# Response to Public Comments

EPA NPDES 2012 Construction General Permit

February 16, 2012

Docket ID #: EPA -HQ- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



### Table of Contents

Comment Essays Comment Response Essay 1 Permit Authorization and Termination Essay 2 Comment Response Essay 2 Erosion and Sediment Control Requirements 16 Comment Response Essay 3 C&D Rule and Numeric Turbidity Limit 66 Comment Respon se Essay 4 Water Quality

- Based Effluent Limitations 70 Comment Response Essay 5 Inspections 81 Comment Response Essay 6 Corrective Action 9 3 Comment Response Essay 7 Staff Training 10 1 Comment Response Essay 8 Stormwater Pollution Prevention Plan (SWPP P) 10 3 Comment Response Essay 9 Appendices 1 09 Comment Response Essay 10 General Statement of Support 11 5 Comment Response Essay 11 General Statement of Opposition 1 16 Comment Response Essay 12 Request to Extend Permit Period 117 Comment Response Essa y 13 Miscellaneous Comments 118 Comment Response Essay 14 Structure of the Permit 127 Comment Response Essay 15 Environmental Assessment 128 Comment Response Essay 16 EPA Interaction with Stakeholders 129 Comment Response Essay 17 General Comments abou t Linear Construction 130 Comment Response Essay 18 No Code, Supplemental Information 132 Comment Response Essay 19 Cumulative Impact of CGP and other Regulations of Industry 13 3

Comment Response Essay 20 Duplicate Comments 1 36

Individual Comments an d Responses 1. How to Obtain Permit Coverage Under t he CGP 1 37 2. Effluent Limitations Applicable To All Discharges From Construction Sites 2 1 2 3. Numeric Turbidity Limit And Sampling Requirements 5 29 4. Water Quality

- Based Effluent Limitations 6 4 1 5. Inspections 7 42 6. Corrective Actions 7 74 7. Staff Training Requirements 8 09 8. Stormwater Pollution Prevention Plan (SWPPP) 8 15 9. How To Terminate Coverage 8 49 10. Permit Conditions Applicable To Specific States, Indian Country Lands, Or Territories 8 51 APP

- Appendices 8 52 SUP

- General Statement of Support 886 OPP

- General Statement of Opposition 893 EXT

- Request to Extend Permit/C omment P eriod 897 MISC

- Miscellaneous Comment 904Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



### STR

- Structure of the Permit 9 40 ENV ASSESSMENT

- Notice To Prepare An Environmental Asse ssment (EA) 9 43 PROCESS

- EPA Interaction With Stakeholders 9 48 LINEAR

- Linear Construction 9 50 NC

- No Code, Supplemental Information 9 66 CU MULATIVE

- Cumulative Impact of CGP and Other Regulations on Industry 9 67 BAC

- Background of Permit 9 72 AD MIN

- Administrative 1,0 09 DUP

– Duplicate Letter 1,0 2 9Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

2 

### Comment Response Essay 1 Permit Authorization and Termination
Response 1.1 Permit Applicability EPA received several comments relating to the applicability of the CGP. One commenter requested that EPA specify in the permit that certain North American Industry Classification System (NAICS) categories are not covered by the permit. EPA clarifies that, as described in the permit fact sheet, the only categories of facilities covered under the permit include those that fall into the NAICS codes 233 (Building, Developing and General Contracting) and 234 (Heavy Construction). In Part 1.3 of the final CGP, EPA clearly specifies that only stormwater discharges described under 40 CFR § 122.26(b)(14)(x) or § 122.26(b)(15)(i), or those designated as needing a permit under 40 CFR § 122.26(a)(1)(v) or § 122.26(b)(15)(ii) are eligible for coverage under the CGP. Therefore, EPA does not believe that it is necessary to specify th at certain NAICS categories are not covered by the permit. Commenters requested that EPA specifically exempt projects that have individual NPDES permits that include appropriate erosion and sediment control requirements from permit coverage. EPA clarifies that, if a site is covered by an individual NPDES permit that covers any discharge resulting from the active construction phase of the project, then that site is ineligible for obtaining coverage under the CGP. See final permit section Part 1.1.d.i.

Comme nters requested that EPA clarify the definition of “disturbance” for the purposes of determining whether permit coverage is required. EPA believes that the permit is clear regarding which types of disturbances trigger the need for permit coverage. In Appendix A of the permit, EPA has defined “construction activity” as “earth

- disturbing activities, such as clearing, grading, and excavation of land.” This definition is consistent with the regulatory description of “construction activities” at 40 CFR §122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i), but includes the addition of the term “earth- disturbing activities” to provide clarification to permittees that activities requiring permit coverage must result in an “earth disturbance.” EPA has also defined “earth -d isturbing activity” in Appendix A as “actions taken to alter the existing vegetation and/or underlying soil of a site, such as clearing, grading, site preparation (e.g., excavating, cutting, and filling), soil compaction, and movement and stockpiling of top soils.” EPA believes that these definitions provide clarification to permittees about what specific types of disturbances are subject to permit coverage, and that these definitions are consistent with the regulatory definition of construction activities subject to permit coverage at 40 CFR § 122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i). Therefore, EPA does not believe further clarification on the definition of “disturbance” in the permit is necessary. In response to a comment that suggested that EPA only subject “soil disturbances” to permit coverage, and another comment that suggested that EPA only subject “areas of actual excavation” to permit coverage, EPA believes that the abovementioned definitions are consistent with the regulatory requirements rega rding which types of construction activities are subject to permit coverage (which are broader than the suggested definitions), and therefore disagrees with the suggestions. Commenters questioned why the permit does not require that a site discharge to a water of the U.S. to be covered by the permit. EPA clarifies that permit coverage is only required if a site discharges to waters of the U.S., and believes that the permit language is clear regarding its applicability. The term “discharge” as used in the permit is synonymous with a “discharge of a pollutant,” (see Appendix A of the permit), which is defined at 40 CFR § 122.2 as “any addition of any ‘pollutant’ or combination of pollutants to ‘waters of the U.S.’ from any ‘point source’.” EPA believes that t he following language from the cover page of the final CGP clearly limits the applicability of the CGP to sites discharging to water of the U.S: “...‘operators’...are authorized to discharge pollutants in accordance with the effluent limits and conditions set forth herein.” Therefore EPA believes that no modifications to the permit are necessary.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

3 Response 1.2 The Person(s) Responsible for Permit Coverage Commenters observed that EPA proposed different definitions of “operator” in the draft permit body and in Appendix A (definitions). EPA notes that the inconsistency of these definitions is due to a typographical error. EPA had intended for the definition in Appendix A to be the same as the definition as drafted in the proposed permit body, and has made these definitions consistent in the final CGP. EPA notes that the definition of “operator” in the final CGP, although slightly modified, is consistent with the definition of “operator” from the 2008 CGP. A commenter disagreed with the clarification provided in the definition of “operator” in the draft Appendix A that states, “This definition is provided to inform permittees of EPA’s interpretation of how the regulatory definitions of ‘owner or operator’ and ‘facility or activity’ are applied to discharges of storm water associated with construction activity”, noting that “[t]he above

- referenced definition does not help permittees understand the role of the owner or how that term varies from ‘operator’ or whether the two terms are to be considered one and the same fo r purposes of determining who is to obtain permit coverage.” EPA disagrees, and maintains that the definition of “operator” in the final permit indeed clarifies the regulatory definition of “owner or operator” at 40 CFR § 122.2 by providing more information about the roles and responsibilities of parties associated with a construction projects that EPA has interpreted as meeting the definition of operator. EPA has therefore retained this statement in the definition of “operator” in the final Appendix A. The commenter also suggested that EPA identify in the permit the specific parties that are responsible for each aspects of the permit. EPA has provided clarification in the final permit fact sheet by describing that the party meeting the first part of the definition of “operator” (i.e., the party with operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications) is in most cases the owner of the site, and the party meeting the sec ond part of the definition of “operator” (i.e., the party has day

- to

- day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions) is in most cases the general contractor of the project. See Pa rt VI.1 of the final fact sheet. EPA notes that where there are multiple parties meeting the definition of “operator”, each party is required to obtain permit coverage. Beyond this clarification, EPA does not believe it is necessary to further define in th e permit or fact sheet how all of the various construction site positions may or may not meet the definition of “operator”. Several commenters urged EPA to retain flexibility in the permit to allow the various parties on a construction site to determine who should be the permit holder (i.e., which parties meets the definition of “operator”) and to determine overall permit compliance responsibilities. EPA agrees with these comments, and therefore believes it is more appropriate for the parties involved in a construction site to determine for themselves which party(ies) meet the definition of “operator” under the CGP. Several commenters argued that EPA's definition of operator in the CGP, which could require permit coverage of the owner if they meet the defin ition, is contrary to the NPDES implementing regulations. EPA disagrees. EPA's definition of operator under the CGP is consistent with the NPDES regulations at 40 CFR § 122.2, which define "owner or operator" as "the owner or operator of any 'facility or activity' subject to regulation under the NPDES program". EPA has consistently interpreted this definition to mean that "owners and operators" of construction activities are subject to EPA's regulations regarding construction site stormwater discharges in t he 2003 and the 2008 CGP. See page five of the 2003 CGP fact sheet for a discussion on which parties meet the definition of “operator”: http://www.epa.gov/npdes/pubs/cgp2003_fs.pdf

. EPA clarifies that all parties meeting one or both parts of the definition of “operator” must be covered by the permit. EPA also clarifies that landowners are not required to get permit coverage if they do not meet the definition of operator (i.e., if a landowner does not have operational control over construction plans and specs nor day

- to

- day operational control of activities at a project, they are not required to be covered under the permit). On the same topic, several commenters suggested that EPA require the contractor to be the sole construction site operator. A commenter also suggested that EPA modify the first part of the definition of “operator” to clarify that the definition applies to those with the control necessary to ensure compliance with permit c onditions. EPA appreciates the suggested modifications to the definition of “operator” in the permit, and understands that in some scenarios,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

4 owners (i.e., those having operational control over construction plans of specifications, including the ability to make modifications to those plans and specifications) have limited involvement on the construction site. However, EPA has found that it is necessary to require permit coverage of both the owner (i.e., the party with operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications) and the general contractor (the party with day - to

- day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions) to ensure that all parties with responsibilities over the control of erosion and sediment on the site are regulated. For example, EPA is aware that it has been the experience of some general contractors on especially large transport ation and commercial construction projects, where the contract is awarded the lowest bid, and the site design may have been developed without sufficient regard for stormwater management and permit compliance, that it is very difficult to then later develop a Stormwater Pollution Prevention Plans (SWPPP) that complies with the permit, but conflicts with the site plans. EPA believes that, although in some cases the owner has limited involvement, owners do have the ability to approve and/or make modifications to site plans, including SWPPPs, and EPA believes, therefore, that owners ultimately have the ability and responsibility to ensure permit compliance. Because EPA believes that owners meeting the definition of “operator” should be a permitted entity under t he CGP, EPA is retaining the definition of “operator” as proposed in the draft permit body. EPA proposed in the draft CGP definitions for “primary operator” and “secondary operator” for situations where there are multiple operators associated with the same project, and described that all such operators are considered to be co

- permittees and are held jointly and severally responsible for complying with the permit. Several commenters disagreed that EPA should define the roles of a “primary operator” and “secondary operator”, noting that, where there are multiple permittees, it should be up to the permittees to determine their permitting structure. Some commenters also indicated that distinguishing between primary and secondary operators could cause confusi on with determining permit liability, complicating the permitting process. It was EPA’s intention that by defining “primary operator” and “secondary operator”, EPA would provide administrative efficiency for sites with multiple operators by reducing the am ount of time that a secondary operator would be subject to review before obtaining permit coverage. However, after further reflection, EPA agrees with commenters that permittees should have the flexibility to determine their permitting roles and compliance responsibilities, and therefore has removed the definitions for “primary operator” and “secondary operator” from the final permit. See Part 1.1a of the final permit and Part VI.1 of the final permit fact sheet. EPA has also clarified in the permit and fac t sheet that subcontractors do not meet the definition of “operator”, and thus are not required to obtain permit coverage. Several commenters disagreed with EPA’s statement in the draft permit that all operators are to be held jointly and severally responsible under the permit. Among the concerns were that the joint and several liability provision in the permit is inconsistent with industry practice, and could potentially lead to inequalities among permittees and permitting process complications. Many comme nters suggested that it should b be up to permittees to determine permit compliance responsibilities. EPA appreciates the comments received on this draft permit language. Upon further reflection, EPA has omitted this language from the final permit. Given tha t EPA maintains authority to apply joint and several liability under the CWA, it is not necessary to elucidate this as a provision in the permit. Commenters suggested that EPA retain language from Part 5.12 of the 2008 CGP that described the compliance responsibilities for operators that only have operational control over a portion of a larger project. EPA agrees with this suggestion, believing that it will provide clarification to sites with multiple operators clarification of the compliance responsibilit ies for each operator. Therefore, EPA has added to Part 1.1a of the final CGP the following language that is consistent with Part 5.12 of the 2008 CGP:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

5 1. If one operator has control over plans and specifications and a different operator has control over activities at the project site, they may divide responsibility for compliance with the terms of this permit as long as they develop a group SWPPP (see Part 7.1.1), which documents which operator has responsibility for each requirement of the permit.

2. I f an operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a subdivision), the operator is responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it rela tes to the activities on their portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation of control measures described in the SWPPP in the areas under their control.

3. You must ensure either directly or through coordination with other permittees, that your activities do not render another party’s pollutant discharge controls ineffective.

4. If the operator of a “construction support activity” (see Part 1.3c) is different than the operator of the main construction site, that operator is also required to obtain permit coverage.

Response 1.3 Permit Eligibility One commenter questioned whether operators permitted under the 2008 CGP will be required to follow the conditions of the new CGP. Another commenter indicated that 90 days is not sufficient time to comply with the new permit given the substantial changes, and instead suggested that existing permittees should be able to maintain coverage under the 2008 CGP. EPA clarifies that operators of existing projects (defined in Part 1.4.2 as “construction projects that commenced construction activities prior to February 16, 2012”) have up to 90 days after the issuance of the 2012 CGP to submit their NOI for coverage under the 2012 CGP. After coverage under the 2012 CGP has been obtained, permittees will be required to comply with the terms of the 2012 CGP. However, EPA acknowledges that there may be circumstances when a permittee of an existing project will have difficulty in complying with certain new permit provisions. For example, a site that is permitted under the 2008 CGP that has already conducted earth disturbing activities within 50 feet of the surface water (i.e., within the buffer) may find it infeasible to comply with the requirements to provide a buffer, and may also find it infeasible to provide equivalent erosion and sediment controls because they have existing installed stormwater controls on their site that meet the requirements of the 2008 CGP. Therefore, EPA has in cluded the following note in Part 2 of the final permit: “If your project is an “existing project” (see Part 1.4.2.b) or if you are a “new operator of an existing project” (see Part 1.4.2.c), and it is infeasible for you to comply with a specific requirement in this Part because (1) the requirement was not part of the permit you were previously covered under (i.e., the 2003 or 2008 CGP), and (2) because you are prevented from compliance due to the nature or location of earth disturbances that commenced prio r to February 16, 2012, or because you are unable to comply with the requirement due to the manner in which stormwater controls have already been installed or were already designed prior to February 16, 2012, you are required to document this fact in your SWPPP and be waived from complying with that requirement. This flexibility applies only to the requirements in Parts 2.1, and 2.3.3 through 2.3.5 (except for Parts 2.3.3.1, 2.3.3.2b, 2.3.3.3c.i, and 2.3.3.4).This only applies to those portions of your site that have already commenced earth

- disturbing activities or where stormwater controls implemented in compliance with the previous permit have already been installed.” EPA believes this note addresses concerns expressed by commenters about difficulties with complying with new permit provisions. EPA received many comments on the draft permit eligibility provision requiring that any CWA Section 404 dredge and fill permit(s) have been obtained prior to receiving coverage under the CGP. Some of the comments included the following:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

6 Requiring any 404 permits to be obtained ahead of time could significantly delay the it takes to be covered under the CGP, leading to a delay of construction activities; Operators should be authorized to begin work under the CGP outside of areas requiring 404 permit coverage while the other necessary permits are being obtained; Including 404 permit coverage as an eligibility condition is an extraneous requirement that is duplicative with requirements in the Section 404 permit pro gram; and For emergency

- related construction activities, it would be impossible to have applied for and received a 404 permit prior to conducting earth- disturbances. EPA appreciates the feedback from commenters on this proposed eligibility provision, and upon further reflection, EPA does not believe that CWA section 404 permit coverage should be included under the scope of the CGP. Therefore, EPA has removed this provision from final permit. A commenter also noted that the reference to CWA section 404 per mits in the proposed permit provision to minimize stream crossings is inconsistent with the requirements in the abovementioned eligibility provision. EPA notes that it has also removed this provision from the final permit. See comment response essay 2.2.1. One commenter noted that EPA should have included as an eligibility provision projects whose discharges have been designated by EPA as needing a permit under § 122.26(a)(1)(v) or § 122.26(b)(15)(ii), to be consistent with proposed Part 1.4.1.2. EPA agree s, and has made the suggested change in the final permit. See Part 1.3b.

EPA received several comments regarding the proposed provision stating that a project is not eligible for coverage if it had been “[c]overed by another NPDES stormwater permit in the past five (5) years where that permit established site

- specific water quality

- based effluent limits developed for the stormwater component of the discharge.” The comments suggested that the provision was overly broad, and could apply in cases where a site appropriately terminated permit coverage and subsequently needed to obtain permit coverage due to unforeseen circumstances (e.g., a linear utility project that finished earth disturbances and terminated coverage, but due to a storm event, needed to obtain permit coverage to repair damages). It was not EPA’s intent for this provision to apply to such a scenario. Upon further reflection, EPA believes that the intent of the abovementioned proposed provision is actually covered by the final permit provision stating that a site is ineligible for permit coverage if discharges from the project are “[a]lready covered by a different NPDES permit for the same discharge.” EPA notes that this does not include sites currently covered under the 2003 or 2008 CGPs, which a re in the process of obtaining coverage under this permit, and sites covered under the 2012 permit, which are transferring coverage to a different operator. Therefore, EPA has deleted the provision of concern. EPA received a comment requesting clarification that sites that have stormwater discharges covered under a different NPDES permit should not be required to obtain coverage under the CGP. Specifically, a commenter wanted clarification that stormwater discharges from mining activities that are covered u nder the Multi

- Sector General Permit (MSGP) are not required to obtain coverage under the CGP. EPA confirms that discharges covered under the MSGP are not under the scope of the CGP, and believes that this is made clear in the final permit provision in Par t 1.1d.i that states that a site is ineligible for permit coverage if discharges from the project are “[a]lready covered by a different NPDES permit for the same discharge.” To clarify, EPA does not require stormwater discharges from construction activities associated with mining activities that are covered under the MSGP to also be covered under the CGP. The commenter suggested that EPA clarify this in the permit and fact sheet. EPA does not believe this clarification is necessary due to the fact that the fact sheet already clearly discusses the NAICS categories that are covered by the permit. Another comment similarly requested that EPA exempt from the CGP parties that have received NPDES coverage for discharges from construction activities. EPA clarifies that, under Part 1.1d.i of the final CGP, if a site’s stormwater discharges are already covered by an NPDES permitRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

7 (other than the 2003 or 2008 CGP) (i.e., an individual NPDES permit), then permit coverage under the CGP is not available or required.

EPA received several comments on the eligibility provision for emergency

- related construction activities in the draft permit. Many of the comments related to the fact that the proposed provision required operators of emergency

- related projects to comply with all relevant requirements in the permit regarding discharges associated with construction activities as soon as they submit their NOI. Some of the concerns with this provision include that, in some emergencies, it may not be safe to comply with all parts of the permit, and it may not be feasible to comply with all parts of the permit within 7 days after the commencement of earth - disturbing activities, as was proposed. EPA agrees with these concerns, and therefore in the final permit allows permittees up to 30 days after the commencement of earth

- disturbing activities to submit the NOI and comply with all parts of the permit. EPA believes that 30 days will provide operators of emergency

- related projects with sufficient time to safely and effectively develop their SWPPP and comply with the permit. One commenter requested that EPA clarify whether provisional coverage granted to emergency

- related projects would be retained if EPA delays or denies permit coverage after receipt of the NOI. EPA clarifies that if the NOI is placed on hold, the project will continue to be provisionally covered. However, if permit coverage is denied, provisional coverage will be terminated, and the permittee will be required to apply for an individual permit, in which case EPA will inform the permittee of any additional requirements. EPA also received comments that the proposed requirement for the SWPPP to be developed within 7 days after submittal of the NOI is not a reasonable amount of time for emergency related projects. The final permit requires operators of emergency

- related projects to complete their SWPPP prior to submitting their NOI. However, EPA believes that this permit is responsive to the concerns of commenters given that it ultimately provides operators of emergency -relat ed projects with more time (i.e., 16 additional days – 30 instead of 14) for SWPPP development than was proposed. Commenters expressed concern that the scope of projects that would qualify as “emergency

- related projects” under the proposed permit was too narrowly limited to natural disasters. One commenter requested that EPA include in its emergency

- related eligibility provisions emergencies relating to telecommunications projects, including health emergencies, law enforcement emergencies, resource manageme nt emergencies, and natural disasters of all kinds. EPA agrees with these comments, and has therefore widened the scope of emergency related projects to also include public emergencies, such as widespread disruptions in essential public services, where the work requires immediate authorization to avoid imminent endangerment to human health, public safety, or the environment, or to reestablish essential public services. EPA believes this modification is responsive to the concerns of the commenters.

