bad River, Lac Du Flambeau, and Sokaogon Chippewa (Mole 
Lake) Community in Wisconsin.
    EPA will announce the availability of coverage under the CGP for 
these areas in separate Federal Register notice(s) as soon as possible 
after the certifications are completed. In the meantime, operators of 
new construction projects in these areas may apply for coverage with 
their EPA Regional Office under an individual NPDES permit. For 
operators of existing projects that are currently covered under either 
the 2003 or 2008 CGPs, their coverage will continue under those 
permits. If the project will continue after the date that the 2012 CGP 
becomes available in the applicable area, the operator will be given 90 
days to file an NOI for coverage under this permit.

IV. Webcasts, Guidance, and Other Implementation Assistance

    Following issuance of this permit, EPA plans to provide further 
assistance to construction operators, state permitting authorities, and 
other interested parties on various aspects of this new permit. The 
following activities or documents are already planned:
    <bullet> National Webcast: EPA will host a webcast on March 15, 
2012 that will provide an overview of the new permit and an opportunity 
for participants to ask questions. EPA anticipates that more webcasts 
will be offered covering the same material or more specific aspects of 
the permit. The Agency will announce any future webcasts on the CGP Web 
site at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.
    <bullet> SWPPP Template, SWPPP Guide and Sample SWPPPs: EPA has 
provided an updated SWPPP Template that can be used by construction 
operators to put together their site-specific SWPPP document. The SWPPP 
Template, which is available at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm, has been updated to include the new requirements of the 2012 
CGP. EPA is also in the process of updating its SWPPP guide, Developing 
Your Stormwater Pollution Prevention Plan: A Guide for Construction 
Sites. While EPA plans to make the updated SWPPP guide available in the 
next few months, construction operators may still find the guide useful 
as an overall planning document and for specific components of the 
SWPPP, to the extent that they are consistent with the new permit's 
requirements. Additionally, EPA also plans to provide in the near 
future updated, sample SWPPPs, which will illustrate examples of what 
the Agency believes to be documents that comply with the Part 7 SWPPP 
requirements of the new permit.
    <bullet> Inspection Report Template: EPA will also be providing an 
updated template form that can be used by construction operators to 
document inspections completed pursuant to the new permit's 
requirements in Part 4.
    EPA will consider additional outreach to support the new permit 
based on the level of interest and demand.

V. National Environmental Policy Act (NEPA)

    Pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321-4307h), the Council on Environmental Quality's NEPA regulations 
(40 CFR part 15), and EPA's regulations for implementing NEPA (40 CFR 
part 6), EPA has prepared an Environmental Assessment (EA) that 
analyzed the potential environmental impacts of issuing the new CGP. 
The EA considered the potential environmental impacts from the 
discharge of pollutants in stormwater discharges associated with 
construction activity where EPA is the permitting authority. The 
environmental review process, which is documented by the EA, indicated 
that no significant environmental impacts are anticipated from the 
issuance of the new CGP. The EA was posted on the docket for this 
permit at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2010-
0782-0173 for public review and comment. Accordingly after evaluating 
comments received on the EA, EPA issued a Finding of No Significant 
Impact (FONSI) to document this determination.
    For further information regarding NEPA contact: Jessica Trice, NEPA 
Compliance Division, Office of Federal Activities, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW., Mail Code: 2252A, 
Washington, DC 20460. Telephone: (202) 564-6646.

VI. Executive Orders 12866 and 13563

    Under Executive Order (EO) 12866 (58 FR 51735 (October 4, 1993)) 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

[[Page 12293]]

VII. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 determined that this permit will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The provisions in this permit include new 
requirements for erosion and sediment control and pollution prevention, 
and result in an increase in the level of environmental protection. For 
sites covered under the new permit, the requirements in this permit 
apply equally to all construction projects that disturb one or more 
acres in areas where EPA is the permitting authority, and therefore do 
not disproportionately and adversely affect minority or low-income 
populations.

VIII. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    In compliance with Executive Order 13175, EPA has consulted with 
tribal officials to gain an understanding of and, where necessary, to 
address the tribal implications of the final CGP. In the course of this 
consultation, EPA undertook the following activities:
    <bullet> December 15, 2010--EPA presented an overview of the 
current CGP and the requirements in the C&D rule to the National Tribal 
Water Council. The presentation was posted on the Council's portal Web 
site at http://www.epa.gov/tp/consultation/calendar-arch.htm.
    <bullet> March 16, 2011--EPA presented additional information to 
the Council related to the CGP and the C&D rule requirements that would 
be incorporated into the proposed permit. This presentation, as well as 
a document providing written answers to questions, was posted on the 
Council's portal Web site at http://www.epa.gov/tp/pdf/meeting-qa-031611.pdf.
    <bullet> April 26, 2011--EPA provided email notification to Tribes 
of the April 25, 2011 proposal of the draft CGP, and invited those 
interested to provide the Agency with comments. EPA notes that during 
the public comment period on the proposed CGP, EPA received written 
comments from one tribe. The tribe provided specific comments 
requesting modifications or clarification for provisions in several 
permit sections, including erosion and sediment control, pollution 
prevention, water quality-based requirements, inspections, corrective 
action, and permit termination. EPA addressed many of the tribe's 
concerns in the final permit, and responded to each of the tribe's 
comments in the Response to Comment Document located in the docket.
    <bullet> January 19, 2012--EPA provided an overview to Tribal 
Historic Preservation Officials (THPOs) of the screening process to be 
used in the new permit for determining whether stormwater control 
activities authorized under the permit could affect historic 
properties.
    EPA also notes that as part of the finalization of this permit it 
has completed Section 401 certification procedures with all applicable 
tribes where this permit will apply (see Appendix B), with the 
exception of tribes in Region 5, which, as noted above, are still in 
the process of completing such certification.

IX. Analysis of Economic Impacts

    EPA expects the economic impact on entities covered under this 
permit, including small businesses, to be minimal. A copy of EPA's 
economic analysis, titled, ``Economic Analysis: Cost Implications of 
the 2012 CGP'' is available in the docket for this permit. The economic 
impact analysis indicates that while there will be some incremental 
increase in the costs of complying with the new permit, these costs 
will not have a significant economic impact on a substantial number of 
small entities. The economic impact analysis is included in the 
administrative record for this permit.

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

    Dated: February 16, 2012.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
    Dated: February 19, 2012.
Jos[eacute] C. Font,
Acting Division Director, Caribbean Environmental Protection Division, 
EPA Region 2.
    Dated: February 16, 2012.
John Filippelli,
Director, Division of Environmental Planning & Protection, EPA Region 
2.
    Dated: February 16, 2012.
Catherine A. Libertz,
Assistant Director, Water Protection Division, EPA Region 3.
    Dated: February 16, 2012.
James D. Giattina,
Director, Water Protection Division, EPA Region 4.
    Dated: February 16, 2012.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
    Dated: February 16, 2012.
William K. Honker,
Acting Director, Water Quality Protection Division, EPA Region 6.
    Dated: February 16, 2012.
Karen Flournoy,
Director, Water, Wetlands and Pesticides Division, EPA Region 7.
    Dated: February 16, 2012.
Melanie L. Pallman,
Acting Assistant Regional Administrator, Office of Partnerships and 
Regulatory Assistance, EPA Region 8.
    Dated: February 16, 2012.
Nancy Woo,
Deputy Director, Water Division, EPA Region 9.
    Dated: February 16, 2012.
Michael J. Lidgard,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2012-4822 Filed 2-28-12; 8:45 am]
BILLING CODE 6560-50-P


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