EPA rec eived numerous comments on the eligibility requirements regarding water quality standards in the proposed permit. One commenter argued that the proposed water quality standards eligibility requirements are inconsistent with the requirements of 40 CFR § 122 .4(i), and suggested that they “should be revised to require more rigorous and supportable demonstration that water quality standards will be met in the receiving water prior to issuance of coverage for new sources.” EPA disagrees with the comment based on the fact that EPA expects that, as stated in Part 1.2.2 of the final permit, “compliance with the stormwater control requirements of this permit, including the requirements applicable to such discharges in Part 3.2, will result in discharges that will not cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard.” Moreover, if EPA has determined prior to permit authorization that an excursion of an applicable water quality standard will occur, EPA states in Part 1.2.2 of the final permit that it may notify permit applicants that permit coverage under the CGP is not available, and that an individual permit is necessary. EPA also provides in Part 3.1 of the permit that EPA may impose additional water quality

- based limitations on a site specific basis after permit authorization if information in the NOI or from other sources indicates that the discharges are not controlled as necessary to meet the applicable water quality standards. Therefore, EPA does not believe that the permit should require a more rigorous andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

8 supportable demonstration. The commenter also requested that EPA clarify in the fact sheet how the demonstration of compliance with a TMDL will be achieved prior to permit coverage being

o btained. As EPA points out above, EPA believes that compliance with the permit limits and conditions will result in achievement of water quality standards, including compliance with TMDL wasteload allocations. EPA believes the following language to Part 3.1 of the final permit ensures that discharges covered under the permit will be in compliance with wasteload allocations in a TMDL: “EPA will also impose additional water quality

- based limitations on a site - specific basis, or require you to obtain coverage under an individual permit, if information in your NOI, or from other sources indicates that your discharges are not controlled as necessary to meet applicable water quality standards. This includes situations where additional controls are necessary to comply with a wasteload allocation in an EPA established or approved TMDL.” EPA notes that, in EPA’s experience, relatively few TMDLs contain WLAs that would be applicable to specific construction sites, but if such requirements do exist and are applicable to the operator’s site, EPA believes that EPA is in a better position than the operator to determine exactly what the operator must do to be consistent with the assumptions and requirements of the TMDL. EPA therefore believes this approach is both less burdensome to the permittee, and will better ensure that all applicable requirements in EPA approved or established TMDLs are complied with. EPA also received several comments that disagreed with the proposed permit’s eligibility requirements for discharges to waters with high water quality. As described in the Part VIII.3.2 of the fact sheet, the requirements that apply to discharges into high quality waters in the final permit establish a process for EPA to determine and specify if further actions are requir ed for new or increased discharges to Tier 2, Tier 2.5, and Tier 3 waters, rather than leaving it to the construction operator to interpret what it means to comply with each state’s or tribe’s antidegradation requirements. By imposing on permittees that di scharge to Tier 2, Tier 2.5, or Tier 3 water the requirement to comply with the additional requirements, on top of the permit’s other effluent limits and conditions, EPA believes that authorizing these discharges will not result in a lowering of water quality. EPA maintains that it has appropriately applied the antidegradation requirements in its eligibility provision in Part 1.2.3 of the final permit. EPA has determined, as discussed in Part VIII.3.2 of the fact sheet, that compliance with the CGP (including the eligibility condition for discharges to Tier 2, Tier 2.5, and Tier 3 waters, the requirements applicable to those discharges in Part 3.3.2 of the final permit, and any other applicable state or tribal antidegradation conditions that are included in Part 9 of the permit) generally will be sufficient to satisfy Tier 2 (or Tier 2.5) and Tier 3 antidegradation requirements because authorizing these discharges will not results in a lowering of water quality, making individualized Tier 2 or Tier 3 review

u nnecessary. Commenters also expressed concern that EPA should not specify requirements that apply to Tier 2.5 waters, because Tier 2.5 is not recognized in the Federal regulations. EPA disagrees, and believes that Tier 2.5 should be specifically included i n the Part 1.2.3 eligibility provisions due to the fact that some states use this terminology to designate waters using criteria that EPA considers to be more stringent than the federal Tier 2 designation, but less stringent than the federal Tier 3 designa tion. EPA also believes that it is appropriate to include Tier 2.5 waters in the permit because the CWA requires that NPDES permits include limits and conditions to meet state water quality standards, which include antidegradation requirements. Without identifying these waters in Part 1.2.3, it would be unclear to permittees discharging to such waters whether or not the eligibility requirements in Part 1.2.3 apply to them. Commenters also argued that the permit incorrectly applies the test of “will not lowe r water quality” to Tier 2 waters, and that the permit should clarify that the eligibility tests for Tier 2, Tier 2.5, and Tier 3 waters differ. EPA disagrees. In the fact sheet, EPA describes that the approach in the permit with regard to high quality Tier 2 waters meets the Tier 2 requirements by imposing requirements that will not result in a lowering of water quality (i.e., that will maintain and protect water quality), rendering an individualized Tier 2 “review” unnecessary. The fact sheet goes on to d escribe the rationale for how the approach with regard to high quality waters also satisfies the requirement for Tier 2 review with regard to necessity and important economic or social development. See Part VII.3.2 of the fact sheet. Additionally, as descr ibed above, because theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

9 permit’s approach with regard to antidegradation has already met Tier 2, Tier 2.5, and Tier 3 requirements, it is not necessary to specify in the permit the differences between the requirements since, in this case, no lowering of water quality will ensure that water quality is maintained and protected for all three tiers. In summary, EPA disagrees with these suggested changes to the eligibility provisions with regard to high quality waters, and maintains that the eligibility provision in Part 1.2.3 of the permit appropriately applies the antidegradation requirements as described above and in Part VIII.3.2 of the fact sheet. In response to a comment that EPA should consider local land use review as another permit eligibility requirement, EPA notes that the CGP does not regulate land use, and therefore, it would not be appropriate to include eligibility requirements for which the Agency does not have the authority. Response 1.4 Discharges Authorized by the CGP One commenter suggested that the permit should not authorize the discharge of pollutants from

non

- stormwater discharges. EPA points out that is has modified the provision authorizing the discharge of non

- stormwater discharges to state that non -stormwater discharges are authorized under the CGP “provided that, with the exception of water used to control dust and to irrigate areas to be vegetatively stabilized, these discharges are not routed to exposed soil on your site and you comply with any applicable requirements for these discharges in Part 2.” EPA believes that the addition of this language will ensure that any non -stormwater discharges authorized under the permit will not lead to a discharge of pollutant that could cause or contribute to an exceedance of water quality standar ds. A commenter found that the proposed language describing off

- site areas (i.e., construction support activities) unclear. EPA clarifies that any stormwater discharges associated with construction support activities, such as off

- site borrow/fill areas, that meet the requirements in Part 1.3c of the final permit, are required to be covered under the permit. EPA received many comments on the proposed requirements regarding allowable non stormwater discharges. A commenter requested that EPA conduct an eva luation to ensure that pollutants from the non

- stormwater discharges on the list will be adequately controlled. The commenter specifically requested that EPA evaluate the need for additional limitations on restricting the source water used for the activity, the need for limitations on prohibitions for washing activities that may introduce dissolved pollutants, the need for additional limitations to address chlorine, and the need for limitations and/or monitoring necessary to determine if contaminants are pr esent for certain discharges. EPA would like to point out that additional specificity has been added to the allowable non

- stormwater discharge requirements in the final permit to ensure that these discharges to do not cause or contribute to an exceedance o f water quality standards. The permit requires that, except for water used to control dust and to irrigate areas to be vegetatively stabilized, these discharges must not be routed to areas of exposed soil on the site, and all the requirements applicable to the discharges in Part 2 must be met. With regard to the comment on the washing limitations, EPA would like to also point out that Part 2.3.3.2 and Part 2.3.3.4 contain very specific pollution prevention standards that EPA believes will effectively minimize the discharge of pollutants from washing activities, including requirements to provide an effective means of minimizing the discharge of sediment from washing activities, requirements regarding the washing of applicators and containers used for paint, c oncrete, or other materials. Part 2.3.1.4 also prohibits the discharge of soaps, solvents, or detergents used in vehicle and equipment washing. Additionally, all the allowable non - stormwater discharges are held to the standard in Part 3.1 of the permit th at states, “Your discharge must be controlled as necessary to meet applicable water quality standards.” Because these discharges are ultimately held to the standard that they must meet water quality standards, and because the permit contains additional specificity regarding these discharges, EPA believes that pollutants from the allowable non

- stormwater discharges will be adequately controlled. EPA therefore disagrees that further evaluations are necessary.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

10 A commenter expressed concern with the proposed a ddition of dewatering discharges as allowable non

- stormwater discharges, suggesting that the use of the term inappropriately describes dewatering water as “wastewater.” EPA agrees that dewatering water is not wastewater if treated by an appropriate control, and has modified the language to state “Construction dewatering water that has been treated by an appropriate control under Part 2.1.3.4.” The commenter also took issue with the description that these waters only contain “trace amounts of sediment”, desc ribing this as an ambiguous standard. EPA agrees and has removed this language from the requirement as well. See Part 1.3d.xii of the final permit. EPA believes that these modifications address the concerns of the commenter, and that the addition of dewate ring water to the list of non

- stormwater discharges is justified. One commenter suggested that EPA add the following discharges to the list of allowable non stormwater discharges: water for compaction of earth and aggregate base course for routine maintenance of dirt roads and shoulders provided reclaimed or other wastewaters are not used; water used for compacting soil provided effluent or other wastewaters are not used; diverted stream flows; discharges from riparian habitats and wetlands; and flows used for drilling and coring such as for evaluation of foundations materials, where flows are not contaminated with additives. While EPA appreciates the suggested additions to the list of allowable non -stormwater discharges, EPA does not believe they should be included in the final CGP. EPA describes the reasons why each of these discharges should not be included in the CGP as follows: Water for compaction of earth and aggregate base course for routine maintenance of dirt roads and shoulders provided reclaime d or other wastewaters are not used and water used for compacting soil provided effluent or other wastewaters are not used. EPA response: The routine maintenance of dirt roads and shoulders does not trigger CGP coverage. Additionally, EPA believes that water used to compact soils will only cause a discharge if overapplied, and if it is overapplied, the discharge is likely to be contaminated by sediment. Therefore, EPA believes these discharges are not appropriate to include in the final CGP.
Diverted stre am flows and discharges from riparian habitats and wetlands. EPA response: These discharges are covered by the CWA Section 404 dredge and fill permitting program. Therefore, it would not be appropriate to include these in the final CGP.
Flows used for drilling and coring such as for evaluation of foundations materials, where flows are not contaminated with additives. EPA response: EPA believes that through proper management, flows from drilling and coring activities can be controlled such that a discha rge does not occur. EPA furthermore believes that discharges from these activities should not be allowed because of the large amounts of turbidity in these discharges. Therefore, EPA disagrees with the suggested addition.

A commenter also suggested that E PA add “landscape irrigation” to the list of allowable non stormwater discharges. EPA mistakenly omitted landscape irrigation from the list of allowable

non

- stormwater discharges, which was included in the 2008 CGP, and has added it back in to Part 1.3d o f the final permit. Response 1.5 Discharges Not Authorized by the CGP EPA received several comments on the draft provisions covering the list of discharges that are not addressed under the permit. Some commenters were confused as to why certain discharge s included in the list would preclude the ability to be covered under the CGP. Upon further reflection, EPA believes that the provision is not necessary because it only covers discharges not covered by the CGP, and also is concerned that the provision will lead to uncertainty as to whether permit coverage is required. Therefore, EPA has removed this provision from the final permit. EPA would like to clarify that permit coverage is required for all projects meeting theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

11 eligibility requirements in Part 1.1, even if the project is also covered by a CWA section 404 permit. EPA received several comments with regard to discharges to combined sewer systems, which were addressed in this provision of the proposed permit. EPA's publication: Guidance Manual For The Pre paration of NPDES Permit Applications For Storm Water Discharges Associated With Industrial Activity (April 1991, available at http://www.epa.gov/npdes/pubs/owm0241.pdf) includes a discussion supporting that stormwater discharges to combined sewer systems are outside the scope of this CGP. See Section 2.4. Response 1.6 Permit Authorization and Termination Response 1.6.1 Required information in the NOI . EPA received several comments on the summary of information required on the NOI form. A commenter suggested that the NOI form allow more detailed site location information for linear facilities. EPA considered allowing sites to enter in more than one project latitude/longitude point on the NOI form, but ultimately determined that requiring one latitude/longitude point of the approximate “center of the site, and requiring that sites include in their SWPPP a detailed site map, is sufficient information to require from permittees.

A commenter ex pressed concern with the difficulty of complying with the requirement to list receiving water quality information on the NOI. Another commenter suggested that the eNOI system be capable of allowing linear projects to enter multiple discharge points due to the fact that these projects often cross multiple waterbodies. To assist permittees with determining their receiving water quality information, EPA has developed a mapping tool that will be accessible within the eNOI system that identifies, based the bound ary of the site entered by the user, the waters to which the site discharges, and whether any of those waters are impaired waters. This tool will be capable of analyzing multiple points of discharge for those projects that may cross into multiple catchments, such as linear facilities. EPA believes that this tool will help the vast majority of permittees with determining receiving water quality information. EPA notes that the mapping tool will not help permittees identify whether they discharge to Tier 2, Ti er 2.5, or Tier 3 waters. However, EPA has made available an appendix with the list of Tier 2, Tier 2.5, and Tier 3 waters for the geographic areas covered under the permit. See Appendix F. One commenter disagreed that EPA should require the latitude and longitude of the project’s discharge points to be provided on the NOI form due to the fact that the SWPPP already requires the discharge points to be shown on the site map. EPA notes this question was included on the proposed NOI form so that EPA could analyze the receiving water information for paper NOI applicants that did not use the CGP mapping tool that will be accessible within the eNOI system. However, EPA ultimately decided that requiring paper NOI applicants to determine their discharge points and provide this information on the NOI form would be difficult in some cases. Additionally, EPA was unsure if there would be resources available to analyze this information. Therefore, EPA has removed this required piece of information from the paper NOI form

. A commenter expressed concern with the requirement to provide with the NOI documentation of compliance with threatened and endangered species and historic preservation requirements. EPA notes that the information provided on the NOI regarding threatened and endangered species and historic preservation is necessary in order for the U.S Fish and Wildlife Service and National Marine Fisheries Service (“Services”) and the State Historic Preservation Office (SHPO), Tribal Historic Preservation Office (THPO), or other tribal representative, to conduct their review to ensure that potential impacts of construction activities on threatened and endangered species and historic properties have been appropriately considered and addressed. Therefore, the final NOI form includes questions requiring documentation of compliance with threatened and endangered species and historic preservation requirements. EPA disagrees with a comment that stated that threatened and endangered species and historic properties information is not typically available to general contractors. EPA believes that this information is indeed available to the general contractor due to the fact that this information is also required to be included in the SWPPP (i.e., the general contractor can simply get this information from the SWPPP), which is developed prior to submittal of the NOI.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

12 A commenter suggested that EPA reword the question on the NOI form requesting that operators provide the “Estimated Total Area of the Property (to the nearest quarter acr e),” to instead state “Estimated Total Area of the Project/Site (to the nearest quarter acre).” EPA has determined that this information is not necessary for EPA’s purposes, and has therefore removed the question from the NOI form. Instead, EPA asks on the NOI form for the “Estimated Area to be Disturbed (to the nearest quarter acre).” The commenter also requested that “Section III of the NOI form link to the primary permittee’s project tracking number in order to avoid the obligation to develop multiple, d uplicative SWPPPs.” EPA notes that the NOI form does require operators to enter in the tracking number if discharges from their project have been previously covered by an NPDES permit by a previous operator; however, this question does not have any association with an operator’s SWPPP development responsibilities. EPA clarifies that, where there are multiple operators associated with one project, EPA provides flexibility with regard to SWPPP development. Part 7.1.1 of the final permit states “You have the o ption of developing a group SWPPP where you are one of several operators who will be engaged in construction activities at your site. For instance, if both the owner and the general contractor of the construction site are permitted, the owner may be the party responsible for SWPPP development, and the general contractor can choose to use this same SWPPP, as long as the SWPPP addresses the general contractor’s scope of construction work and obligations under this permit. ” EPA believes that this clarificatio n addresses the concerns of the commenter. Response 1.6.2 NOI submittal process. EPA received a number of comments on EPA’s proposal to require that all operators use the eNOI system to submit their NOI form, except in limited circumstances where the relevant EPA Regional Office specifically authorizes the use of the paper NOI form. Most commenters were supportive of the paperless NOI submittal process, citing the environmental, resource, and efficiency benefits of this approach. However, many commenters e xpressed concern with the eNOI system, and urged that EPA retain the ability to use paper NOIs as well. Some of the concerns include: potential technological difficulties with accessing and using the eNOI system; a lack of computer or internet access for s ome operators; paper trail requirements; and individual preferences. EPA understands these concerns, and therefore in the final permit retains the ability for permittees to submit paper NOIs if given approval by the EPA Regional Office. Response 1.6.3 EPA’s eNOI system . EPA received comments suggesting improvements to the eNOI system. Among the suggestions were: EPA should improve the process for transferring access to existing permits from an existing preparer to a new individual who is taking over responsibility for submitting the NOT; EPA should provide the tools and access for applicants to track the eNOI approval process electronically, and should generate an electronic receipt at the time the NOI is submitted; EPA should allow applicants the ability to submit questions during the application submittal process;
EPA should allow the eNOI form to be saved and accessed before final submission; and EPA should resolve problems with the latitude/longitude validation page. EPA notes that along with the issuance of the new CGP, it has improved the electronic NOI submittal process. EPA believes that the new system will address the vast majority of concerns raised by commenters. However, EPA acknowledges that while EPA continues its transition to the paperless NOI submittal process, issues may arise some circumstances. EPA notes that it will be working to address any issues with the use of the system in a timely matter. EPA also notes that EPA provides personalized help for eNOI registration questions and eNOI system questions through the phone, on email, or via a webform. Additionally, EPA will make available several training documents on the CGP eNOI website. EPA believes that, with the improvements to the eNOI system, and with the available guidance, the vast majority of permit applicants will not experienceRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

13 any difficulty in using the system. EPA also notes that it will take into account some of the suggested improvements that are not in the current system in future system enhancements.
Several commen ters also suggested that EPA make available online comprehensive information about permittees authorized under the CGP. EPA notes that it has made information submitted by permittees on their NOI forms publicly available in the past, and it will continue t o do so with the 2012 CGP. EPA will be including a public NOI search page as part of the enhancements to the new eNOI system. In contrast, a commenter expressed concern making NOIs publically accessible online, suggesting that it could result in delays due to concerns from the public. EPA understands the concern expressed by the commenter; however, EPA believes that it is important for all interested parties to have ready access to permit applications. EPA also notes that it has the authority to make availa ble information submitted to EPA on permit applications pursuant to 40 CFR § 122.7(b). Response 1.6.4 NOI submittal deadlines and the official date of permit coverage . EPA received numerous comments on proposed NOI submittal deadlines. Commenters expressed concern with EPA’s proposed extension of the waiting period before permit authorization from 7 days to 30 days, noting that the longer waiting period will delay start times for projects on a fast track or with a low work window, could result in an inadequate SWPPP, and could increase project costs. Many commenters requested that EPA retain the same 7 -day review period as in the 2008 CGP, while other commenters indicated that 14 days would be a more reasonable waiting period prior to NOI authorizatio n. Some commenters also suggested that EPA retain the 7

- day NOI waiting period for small

- scale projects. EPA notes that the purpose of the waiting period extension was to provide the Services with additional time to conduct their review under ESA. However, upon further review, EPA learned that a 14- day review period would provide the Services and the SHPO/THPO/other tribal representative with adequate time to conduct their ESA review. EPA also believes, after reviewing comments, that a 14 -day review period will present a minimal burden to permittees. EPA disagrees that small

- scale projects should be provided with a shorter review period due to the fact that small

- scale projects can present as much of a concern to critical habitat and threatened and endangere d species and historic properties as larger

- scale projects. Therefore, EPA believes they should be subject to the same period of ESA and historic properties review as all other projects. EPA clarifies that permittees are authorized to discharge 14 days aft er EPA has acknowledged receipt of the NOI on the Agency’s website, unless EPA has notified the applicant that authorization is denied or delayed,and that in the vast majority of cases there will not be additional processing time delays, as one commenter expressed concern about. One commenter expressed concern that, as a result of the review period, permit coverage can be delayed beyond the 14

- day review period. Based on past experience, EPA expects that the occurrence of this will be very rare, and should only result if the Services and/or the SHPO, THPO, or other tribal representative do not have enough information to ensure that a project does not present a concern to threatened or endangered species or historic properties. EPA encourages permit applican ts that are unsure if there is a concern with regard to threatened or endangered species or historic preservation to coordinate with the Services and/or the SHPO, THPO, or other tribal representative to minimize the likelihood that their project will be delayed during the NOI authorization process. Commenters suggested that EPA should allow for NOIs to be processed sooner if their ESA and historic properties review was previously addressed during the NEPA process or through other ESA consultation efforts, o r if there are no endangered species or historic property concerns. Although EPA understands the commenters’ line of reasoning, EPA explains that the Services still need the opportunity to review NOIs to ensure that permittees have accurately “self

certifi ed” their eligibility. EPA points out that it is a requirement for all projects to complete their determination with regard to their eligibility under ESA and historic properties prior to submitting the NOI, which will require any necessary ESA and/or historic properties consultation to have been completed prior to the beginning of the 14 -day NOI review period. EPA received a question from a commenter concerning when permit coverage is required to be filed for a primary operator versus secondary operator. One commenter suggested that EPA retainRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

14 the proposed timing distinctions, but remove the reference to the terms in the permit. As described in comment response essay 1.2 above, EPA has removed the definitions for primary and secondary operator from the fin al permit. Therefore there is no difference in the NOI authorization process among multiple permittees associated with the same project. In other words, all operators must apply for permit coverage at least 14 days prior to the planned commencement of eart hdisturbing activities for their portion of the project. Response 1.6.5 Denial of permit coverage . Commenters expressed concern with the statement in the draft permit that “[a]ny interested person may request that EPA consider requiring an individual permit under this paragraph,” noting that there should be a safeguard to ensure that a “nuisance” request does not delay a project. A commenter also suggested that EPA as the decision

- maker should establish an appeals process or other mechanism for applicants that have been denied coverage under the permit. EPA understands the concerns of the commenters; however, this statement is consistent with EPA’s NPDES regulations at 40 CFR § 122.28(b)(3), and EPA is unable to modify this regulation language under the sc ope of the CGP. It is also not under the scope of the CGP to establish an appeals process where permit coverage has been denied. A commenter requested that EPA include the specific criteria under which denial of coverage would require an individual permit. EPA appreciates this suggestion. However, because EPA is unaware of all the circumstances that could necessitate denial of permit coverage, it is not feasible to include specific permit denial criteria in the permit. EPA would like to note that the NPDES regulations describe several cases where individual permits may be required at 40 CFR § 122.28(b)(3)(A)- (G). A commenter expressed that it wasn’t adequate for EPA to include a “brief statement” of the reasons for the denial for permit coverage. The commenter also questioned why EPA can deny coverage after coverage under the CGP has been granted, and recommended that EPA consider a similar process used in the U.S. Army Corps of Engineers (USACE) Nationwide Permits that allows a permittee to mitigate c oncerns prior to denial of permit coverage. With regard to the comment on EPA’s “brief statement” describing reasons why permit coverage is denied, EPA notes that this language is consistent with the NPDES regulations at 40 CFR § 122.28(b)(3)(ii). EPA incl uded this language in Part 1.4.5 of the final permit to make permittees aware of the minimum information that will be provided to permittees that are required to obtain individual permit coverage. EPA notes that if an individual permit is required, EPA will provide the permittee with sufficient information describing the reasons why an individual permit is required. EPA appreciates the suggestion for developing a process similar to that used in the USACE Nationwide Permits. However, EPA regulations at 40 CFR § 122.28(b)(3)(ii) provide that EPA may require individual permit coverage of permittees authorized by a general permit, and it would not be in the scope of the CGP to modify this process. With regard to all of the concerns expressed on EPA’s procedures for denial of permit coverage, EPA would like to note that it anticipates, based on past practice, that any denial of coverage under the CGP will be an extremely rare occurrence. Response 1.6.6 Requirement to post a notice of permit authorization . One com menter raised a concern that EPA’s proposed requirement to post a notice of permit coverage near the main entrance of the site does not take safety into consideration because the main entrance is not necessarily a safe location for the public. Another comm enter indicated that the proposed requirement would be a challenge for linear projects that do not have a main entrance. Additionally, one commenter pointed out that the main entrance is sometimes miles from the construction site itself. EPA agrees with these comments, and has modified the requirement in the final permit to state, “You must post a sign or other notice conspicuously at a safe, publicly accessible location in close proximity to the project site.” However, EPA disagrees with a commenter’s sugg estion that EPA allow permittees the option to post notice online. EPA already provides NOI submission information online. EPA believes that it is important for projects to post notice at the actual site of disturbance so that it provides clear and immediate information to all interested parties about the project. Without a sign at the site, it could be very difficult to find outRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

15 what permit tracking number is associated with the project through an online search. EPA also believes that it important that the notice be viewable from a public road so that it is accessible to everybody. Additionally, EPA disagrees with a commenter’s belief that the requirement that the notice be posted to be viewed from a public right

- of

- way is unnecessary. EPA clarifies that th e requirement is that the notice be viewable from a public right

- of

- way, and not posted within the right

- of

- way, as the commenter indicated. EPA also disagrees with the suggestion that notice only be posted during the period of actual construction and not during the period when stabilization measures are implemented. EPA believes that until final stabilization is reached and permit coverage is terminated, there remain potential erosion and sedimentation risks, and therefore it is important that notice of permit coverage be posted until permit termination occurs. Response 1.6.7 Conditions for terminating permit coverage . A commenter requested that EPA clarify who should be identified as responsible for ongoing maintenance of any stormwater controls left on the site for long

- term use following the termination of permit coverage (e.g., a person’s name, a position title, a company). Related to this topic, another commenter took note that the Notice of Termination (NOT) form did not include a place to identify who is responsible for ongoing maintenance of long

- term stormwater controls. A commenter also requested that EPA clarify what constitutes “long

- term” use. EPA notes that it has removed this condition from the permit. By removing this provision, EPA believes it has addressed these comments. Response 1.6.8 Deadline for submitting the Notice of Termination . One commenter disagreed with the proposed requirement that the NOT be submitted within 30 days of any of the triggering events, stating that the timeframe is not practicable and that a deadline should not be specified. EPA disagrees with this comment. EPA believes that a timeframe is necessary so that permittees do not prolong their coverage under the CGP after they have met a triggering condition for permit termination. By requiring operators to terminate permit coverage, EPA will have more accurate records of active construction projects covered under the permit, which is important for data collection and enforcement purposes. EPA believes that submittal of the NOT form will present a minimal burden, and that 30 days is sufficient time for permittees to submit their NOT form after meeting the triggering conditions, as it only requires them to submit a short form certifying they are eligible to terminate coverage. Therefore, EPA has retained this provision in the final permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

16 

### Comment Response Essay 2 Erosion and Sediment Control Requirements
Response 2.1 Erosion and Sediment Control Requirements General Comments Response 2.1.1 Permit specificity and complexity . EPA received numerous comments indicating that the proposed permit was overly prescriptive and that certain provisions were overly complicated. Commenters suggested that EPA should focus on implementation of erosion and sediment control BMPs that are flexible, practical, and consistent with existing state and local permit requirements, and proven effective in protecting water quality. EPA was responsive to many of the concerns expressed about the permit being too prescriptive, and has made many provisions in the final permit more flexible, including requirements to minimize steep slope disturbances, remove sediment track

- out, minimize soil compaction, stabilize construction exit points, and requirements for pollution prevention. Where EPA has retained specificity in the permit, EPA believes the specificity was necessary so that the permit conditions are clear to permittees and protective of water quality. Some of the proposed provisions that commenters found to be overly complicated included the C- factor stabilization provision, the buffer equivalency demonstration, the benchmark monitoring requirements, and the chemical treatment requirements. EPA notes that the permit no longer includes the C

- factor method as an option for stabilization, nor the benchmark monitoring requirements. See comment response essays 2.46 and 4.1. With regard to the buffer equivalency demonstration concerns, EPA has provided guidance in Appendix G to assist permittees in demons trating their buffer equivalency. EPA believes that making this demonstration will be practicable for most sites required to comply with the buffer requirements. EPA also recognizes that for some situations, it will be infeasible to do a 50

- foot buffer or to provide the buffer equivalency. Therefore, EPA includes specific exceptions to the buffer requirements in Part 2.1.2.1e of the final permit. EPA also notes that permittees can avoid this demonstration if they choose to provide a 50

- foot buffer in compliance with Part 2.1.2.1a.i. Additionally, EPA has given special flexibility to small residential lots by developing compliance alternatives that provide builders of small residential lots with specific and easy

- to

- implement controls that achieve compliance if a 50

- foot buffer is not provided. For more information on the buffer requirements, see comment response essay 2.3. With regard to the chemical treatment requirements, EPA notes that the chemical treatment provisions only apply to sites that choose to us e them; if a site does not use chemicals, the requirements do not apply. EPA also believes that the requirements regarding the use of treatment chemicals in the final permit are not overly complicated; they are primarily focused on practices that minimize the potential for a discharge in stormwater. In response to comments received, EPA has eliminated or many of the specific chemical treatment use restrictions in the final permit. One commenter requested that EPA consider retaining the more prescriptive requirements in the permit only for larger sites due to the fact that smaller sites tend to have limited flexibility with regard to site design. EPA believes that the provisions in the final permit are practicable for all sites, with the exception of the buffer compliance alternatives for which EPA has provided special flexibility for small residential lot construction and linear construction projects. EPA notes that many of the requirements that could affect site design only apply if a site is implementing that control. For example, if a site is not implementing sediment basins, stockpiling sediment, constructing conveyance channels, conducting dewatering, or employing treatment chemicals, which EPA believes will often be the case for small sites, then the associated permit provisions will not apply. Therefore, EPA disagrees that it should eliminate certain provisions for small sites over and above the flexibility EPA has already provided to small sites in the final permit. Response 2.1.2 Permit subjectivity. A commenter suggested that EPA avoid the use of the subjective terms such as “minimize”, “avoid”, and “limit” due to the fact these terms are not clear to permittees and are unenforceable. EPA notes that the permit retains some use of the terms referenced above, but EPA believes that the final permit terms are clear to permittees and enforcers. When these terms are used in the permit, they are to provide needed flexibilityRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

17 for provisions that are best determined on a site

- specific basis. EPA has provided additional information in the permit fact sheet to help permittees determine what is required for each of the permit requirements. EPA has also defined the terms “minimize” and “infeasible” in Appendix A of the final permit. Response 2.1.3 Miscellaneous co mments. EPA received a suggestion from a commenter that the permit include “low impact development” (LID) and “post

- construction” requirements. EPA believes that LID and green infrastructure practices are effective practices for reducing stormwater volume and pollutants. However, EPA does not believe that it would be appropriate to mandate these as stormwater control requirements in the CGP. EPA believes that, because this is a general permit, it is important that the requirements be flexible and not mandat e the use of specific technologies or practices. With regard to the suggestion that EPA include post construction requirements in the permit, EPA notes that the scope of the CGP is stormwater discharges during the active phase of construction. Therefore, it would not be appropriate to implement post

- construction requirements in the CGP. Commenters also suggested that EPA make pollution prevention and vegetative cover solutions a priority over structural solutions. EPA appreciates the suggestions, and agrees that pollution prevention and vegetative cover are critical practices for minimizing the discharge of pollutants from construction sites. EPA points out that the permit includes several provisions that implement vegetative and pollution prevention

measur es. Some examples include the requirement in Part 2.1.1.2b for discharges to be directed to vegetated areas of the site, the requirement in Part 2.1.2.3 for the minimization of sediment track out, the requirement in Part 2.1.2.4 to control discharges from sediment or soil piles, the requirement in Part 2.1.2.6 to minimize the disturbance of steep slopes, and the pollution prevention requirements in Part 2.3, among others. The permit also includes specific criteria for achieving site stabilization through ve getative or non -vegetative cover in Part 2.2. One commenter suggested that the permit include specific performance values for turbidity for the erosion and sediment control requirements. EPA appreciates the suggestion; however, the erosion and sediment control requirements in the permit implement the non

- numeric technology

based ELGs and new source performance standards (NSPS) promulgated as part of the C&D rule, which were developed based on the degree of control that can be achieved using various levels of pollutant control technology (BAT and BADCT). As described in comment response essay 3.1, the C&D rule did include a numeric limitation on the discharge of turbidity from active construction sites (see 40 CFR 450.22). However, since its promulgation, EP A discovered that the data used to calculate the numeric limit for turbidity were misinterpreted, and that it was necessary to recalculate the numeric limit. EPA issued a direct final regulation and a companion proposed regulation to stay the numeric limitation at 40 CFR 450.22 indefinitely. 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 finaliz ed the CGP without the numeric limit and related monitoring and reporting requirements. A commenter indicated that EPA’s proposed language in the draft CGP that “[t]he requirements in Part 2 apply in addition to any applicable state or local requirements, regardless of whether they are more or less stringent,” is confusing. EPA agrees that this statement could be misleading, and has therefore omitted it from Part 2 of the final permit. Response 2.2 Requirement to Avoid Sensitive Areas
EPA received numerous comments on the proposed requirements in the draft permit to avoid sensitive areas by marking off any sensitive areas, avoiding steep slopes, and minimizing stream crossings. These comments are discussed below.

Response 2.2.1 Requirement to mark off sensitive areas. EPA received many comments disagreeing with the proposed requirements to mark off sensitive areas, such as buffer areas, steep slopes, and water crossings. The following is a summary of the specific concerns raised:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

18 The requirement should be used either to exclude an area or to designate it, but not for both. Excessive flagging will cause confusion. This requirement is a burden that requires constant maintenance, particularly for linear projects extending many miles. Certain sensitive areas are not under the scope of the CGP, and whether they should be flagged should be determined by the appropriate regulatory agency.
Permittees should instead be allowed to delineate sensitive areas on their construction documents (such as the SWPPP), or there should be exceptions. The use of marking devices is restricted on certain projects (e.g., active runways), and therefore the requirement should be flexible and allow for alternatives. Some projects exist entirely within sensitive areas, and therefore avoidance and demarcation is impossible. After reviewing the comments, EPA agrees that the marking

- off of sensitive areas will be problematic in some situations, and may not be always be necessary. EPA has retained the requirement to mark of f buffer areas in the final permit (see Part 2.1.2.1b.iii) because EPA believes that areas of “no disturbance” should be clearly delineated. For other sensitive areas that may not necessarily be areas of no disturbance, EPA only requires in the final permi t that they be identified on the site map in the SWPPP. Response 2.2.2 Steep slopes. Numerous commenters disagreed with EPA’s proposed requirement to avoid steep slopes areas, including EPA’s proposed definition of steep slopes as 15%, and the associated requirements if disturbance is unavoidable. Comments included on the proposed definition of steep slopes included: The geographic areas that are covered by the permit are very diverse in terms of topography. Because 15% is a normal slope for certain mountainous areas, defining steep slopes at 15% is not realistic. Linear utility projects often extend through steep, natural terrains. Certain industry design standards for steep slopes are greater than 15 percent. EPA should limit steep slope requirem ents to very steep slopes (e.g.,=, those over 25% or those over 33%). EPA should provide a length component in the definition of steep slopes. EPA should just include what is required by the C&D rule (i.e., “Minimize the disturbance of steep slopes”) and should require the permittee to describe how this will be achieved in the SWPPP. Steep slopes should not be defined due to the fact that many variables influence soil erodibility. EPA notes that the requirement in the final CGP to minimize the disturbance of steep slopes implements the C&D rule requirement at 40 CFR § 450.21(a)(4). EPA added specificity to the C&D rule requirement in the proposed permit to assist permittees in determining what EPA considers to be a “steep slope.” EPA agrees that the definition of steep slope should be flexible to accommodate different locality or industry specifications steep slopes, and therefore EPA has modified the definition in the final permit to “where a state, Tribe, local government, or industry technical manual (e.g., stormwater BMP manual) has defined what is to be considered a ‘steep slope’, this permit’s definition automatically adopts that definition. Where no such definition exists, steep slopes are automatically defined as those that are 15 percent or greater in grade.”Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

19 See Appendix A. EPA believes that the modified definition of steep slopes in the final permit accommodates the concerns of the commenters. One commenter requested that EPA explain how slope is to be delineated on a site. EPA clarifies that because there are various industry practices and locality specifications for determining slope, EPA will accept slope determinations made in accordance with good engineering judgment that are in compliance with any applicable industry or locality specifications. Because this is a general provision requiring that operators minimize the disturbance of steep slopes, EPA believes it is unnecessary for the Agency to incorporate a length component into the definition for this provision to be effective.

EPA also received the following comments on the proposed requirements that apply if steep slope disturbances occur, including: Linear projects are often designed such that avoidance of steep slopes is not feasible, and, due to narrow rights

- of

- ways and proje ct requirements, it is not always feasible for linear projects to comply with the additional requirements. The other permit requirements are sufficient to protect steep slope disturbances. To accommodate the concerns about the practicability of the proposed controls required if steep slope disturbances occur, EPA has removed these permit provisions from the final permit. EPA agrees that many sites will have difficulty diverting flows around steep slope disturbances, and using specialized controls, particularly where the design of the project is such that steep slope disturbances are necessary (such as a highway shoulder) or the project is located in a mountainous area. EPA also believes that the other erosion and sediment control requirements are suff icient to protect water quality where steep slope disturbances occur. EPA has provided the following note in the permit, which clarifies EPA’s expectations about how a site would comply with the requirement to minimize disturbances to steep slopes: “If a disturbance to steep slopes is required for the project, EPA would recognize that it is not economically achievable to avoid the disturbance to steep slopes. However, in cases where steep slope disturbances are required, minimizing the disturbances to steep slopes consistent with this requirement can be accomplished through the implementation of a number of standard erosion and sediment control practices, such as by phasing disturbances to these areas and using stabilization practices designed to be used on steep grades.” EPA received comments on requirements for stabilization of steep slopes, including deadlines. See Part 2.2 of the CGP for stabilization requirements and section VII.2 of the 2012 CGP Fact Sheet for a discussion on the rationale of stabilization requirements. One commenter requested that EPA allow temporary stabilization of steep slopes until the end of the project. EPA notes that the 2012 CGP allows for such temporary stabilization. For comments related to the proposed 3

- day stabilization deadline, EPA notes that the 2012 CGP requires operators of sites with steep slopes to complete stabilization as soon as practicable but no later than 14 calendar days (or 7 for sites discharging to sensitive waters) after the temporary or permanent cessat ion of earth

- disturbing activities. The permit also provides flexibility to install temporary, non

- vegetative stabilization measures until final, permanent stabilization is completed. See requirements for minimizing the disturbance of steep slopes in Part 2.1.2.6 of the 2012 CGP and rationale for those requirements in section VII.1.2 of the 2012 CGP Fact Sheet.

Response 2.2.3 Requirement to minimize stream crossings. Commenters raised concern with EPA’s proposed requirements that permittees minimize strea m crossings. One commenter requested that EPA clarify what it meant by limit stream crossings to the “minimum necessary.” Another commenter noted that minimizing stream crossings could be difficult for linear projects that cross multiple drainageways. Afte r reviewing the comments, EPA has decided to remove the requirement to minimize stream crossings in the permit. EPA believes the requirement was subjective and also not within the scope of the permit, since stream crossings (e.g., dredge andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

20 fill) are ofte n covered under the CWA section 404 permit program. EPA believes the removal of this requirement addresses the concerns expressed by commenters. EPA notes, due to the modifications to the proposed requirements to mark off any sensitive areas, avoid steep slopes, and minimize stream crossings, the permit heading “Avoid Sensitive Areas,” has been removed from the final permit. Response 2.3 Natural Buffers or Equivalent Sediment Controls EPA received numerous comments on the proposed requirements implementing the C&D rule requirement at 40 CFR § 450.21(a)(6) to “Provide and maintain natural buffers around surface waters... unless infeasible.” Response 2.3.1 EPA’s implementation of the C&D rule buffer requirement. Several commenters disagreed that bu ffers should be required in the permit. Some c ommenters suggested that because buffers are normally planned during the design phase of a project, the requirement is beyond the scope of the construction site operator’s responsibilities. Another commenter

su ggested that EPA provide permittees the option to implement buffers, instead of requiring them to provide the equivalent sediment reduction through a complicated approach, while another commenter suggested that EPA not mandate buffers if more effective BMP s are available. EPA points out that EPA is required to implement in the final CGP the C&D rule requirement at 40 CFR § 450.21(a)(6) in the permit. While EPA understands the concern of the commenters, EPA has developed compliance alternatives that are as straightforward as possible and that EPA believes provide flexibility for sites that are unable to provide a 50

- foot buffer. EPA clarifies that buffers are not mandated where infeasible, and in fact, the compliance alternatives allow permittees to install a smaller buffer, or no buffer at all where infeasible, as long as they meet the equivalent sediment reduction as the 50

- foot buffer through additional erosion and sediment controls. Several commenters suggested EPA’s implementation of the C&D rule requirements at 40 CFR § 450.21(a)(6) to be overly prescriptive, and requested that EPA instead simply parrot the C&D rule language and issue non

- mandatory guidance. Another commenter argued that the C&D rule does not support the proposed buffer compliance alternatives that require permittees to achieve the equivalent sediment reduction as a 50

- foot buffer. One commenter suggested that EPA instead allow permittees to document their compliance with the C&D rule requirement in their construction documents (e. g., the SWPPP). EPA disagrees with these comments. EPA has described its rationale for the buffer requirements in Part VII.1.2 of the fact sheet. EPA explains in the fact sheet that including minimum specific requirements in the permit is essential so that permittees understand how to comply with the terms of the permit, and so that discharges of pollutants to surface waters are minimized . Additionally, in the fact sheet EPA describes that it was important that the requirements in the permit be flexible to account for different site conditions. EPA believes that it has appropriately implemented the C&D rule requirement through the buffer provision with compliance alternatives in the permit, and that these provisions achieve the balance between being clear, environmentally protective, and flexible for sites with designs that are inconsistent with the implementation of a 50

- foot buffer. Commenters also suggested EPA’s fact sheet rationale for the buffer requirements and buffer appendix to be overly- prescriptiv e. EPA recognizes that making the determination of achieving the equivalent sediment reduction if a 50

- foot buffer is not provided may be complicated for some sites.

Therefore, EPA believes that the level of specificity provided in the permit fact sheet and Appendix G guidance is justified. Commenters argued that EPA has ignored the language in the C&D rule that a buffer is not required if it is “infeasible.” EPA disagrees. In the Part 2.1.2.1a.iii compliance alternative in the final permit, EPA allows sites to avoid the requirement to provide and maintain an undisturbed natural buffer of any size if it is “infeasible.” EPA believes that, although a buffer of any size will be infeasible for some sites, permittees should still be held to the requirement to treat the sediment load in theirRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

21 discharges to surface waters so that they achieve the equivalent protection as a 50 - foot buffer. EPA believes that this requirement is important to ensure that discharges of pollutants to surface waters are minimized. Ther efore, compliance alternative 2.1.2.1a.iii states, “If it is infeasible to provide and maintain an undisturbed natural buffer of any size, you must implement erosion and sediment controls that achieve the sediment load reduction equivalent to a 50

- foot nat ural buffer.” EPA has also identified exceptions to the compliance alternatives that address the concerns for when a site might find it infeasible to comply with any of the compliance alternatives. Included among the exceptions is specific flexibility for linear projects and for small residential lots, and for projects where preexisting development disturbances(e.g., structures, impervious surfaces) have eliminated a natural buffer. Related to this topic, some commenters disagreed with EPA’s use of the phrase, “if it is infeasible” in the compliance alternative at Part 2.1.21a.iii because of the subjective nature of the term. EPA notes that, because the phrase “unless infeasible” appears in the C&D rule at 40 CFR § 450.21(a)(6), EPA was required to incorpora te the concept of infeasibility in the permit requirement for buffers. EPA has provided examples in the fact sheet and in Appendix G of when it might be infeasible to provide a buffer of any size, which EPA believes will provide clarity to permittees about what EPA means by “infeasible.” EPA has also defined infeasible in Appendix A. Response 2.3.2 Basis for the 50

- foot buffer or sediment removal equivalency . Commenters requested that EPA describe why a minimum buffer width of 50 feet or sediment removal

e quivalency was selected in the proposed compliance alternatives, and questioned if the estimated sediment reduction of the 50

- foot buffer is consistent with the C&D rule. EPA notes that the 50- foot minimum standard was determined independent of the C&D rul e. The C&D rule requirement simply stated, “Provide and maintain natural buffers around surface waters... unless infeasible.” However, as EPA described above, EPA felt it was important to add specificity to the C&D rule requirement in the permit, and has justified the minimum 50

- foot width or sediment removal equivalency in the fact sheet. One commenter suggested that 50 feet is too prescriptive without considering factors such as existing vegetation, slope, and floodplain restrictions, and that EPA should leave it up to the local jurisdiction to implement a minimum buffer width. Because of the variability of buffer performance, one commenter suggested that the 50

- foot requirement be replaced with a general requirement to provide a natural buffer to the extent it is feasible or appropriate. EPA agrees that consideration of the several factors is important when determining buffer effectiveness and feasibility, and in fact, in the fact sheet for the permit, EPA reviewed the following topics: The pollutant removal effectiveness of natural buffers; The relationship between buffer width and pollutant removal effectiveness; State/local waterfront zoning requirements; Federal buffer requirements and guidance; and Buffer performance considerations.
EPA’s review of these topics informed the basis for the 50

- foot minimum width or sediment removal equivalency requirements in the permit, and justify why EPA is opposed to leaving the buffer requirements up to the local jurisdiction or up to the permittee, as suggested by some commenters. EPA believes that the compliance alternatives approach in the permit allows permittees to take into account site

- specific considerations, and therefore, is not overly prescriptive. EPA notes that the permit does not override any state or local requirements for buffer widths wider than 50 feet. A commenter suggested that the 50

- foot buffer should be included exclusively as a BMP option to encourage the permittee to consider alternative or more effective approaches for their site specific conditions. In response to this comment, EPA believes that the compliance alternatives in the permit accomplish this suggested approach. The compliance alternatives allow permittees to implement a smaller buffer, or no buffer at all where infeasible to implement any buffer, and toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

22 implement BMPs that work based on their site

- specific conditions, which is consistent with the suggested approach. Response 2.3.3 Miscellaneous general comments on the buffer requirement . EPA received several miscellaneous commen ts on the proposed buffer requirements, summarized as follows. One commenter disagreed with the proposed language requiring that “[t]he compliance alternative selected above must be maintained throughout the duration of permit coverage.” The commenter sug gested that EPA allow operators to switch approaches during permit coverage. EPA agrees with this suggestion, and therefore has included the following language in the final permit: “The compliance alternative selected above must be maintained throughout th e duration of permit coverage, except that you may select a difference compliance alternative during your period of permit coverage, in which case you must modify your SWPPP to reflect this change.” EPA believes this language addresses the concern of the c ommenter. Commenters requested that EPA describe what it meant by the use of the term “natural” in terms of the proposed requirement that the permittee provide and maintain “undisturbed natural vegetation.” EPA clarifies that it was never the Agency’s intent that permittees establish or modify the vegetation that exists within the buffer area on their site. EPA has modified the permit language to make this more clear. In the final permit, EPA requires that permittees provide and maintain a 50

- foot “natu ral buffer” (or equivalent). EPA also clarifies in the permit that permittees are not required to enhance the quality of vegetation that already exists in the buffer, or provide vegetation if none exist. Instead, permittees are only required to retain and protect from disturbance the buffer that existed prior to the commencement of construction. This is consistent with EPA’s definition of “natural buffer” in Appendix A of the final permit as “an area of undisturbed natural cover surrounding surface waters within which construction activities are restricted. Natural cover includes the vegetation, exposed rock, or barren ground that exists prior to commencement of earth

- disturbing activities .” EPA confirms that it does not require permittees to enhance the quality of the vegetation (i.e., establish native vegetation) within the buffer, but does encourage them to do so if it would lead to improved water quality protection. A commenter also requested EPA to clarify if it would consider the harvesting of a few tr ees in the buffer every now and then to be “undisturbed.” EPA has clarified in Appendix G that any disturbances within the buffer that are conducted to enhance the vegetation in the buffer are permitted, such as removal of non

- native species and planting or establishment of vegetation, are not considered to be construction disturbances. However, EPA clarifies that tree removal, or any vegetation removal, is not permitted in the buffer if the purpose is not to enhance or maintain the natural vegetation in the buffer. EPA also notes that the requirement that the buffer be left undisturbed only applies during the period of permit coverage. One commenter suggested that the permit does not include information regarding the limitations of buffers. EPA believes th at the permit fact sheet and appendix provide sufficient guidance regarding effective buffer implementation, and therefore disagrees that there should be a discussion of the limitations of buffers. Commenters expressed that buffers need significant amount s of maintenance to be effective, with one commenter suggesting that buffers are not effective in removing sediment from active construction discharges. EPA disagrees. In Appendix G in Tables G – 8 through G – 15, EPA has modeled the expected sediment redu ction of 50

- foot buffers in all of the geographic areas covered by the permit under various expected vegetation conditions and soil types, and has estimated that a 50

- foot buffer will generally provide high levels of sediment removal from construction sites. Based on this modeling, EPA believes that leaving the existing natural buffer undisturbed, including any existing vegetation, without conducting significant maintenance will achieve significant sediment removals. EPA believes that, regardless of the quality of vegetation within the buffer, buffers provide benefits by displacing earth

- disturbances from surface waters, allowing for filtration and infiltration of stormwater to occur. EPA also points out that discharges toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

23 buffers must first be treated by th e site’s erosion and sediment controls, including the site’s perimeter controls. Several commenters pointed out that buffer vegetation quality should be considered in the permit, with one commenter suggesting that EPA require permitting authorities to per form an on - site evaluation of buffer quality for any sites discharging to waters with a TMDL, or to waters that are natural heritage areas or that contain critical habitat. While EPA appreciates this suggestion, EPA does not believe that it would be an appropriate condition to include in the permit. EPA recognizes that vegetation varies considerably across the geographic areas covered by the permit, and therefore, EPA does not believe it would be appropriate to set a vegetation quality standard that applies for all permittees. EPA also does not believe that an on

- site evaluation is necessary for sites discharging to sensitive waters. EPA points out that the permit contains technology

- based and water quality

- based effluent limitations that EPA believes will result in discharges meeting water quality standards. Additionally, EPA does not believe that it is within the scope of the CGP to mandate the quality of the vegetative cover to be retained in the buffer beyond requiring that it be equivalent to or better than what was there before. EPA believes that the intent of the C&D rule’s buffer requirement was for permittees to simply leave the area surrounding surface waters undisturbed.
Commenters indicated to EPA that buffers become ineffective unless sheet flow conditions occur. EPA agrees that erosive flow can limit the effectiveness of buffers. Accordingly, the permit requires that permittees that are choosing compliance alternative Part 2.1.2.1a.i or 2.1.2.1a.ii must “use velocity dissipation devices if necessary to prevent erosion caused by stormwater within the buffer.” See Part 2.1.2.1b.i. Similarly, one commenter requested that EPA clarify if the discharge requirements apply to discharges through the buffer or discharges to the buffer. EPA clarifies that t he requirement applies to discharges (i.e., water flowing) to the buffer, and has made this consistent in the permit. One commenter noted that the permit does not appear to require any additional controls if a natural 50- foot buffer is retained. EPA clarifies that permittees are required to comply with all of the other requirements in the final CGP, including the requirement to install perimeter controls (e.g., a silt fence) along those perimeter areas of the site that will receive stormwater from earth di sturbing activities. The permit also requires that all discharges from earth

- disturbances to the buffer be first treated by the site’s erosion and sediment controls. See Part 2.1.2.1b.i. One commenter requested that EPA clarify that when the buffer width is less than 50 feet whether the requirement to install equivalent erosion and sediment controls extends along the entire buffer. EPA clarifies that the additional controls must treat all discharges flowing to the buffer area. This situation is also clarified in the Appendix G. A commenter suggested that EPA consider allowing “buffer averaging” to provide greater flexibility. With this approach, wider and smaller buffers would be allowed on a site as long as the average width meets the minimum requirement. EPA considered this approach, but ultimately determined that establishing the minimum 50

- foot fixed width in compliance alternative Part 2.1.2.1a.i would be the most straightforward approach for permittees to implement and for EPA to enforce. EPA also believes that the permit establishes flexibility for sites wishing to provide a reduced buffer in compliance alternative Part 2.1.2.1a.ii.

One commenter suggested that allowing a reduced buffer in compliance alternative Part 2.1.2.1a.ii will reduce the post

- construction benefits of a wider buffer. EPA agrees that buffers are an important consideration in protecting water quality from post

- construction discharges. However, as described in comment response essay 2.1.3, post

- construction discharges are outs ide the scope of the CGP. Accordingly, EPA only considered the pollutant removal effectiveness of the compliance alternatives during the period of time a project would be covered under the CGP. A commenter expressed disagreement with EPA’s example that a subdivided lot existing within the buffer is an example of buffer infeasibility. EPA disagrees with the comment because EPARes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

24 believes that it is not the role of the Agency to make land use determinations. If a permittee is allowed by the state or local jurisdiction to construct a property entirely within the 50

- foot buffer area, EPA would agree with a determination made by that permittee that a buffer would be inconsistent with the project, and therefore technically infeasible. If it is infeasible to provide a buffer of any size at all, Part 2.1.2.1a.iii requires that the permittee implement erosion and sediment controls that achieve the sediment load reduction equivalent to a 50

- foot natural buffer. EPA notes that, although EPA no longer includes the buffer infeasibility example referenced by the commenter in the buffer appendix, EPA agrees with this example of buffer infeasibility. EPA received support for the proposed buffer requirements from several commenters, with some suggesting that EPA consider more stringent requirements. Some commenters suggested that EPA require expanded buffer widths, especially for critical habitat areas and other sensitive areas. EPA agrees that wider buffers generally provide enhanced environmental protection. However, it was E PA’s goal to develop a minimum width applicable to all sites that achieves the balance between providing sufficient environmental protection and being technically feasible for most sites. EPA believes that the 50

- foot minimum width achieves this goal, as described in the fact sheet. One commenter suggested that EPA consider requiring 25

- foot buffers around drainage features such as ditches, storm drains, and arroyos. EPA appreciates the suggestion; however, EPA believes that this would expand the requirements beyond what was intended by the C&D rule, and therefore disagrees. EPA has clarified in the permit that it does not consider stormwater control or conveyance features on

- site to constitute “surface waters” for the purposes of triggering the requirement to comply with the buffer requirements. The commenter also suggested that EPA require permittees to document in the SWPPP any existing local or state buffer requirements. Because compliance with any state and local buffer requirements is outside the scope of the CGP, EPA does not believe that it should be required documentation in the SWPPP. EPA agrees with the suggestion from a commenter that EPA include language in the buffer appendix encouraging (but not requiring) that woody debris to be retained in buffers, and that invasive species be replaced with native species, and therefore EPA has added this to the buffer appendix. See Appendix G. Response 2.3.4 Waters affected by the buffer requirement. One commenter requested that EPA clarify when a surface wat er is considered to be located “immediately adjacent” to a site for the purposes of determining whether the Part 2.1.2.1 requirements apply. EPA has provided guidance in Appendix G, including graphics, that explain when the Part 2.1.2.1 requirements apply. EPA agrees that neither the proposed permit requirements, nor the proposed buffer appendix, was clear, and EPA agrees that the term “immediately adjacent” was unclear and subject to different interpretations. EPA has therefore revised the language in the permit to clarify that the Part 2.1.2.1 requirements apply a surface water is located within 50 feet of a project’s earth disturbances. For example, if a site’s disturbances occur within 30 feet of a surface water, the requirements in Part 2.1.2.1 would ap ply. However, if a site’s disturbances occur more than 50 feet from the surface water, the Part 2.1.2.1 requirements would not apply because a buffer of 50 feet has been accounted for. A commenter requested that EPA clarify how the Ordinary Water Mark is identified for the purposes of measuring the buffer. EPA notes that the Ordinary High Water Mark does not equate to the 100 year 24- hour storm event, as the commenter speculated. Making a determination of the Ordinary High Water Mark is very site

- specific. EPA has provided guidance on how to measure the Ordinary High Water Mark in Appendix G of the final permit. Another commenter suggested that EPA require buffers to be measured “perpendicularly” from the surface waters (as opposed to “horizontally”). EPA agrees with this suggestion, and has modified the language in Appendix G of the final permit. EPA also received numerous comments on the proposed application of the buffer requirements with respect to “waters of the U.S.”, including:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

25 EPA is not justified in applying the requirement to all “waters of the U.S.” because some are minor tributaries with intermittent or ephemeral flow and would receive little benefit from a buffer. EPA is burdening permittees by requiring them to make the complicated determination if a water is a “water of the U.S.”, which is subject to interpretation. EPA should limit the requirement to waters that appear on USGS topographic maps, or should develop maps of waters to be protected by buffers. EPA has not justified its application of the requirement to “waters of the U.S.” instead of “surface waters” as required under the C&D rule requirement 40 CFR § 450.21(a)(6) EPA appreciates the comments received with respect to the use of the term “waters of the U.S.” in the buffer requirements. EPA has decided, to be consistent with the C&D rule language, to use the term “surface water” in the buffer requirements, but EPA notes that “surface water” is synonymous with “water of the U.S.”, as defined in Appendix A. EPA understands the uncertainty surrounding making a determination about whether a water body is a “water of the U.S.” However, EPA believes that applying the requirement to “waters of the U.S.” is the least subjective alternative because waters of the U.S. have been defined under EPA’s regulations, and because there is guidance from EPA regarding what a water of the U.S. is. If EPA were to apply the requirement to waters other than “waters of the U.S.”, there would be even more uncertainty regarding whether the requirements apply. Due to limited resources and the unavailability of comprehensive geospatial water of the U.S. information, EPA is not able to develop maps of waters to be protected by waters. Response 2.3.5 Exceptions. EPA received comments on the proposed exceptions to the buffer requirements in the draft permit, as well as comments on exceptions that EPA should consider including. Several comments were focused on EPA’s proposed exception to the buffer requirements for “construction of water crossings authorized under a CWA section 404 permit (where required) for water lines, sewer lines, utility lines, and roadways.” Commenters suggested that the CWA Section 404 exception also include disturbances related to the maintenance and repair of the covered activities and related stream stabilization measures. EPA agrees with these suggestions, and therefore has modified the exception in Part 2.1.2.1e.v of the final CGP to include both “[c]onstruction approved under a CWA section 404 permit” and “[c]onstruction of water depende nt structures and water access areas (e.g., piers, boat ramps, trails).” This modification also addresses suggestions that EPA allow trails to be included as an exception. One commenter requested that EPA “[d]efine and allow additional BMPs to support in -c hannel or shoreline work for installation/maintenance of bridges, channel outfalls, utility crossings, and channel bank stabilization.” EPA notes that it believes that the exceptions cited above allow for these types of BMPs, as EPA would consider these to be buffer disturbances related to “water

- dependent structures.” A commenter also suggested that EPA exempt restoration disturbances (e.g., a dam removal) from the buffer requirements. EPA also believes that this exception is provided for in Part 2.1.2.1e. v, as these disturbances will have been approved under a CWA Section 404 permit. Commenters suggested that EPA exempt sites that do not discharge to the buffer, either because of the natural topography of the site, or because discharges are captured and d iverted by BMPs. EPA agrees with this suggestion due to the fact that the buffer requirement is based upon a 50

- foot sediment removal treatment standard. Therefore, EPA believes that, if there would be no discharge of stormwater from construction disturban ces within 50 feet of a surface water to the surface water, there is no reason to require the site to implement one of the compliance alternatives in Part 2.1.2.1a. This would include situations where you a permittee has implemented control measures, such as a berm or other barrier, that will prevent such discharges. Accordingly, EPA has included this as an exception in Part 2.1.2.1e.i.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

26 EPA received comments relating to the proposed exception for “[d]evelopment of a site where no naturally vegetated buffer area exists due to prior disturbances.” One commenter suggested that EPA should include naturally impervious areas in this exemption, while another commenter suggested that this should include sites that have no naturally vegetated buffer due to natural

c onditions, such as might occur in arid areas. EPA believes that this exception should only apply to sites that have no 50

- ft natural buffer due to preexisting development

- related disturbances (e.g., where previous construction has paved over the buffer are a with structures or impervious surfaces). Therefore, EPA has clarified the exemption by applying it only to “[w]here no natural buffer exists due to preexisting development disturbances (e.g., structures, impervious surfaces) that occurred prior to the initiation of planning for the current development of the site...” Although there may be circumstances in which, due to natural conditions, there is little natural or no vegetation, EPA believes that as long as the 50

- foot buffer has not been completely pave d over or replaced by a structure, the retained natural buffer area will provide some level of water quality protection, if not through the vegetation then by providing a physical separation of the earth

- disturbing activities from the surface water and all owing opportunities for stormwater infiltration to occur. Moreover, EPA believes that it will be very rare that a site has no vegetation whatsoever due to natural circumstances within the buffer area. EPA also believes that sites that have preexisting deve lopment disturbances only in portions of the buffer should also not be exempt from the requirements in Part 2.1.2.1a due to the fact that the areas around the preexisting disturbances provide sediment removal benefits. Therefore, EPA provides the following clarification for the exception in Part 2.1.2.1e.ii: “Where some natural buffer exists but portions of the area within 50 feet of the surface water are occupied by preexisting development disturbances, you are required to comply with the requirements in this Part.” EPA also provides the following note in Part 2.1.2.1a: “Any preexisting structures or impervious surfaces are allowed in the natural buffer provided you retain and protect from disturbance the natural buffer area outside the preexisting disturba nce.” EPA maintains that it is justified in providing an exception in Part 2.1.2.1e.ii only for sites that have absolutely no natural buffer due to the fact that there is no possibility that vegetated can be recovered in the areas that have been developed (unless substantial remediated is performed). Related to this topic, one commenter suggested that EPA not exempt previous disturbances from the buffer requirements because further disturbance will lead to water quality impacts. EPA clarifies that the permit does not allow permittees to conduct additional disturbances within the buffer without additional equivalent controls being provided; it simply provides that the existing disturbance is allowed in the natural buffer. Additionally, because the exemption i n Part 2.1.2.1e.ii applies only if preexisting development has completely eliminated the buffer, in this situation there is no possibility for additional buffer disturbances. EPA also notes that the permit requires that if any portion of the preexisting disturbances will be disturbed, they will be deducted from the area treated as a natural buffer. For these reasons, EPA disagrees with the suggestion. One commenter suggested to EPA that because natural features, such as swales, rills, or gullies, could mak e it difficult to comply with the requirement that discharges through the buffer remain

non

- channelized or non

- concentrated, there should be an exception to this requirement. EPA notes that the final permit no longer requires that discharges to the buffer remain non - channelized

or non

- concentrated. Instead, permittees must use velocity dissipation devices if necessary to prevent erosion caused by stormwater within the buffer. EPA believes that if discharges flowing to the buffer have the potential to cause erosion and compromise the pollutant removal effectiveness of the buffer, it is imperative for the permittee to reduce the erosive flow of the discharge through velocity dissipation devices. EPA believes that through the use of velocity dissipation devices and through other means, it is practicable for permittees to avoid the erosive discharges to the buffer, and therefore EPA does not agree with this suggested exception. A commenter requested that EPA not allow any exceptions for sites that are at high r isk for pollution problems. While EPA appreciates the suggestion, EPA believes that the exceptions provide needed flexibility for those specified scenarios. Furthermore, EPA believes that the permit’s erosion and sediment control requirements and water qua lity

- based requirements will ensure that permittees achieve compliance with water quality standards.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

27 One commenter requested that EPA clarify that projects that are exempt from the buffer requirements are exempt from all of the effluent limits for all or just a portion of the site. EPA clarifies that the exemptions only apply to the applicable buffer requirements. Sites that qualify for one of the buffer exemptions are still required to comply with all other permit requirements, including the applicable erosion and sediment control requirements in Part 2.1. Response 2.3.6 Linear concerns. EPA heard from many commenters expressing concern about the infeasibility of the buffer requirements with regard to linear facilities. Commenters suggested that, due to l imited rights

- of

- ways, implementation of any of the compliance alternatives will often be difficult or impossible to achieve, and therefore a more flexible approach is needed. Comments also indicated that requiring a buffer could also result in unintended consequences in some cases (e.g., increasing the erosion potential on steep highway slopes), and could limit treatment train positioning. Based on the comments received, EPA has decided to provide additional flexibility for linear projects with regard to the buffer requirements. EPA has included the following exception in Part 2.1.2.1e.iii of the final permit: “For “linear construction projects” (see Appendix A), you are not required to comply with the requirements in this Part if site constraints (e.g., li mited right

- of

- way) prevent you from meeting any the compliance alternatives in Part 2.1.2.1a, provided that, to the extent practicable, you limit disturbances within 50 feet of the surface water and/or you provide supplemental erosion and sediment control s to treat stormwater discharges from earth disturbances within 50 feet of the surface water. You must also document in your SWPPP your rationale as to why it is infeasible for you to comply with the requirements in Part 2.1.2.1a, and describe any buffer width retained and/or supplemental erosion and sediment controls installed.” EPA believes that this exception addresses the concerns expressed by commenters. Response 2.3.7 Arid/semi

- arid concerns. A number of comments were received with regard to the applicability of the buffer requirements in arid and semi

- arid areas. Several commenters expressed that EPA should take into consideration the differences in vegetation in arid areas, and how that impacts buffer effectiveness. EPA believes that the compliance alternatives do in fact take into account differences in vegetation throughout the geographic areas of permit coverage. If a 50

- foot buffer is not retained, permittees must implement additional controls that achieve the equivalent sediment reduction at the 50

- foot buffer for their area . EPA has modeled the expected sediment reduction achieved for the areas of permit coverage in Appendix G of the permit, which include arid and semi

- arid areas. EPA al so notes that permittees may perform an evaluation of buffer effectiveness based on their own site

- specific conditions. EPA believes this flexibility is consistent with the suggestion that the permit include considerations for differences in arid areas. A commenter similarly expressed concern that establishing vegetation in a buffer in arid areas may take multiple growing seasons. In response, EPA clarifies that the permit does not require vegetation in buffers to be established, but instead, that permittees simply leave the area designated as a natural buffer undisturbed. Other comments focused on the fact that buffers are not necessary in arid areas for water quality protection. For example, one commenter indicated that buffers should not apply to dry arr oyos that receive flood flows. EPA points out the purpose of the buffer in the permit is to minimize pollutants from discharges. Therefore, EPA believes that it is imperative that buffers be applied consistently around all surface waters that will receive stormwater discharges from the construction site. Another commenter identified that most discharges in arid areas will infiltrate before reaching a surface water, and that, therefore, the buffer requirements should not apply. EPA notes that if a discharge to a surface water will never occur during the period of permit coverage, then Part 2.1.2.1e.i provides an exception to the buffer requirements. Furthermore, if there is no discharge of a pollutant to a water of the U.S., there is no need for NPDES permit coverage. EPA also notes that filtration and infiltration of stormwater is an important function of buffers, as it results in pollutant removal. Therefore, EPA believes that even in areas of sparse vegetation, providing a setback between earth disturbances and surface waters will minimize pollutant discharges. Another commenter suggested that EPA only require buffers if there is support that they will achieve aRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

28 minimum sediment removal efficiency in RUSLE2. EPA disagrees with this approach because, as desc ribed above in comment response essay 2.3.5, EPA believes that even sparsely vegetated buffers will provide sediment removal benefits. A commenter also pointed out that EPA was incorrect in stating in its proposed buffer guidance that buffer restoration goals in arid areas should be the establishment of dense native vegetation. EPA agrees that this may not be the correct goal for arid and semi -arid areas, and therefore EPA has removed this language from Appendix G in the final permit. Response 2.3.8 Faste r stabilization requirements. EPA received many comments on the proposed requirements that sites disturbing within the 50

- foot buffer area (i.e., those complying with compliance alternative Part 2.1.21a.ii or 2.1.2.1a.iii comply with more stringent stabilization requirements. Although there was some support for the requirements, most commenters disagreed with the approach. Some of the comments focused on the impracticability and technical difficulties of completing the installation of stabilization measures within three days, and urged that EPA be more flexible. Commenters also found that having multiple stabilization requirements would be confusing on a site. One commenter expressed confusion over whether or not disturbances are allowed in the buffer based on this requirement. EPA clarifies that the stabilization requirement applied to disturbances within 50 feet of the surface waters, which are authorized under compliance alternatives 2.1.2.1aii and 2.1.2.1a.iii. Upon further reflection, EPA agrees that this requirement may not have been reasonable, and also believes that that the stabilization deadlines applicable to all permittees (whether discharging to sensitive waters or not) and the fact that permittees will have treat discharges so that they achieve the equivalent sediment removal as a 50

- foot buffer will provide sufficient protection to surface waters. Therefore, EPA has removed this provision from the final permit. Response 2.3.9 Requirement to demonstrate sediment reduction equivalency. EPA received numerous comments on EPA’s guidance in the buffer appendix about how to comply with the requirement to demonstrate the equivalent sediment reduction for sites providing less than a 50 - foot buffer. The following is a summary of the comments r eceived: Insufficiencies in EPA’s modeling of the 50

- foot buffer sediment removal performance: EPA’s analysis of the sediment removal effectiveness of a 50

- foot buffer using RUSLE2 in the appendix was insufficient and did not include many important considerations. EPA should have considered the effect of flow, storm events, buffer effectiveness without being cleaned and maintained, rain intensity/duration, the amount of contributing area allowing runoff to flow into the buffer, slope, vegetation height and mass, and other critical features. Additionally, because natural vegetation varies from site

- to

- site, the tables are not realistic, and this requirement is not practicable. The majority of the sediment removal values are unrealistically high, which will be difficult, or impossible, to achieve compliance with. EPA should allow an alternative standard of 80 percent for any modeled sediment removal greater than 80 percent. Unrealistic assumptions regarding equivalent BMP performance: The effectiveness of the BMPs modeled in RUSLE2 are theoretical, based upon “idealized” conditions, and are not practical. Determining if controls achieve the equivalent removal is difficult and subject to interpretation. BMP effectiveness should be more realistic in terms of what is actually obtained in the field by passive stormwater BMPs. However, there is limited field data collected on BMP effectiveness. Sediment percent removal efficiencies attributed to BMPs, as the permit evaluates, is often a poor measure of BMP performan ce. Other methods, such as how much volume is prevented, how much runoff is treated, etc., are better. The permit does not include enough information about what alternative controls will achieve compliance. EPA should provide information on BMP performance to assist permittees in determining the sediment removal equivalency. EPA recognizes the limitations of the approach presented in the buffer appendix for determining the sediment removal effectiveness of buffers. EPA used the RUSLE 2 program to model the sediment removal efficiencies of 50

- foot buffers, one of the more commonly used programs forRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

29 modeling erosion from construction sites, and evaluated buffer effectiveness for the typical soil types and vegetation types found in the areas covered under the permit. EPA determined that, because of the complicating factors affecting erosion on construction sites, for the purposes of simplifying this calculation for permittees, it was appropriate to make assumptions in the model. Although the model does not account for all the variables affecting buffer performances on all sites, EPA believes the model provides a sound estimate of buffer performance for the areas covered under the permit. EPA also believes that most permittees will prefer using the numbers provid ed by EPA over performing their own modeling of their site

- specific conditions. Therefore, EPA has retained in the final permit the information provided on the expected sediment reduction for a 50- foot buffer in the buffer appendix. Because EPA recognizes that the model does not take into account all variables impacting buffer effectiveness, EPA notes that, if a permittee wishes to perform an evaluation to determine the expected sediment removal on their site taking into account their site

- specific conditions, they may do so. EPA also recognizes that for some areas where EPA determined that a 50

- foot buffer will yield very high (e.g., greater than 90 percent) sediment removals, it may be difficult to design controls to meet this standard. Therefore, in the final permit, EPA has limited the removal efficiencies to a maximum of 90 percent. Efficiencies that were calculated at greater than 90 percent are shown as 90 percent, and this is the percent removal that must be achieved by alternative controls.

EPA also recognizes potential concerns regarding the performance of BMPs evaluated by EPA in its examples in the buffer appendix. As suggested by several commenters, EPA considered providing BMP performance information and incorporating a toolbox approach that would specify BMPs that a permittee could implement to achieve an equivalent sediment removal. However, EPA ultimately determined that such an approach could lead permittees to choose BMPs that may not necessarily perform effectively based on their site

- speci fic conditions. EPA decided that BMPs are best chosen on a site

- specific basis, and therefore has retained the proposed approach in the permit requiring permittees to make the determination of which BMPs lead them to the equivalent sediment reduction. EPA also understands the concern about modeling the performance of BMPs based on theoretical conditions, as opposed to field conditions. EPA notes that if BMPs are designed using good engineering practices to meet the sediment removal equivalency, EPA would co nsider the site to be in compliance, recognizing that the field performance of the BMPs may differ. EPA does not require the site to monitor the actual sediment removal achieved by their BMPs in the field. EPA notes, however, that the BMPs must be implemen ted in accordance with the specifications of the equivalency design, and that the BMPs must be maintained to ensure their effectiveness is not compromised. If an operator becomes aware that their BMPs are not working as designed, EPA would expect them to r epair, modify, or replace the BMP. EPA also notes that, although the Agency relied on the RUSLE2 program for its examples, permittees may choose other models to achieve compliance.
EPA received numerous other miscellaneous comments on the 50

- foot sediment removal equivalency requirements, described as follows. Several commenters indicated that, because EPA has only provided sediment reduction performance tables for its geographic areas of permit coverage, NPDES

- authorized stated will be burdened with developing sediment removal tables for their states. EPA notes that NPDES authorized states are not required to implement the same buffer approach in their construction stormwater permits, and therefore EPA does not believe that the approach will necessarily be a burden to other states. Commenters also requested that EPA clarify that the tables provided in Appendix G only apply in EPA’s geographic areas of coverage. EPA believes that the permit is clear that each of the tables only applies in the area indicated in the title of each table. Therefore, EPA does not believe this will present confusion. One commenter noted that it must make the information it relied upon in its buffer appendix available to the scientific community. EPA notes that all of the information it relied upon came from the RUSLE2 model, and there is no additional information to provide.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

30 A commenter also disagreed that EPA’s analysis of the sediment removal efficiency of a 50

- foot buffer should include a silt fence. EPA clarifies that it mod eled buffer effectiveness with a silt fence based upon the fact that the permit requires all sites to install perimeter controls along all perimeter areas of the site, including buffer areas, that receive stormwater from earth

- disturbing activities. EPA al so requires that all discharges from the site’s earth

- disturbances to the natural buffer be first treated by the site’s erosion and sediment controls. Therefore, EPA believes it is more realistic to model the expected pollutant removal of a 50

- foot buffer with a perimeter control. Response 2.3.10 Small site flexibility. EPA heard concerns from commenters that the buffer requirements will disproportionately affect smaller sites. Alternatively, one commenter expressed that smaller buffers are not justified for smaller lots because the impacts from them are great cumulative ly. Commenters also expressed that requiring permittees to conduct modeling of buffer equivalency is overly complicated and burdensome. EPA believes that some flexibility is warranted for smaller sites due to the fact that they face space constraints, mak ing implementation of the 50

- foot buffer provision difficult. Additionally, EPA agrees that smaller sites may have difficultly evaluating the supplemental erosion and sediment controls that provide the equivalent protection of the 50

- foot buffer due to lim ited technical resources. EPA provides special flexibility for small residential sites to achieve compliance with the buffer requirements in Part 2.1.2.1e.iv of the final permit through more flexible small residential lot compliance alternatives. The small residential lot compliance alternatives eliminate the requirement for builders of small residential lots to model and demonstrate that they have achieved the equivalent sediment removal as a 50

- foot buffer. Instead, the small residential lot compliance alternatives provide builders of small residential lots with specific controls to implement based on the width of buffer they will retain on their site. Guidance on implementation of the small residential lot compliance alternatives is provided in Appendix G,and Part VII.1.2 of the fact sheet provides the rationale for why this approach is justified for small residential lots, and why it is not applicable for other sites. Response 2.4 Requirements Applicable to All Construction Sites
EPA heard concerns abo ut the proposed permit heading “Requirements Applicable to All Construction Sites” due to the fact that certain controls may not be applicable for certain projects, especially for linear projects with limited rights

- of ways. EPA notes that in the final per mit, EPA has limited the scope of requirements that apply to all construction sites to only those provisions that all sites would need to implement. Response 2.5 Required Design Factors EPA received comments on EPA’s proposed general design requirements, which included required design factors, requirements to control stormwater discharges, requirements to use vegetated areas for sediment control, and requirements to route non

- stormwater to sediment controls. A commenter suggested that the general design requirements should consider factors for utility line construction in existing paved areas (e.g., streets) where the amount of area disturbed at one time is limited. EPA points out that each of these specific design factors correspond to the C&D rule requi rements in 40 CFR 450.21(a)(2) and (5), and believes these factors are critical for ensuring that stormwater controls are designed to minimize sediment discharges from the site. For example, it is important to consider precipitation characteristics so that earth

- disturbing activities can be planned during periods with a lower risk of precipitation and so that erosion and sediment control practices can be designed to appropriately convey and manage the precipitation that is expected to occur. With regard to construction occurring in existing paved areas, EPA clarifies that the required design factors apply to discharges that come into contact with earth disturbances at the site. EPA would not expect that a site design its stormwater controls toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

31 account for di scharges that do not come into contact with its earth disturbances. EPA believes that this clarification addresses the concern of the commenter. One commenter pointed out that discharge quality can be negatively impacted by run

- on to the site, and request ed that EPA provide an allowance for run

- on quality (e.g., for run

- on resulting from landowner activities outside of the easement for linear projects). While EPA understands the concern raised by the commenter, EPA believes that it is critical that sites

a ccount for run

- on to ensure that stormwater controls are designed to control all flows that will potentially come into contact with earth

- disturbing activities and that will be discharged from the site to waters of the U.S. Therefore, EPA disagrees that EP A should provide an allowance for stormwater run- on quality in the permit. EPA received a comment in support of this view which suggested that EPA’s design criteria account for run

- on flows. EPA agrees with this suggestion, and therefore has modified the d esign requirement to require permittees to consider “The nature of stormwater runoff and run- on at the site...”. See Part 2.1.1.2a.ii of the final permit. A commenter also requested that EPA define fine silt, clay, or colloidal solids to clarify when enhanced treatment would be required in accordance with the proposed requirement stating, “If fine silts, clay or colloidal soils are present, then use of enhanced sediment controls such as sand filtration and/or polymers or flocculants may be necessary.” Upon further consideration, EPA believes that the use of enhanced sediment controls, including sand filtration and chemical treatment, is best determined on a site

- specific basis. Therefore, EPA has removed the proposed language referenced above from the f inal permit. Response 2.6 Requirement to Control Stormwater Discharges. EPA received comments with regard to the following proposed requirement: “Design stormwater controls to control both peak flowrates and total stormwater volume to minimize erosion at outlets and to minimize downstream channel and streambank erosion.” Commenters indicated that the proposed requirement did not take into consideration several factors, including the fact that some sites may not have erosion concerns, and therefore should not be required to implement controls. Additionally, the requirement does not include specific guidance on how peak flow rates are calculated, and how total stormwater volume can be controlled, and would require extensive stormwater calculations. A comment er noted that this requirement does not include a specific goal to be met to reduce pollutant discharges, making compliance difficult. A commenter also indicated that this requirement may not be feasible or applicable for linear projects because the contro l over flowrate presumes an ability to retain stormwater on

- site. EPA notes that this proposed requirement implements the C&D rule requirement at § 450.21(a)(2). In the final CGP, EPA has modified this requirement to only apply in areas where “any stormwater flow will be channelized at your site.” See Part 2.1.12.a.ii. With this modification, EPA believes it makes it clear that the requirement will not require that all permittees install specific controls. Instead, the requirement only applies where flow will be channelized on a site. For example, if a linear project does not channelize flow at the site, the requirement to design stormwater controls to control peak flowrate and total stormwater volume does not apply. EPA believes that this requirement formal izes standard practices that construction site operators generally take into account when designing stormwater channelization controls to ensure that erosion and scouring from discharges is minimized. EPA believes that through good engineering practices, permittees will be able achieve compliance with this requirement, and EPA does believe that the permit should specify what specific methods are required to control peak flowrates and total stormwater volume. As long as channelized discharges are minimizing downstream channel and streambank erosion, compliance will be achieved. EPA notes that the requirement to control peak flowrates and total stormwater volume do not necessarily equate to a 2 -year, 24- hour storm event. Another commenter indicated that requirements concerning flowrates and stormwater volume are not appropriate parameters for regulation in the NPDES program. EPA again points out that this requirement implements the C&D rule requirement at 40 CFR § 450.21(a)(6), and therefore, it is not within the scope of this permit to modify this regulatory requirement. Moreover, the purpose ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

32 this permit requirement is to minimize the discharge of pollutants to waters of the U.S. from active construction sites, which is one of the purposes, if not the central purpose, of the NPDES program. Response 2.7 Requirement to Use Vegetated Areas for Sediment Control Commenters expressed that requiring sites to discharge stormwater to vegetated areas of the site is not realistic when grading and construction activities are occurring. EPA believes that it will be feasible to direct stormwater to vegetated areas during grading and construction activities in many cases. However, EPA recognizes that in some cases it may not be feasible due not the nature of the construct ion activities occurring. Therefore, Part 2.1.1.2b requires that stormwater be directed to vegetated areas in order to increase sediment removal and maximize stormwater infiltration, unless infeasible. EPA notes that this requirement implements the C&D rul e requirement at 40 CFR § 450.21(a)(6). Commenters disagreed with EPA’s proposed requirements that permittees use level spreaders to establish a non

- concentrated or non

- channelized flow, suggesting that level spreaders are rarely implemented correctly or e ffectively. Based on this concern, EPA no longer requires the use of level spreaders. EPA has also modified the language to only require the use of velocity dissipation devices if necessary to prevent erosion when directing stormwater to vegetated areas. S ee Part 2.1.1.2b of the final permit. Response 2.8 Requirement to Route Non

- Stormwater to Sediment Controls Commenters disagreed with EPA’s proposed requirement that allowable non -stormwater be directed to sediment controls, stating that sediment

- free non

- stormwater discharges should not be treated by sediment controls, and overuse of the sediment controls will limit their effectiveness. EPA appreciates the suggestion, and upon further reflection has omitted this requirement from the final permit. A com menter also suggested that water used for dust control or irrigation should be exempt from this requirement. In accordance with these comments, in Part 1.3d EPA only requires that non

- stormwater discharges not be routed to areas of exposed soil on the site , except for water used to control dust and to irrigate. Response 2.9 2 -Year 24 Hour Storm In the proposed permit, EPA requested comments on whether EPA should adopt a design storm standard, such as the 2

- year, 24

- hour design storm, for all stormwater co ntrols. EPA received many comments supporting the concept, with some suggesting that EPA even consider a larger storm event standard. However, many other comments expressed concern with applying the concept to all stormwater controls. The following is a su mmary of the concerns: A design standard should be flexible and should consider other factors such as project duration, timing relative to season, etc. A standard is not always necessary depending on the length of the project and the season. Also, it is difficult to choose one standard that is effective in every location. The 2

- year, 24 -hour storm varies from state- to

- state. Instead, EPA should consider selecting a quantity of rainfall as a guideline. Barrier BMPs will not capture sediment from a 2

- year, 24

- hour storm. A standard should only be applied to a sediment containment system (SCS). A design standard is appropriate for volume

- based stormwater controls, such as a sediment basin. However, it is not appropriate for other types of controls, such as b arrier BMPs, and there is no information supporting how these controls can be designed to a standard. Determining how to design all stormwater controls to meet the standard would require an in

depth analysis, which would increase costs and would burden smaller developers. If adopted, EPA should provide guidance on how to design BMPs to meet the standard. A design standard is not appropriate for linear projects with limited room for sediment basins. A design standard would result in over

- engineering of s ites. Based on these comments, EPA decided that it would not be appropriate to apply a design standard to all stormwater controls. However, EPA received support from many commenters onRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

33 adopting a 2

- year, 24

- hour storm standard for sediment basins. Therefore, in the final permit, EPA requires that for any site choosing to implement sediment basins, they must either design the basin to meet the calculated runoff from a 2

- year, 24 -hour storm, or provide storage for 3,600 cubic feet per acre drained. EPA notes that this design standard is consistent with the design standard for sediment basins in the 2008 CGP, and therefore, EPA believes that the permittees will be familiar with the concept. EPA provides information on determining the volume of runoff from a 2

- year, 24

- hour storm in Appendix H. One commenter noted that the information on the 2 -year, 24- hour storm in the appendix will be out of date because the National Weather Service will be updating its statistics. EPA notes that EPA is only able to incorporate the latest published data at the time of permit issuance. If newer information becomes available after the permit is issued, EPA will incorporate it into the next permit issuance. EPA will allow permittees to continue to use the information in Appendix H for designing sediment basins, but encourages permittees to use more updated information if it is available. EPA also notes that permittees may use alternative data sources to determine the 2 -year, 24- hour storm for their site. A commenter also noted tha t technical paper 40, as referenced in Appendix H, is no longer applicable for certain parts of the country. Accordingly, EPA removed the reference to technical paper 40 for sites in the District of Columbia. A commenter also noted that a conversion factor is required for determining a 2 - year, 24

- hour storm for Northeast Regional Climate Center: Atlas of Precipitation Extremes for the Northeastern United States and Southeastern Canada map. Accordingly, EPA removed this map and reference from the Appendix, and instead references sites in Massachusetts and New Hampshire to technical paper 40. Response 2.10 Clarification of which SCMs Need to be in Place Prior to Disturbances and Rationale Response 2.10.1 Clarification of requirement . EPA received comment on the proposed requirement to “install and make operational all sediment controls prior to conducting earth disturbing activities.” Some commenters requested clarification of which sediment controls are to be in place prior to land disturbances. EPA notes that the requirement applies to “downgradient” sediment controls. Also, the requirement applies “if feasible.” See Part 2.1.1.3 of the 2012 CGP for a description of the requirements and section VII.1.1 of the 2012 CGP Fact Sheet for a discussion on the rationale for the requirements. See also supplemental explanation papers in the C&D rule docket regarding appropriate time for implementation of the various BMPs in the construction process. Other commenters were concerned that they would be unable to meet the requirement because of the size and scope of their projects. To these commenters, EPA notes that the 2012 CGP allows operators who are disturbing their site in phases to also install stormwater controls in phases. See Part 2.1.1.3. The permit requires operators to have completed downgradient stormwater controls no later than each phase of earth

- disturbance. That is, by the time earth disturbing activities in any given portion of a site begin , the permittee must have installed and made operational any downgradient sediment controls (e.g., buffers or equivalent sediment controls, perimeter controls, exit point controls, storm drain inlet protection) that control discharges from the initial site clearing, grading, excavating, and other land

- disturbing activities from that portion of the site. This requirement applies to the downgradient sediment controls only. Following the installation of downgradient controls, all other stormwater controls planned for a given portion of the site and described in the SWPPP must be installed and made operational as soon as conditions on the site allow. Thus, EPA notes that operators of large sites would not necessarily need to install controls for their entire site prior to beginning land disturbance. The requirement applies to the portion of the site in which operators are conducting land

- disturbing activities. Some commenters were concerned that they would not be able to meet the requirement because the act of installing stormwater controls itself results in land disturba nce. As discussed above, EPA notes that the 2012 CGP requires completion of installation of downgradient sedimentRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

34 controls by the time each phase of earth

- disturbances begins and allows operators to install and make operational all other stormwater control s planned for a given portion of the site and described in the SWPPP as soon as conditions on the site allow. EPA does not mandate specific downgradient sediment controls but provides a list of examples of downgradient sediment controls including buffers or equivalent sediment controls, perimeter controls, exit point controls, and storm drain inlet protection. EPA believes that operators will be able to install such downgradient sediment controls without disturbing the rest of the site. Response 2.10.2 Leg al authority for requiring SCMs in place prior to discharge .EPA received comment on the Agency’s authority to require the installation of stormwater controls before a stormwater discharge is present. EPA has revised the language in Part 2.1.1.3 of the 2012 CGP to clarify the requirement. The permit requires that downgradient sediment controls in any given portion of the site be in place by the time earth

- disturbing activities begin in that portion of the site, but not necessarily “before” earth

- disturbing activities begin. The permit requires the controls to be in place no later than the start of land

- disturbance because once land

- disturbance begins, receiving waters are vulnerable to increased stormwater discharges and associated pollutant loads. The requirement to have downgradient sediment controls in place no later the initiation of land disturbances ensures that measures are in place in time to address the risk and to minimize the discharge of pollutants to receiving waters. Response 2.10.3 Definition of “initial site clearing” and what needs to be done prior to “initial site clearing”. EPA received comment requesting that the Agency clarify the definition of “initial site clearing” with respect to the proposed provision to require operators to install stormwater controls prior to commencing earth

- disturbing activities in any portion of the site, with the exception of initial site clearing and the establishment of entry, exit, and access of the site, which may require that stormwater controls be installed immediately after the earth disturbance. EPA proposed that “prior to commencing earth

- disturbing activities in any portion of [the] site, [operator] must install and make operational all stormwater controls...[but] this requirement does not apply to earth disturbances related to initial site clearing. As discussed below, EPA does not define “initial site clearing” in the 2012 CGP. However, the term generally refers to the removal of vegetation and/or top soil at the commencement of construction activity at a site. Commenters requested that EPA exempt the initial exposing of the site as well as clearing related to the construction of BMPs. EPA notes that the 2012 CGP does not distinguish between initial site clearing and other earth

- disturbing activities or make an exemption for initial site clearing because, like other earth

- disturbing activities, initial site clearing leads to increases in stormwater discharge volume and pollutant loads, including sediments. Thus, EPA does not define initial site clearing i n the 2012 CGP. However, as discussed above, the permit does not require operators to install all stormwater controls prior to earth

- disturbing activities. Rather, the permit requires operators to install “downgradient” sediment controls in a given portion of the site no later than the commencement of earth

- disturbing activities, including initial site clearing, in that portion of the site. Following the installation of these initial controls, all other stormwater controls planned for this portion of the site and described in the SWPPP must be installed and made operational as soon as conditions on the site allow. Operators will be able to install downgradient sediment controls (e.g., buffers or equivalent sediment controls, perimeter controls, exit point co ntrols, storm drain inlet protection) that control discharges from the initial site clearing, grading, excavating, and other land

- disturbing activities without disturbing the rest of the site. See Part 2.1.1.3 of the 2012 CGP for a description of the requirements and section VII.1.1 of the 2012 CGP Fact Sheet for a discussion on the rationale for the requirements. Response 2.11 Flexibility for Linear Construction Projects – Down

- Slope Controls EPA received comments on the proposed requirement to “install stormwater controls along all down slope areas...on the level contour of the site, in the flattest area possible, at a distance down slope from the toe of the slope, and with the ends of the control paced up slope from the rest of the control.” Some commente rs indicated that many linear projects slope from beginningRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

35 to end and have no flat areas. Others were concerned that the length of linear projects would make the proposed requirement overly burdensome. EPA has clarified the provision in the 2012 CGP. Operators must install sediment controls along only those perimeter areas of the site that will receive stormwater from earth- disturbing activity, rather than the entire perimeter of the site. In addition, EPA notes that permittees constructing their projects in phases are eligible to install stormwater controls in phases as well. See Part 2.1.2.3 of the 2012 CGP. Other commenters asserted that many linear construction projects would lack the space to comply with the requirement for down

- slope controls due to limited rights

- of

- way. Another commenter suggested that EPA provide flexibility but not a universal exemption for linear construction projects for down

- slope controls. EPA agrees with this commenter and notes that the 2012 CGP includes flexibility for linear projects. For linear projects with rights

- of

- way that restrict or prevent the use of such perimeter controls, permittees must maximize the use of these controls where practicable and document in their SWPPP why it is impracticable in other areas of the project. Response 2.12 Sewer Inlet Protection Provision EPA received comments on the proposed requirement to provide protection of sewer inlets. Commenters noted that the requirement is a good practice but should be qualified or waived in situations where the controls may create unsafe conditions (i.e., flooding around the inlets). One commenter suggested that alternative controls should be allowed in these situations. Other commenters asserted that inlet protection is ineffective and poses a safety risk, asserting that the controls slow water flow and block its exit into the sewer, resulting in flooding of traffic lanes. One commenter suggested that EPA consider the safety of the traveling public and recognize the effectiveness of stormwater controls t hat minimize sediment before it arrives at the sewer inlet. Other commenters suggested that EPA recognize other effective controls. The 2012 CGP is responsive to the comments received. The permit requires sewer inlet protection only in those cases in which stormwater is not first directed to a sediment basin, sediment trap, or similarly effective control. Moreover, the permit allows operators to remove controls in the event of flood conditions or to prevent erosion.
Other commenters noted that stormwater drains are sometimes located on property outside of their jurisdiction. EPA notes that the requirement in the 2012 CGP only applies to storm drains for which the permittee has authority to access. One commenter noted that some storm drains are not yet in service during construction. The commenter explains that such storm drains are cleaned out before they are put into service. The commenter suggests that these storm drains do not require protection. EPA notes that the requirement in the 2012 CGP only appli es to storm drains that carry stormwater flow to surface waters. If the storm drains in question are out of service and thus do not carry stormwater flow to surface waters, then the requirements would not apply. EPA also received comment suggesting that the Agency consider inlet protection control prior to any land clearing activity. EPA agrees and notes that the 2012 CGP requires downgradient sediment controls to be installed in a given portion of the site by the time land disturbance begins in that portion of the site and includes sewer inlet protection as an example downgradient sediment control. Response 2.13 Effective Operating Conditions EPA received comments requesting that EPA explain what is meant by “effective operating condition.” EPA has defined the term in the 2012 CGP. See Appendix A. EPA received comments on the proposed requirement to remove sediment once it has reached a height of one

- half of the height of any exposed silt fence in order to maintain effective operating conditions. On e commenter asserted that one

- half height is too high because pressure will cause fabric failure. Another commenter pointed out that many manufacturers state that the properRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

36 height of removal is one

- third of exposed height. EPA appreciates the comments, bu t EPA decided to keep the height at one

- half because EPA believes that the requirement has worked well in the past. Response 2.14 Managing Track

- out EPA received comments on the proposed provision to eliminate track

- out from vehicles. Some commenters sou ght clarity on the requirement. Others asserted that it would be impossible to “eliminate” track

- out. EPA notes that the 2012 CGP requires operators to “minimize” (rather than “eliminate”) sediment track -out. See Part 2.1.2.3 of the 2012 CGP.
Some comment ers asserted that removing sediment from vehicles or daily sweeping, shoveling, or vacuuming of streets, sidewalks, or other paved areas would be burdensome. EPA notes that the 2012 CGP requires controls for removing sediment from tires only “where necessary” and requires sweeping, shoveling, or vacuuming of streets, sidewalks, or other paved areas only “where sediment has been tracked

- out”. The permit also requires operators to minimize sediment track

out in the first place by restricting vehicle use to properly designated exit points and by requiring the use of appropriate stabilization techniques at all points that exit onto paved roads so that sediment removal occurs prior to vehicle exit. These preventive measures will help to minimize track

- out in the first place and thus reduce the burden associated with any necessary sediment removal from tires or any sweeping, shoveling, or vacuuming. See Part 2.1.2.3 of the 2012 CGP. One commenter requested clarification on the applicability of the requirement for sweeping or removing track- out to paved surfaces within the site boundary. EPA notes that the requirement applies to “off -site” streets, other paved areas, and sidewalks. See Part 2.1.2.3 of the 2012 CGP. The commenter goes on to suggest that EPA limit the requirement to remove track

- out to “publicly accessible streets and other paved surfaces”. EPA has not limited the requirement to streets and paved surfaces that are “publicly accessible.” Rather, the requirement applies to the paved areas onto which vehicles enter after exiting the site. EPA believes that if a permittee is able to utilize a paved surface to exit the site, then the permittee should have sufficient access to the area to remove any track- out. EPA notes that the intent of the requirements in Part 2.1.2.3 is to minimize track

- out in the first place. The requirement to remove track

- out only applies in those cases where the preventive measures have failed and sediment has been tracked

- out. One commenter asserted that wheel washouts are not always effective and that they are not always an option (e.g., water is not available). EPA notes that the 2012 CGP does not require wheel washout. Rather, wheel washout is indicated as an example of a control that could be used to remove sediment from vehicles prior to their exit. Another example control given is the use of rumble strips. Regarding comments on sediment staining and “no visible sign”, EPA recognizes that some fine grains may remain visible on the surfaces of off

- site streets, other paved areas, and sidewalks even after permittee has implemented sediment removal practices from these surfaces. It is not the intent of the Agency to consider such “staining” to be a violation of Part 2.1.2.3. EPA received general comments asserting the challenges of meeting the track

- out for linear projects. EPA has reviewed these comments and notes that the final permit language is responsive to them. For comments related to dirt roads, EPA notes that the track

- out removal requirements apply to paved surfaces only. For comments related to “no visible sign”, see discussion in previous paragraph. For comments related to the inability to remove track

- out (1) caused by the traveling public driving over exposed areas in which work is not currently occurring or (2) caused during non

- work days, EPA notes that the 2012 CGP recognizes the challenge in removing the track- out at the end of the day in which the track

- out occurred under these circumstances and allows permittees in these situations to remove the deposited sediment by the end of the next work day if track

- out occurs on a non

- work day. The language provides permittees with flexibility while also ensuring the removal of sediment and protection of receiving waters.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

37 Response 2.15 Dust - Suppression
EPA received comment on the proposed requirement to minimize the generation of dust and off

site tracking in order to minimize pollutants being discharged into waters of the U.S. One commenter asserted that the requirement was vague and expressed concern that the adequacy of a ctions taken would be subjectively assessed by inspectors without more specific criteria in place. Some commenters suggested that EPA does not have the authority to regulate airborne dust clouds that may leave construction sites, further stating that the NPDES program only regulates pollutants associated with certain construction operations that are discharged from a property via stormwater through a point source to a water of the U.S. Similarly, another commenter asserted that the CWA does not give EPA th e authority to regulate airborne particles. The commenter goes on to say that local clean air requirements may conflict with requirements under the CGP and that not all jurisdictions allow water to be used as a temporary stabilization agent. The commenter recommends that the CGP not contain any language about dust suppression because the Clean Air Act already does so and EPA’s Office of Water lacks the expertise or authority to regulate air pollutants. EPA is not regulating air quality or dust clouds leavi ng the site under the 2012 CGP. Part 2.1.2.5 of the permit requires operators, to the extent feasible, to minimize the generation of dust through the application of water or other dust suppression techniques in order to minimize pollutants being discharged via stormwater from the site to waters of the U.S. The purpose of the requirement is to minimize the discharge of sediment in stormwater from the site to surface waters. Dust suppression techniques are best management practices that prevent dust from bein g generated, thereby minimizing the potential for the dust to accumulate where it is likely to be blown around within the site and/or to discharge from the site in stormwater discharges. The requirement will reduce the amount of dust that rises within the site and settles onto the project area not protected by stormwater control measures where it may be subsequently mobilized by stormwater and discharged through a point source to a water of the U.S. Response 2.16 Requirement to “Eliminate” Sediment Dischar ges EPA received several comments citing the difficulty of eliminating sediment discharges. In response to these comments, EPA notes that the 2012 CGP includes provisions requiring that permittees minimize sediment discharges rather than eliminate sedimen t discharges. Response 2.17 Soil Stockpiles EPA received several comments on the proposed requirements for soil stockpiles. Some commenters supported the proposed requirements. Others suggested alternative language. Some commenters challenged the feasibility of the proposed stabilization deadline requirements. Some supported requirements to cover stockpiles while others asserted that covering stockpiles would not always be feasible. While covering stockpiles helps to minimize sediment discharge, EPA recognizes that other practices are also effective and notes that the 2012 CGP includes flexibility for minimizing sediment discharges from soil stockpiles. See Part 2.1.2.4 of the permit. Stockpiles must be located outside of any buffers, physically se parated from other stormwater controls, and protected from contract with stormwater. The permit requires that stockpiles be protected from contact with stormwater (including run -on) using a temporary perimeter sediment barrier (e.g., berms, dikes, fiber ro lls, silt fences, sandbag, gravel bags, or straw bale). Where practicable, permittees must provide cover or appropriate temporary stabilization to avoid direct contact with precipitation or to minimize sediment discharge and, where feasible, permittees mus t contain and securely protect stockpiles from wind. Response 2.18 Preservation of Native SoilsRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

38 EPA received multiple comments on the proposed requirements related to the preservation of native soils. Some commenters supported the requirement. Others challenged the specificity and asserted that the specific requirements would not always be feasible. EPA notes that the 2012 CGP recognizes the challenges faced by permittees in preserving native soil. The permit requires that permittees preserve native topso il on the site, unless infeasible. EPA also received comment on the proposed recommendations related to maintaining soil function including guidance on weed growth, height limits, and limitations of soil storage times. EPA recognizes the variety of approaches that may be taken to preserve native soil and has simplified the language in the 2012 CGP, requiring only that permittees “must preserve native topsoil on [the] site, unless infeasible” without giving specific direction on how the permittees must pres erve the soil. EPA also received comments asserting that the re

- use of native soils for restoration projects could encourage invasive and non

- desirable vegetation. The 2012 CGP language provides sufficient flexibility to address the concern raised by the commenters. As noted above, an operator may be exempt from the requirement to preserve native soils if it is infeasible to do so. EPA also notes that the 2012 CGP includes a provision discussing that permittees should avoid the use of invasive species.

Re sponse 2.19 Soil Compaction One commenter suggested that EPA’s proposed requirements for minimizing soil compaction should exclude access roads, equipment pads, or other similar areas on linear projects that will be compacted. EPA did not intend for these provisions to apply to areas of the site that are designed to be compacted. EPA has clarified in the final permit fact sheet that the requirement to minimize soil compaction does not apply to areas that will not be used for final vegetative stabilization or for areas where infiltration practices will be installed. For example, the requirements do not apply to disturbed areas that will become paved surfaces, such as roads, foundations, footings, or on embankments, or on areas where soil compaction is necessary by design. Response 2.20 Requirement to Stabilize Entrances and Exits for 50 Feet EPA received a variety comments on the proposed requirements to stabilize entrance and exit points. Commenter concerns included assertions that requiring permittees to stabilize entrances and exits for a minimum of 50 feet would be overly burdensome, infeasible (e.g., for lack of space), or would not guarantee the intended protection. Commenters suggested that EPA allow flexibility and that other techniques could minimiz e sediment track

- out just as well. EPA has simplified the requirement in the 2012 CGP. Permittees must “use appropriate stabilization techniques at all points that exit onto paved roads so that sediment removal occurs prior to vehicle exit.” In addition, permittees must restrict vehicle use to properly designated exit points and use appropriate stabilization techniques at all points that exit onto paved roads so that sediment removal occurs prior to vehicle exit.
See Part 2.1.2.3 of the 2012 CGP for the requirements on minimizing track

- out and section VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the rationale. Some commenters questioned the need to stabilize entrances. EPA notes that the 2012 CGP requires operators to use appropriate stabilizat ion technique at all points that exit onto paved roads so that sediment removal occurs prior to vehicle exit. The requirement does not apply to locations on the site that are not or will not be used as exits. Response 2.21 Requirements for Stabilizing Channels EPA received comments on the proposed requirements related to constructed stormwater conveyance channels. One commenter asserted that it may not be feasible to complete stabilization of a stormwater conveyance within the proposed timeframe or “befor e the first predicted storm”. Another commenter stated that the proposed stabilization requirements areRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

39 not practicable and asserted that installing sediment barriers along the length of the channels would not be feasible. The commenter also requested clarity on the proposed timelines. EPA notes that the 2012 CGP includes requirements for minimizing erosion and sediment discharge but does not include specific stabilization requirements for channels or timelines for stabilization for channels nor does it require sediment barriers along the length of all channels. Rather, the permit requires that stormwater conveyance channels be designed to avoid unstabilized areas and to reduce erosion, unless infeasible. In addition, permittees must prevent erosion of channels and their embankments, outlets, adjacent streambanks, slopes, and downstream waters during discharge conditions through the use of erosion controls and velocity dissipation devices within and along the length of any constructed stormwater conveyance channel, and at any outlet to provide a non -erosive flow velocity. See Parts 2.1.1.2 and 2.1.3.1 of the 2012 CGP and section VII.1 of the 2012 CGP Fact Sheet. Response 2.22 Flocculent Use – Requirements and Rationale EPA received multiple comments on the proposed requirements for permittees who use polymers, flocculants, or other treatment chemicals (e.g., chitosan, polyacrylamide (PAM)) to enhance sediment removal. Some commenters supported provisions that would regulate the use of treatment chemicals. O ther commenters suggested that it is not practical for the Agency to issue broad permit restrictions on the use of chemical treatments. Others asserted that any restrictions should be limited to the manufacturer’s specifications for application. While EPA agrees that operators should follow manufacturer’s specifications and notes that the 2012 CGP requires that permittees using treatment chemicals must comply with specifications provided by the provider/supplier, the Agency also believes that additional per mit requirements on the use of treatment chemicals are important to ensure that they are properly used and that receiving waters are protected. EPA discusses its rationale for requirements on the use of treatment chemicals in section VII.1.3 of the 2012 CG P Fact Sheet. EPA also notes that the preamble to the C&D Rule (40 CFR Part 450) indicates that “NPDES permitting authorities may establish controls on dosage and usage, protocols for residual toxicity testing, require prior approval before the use of particular polymers, training requirements for site operators or other measures they deem appropriate.” 74 Federal Register 63008 (December 1, 2009). EPA has developed requirements on the use of treatment chemicals consistent with the C&D Rule and the preamble to the Rule. One commenter requested clarification of the requirements with regard to non -proprietary treatment, as compared to proprietary treatment. EPA discusses the requirements in Part 2.1.3.3 of the 2012 CGP and notes that the requirements on the u se of treatment chemicals are the same whether the chemicals are proprietary or non -proprietary. EPA received comment suggesting that any operator using chemical treatment should be required to obtain an individual permit. EPA also received comment recommending that chemicals not be used for stormwater control at all and encouraging the use of a combination of sediment and erosion control measures instead. EPA agrees that permittees should be encouraged to use a combination of sediment and erosion controls and notes that the 2012 CGP requires that permittees who plan to use chemical treatment must maximize the use of conventional erosion and sediment controls as a means to minimizing the amount of treatment chemicals that would be required. The provision will help to ensure that treatment chemicals are not over

- applied. In response to the comment suggesting that chemicals not be used at all, EPA recognizes that treatment chemicals can be an effective means to reducing pollutant loads in stormwater discharges and, when used correctly, should not pose an environmental risk to receiving waters. The 2012 CGP includes several provisions related to chemical treatment to ensure proper and safe usage. See Part 2.1.3.3 of the permit. While both anionic and cationic ch emicals can be used safely and effectively, EPA believes that the use of cationic chemicals may require more oversight and/or more stringent controls because of the higher risk of environmental impact if they are used improperly and because of the need for greater oversightRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

40 and greater understanding of site

- specific conditions to ensure proper and safe use of the cationic chemicals. Thus, operators planning to use cationic chemicals to treat their stormwater prior to discharge must acquire authorization from their EPA regional office prior to submitting their NOIs. Such operators may be subject to additional permit requirements in light of their plans to use cationic chemicals to treat stormwater. EPA received multiple comments challenging the required use of treatment chemicals and requesting clarification on when chemical treatment is required and which chemicals may be used. EPA notes that the 2012 CGP does not require the use of chemical treatment. Response 2.22.1 Toxicity concerns . Some commenters expr essed concerns with the toxicity of polymers, flocculants, or other treatment chemicals. One commenter recommended that operators be required to show no toxicity to fish and other aquatic species. Another commenter suggested that testing of products prior to use on construction sites should be implemented by the manufacturer prior to their use on construction sites. The commenter was concerned that requiring testing on

- site would result in reduced use of the chemicals, whether beneficial or not. EPA notes t hat the 2012 CGP does not require permittees to test the toxicity of chemicals. EPA agrees with commenters asserting that the use of chemicals could pose a risk if used improperly. However, as discussed above, EPA recognizes that treatment chemicals can be an effective means to reducing pollutant loads in stormwater discharges and, when used correctly, should not pose an environmental risk to receiving waters. The 2012 CGP includes several provisions related to chemical treatment to ensure proper and safe u sage. See Part 2.1.3.3 of the permit. In particular, the permit requires that all persons who handle and use treatment chemicals at the construction site be provided with appropriate, product

- specific training. Among other things, the training must cover p roper dosing requirements.

EPA received comment questioning, for storm event discharges, whether the Agency had evaluated the potential for discharges to contain contaminants that result in stream concentrations in exceedance of stream water quality standards due to the addition of flocculents and asked whether any additional limitations or monitoring would be necessary to address dissolved pollutants and potential changes in pH associated with treatment chemicals. The Agency continues to believe that treatment chemicals, when used correctly, should not pose an environmental risk to receiving waters. The 2012 CGP includes several provisions to ensure proper and safe usage. In particular, operators that plan to use treatment chemicals must use conventional erosion and sediment controls prior to and after the application of treatment chemicals prior to discharge to ensure effective treatment. This will maximize the opportunity for the chemical to combine with sediment and minimize the direct discharge of chemicals. Chemicals must be selected that are appropriately suited to the types of soils likely to be exposed during construction and based on expected turbidity, pH, and flow rate of stormwater flowing into the chemical treatment system. They must comply with state or local requirements, which could include residual testing. They must use chemicals in accordance with good engineering practices and specifications of the chemical provider/supplier. All persons who handle and use treatment chemicals at the c onstruction site must be provided with appropriate, product

- specific training. Among other things, the training must cover proper dosage requirements. The operator must document in the SWPPP the dosage they will use or how they will determine the dosage. See Part 2.1.3.3 for a description of the requirements and section VII.1.3 for a discussion on the purpose of the requirements. EPA also notes that residual tests are not available for all treatment chemicals. In addition, operators are subject to the water quality

- based effluent limits in Part 3 of the permit, including the provisions related to sensitive waters (where applicable), as well as the technology

based effluent limits in Part 2 of the permit . In the absence of information demonstrating otherwi se, EPA expects that compliance with the conditions in the 2012 CGP will result in stormwater discharges being controlled as necessary to meet applicable water quality standards. See also responses to comments regarding Part 3 of the permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

41 One commenter asserted that EPA does not have enough data to determine what level of certain polymers (i.e., chitosan) in the discharge can have an impact on plants and benthic organisms and that EPA should therefore provide funding for monitoring the effects of polymers (i.e. chitosan) on aquatic organisms. EPA notes that the requirements in the 2012 CGP are based on the latest data currently available to the Agency and that the permit does not specify maximum dosage rates of chemicals. Comments related to requests for EPA funding for monitoring the effects of polymers are beyond the scope of this action. One commenter asserted that the application of PAM directly to soil surfaces will likely lead to runoff that may be toxic to aquatic species. EPA believes that the provisions on the use of chemical treatment in the 2012 CGP address the risk the commenter raises. The requirements related to the use of treatment chemicals are described in Part 2.1.3.3 of the permit. In particular, the permit requires that chemicals must be selected that are appropriately suited to the types of soils likely to be exposed during construction and discharged to locations where chemicals will be applied, and the expected turbidity, pH, and flow rate of stormwater flowing into the chemical trea tment system. This requirement will ensure that the proper dosage is used. In addition, the permit requires that any chemicals that are used for treatment may only be applied where treated stormwater is directed to a sediment control (e.g., sediment basin, perimeter control, etc.) prior to discharge. The sediment control will ensure that the treatment chemicals have sufficient opportunity to bond with sediments and settle out or be filtered out of stormwater prior to discharge. Response 2.22.2 Use of secon dary containment. One commenter requested clarification on what an appropriate secondary containment would be for flocculants. EPA notes that the 2012 CGP does not require specific secondary containment for flocculants. Examples of secondary containment co ntrols include spill berms, decks, and spill containment pallets. EPA also received comment requesting the Agency’s rationale for requiring secondary containment if the materials are suitable for treating runoff. EPA notes again that the 2012 CGP does not require secondary containment. Operators must store all treatment chemicals in leak

- proof containers that are kept under storm- resistant cover and surrounded by secondary containment structures (e.g., spill berms, decks, spill containment pallets), OR provide equivalent measures, designed and maintained to minimize the potential discharge of treatment chemicals in storm water or by any other means. In addition, in response to the question, EPA notes that the dose and concentration of the treatment chemical makes a difference in the potential for environmental effects. Chemicals that are dosed properly and used correctly should pose no environmental risk while releases of raw chemicals without proper dosage may cause negative impacts to receiving waters. Thus , EPA has included specific storage requirements for treatment chemicals so that the risk of discharge from areas where the raw chemical will be stored is eliminated. See section VII.1.3 of the 2012 CGP Fact Sheet. Response 2.22.3 Usage in areas with a sh allow water table .EPA received comments on the proposed provisions on the usage of polymers, flocculants, or other treatment chemicals in areas with shallow water tables. Commenters sought to better understand the requirement. One commenter offered alterna tive language to help clarify. Another commenter asserted that the requirement would result in eliminating the use of polymers as soil stabilizers. EPA notes that the 2012 CGP does not include a provision to limit polymers, flocculants, or other treatment chemicals in areas with shallow water tables. Response 2.22.4 Chitosan. EPA received multiple comments on the usage of chitosan. EPA notes that operators planning to use cationic chemicals to treat their stormwater prior to discharge, including chitosan, must acquire authorization from their EPA regional office prior to submitting their NOIs. Such operators may be subject to additional permit requirements. See Part 2.1.3.3 of the 2012 CGP. See section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the purpose of these requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

42 EPA also received comment asserting the benefits of chitosan, that it can be a highly effective tool for addressing turbidity at challenging sites, and asserting that over

- regulation of its use could hinder its potential use. As discussed above, EPA recognizes that treatment chemicals can be an effective means to reducing pollutant loads in stormwater discharges and, when used correctly, should not pose an environmental risk to receiving waters. The 2012 CGP includes

seve ral provisions related to chemical treatment to ensure proper and safe usage. See Part 2.1.3.3 of the permit. While both anionic and cationic chemicals can be safely and effectively used, EPA believes that the use of cationic chemicals may require more ove rsight and/or more stringent controls because of the higher risk of environmental impact if they are used improperly and because of the need for greater oversight and greater understanding of site

- specific conditions to ensure proper and safe use of the chemicals. Thus, operators planning to use cationic chemicals to treat their stormwater prior to discharge must acquire authorization from their EPA regional office prior to submitting their NOIs. Such operators may be subject to additional permit requiremen ts. See Part 2.1.3.3. Response 2.22.5 Routing of treated water through sediment trapping, filtering, and/or settling devices .EPA received one comment suggesting that that all stormwater should be treated to remove sediment anyway. Other commenters were co ncerned with the site constraints of linear construction projects, asserting that the requirement would restrict waste areas of polymer - bound sediment and would make it harder to apply liquid treatments in linear applications. Commenters asserted that it would be hard to set up enough filtration devices. EPA notes that the 2012 CGP does not require chemical treatment. However, the provision to require treated stormwater to be directed to a sediment control prior to discharge helps to provide sufficient opp ortunity for treatment chemicals to bond with sediments and removes sediment “flocs” from stormwater prior to discharge. See also section VII.1.3 of the 2012 CGP Fact Sheet. Response 2.22.6 Dosage requirements and residual testing of polymers . EPA received a variety of comments on proposed requirements to set maximum dosages or to require testing for residuals of polymers. Some commenters challenged any requirements for residual testing of polymers. Some commenters supported a maximum dosage requirement. Some suggested dosage requirements in place of residual testing requirements. Others asserted that setting a maximum dosage would be difficult because of the uniqueness of each project. Another stated that any maximum dosage that might be set would be too high for most applications. EPA notes that the 2012 CGP neither specifies maximum dosage rates nor does it require residual testing of polymers. See Part 2.1.3.3 for the requirements on the usage of treatment chemicals included in the 2012 CGP and section VII.1.3 of the 2012 CGP Fact Sheet for rationale for those requirements. Some commenters suggested that permittees follow manufacturer recommendations. EPA agrees with this comment and notes that the 2012 CGP requires operators to comply with specifications provided by the provider/supplier of the applicable chemicals. One commenter stated that the presence of chitosan residuals does not necessarily indicate overdosing. See response on “chitosan” above. One commenter suggested that operators demonstrate no or very low toxicity to fish and other aquatic life rather than rely on residual testing. Another commenter suggested that any residual standard be manufacturer driven and specific to each product. See response on “toxicity concerns” above.
Some commen ters supported testing requirements. Others asserted that requiring residual testing would be onerous or that they would have the effect of limiting the dosages of chemicals that operators would be allowed to use, and therefore the effectiveness of chemica ls. Some stated that requiring residual testing would leave them in a position of having to treat their stormwater with few, if any, viable options. The commenters asked that EPA provide and maintain adequate flexibility. EPA notes that the 2012 CGP does not require chemical treatment and providesRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

43 permittees with flexibility in managing their stormwater discharges. EPA also notes that the 2012 CGP does not require permittees choosing to employ chemical treatment to conduct residual testing. However, such pe rmittees are subject to several additional requirements to ensure proper use of treatment chemicals. See Part 2.1.3.3 of the 2012 CGP for the requirements and section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the rationale for those requiremen ts. Response 2.22.7 Training requirements.EPA received comment on training requirements for chemical treatment. One commenter asserted that construction workers are not typically trained in the harmful effects of these substances on aquatic organisms and that over - application may occur. EPA notes that the 2012 CGP requires that all persons who handle and use treatment chemicals at the construction site be provided with appropriate, product

- specific training. Among other things, the training must cover pro per dosing requirements. See Part 2.1.3.3 of the 2012 CGP for the requirements and section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the rationale for those requirements. Response 2.22.8 Corrective action . EPA received comment on the propose d corrective action provisions as they relate to chemical treatment. One commenter asserted that the requirements for immediate corrective action during actual discharge from a passive system are not practical and that getting to the treatment system durin g the discharge event could be hazardous. The 2012 CGP includes language that allows flexibility for corrective action requirements for permittees. As specified in Part 5.2, the permit requires that permittees immediately take all “reasonable steps” to minimize or prevent the discharge of pollutants until a permanent solution is installed. The language recognizes that not all actions will be reasonable. For example, the permit would not require immediate corrective action of a malfunctioning system during inclement weather if it would pose a safety hazard to the operator. The permit balances this flexibility by specifying that corrective action must be completed within 7 days of discovery of circumstances requiring correction unless the timeframe is infeasible. Any extensions beyond the 7- day deadline require documentation. The commenter also asserted that the act of disturbing the treatment system could result in further violations of both the discharge of the chitosan as well as an exceedance of the numeric turbidity limit. See discussion on chitosan above. Also, EPA notes that the 2012 CGP does not include a numeric turbidity limit. Response 2.23 Dewatering Requirements and Rationale EPA received comment on the proposed dewatering requirements to prohibit “discharging groundwater or accumulated stormwater.... unless such waters are first treated by an appropriate control for sediment.” One commenter was concerned that “treated” would be misinterpreted and recommended that EPA instead require the use of “appropriate controls.” EPA understands why some readers might misinterpret “treated” and has therefore changed the language in the 2012 CGP to require that the waters be “managed by appropriate controls.” Another commenter suggested that EPA allow dewatering on vegetated, upland portions of the site without removing sediment first, asserting that the vegetation would remove the sediment. EPA agrees with the commenter that this practice should be employed to the extent feasible. The 2012 CGP requires permittees, to the extent feasible, to utilize vegetated, upland areas of the site to infiltrate dewatering water before discharge. Some commenters requested that EPA explicitly prohibit dewatering onto bare soil. EPA agrees with the commenter and notes that the 2012 CGP prohibits the routing of non -stormwater discharges from the construction activity to areas of exposed soil on the site, with the exception of water used to control dust and to irrigate areas to be vegetatively stabilized.
One commenter was concer ned with the dewatering of water so clean (from water pooled in cold bed methane wells) that it would leach salt from the soil and pollute receiving waters. Another commenter asserted that dewatered water needs to comply with water quality standards. EPA

a grees that all discharges from the site must meet applicable water quality standards and, in theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

44 absence of information demonstrating otherwise, EPA expects that compliance with the conditions in the 2012 CGP will result in stormwater discharges being controlled as necessary to meet applicable water quality standards. The 2012 CGP also requires corrective action if a discharge is not being controlled as necessary to meet applicable water quality standards. EPA believes that the existing requirements to meet water quality standards and to conduct corrective action address the concern raised by the commenter. Indeed, if stormwater leaches salt from the soil and subsequently discharges into a receiving water in exceedance of applicable water quality standar ds, the permittee would be in violation of the permit’s WQBEL and required to take corrective action to address the issue. Another commenter requested that EPA clarify that a traditional “sediment sock” is an appropriate sediment control for groundwater removal from shallow linear excavations. The commenter also asserted that uncontaminated, non

- turbid dewatering wastewater should be clarified to include all groundwater, not just “well -point ground water.” In the 2012 CGP, EPA provides several examples of appropriate controls to control dewatering discharges, including “sediment socks.” EPA also notes that the Agency has clarified the language in the dewatering provision of the 2012 CGP to include “ground water or accumulated stormwater that is removed from excavations, trenches, foundations, vaults or other similar points of accumulation.” Response 2.24 Inclusion of Critical Habitats and Areas where Endangered Species Exist in the Definition of Sensitive Areas and Associated Stabilization Requirements for these Areas EPA received comment on the proposed stabilization requirements for sites that discharge to sensitive areas, specifically on whether “sensitive areas” under this provision should include critical habitat areas or areas where endangered species exist. Some commenters supported including these areas in the definition. Others opposed any specific requirements for such sites. As discussed in section VII.2.1 of the 2012 CGP Fact Sheet, a shorter stabilization deadline is warranted for sensitive area s because of the heightened concern about erosion and the impacts from sediment and other pollutant discharges to these areas. In addition, EPA responds to comments on the inclusion of specific requirements for sites that disturb or discharge to critical h abitat areas or to sites where endangered species exist in response 2.25 below. EPA received comment on the proposed requirement that permittees mark off and avoid disturbing sensitive areas, including federally

- listed critical habitats for endangered and threatened species. EPA responds to comments on marking off and avoiding the disturbance of sensitive areas in response 2.2. EPA received comment on stabilization deadlines for sites that discharge to sensitive areas. Some commenters suggested that the d eadline should be “as soon as practicable” or “as soon as possible.” Other commenters supported more stringent stabilization deadlines for sites discharging to such areas. EPA agrees with these commenters. Under the 2012 CGP, permittees on sites that disch arge to sensitive areas are required to complete stabilization of portions of the site that discharge to sensitive areas within 7 calendar days after the temporary or permanent cessation of earth- disturbing activities, as described in Part 2.2.1.3c of the permit. The more stringent deadlines will help to prevent impacts on threatened and endangered species or their habitats. EPA discusses rationale for stabilization deadlines in section VII.2.1 of the 2012 CGP Fact Sheet and responds to comments on stabilization deadlines in Response 2.26 through 2.39. Response 2.25 Specific Requirements for Sites that Disturb or Discharge to Critical Habitat Areas or to Sites Where Endangered Species Exist EPA received comments that opposed the inclusion of specific requirements for sites that disturb or discharge to critical habitat areas or to sites where endangered species exist. These commenters suggested that requirements specific to these areas are unnecessary, asserting that the provisions of the Endangered Species Act (ESA) on their own are sufficient to protect these areas. EPA disagrees with these comments, noting that the 2012 CGP is a federal action subject to ESA requirements. Section 7(a)(2) of the ESA requires EPA to insure that that any action the Agenc yRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

45 authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or to result in the destruction or adverse modification of any designated critical habitat of each such species. EPA has designed the 2012 CGP to comply with the ESA requirements, including provisions with specific requirements for sites that disturb or discharge to critical habitat areas or to sites where endangered species exist. The specific requirements help to prevent impacts on threatened and endangered species or their habitats. See also section XV.D of the 2012 CGP Fact Sheet for discussion on the rationale of Endangered Species Act Requirements under the permit. Response 2.26 Stabilization Requirements – General Comments (Part 2.2)

EPA re ceived several comments that were directed at the proposed stabilization requirements as a whole, and which were not focused on any one particular provision. The following is a summary of those comments and EPA’s response: Response 2.26.1 Restructuring of stabilization requirements to improve clarity . One commenter recommended that the final permit should be organized by the type of stabilization requirement. EPA appreciates this comment, and acknowledges that the proposed stabilization requirements could have been organized better. In an effort to improve the clarity of the final permit, and in keeping with the commenter’s suggestion, EPA has sought to simplify this section and to make it easier to follow. Part 2.2 now includes two subparts, one addressing deadlines for initiating and completing stabilization, and the other one establishing the criteria for stabilization. Part 2.2.1 presents the requirements for initiating stabilization (Part 2.2.1.1), completing stabilization (Part 2.2.1.2), and the except ions to these requirements (Part 2.2.1.3) in a more abbreviated and orderly manner than the proposed permit. Similarly, Part 2.2.2 improves upon the proposed permit by keeping the stabilization criteria organized into two subparts, one establishing criteria for vegetative stabilization (Part 2.2.2.1) and the other for non -vegetative stabilization (Part 2.2.2.2). Response 2.26.2 Proposed stabilization requirements are more prescriptive than the C&D rule. One commenter objected to the proposed stabilization requirements on the basis that they went far beyond the stabilization requirements of the C&D rule, and that because of this the proposed requirements are unreasonable, arbitrary, and capricious. The co mmenter recommended that EPA provide flexibility to allow permittees to meet these requirements. In response, EPA believes that the changes made in the final permit to the stabilization requirements likely address some of the commenter’s concerns. For inst ance, EPA has streamlined these requirements to remove the “C

factor” criteria that appeared in the proposed rule, and to no longer impose different stabilization deadlines for steep slope disturbances and disturbances within 50 feet of a surface water. However, to the extent that the commenter still feels that these requirements go beyond the intended stringency of the corresponding C&D rule requirement (i.e., 40 CFR 450.21(b)), EPA disagrees. EPA provided permitting authorities with considerable discretion with respect to the implementation of the C&D rule requirements generally, and specifically related to the stabilization requirements. For example, 40 CFR 450.21(b) provides permitting authorities with the ability to establish specific deadlines by which stabilization must be completed, and to develop appropriate requirements for vegetative stabilization in arid and semi

- arid areas. Using this authority, EPA has defined what it considers to be reasonable deadlines for the completion of stabilization (Part 2.2.1.2), and has provided appropriate flexibility where circumstances make compliance with these deadlines infeasible (Part 2.2.1.3.b). The permit also includes more flexible deadlines for projects occurring in arid and semi

- arid areas in keeping with the C&D rule’s direction to employ “alternative stabilization measures ... as specified by the permitting authority.” Therefore, EPA believes that where the final permit’s stabilization requirements may differ from the language in the C&D rule, such differences are consistent with the discretion specifically provided to permitting authorities in implementing the rule’s requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

46 Response 2.26.3 Include incentives for minimizing areas disturbed during construction. One commenter noted the difficulty of establishing vegetation in certain arid and semi

- arid states, as well as the tendency for some construction companies to disturb a much larger area than is necessary to develop the site. The commenter observed that the lack of incentives in the proposed permit to encourage construction companies to minimize their development footprint is the permit’s biggest weakness, and recommended that the final permit include such incentives. EPA agrees with the underlying point made by the commenter that minimizing grou nd disturbance is the most effective way to reduce pollutant discharges. See related preamble discussion under Section IX.B (Erosion Controls Measures) of the C&D rule at 74 Fed. Reg. 63011 (third paragraph). EPA notes that one of the Agency’s primary objectives in establishing an acreage threshold for application of the numeric turbidity limit, which has since been stayed, was to provide permittees with an incentive to limit the total area of land being actively disturbed so as to avoid being required to meet the limit. However, because the numeric turbidity limit and associated requirements have been stayed pending the promulgation of a new limit, this incentive cannot be included in the final permit. That being said, EPA will also continue to explore the use of these types of incentives during the Agency’s effort to re

- promulgate a numeric turbidity limit. (EPA also notes that the permit requires construction operators to “minimize the amount of soil exposed during construction activities” in order to minimize the discharge of pollutants. See Part 2.1.1.1.) EPA believes it would be challenging to implement incentives of the type the commenter recommends, especially without something like an enforceable limit to use as a reason to minimize the amount of land disturbed at one time. EPA had considered provisions for the proposed permit that would have tied reduced inspection frequencies to sites that limited the amount of land disturbed at one time below a certain acreage or that avoided earth disturbing activ ities in areas immediately surrounding surface waters. EPA ultimately did not include these provisions based upon the concerns raised by the Agency’s own enforcement office because of the difficulty of enforcing such provisions. Response 2.26.4 Final stab ilization for restoration activities. One commenter raised concerns about the potential conflicts brought about by the proposed stabilization requirements with respect to restoration projects that rely on natural processes to perform the final stabilizatio n. The commenter provided the specific example of a dam removal that intends to restore a free - flowing stream through what is now an impoundment. The following is an excerpt of this comment: “A created channel accompanied by planting throughout the forme r impoundment area can actually be counterproductive. The river may not naturally follow a designed and excavated river channel despite best efforts to intuit the preferred river channel. The newly restored free

- flowing river will eventually find its own p ath through the former impoundment and this self

- selected course will be the most sustainable one. Aggressively stabilizing a restoration site may delay the river's ability to create its preferred and more stable channel. DER requests that EPA provide more flexibility in the permit to allow for a natural

- processes approach for pro

- active restoration projects.” EPA appreciates the commenter’s concerns and believes that some clarification may address what appears to be confusion about what activities are within the scope of this permit. EPA believes that in some cases the restoration work described above by the commenter will not be affected by this permit. Where restoration work is confined to disturbances within the “ordinary high water mark” of non

- tidal surface waters, this work is subject to the permitting requirements of Section 404 of the Clean Water Act, and no Section 402 NPDES stormwater permit is required. (For the purposes of Clean Water Act jurisdiction, the term “ordinary high water mark” is defined by the U.S. Army Corps of Engineers regulations as “that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

47 See U.S. Army Corps of Engineers, Regulatory Guidance Letter, No. 05 -05, December 7, 2005 a t http://www.nap.usace.army.mil/cenap - op/regulatory/rgls/rgl05-05.pdf.) It is only where such restoration work extends outside of the ordinary high water mark and causes a disturbance of 1 or

more acres (or less than 1 acre but part of a common plan of development or sale that together causes more 1 or more acre of land disturbance) to the “upland” area of the site (i.e., “the dry land area above and ‘landward’ of the ordinary high water mark”, see Appendix B) that the requirements of this permit come into play. If the extent of the disturbance to the upland area is less than this amount, then no Section 402 NPDES stormwater permit is required, unless EPA specifically informs you otherwise. If disturbance to the upland area requires coverage under an NPDES stormwater permit, then the Agency sees no reason why such disturbances should not be subject to the regulatory requirement to obtain permit coverage (see 40 CFR 122.26(a)(9)(i)(B)), such as under t he CGP. EPA hopes that this clarification will address the commenter’s main concern. Response 2.27 Definitions Related to Requirement to “Immediately” Initiate Stabilization One commenter requested definitions for the proposed reference to “working days” and the term “immediately” in Proposed Part 2.2.1. EPA did not use the phrase “working days” in this proposed section, instead using the phrase “calendar days” (e.g., “... earth

- disturbing activities have permanently or temporarily ceased, and will not resum e for a period exceeding 14 calendar days .” [emphasis added]) In the final permit, EPA has also adopted the use of the phrase “calendar days” for establishing the deadlines for stabilization. By “calendar days,” EPA intends to refer to consecutive days of the calendar, irrespective of the days on which work is conducted at the site. For example, where in Part 2.2.1.1 the temporary cessation of construction activities is defined as such activities stopping and not resuming “for a period of 14 or more calenda r days,” EPA intends that the 14 days begin running on the first day that work stops and run on consecutive days until the 14 th day after that first day.

The commenter also asks for EPA to define the term “immediately” in connection with the requirement t o “initiate soil stabilization measures immediately whenever earth disturbing activities have permanently or temporarily ceased ... .” See Part 2.2.1.1 of the final permit. EPA agrees that the use of this term could be subject to varying meanings. The use of the term “immediately” is taken from 40 CFR 450.21(b) of the C&D rule, which uses the same language as the proposed permit. EPA has included the following clarifying note in the permit, which should be helpful in addressing the commenter’s request:

“The term “immediately” is used to define the deadline for initating stabilization measures. In this context of this provision, “immediately” means as soon as practicable, but no later than the end of the next work day, following the day when the earth

- disturb ing activities have temporarily or permanently ceased.” Therefore, if the operator has initiated stabilization activities (see list of activities that constitute initiation of stabilization in permit) on the required day, EPA would find such steps to cons titute compliance with the requirement to initiate stabilization measures “immediately.” Response 2.28 Support for Alternative Types of Deadlines EPA received several comments regarding the lack of flexibility in the proposed requirement to “immediately” initiate stabilization following the temporary or permanent cessation of construction activities on a site. Some of these commenters argued for replacing the proposed deadline with an alternative “as soon as practicable” deadline to initiate stabilization, similar to the deadline for stabilization in arid and semi

- arid areas. One commenter requested consideration of a longer time period for projects that are linear or of a certain size. Several reasons were mentioned for why a more flexible timeframe is nee ded, including the following (EPA’s response follows each of the summarized reasons):

Response 2.28.1 The C&D rule provided for a stabilization initiation that was less prescriptive (i.e., “as soon as practicable”). EPA disagrees with this argument as a rationale for using an alternative deadline. EPA is required to implement the requirements in the C&D rule. The deadline forRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

48 initiating stabilization is the same deadline that appears in 40 CFR 450.21(b) of the C&D rule, and that was imposed in the 2008 CGP (see Part 3.1.H.2).

Response 2.28.2 Delays in construction due to scheduling issues or weather . For example, several commenters indicated that weather and site conditions quite often can impede ‘immediate’ initiation of stabilization, and can make it difficult to determine when a temporary period of inactivity has begun. EPA agrees with the commenter in part that unanticipated scheduling issues could legitimately make it difficult to initiate stabilization. EPA could envision a number of scenarios that might result in the sudden and unanticipated stoppage of work, which would make it extremely difficult to have predicted ahead of time when a 14

- day period of inactivity would begin, not to mention planning around these circumstances to initiate stabilization. For example, if a project was subject to a sudden and unanticipated delay due to problems associated with unavailability of labor, project funding, or extreme weather, it would not be possible at first to know with any degree of certainty how long a related work stoppage will last. After some period of time, however, the permittee should know with a reasonable degree of certainty whether work will continue on the site within 14 days or more, triggering the need to immediately initiate stabilization measures on affected portions of the site. Therefore, when the permittees knows with reasonable certainty that construction work will be discontinued for 14 or more days, it is at that time that stabilization work mus t begin. EPA has included a clarifying note in the permit to this effect, and hopes that this addresses some of the commenters’ concerns.

Having said this, EPA believes that most issues related to scheduling are within the control of the construction operator, and that it should only be those circumstances that are truly unanticipated where the operator cannot reasonably know how long a work delay will last. In EPA’s opinion, proper scheduling of work sequences throughout the site should include well plann ed out timeframes for active construction and for short -term, long- term, or permanent periods of no work, which should correspond, as appropriate, with the initiation of site stabilization measures. Therefore, for the vast majority of projects, scheduling the cessation of work and initiation of stabilization are issues that should be well within the control of the operator.

On a related note, EPA believes that on or after the day upon which stabilization is required to have been initiated, there could very well be sudden and unanticipated problems that make initiation or completion of stabilization within the 14

- day deadline impracticable. Such problems could be very similar to those discussed above, which cause uncertainty with respect to temporary cessati on of work on the site. For example, were a site to experience delays in completing stabilization due to unanticipated heavy rains, frozen ground, or a shortage of stabilization product, which are beyond the control of the permittee, EPA agrees that it would be impracticable in some cases to comply with deadlines to initiate and complete stabilization. For this reason, EPA has modified the permit to include flexibility for this type of situation. Part 2.2.1.3.b enables the permittee to complete activities related to planting and initial establishment of vegetation “as soon as conditions or circumstances allow it on your site” as long as stabilization using non

- vegetative measures is initiated immediately and installed within 14 days of the temporary or perma nent cessation of construction activities. The permittee is also required as a condition of using this provision to document the reasons for the delay in initiating and completing these activities and the schedule that will be followed. EPA believes that this language helps to address the concerns raised by these commenters.

Response 2.28.3 Specific stabilization practices and timeframes vary widely around the country depending on geography, climate, and terrain. EPA needs to revise its stabilization deadlines to reflect this variation, and to provide relief to operators whose particular site conditions make stabilization within a narrowly prescribed period impracticable. EPA believes that the final permit properly accounts for the range of differing site conditions under which construction permittees will be required to complete stabilization. In addition to the alternative deadlines for sites in arid and semi

- arid areas, EPA has also included additional flexibility to recognize “projects that areRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

49 affect ed by circumstances beyond the control of the permittee that delay the initiation and/or completion of vegetative stabilization.” See Part 2.2.1.3.b. The final permit also has removed the proposed permit’s more stringent timeframes for completing stabiliza tion for disturbances to steep slopes, disturbances within 50 feet of surface waters, and constructed stormwater conveyance channels. EPA believes that these changes go a long way towards addressing the commenters’

concerns.
Response 2.28.4 Incompatibility of deadlines to initiate stabilization immediately for areas of the site where work may be temporarily stopped, but will resume within a short period of time. According to one commenter, such a requirement could result in a redisturbance of a recently

s tabilized site, and would be unnecessary in instances where additional BMPs and surface roughening could prove just as effective. In response, EPA clarifies that the permit does not require the exclusive use of vegetative stabilization for situations involving temporary construction stoppages. The permittee may choose which type of stabilization to use in such circumstances. For instance, if surface roughening and the application of straw mulch is preferred by the permittee, such an approach would comply with the permit’s requirements as long as it was installed by the applicable deadline in Part 2.2.1.2 and met the requirements for non

- vegetative stabilization in Part 2.2.2.2. This flexibility would enable the permittee to temporarily stabilize the site in a manner that is more cost

- effective and reasonable than to revegetate a disturbed area only to redisturb it a short time later.

Regarding the commenters’ more general recommendation that the timeframes for initiation of stabilization should be replaced by an “as soon as practicable” deadline similar to the deadline for arid and semi

- arid areas, EPA disagrees. The C&D rule (40 CFR 450.21(b)) is explicit in its requirement that stabilization be initiated “immediately” on any portion of the site where work h as been permanently ceased, or where work has temporarily ceased and will not resume for a period of 14 or more days. The rule also specifically allows for alternative measures and deadlines for arid and semi

- arid areas, but does not include other areas fo r such treatment. Therefore, the C&D rule restricts the Agency’s ability to adopt the approach recommended by the commenters. EPA also believes that, apart from the explicit language of the C&D rule, an open

- ended deadline for initiating stabilization, such as the recommended “as soon as practicable” deadline, would leave the permittee with no clear direction on when to begin stabilization. While EPA has attempted to include additional flexibility for completing stabilization due to unforeseen circumstances, which will hopefully address some of the commenters’ major concerns, the Agency does not find it appropriate or consistent with the C&D rule to adopt the recommended “as soon as practicable” standard. For the same reasons, EPA also does not agree that it is necessary or consistent with its regulation to adopt one of the commenter’s suggestions to incorporate alternative deadlines for linear projects or projects of a certain size.

Response 2.29 When Work On A Site Has Temporarily Or Permanently Ceased Several commenters elaborated on the difficulties associated with basing a requirement to initiate stabilization on when “final grade has been reached.” See proposed Part 2.2.1.1.b.

These commenters explained that it is technically impossible to define when final grade has been reached. Other difficulties were noted concerning the work that it would take by the construction operator to verify that final grade had been reached. Another commenter raised concerns about whether the use of “final grade” as one of the clues for when construction work has ceased would require that graded, unpaved access roads, driveways, backyards, sideyards, etc. be stabilized during construction.

EPA appreciates these comments, and agrees that establishing a firm point in tim e when final grade has been reached may be practically difficult. EPA acknowledges that it may have underestimated the challenges that using such language would present in the field. EPA hasRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

50 removed this language in the final permit, and instead more generally defines the cessation of work based on when construction activities in an area of the site have been completed or have been temporarily stopped and will resume in the future. EPA hopes that these modifications will address the commenter’s concerns.

R egarding the commenter’s concern about requiring access areas to be stabilized once they have reached final grade, EPA clarifies that it was not the Agency’s intent to require that such areas be stabilized while they are actively being used during construction. EPA believes that by removing the “final grade” language the concerns of the commenter may have in part been addressed. To the extent that the commenter’s concern extends to the application of the stabilization requirements generally, EPA clarifies that these access areas only need to be stabilized once they will not be used for a period of 14 or more days. For instance, if a graded, unpaved road is established for the purposes of accessing a construction site, this road may be left in its unstabilized condition (subject to the requirements in Part 2.1 of the permit regarding applicable sediment and erosion controls) until the road will not be used for a period of 14 or more days, which should coincide with the end of the project. On the other hand, if a yard area of a residential project has been graded, and will not be used for a period of 14 or more days for access or equipment or vehicle storage, the requirement to initiate stabilization applies. EPA hopes that these clarifications address the

conce rns of the commenter.

Response 2.30 Support for Proposed Stabilization Completion Deadlines

A few comments expressed support for the proposed stabilization deadlines. One commenter noted that frequent inspections would be needed to ensure compliance, but acknowledged the difficulty that the Agency would have in accommodating increased inspections due to limited resources. EPA appreciates these comments. The Agency notes that the final permit has been modified to increase the deadline for completing stabil ization from 7 to 14 days after the temporary or permanent cessation of construction activities. See Part 2.2.1.2. EPA also removed some of the more stringent stabilization deadlines for disturbances to steep slopes, disturbances within 50 feet of surface waters, and for stabilizing stormwater conveyance channels, but kept a tighter deadline for sites discharging to impaired waters, but changed it from a 3

- day to a 7

- day deadline, in response to comments. Some of the other modifications will be discussed in greater detail in this section below.

EPA also appreciates the comment suggesting that a greater number of inspections will be needed to ensure compliance with the stabilization requirements. While EPA agrees that conducting a greater number of inspections would be beneficial to compliance, as recognized by the commenter, it is difficult to predict what type of increase can be accommodated given limited resources. EPA notes that the final permit requires that permittees assess areas being stabilized during any required inspection (Part 4.1.5.6), and record findings in the inspection report (Part 4.1.7).

Response 2.31 Clarification of Intended Stabilization Completion Timeframes

One commenter asked for clarification as to what the applicable deadline is for completing stabilization. The commenter was uncertain about whether the deadline was meant to be 7 days, 10 days, or 14 days. EPA agrees that the proposed permit was not as clear as it could have been with respect to the deadlines for stabilization. EPA believes that the final permit is clearer on the timeframes that apply to stabilization. Part 2.2.1.2 requires the permittee to complete, within 14 days of stopping work in an area of the site, certain activities depending on whether the measures used ar e vegetative (i.e., “activities necessary to initially seed or plant the area to be stabilized”) or non

- vegetative (i.e., “the installation of all such non

- vegetative measures”). There are some exceptions to the 14

- day timeframe, which are provided in Part 2.2.1.3. However, for theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

51 basic 14

- day timeframe in Part 2.2.1.2, the following timeline should help clarify the requirement further:

Period of active construction

Day 1 Day 14

Another commenter asked EPA to clarify what type of day is intended for the stabilization deadline, calendar days or working days. In response, EPA clarifies that the timeframes associated with completing stabilization are intended as “calendar days.” EPA has made this language explicit in Part 2.2.1.2 by requiring the completion of certain stabilization activities by no later than 14 “calendar days” after the temporary or permanent cessation of construction activities.

Response 2.32 Clarification of Area to be Stabilized One commenter asked how big of an area was intended by the proposed permit’s requirement to complete certain stabilization activities on “exposed portions” of the site. For example, the commenter asked whether EPA intended the exposed portion to be of a certain minimum size as measured by perc entage (e.g., 10 percent) or square footage (e.g., 10 square feet). The commenter raises a good question. In response, EPA points out that it intends to target any and all areas of the site that are left exposed when work has stopped, no matter the size. Having said this, EPA believes that it is not necessary for construction operators to plan their stabilization activities at the minute scale suggested by the “ten square feet” example in the comment. In fact, EPA would advise operators to examine their construction sites prior to earth disturbance at the largest scale possible in order to develop an understanding of when work on large, connected areas of the site will stop, and accordingly when stabilization measures will need to be undertaken in those area s. By assigning the stabilization schedule to these large areas, it is EPA’s expectation that the stabilization requirements will be taken care of on not only these larger areas, but also on the smaller areas of the site as well. It is EPA’s hope that by taking this approach operators will be able to implement stabilization activities in a sequence that makes sense to them and that complies with the requirement to stabilize all exposed portions of the site on which work has stopped.

Response 2.33 Problems Associated with Proposed 7

- day Deadline to Complete Stabilization A large number of commenters raised concerns with the proposed 7

- day deadline to complete certain stabilization activities. The following is a summary of those comments and EPA’s correspondi ng response.
Response 2.33.1 A 7

- day deadline to complete stabilization on large sites, particularly large linear transportation projects, is impracticable. Commenters emphasized the complexities associated with scheduling stabilization activities, which by standard practice are planned out in one

- week increments, and the conflicts that may arise with the 7

- day deadline. One commenter explained the problem as follows: “The industry standard for construction scheduling, particularly on large projects, is t o schedule out work in one

- week increments. This means schedules are updated on a weekly basis. The seven - and three

- day standards would routinely place an operator in violation of the CGP if he completes work ahead of schedule because the stabilization deadline may elapse prior to the next schedule update or because the contractor may not have enough response time to fulfill the permit requirements.” Other commenters raised issues with the remoteness of some of the areas being stabilized on large projects, and the problems associated with the limits ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

52 availability of contractors and supplies. Still other commenters noted the incompatibility of the 7

- day window of time to complete stabilization work with the standard practice in large construction projects to group stabilization work according to large areas of the project. According to these commenters, the “economy of scale” in the construction industry makes it more efficient to mobilize stabilization activities in larger areas than to work on smaller are as. The effect of the 7

- day deadline would require a more inefficient shift towards working on a greater number of smaller areas of the project.

EPA is sensitive to the particular challenges that are faced by large projects in complying with the requirement to stabilize in accordance with a strict deadline. In view of these comments, and other considerations, EPA has changed the deadline from 7 to 14 days following the cessation of construction work on any exposed portion of the site. EPA believes that this change will rectify many of the problems associated with the proposed stabilization deadline for large projects, and will be more in line with the timeframes associated with current industry practice.

Response 2.33.2 The 7

- day Deadline Would Re quire Personnel to Work on Weekends . The 7

- day deadline would result in forcing construction staff to work on the weekends to comply with the requirement, if for instance day 6 and 7 of the 7

- day timeframe fall on a Saturday and Sunday. EPA has modified the permit such that the deadline for completing stabilization is 14 days, instead of 7 days, following the cessation of construction work on any exposed portion of the site. EPA believes that this change will make it unlikely that stabilization work will be necessary on non

- work days.

Response 2.33.3 Unanticipated problems could cause permit violations that are not within the control of the permittee

. Weather problems, such as extremely wet or frozen ground, could delay the completion of stabilization. Several commenters observed that complying with a 7

- day deadline would be impracticable in these situations, and especially in muddy conditions, could result in a greater amount of damage to the site. EPA finds it plausible that weather conditions could ca use a delay in the completion of stabilization activities. It is for this reason that EPA has modified the permit to provide permittees with the ability, when faced with such unanticipated weather delays, to complete initial vegetative stabilization steps “as soon as conditions or circumstances allow it on [the] site.” This flexibility is provided on the condition that the permittee within 14 days completes the installation of temporary, non

- vegetative controls to prevent erosion. EPA believes that this flexibility should help address the commenter’s

concerns.
Unforeseen shortages in the supply of stabilization materials could delay completion within 7

- day timeframe. One commenter provided the example of sod being ordered and scheduled within the required timeline for the permit, but that sudden shortage of material could delay installation beyond the deadline. The commenter observed that problems such as these should not be the fault of the permittee, and should not be made into permit violations. In response, EPA agrees that circumstances such as the one provided by the commenter could cause a permittee, who would have otherwise been in compliance with the stabilization deadline, to violate the 7

- day deadline, or any specific deadline, for that matter. Havi ng said this, however, EPA has an interest from a water quality standpoint in ensuring that during whatever period of delay that results stabilization controls are installed to protect the exposed area from erosion. In consideration of these types of probl ems, EPA has provided in Part 2.1.2.3.b the ability for permittees, faced with unanticipated circumstances beyond their control that delay the completion of stabilization, to complete initial vegetative stabilization steps “as soon as conditions or circumstances allow it on [the] site.” This flexibility is provided on the condition that the permittee within 14 days completesRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

53 the installation of temporary, non - vegetative controls to prevent erosion. EPA believes that this flexibility should help address the commenter’s concerns.

Unforeseen shortages in labor could delay completion within 7

- day timeframe. One commenter provided the example of a union strike causing a sudden unavailability of workers to complete installation of stabilization measures. EPA believes that the example of the labor strike would occur only rarely for the projects eligible for coverage under this permit, but that such an occurrence is plausible. EPA agrees that during such a circumstance, it would not be reasonable to hold the permittee responsible for the failure to complete stabilization activities during that time. Having said this, however, EPA has an interest from a water quality standpoint in ensuring that during whatever period of delay that results from the labor shortage stab ilization controls are installed to protect the exposed area from erosion. In consideration of these types of problems, EPA has provided in Part 2.1.2.3.b the ability of permittees, faced with unanticipated circumstances beyond their control that delay the completion of stabilization, to complete initial vegetative stabilization steps “as soon as conditions or circumstances allow it on [the] site.” This flexibility is provided on the condition that the permittee within 14 days completes the installation of temporary, non-vegetative controls to prevent erosion. EPA believes that this flexibility should help address the commenter’s concerns.

Response 2.33.4 The 7

- day deadline conflicts with existing stabilization timeframes

.
The 7

- day deadline is inadequate for projects that are accustomed to working around specific windows of time for seeding. One commenter indicated that when construction falls outside of any windows of time that are established for seeding, it is typical for operators to be able to wait un til conditions are suitable for planting. For instance, for the geographic area described by the commenter, spring planting is conducted between the times when the ground is free of frost until June 15, while fall planting occurs between September 1 until frost appears on the ground.

EPA is uncertain whether changing the stabilization deadline from 7 to 14 days addresses the commenter’s specific concern. To the extent that this concern is not addressed by the modification, EPA clarifies that the permit deadlines do not preclude the construction operator from conducting seeding in accordance with these pre

- existing schedules. For example, if the permittee completed construction in an area outside of the time windows specified above, and the project occurs within an arid or semi

- arid area, seeding could be delayed during those months in conformance with local practice as long as non

- vegetative stabilization measures are installed no later than 14 days after the cessation of work in the area. EPA hopes that this flexibility will address the commenter’s concern.

The 7

- day timeframe conflicts with existing state or local requirements that range between 7 days and more than 1 year. This commenter recommended that EPA provide flexibility in the permit to ensure consistency with these requirements. In response, EPA believes that modifications made to the proposed 7

- day deadline and to other stabilization requirements most likely go a long way towards addressing the commenter’s concerns. First, EPA has modified the permit to extend the deadline for completing stabilization to 14 days, instead of 7 days, following the cessation of construction work. Second, EPA provides exceptions to the 14- day deadline for specific circumstances, such as for construction activities occurring in arid or semi

- arid areas (Part 2.1.2.3.a), and for projects that are subject to unforeseen circumstances beyond the control of the permittee (Part 2.1.2.3.b). EPA believes that these exceptions account for some of the variation seen in stabilization deadlines among states and localities.

Response 2.33.5 The 7

- day deadline is problematic for sites in arid or semi

- arid areas . Commenters observed that without rain occurring during the 7

- day timeframe, it does not make sense toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

54 vegetatively stabilize the site, and that it may take weeks to months to establish vegetation on a site depending on project size, complexity, and the amount of precipitation. EPA is sensitive to the unique challenges faced by construction operators in stabilizing sites in arid or semi

- arid areas. It is for this reason that EPA has adopted different requirements for the completion of stabilization in these areas that reflect the concerns raised by the commenters. See Part 2.1.2.3.a. Instead of being required to complete soil conditioning, seeding, watering, etc. within 14 days, the operator is required to complete these activities “as soon as practicable, given conditions or circumstances on your site.” EPA is hopeful that this provision addresses the concerns raised by the commenter.

Response 2.33.6 The 7

- day deadline places small business subcontractors at a disadvantage. According to the one commenter, stabilization work tends to be contracted to small businesses, who will find it difficult to have enough time in 7 days to mobilize and complete stabilization. In turn, this will force operators to “eliminate the use of these subcontractors in favor of self performing this work which would place a disproportionally negatively impact on small and disadvantaged business.” After reflecting on this and other comments, EPA has decided to extend the deadline from 7 to 14 days for completing certain stabilization activities. It is EPA’s expectation that this change will help to minimize impacts on small business subcontractors, while still providing the permittee with specific and enforceable deadline for completing initial stabilization activities.

Response 2.34 Recommendations for alternative deadlines and exceptions to the deadlines

A number of commenters offered recommenda tions on alternative deadlines that could be adopted to replace the proposed 7

- day deadline to complete stabilization activities. The following is a summary of those recommendations and EPA’s corresponding response.

Response 2.34.1 Replace the 7

- day deadline with a specific, but longer period of time, such as 14 days or 20 working days (e.g., 28 calendar days). EPA agrees with those commenters who suggested that 14 days is a reasonable amount of time in which to complete stabilization. In light of the comments received regarding the problems caused by the 7

- day deadline, EPA has decided to extend the deadline from 7 to 14 days for completing certain stabilization activities. EPA believes that, with certain notable exceptions (see Parts 2.2.1.3.a and b), a timetable of 14 days is a reasonable period of time during which to complete certain stabilization activities.

Response 2.34.2 Require completion of stabilization “as soon as practicable,” or adopt a specific deadline and include exceptions to that deadline, requiring completion as soon as practicable following the deadline. A number of commenters who raised concerns about the ability of operators to reasonably comply with a 7

- day deadline when faced with problems such as inclement weather, or satur ated or frozen soil conditions, also recommended that the proposed deadline be replaced with an “as soon as practicable” deadline to accommodate such problems. Many of these same commenters also suggested that the permittee could be required to document th e need for an extension, and some suggested requiring progress reports or a schedule to complete stabilization as soon as practicable.

EPA disagrees with the recommendation that the permit should adopt a deadline that requires all permittees to complete s tabilization work “as soon as practicable.” This deadline is too vague to be implemented in a permit for all sites. Having said this, however, EPA does believe that there are some circumstances beyond the control of the permittee where compliance with a sp ecific deadline, such as the 14

- day deadline included in the final permit, will be prevented. To address this issue, EPA has modified the permit to allow for flexibility if sites are affected by circumstances beyond the control of the permittee that delay the completion of stabilization activities within the 14- day deadline. See Part 2.2.1.3.b. Similar to the flexibility recommended by the commenters, Part 2.2.1.3.b enables permittees facing such uncontrollable circumstances to complete activities suchRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

55 as s oil conditioning, seeding, watering, mulching, etc. “as soon as conditions or circumstances allow it on [the] site.” In order to ensure that some stabilization is provided during this period of time, this provision also requires that the permittee complete within 14 days the installation of temporary non

- vegetative measures to prevent erosion, and that the circumstances causing the delay and the schedule to be followed to complete stabilization are documented. EPA hopes that the inclusion of this provision in the permit satisfies the interests of the commenters in recommending additional flexibility for uncontrollable circumstances.

Response 2.34.3 Allow for flexibility or additional time for drought

- stricken areas. One commenter suggested that it would rea sonable to include recognition in the permit for the challenges faced in areas that are experiencing drought conditions. EPA agrees, and notes that 40 CFR 450.21(b) of the C&D rule recognizes the need for alternative stabilization approaches in drought

- str icken areas. EPA has modified the final permit to provide the same flexibility for drought

- stricken areas that are available to sites in arid or semi

- arid areas. See Part 2.2.1.3.a.

Response 2.35 Practicality Of Complying With Stricter Deadlines For Compl eting Stabilization In Sensitive Areas

. EPA received numerous comments concerning the requirement to adhere to a 3

- day deadline to complete stabilization activities where earth

- disturbing activities occur in sensitive areas (i.e., sites discharging to sediment - or nutrient

- impaired waters, sites discharging to Tier 2, 2.5, or 3 waters, steep slopes, buffer areas, and stormwater conveyance channels). These comments provided a number of reasons why a 3

- day deadline would be unattainable. The following is a summary of the arguments made by commenters together with EPA’s response.

Response 2.35.1 Impracticable to comply with and enforce different stabilization deadlines

. Several commenters raised concerns about the difficulty of complying with and enforcing deadlines for stabilization that vary based on location or presence of sensitive areas. EPA appreciates these comments, and has attempted to address these concerns in the final permit by reducing the number of different stabilization deadlines. For example, the permit no longer requires a different stabilization deadline for disturbances within 50 feet of a surface water, disturbances to steep slopes, and constructed stormwater conveyance channels. EPA is hopeful that these changes will address the comment er’s concerns.

Response 2.35.2 Alternative deadlines are not supported by the C&D rule. A few commenters challenged the proposed sensitive area requirements on the basis that they are more stringent than what EPA found to be economically achievable in the C&D rule. More specifically, the commenters mentioned the fact that EPA had adopted a 14

- day timeframe to be used to initiate stabilization where work in any area has temporarily stopped. These commenters supported a timeframe that is consistent with the deadlines in 40 CFR 450.21(b). In response, EPA believes that the modification to remove the more stringent stabilization deadlines for disturbances to steep slopes and buffer areas, and for stabilization of constructed stormwater conveyance channels, shou ld partially address the commenters’ concerns.

EPA would like to clarify what the Agency regards as the commenters’ misunderstanding of the scope of the C&D rule requirement as it applies. The commenters pointed to the fact that EPA, in adopting a 14

- day cessation time period within which stabilization must be initiated, had concluded that any more stringent requirement affecting completion of stabilization was not economically achievable. EPA disagrees with this characterization. The C&D rule does indeed adopt a 14

- day timeframe for triggering the start of stabilization in any area where work has stopped for that period of time. However, the rule specifically identifies the deadline for completing stabilization as something that should be defined by the permitting authority, stating that “stabilization must be completed within a period of time determined by the permitting authority.” Therefore, EPA intended the deadline for completing stabilization work to be an issue that would be determined on a permit

- by

- permit basis in accordance with what the applicableRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

56 permitting authority believes to be appropriate. Where a permitting authority establishes deadlines within the 14

- day period, this would be entirely consistent with its authority in implementing 40 CFR 450.21(b).

Additionally, EPA notes that the stricter stabilization completion deadline for sites discharging to sediment - or nutrient

- impaired waters or to Tier 2, 2.5, or 3 waters has been retained, but that it has been increased from 3 to 7 days. To the extent that these commenters believe this deadline to be inconsistent with the C&D rule, EPA disagrees that this is the case. The requirements in the C&D rule are technology

- based and, by definition, do not restrict limitations that are water quality

- based

. EPA believes the stricter stabilization completion deadlines to be reasonably necessary to ensure that sites are not causing or contributing to an exceedance of WQS in waters already impaired for sediment and nutrients. These requirements are imposed under the authority of CWA section 301(b)(1)(C) and 40 CFR 122.44(d).

Response 2.35.3 Stricter deadlines do not account for unanticipated weather

- related conditions, scheduling problems, and financial default. EPA agrees that there may be some circumstances that are beyond the control of the site operator that could make compliance with a specific stabilization deadline impracticable. As EPA has mentioned elsewhere in its response to comments, EPA has made allowances in the final permit for such unanticipate d circumstances, and this flexibility would extend to the stabilization deadlines for sites discharging to sensitive areas (i.e., sites discharging to sediment or nutrient -impaired waters, or Tier 2, 2.5, or 3 waters). In part 2.2.1.3.b, for sites that plan to vegetatively stabilize exposed areas, but unanticipated circumstances occur that prevent compliance with the stabilization deadlines, the permittee may comply with alternative deadlines and requirements, including the requirement to immediately initiate and within 14 days complete the installation of non

- vegetative controls for the exposed area, and to complete initial planting or seeding activities as soon as conditions or circumstances permit them on the site. EPA believes that this added flexibility addresses the commenters’ concerns.

Response 2.35.4 Stricter deadlines for sites discharging to impaired waters are not technically justified. One commenter found an insufficient nexus between the accelerated stabilization of exposed soil for sites disch arging to impaired waters and the presence of excess nitrogen or phosphorus in the adjacent waterbody. The commenter noted that accelerated stabilization often requires the use of nutrient fertilizers that will themselves increase the discharge of phosphorus. EPA disagrees with the commenter. It is EPA’s established view, as stated in the C&D rule, that stabilization of exposed soil areas is the most important and effective means of reducing erosion and discharge of sediment from construction sites. It is also EPA’s position that in watersheds that are already degraded due to sediment or nutrients, the importance of rapidly stabilizing exposed soil surfaces is of even greater importance. By limiting the amount of time to 7 days that areas can be left exposed without completing certain stabilization activities, EPA expects that the amount of sediment that will be mobilized through erosion will be reduced, resulting in a further reduction of sediment

- bound phosphorus. With respect to nitrogen discharges, EPA believes that the 7

- day deadline will not result in increases as the commenter claims. EPA anticipates that, even where operators are using fertilizer to enhance growth of seeded areas, nitrogen discharges will not be increased through stabilization activiti es. It is common stabilization practice to implement steps to temporarily stabilize the soil that will ultimately vegetated such as through the roughening of the soil and the application of cover (e.g., hydraulic, straw, or wood mulches). Furthermore, EPA notes that Part 2.3.5 requires permittees to minimize the discharge of fertilizer through compliance with mandatory control practices. EPA expects that the combination of these commonly utilized methods for reducing soil erosion after seeding, combined wit h the accelerated schedule to stabilize exposed areas, as well as restrictions on the discharge of fertilizers, will not increase nitrogen discharges, but rather will result in an overall reduction in pollutant discharges.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

57 Response 2.35.5 Stricter deadlin es are inappropriate for stream restoration work. One commenter observed that the faster stabilization schedule for sensitive areas will have the effect of forcing time constraints on stream restoration projects that require longer periods of time to achi eve long

term ecological diversity and sustainability. Furthermore, the commenter stated that “rushing to meet time constraints has the potential to interfere with restoration goals. For example, during salt marsh restoration it may be necessary to track t idal inundation over a full month's neap to spring cycle to determine if the micro - topography of the marsh surface is correct. Unintentional depressions or mounds could result in invasive species intrusion onto the site. Small elevation changes in a New England marsh surface can allow Phragmites australis to establish quickly, which out

- competes native salt marsh grasses.” Based on these concerns, the commenter requested an exemption from the stricter stabilization requirements for restoration projects.

E PA assumes that when the commenter referred to the fact that most of the work related to stream restoration taking place within sensitive areas as meaning that this work tends to occur in buffer and steep slope areas. EPA believes that much of the commenter’s concerns have been addressed by the removal of the stricter stabilization deadlines for disturbances to steep slopes and buffer areas. EPA does not agree that an exemption for stream restoration work from the stricter stabilization schedule for sites discharging to certain impaired waters or to Tier 2, 2.5, or 3 waters is appropriate. See also EPA’s response concerning the relationship between the scope of coverage under this permit as it relates to stream restoration projects as compared to the Section 404 wetlands program. Refer to Essay Response 2.26.4.

Response 2.35.6 Stricter stabilization deadlines are impracticable for linear utility projects. One commenter observed that work along utility projects will proceed in phases and may result in portion s of the project not being active for periods that are longer than the 7

- day period. The commenter explained that these temporarily inactive areas are continually monitored and maintained, and temporary stabilization measures are typically employed, such a s straw mulch and the installation of check dams and diversion swales. The commenter found the requirement to complete stabilization within 3 days would be infeasible for these types of projects due to the manner in which work is completed along the length of the project. In response, EPA believes that the majority of the commenter’s concerns are addressed by the removal of the stricter stabilization schedule for disturbances to buffer areas and steep slopes, and the increase in the deadline for other sensi tive areas from 3 to 7 days. EPA also observes that the use of temporary cover such as straw mulches would suffice as stabilization for the purposes of the permit, as long as it was installed appropriately and within the 7

- day deadline that applies.

Respo nse 2.36 Recommended Alternative Deadlines

. Several commenters offered recommendations on the type of deadline that they felt would work better than EPA’s proposed 3

- day deadline for sensitive areas. These recommendations were typified by deadlines that required stabilization to be completed “as soon as practicable” or “as soon as practicable, but no later than” 30 days or another specific deadline. These commenters supported flexibility in the implementation of these deadlines by allowing operators to do cument actual stabilization schedules and departures from the schedule due to unanticipated problems. One commenter, however, recommended against using an “as soon as practicable” deadline given that it is subject to regulatory interpretation in terms of what is required.

EPA agrees with this last commenter that an open

- ended deadline for completing stabilization in sensitive areas, such as the recommended “as soon as practicable” deadline, would leave the permittee without clear direction on when to begin stabilization. While EPA has attempted to include additional flexibility for completing stabilization due to unforeseen circumstances, which will hopefully address some of the commenters’ major concerns, the Agency does not find it appropriate to adopt th e recommended “as soon as practicable” standard.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

58 Response 2.37 Requested Clarification Of Areas Required To Be Stabilized

. Two commenters asked for clarification regarding whether the special stabilization deadlines apply only to the sensitive areas identified or to all other disturbed areas of the site outside of the sensitive areas. EPA appreciates the question. In response, EPA clarifies that the stricter stabilization timeframes in the final permit for sites discharging to sensitive waters (i.e., sedim ent or nutrient

- impaired waters or Tier 2, 2.5, or 3 waters) apply only to that portion of the site that discharges to such waters. Therefore, if there is a portion of the site that does not discharge to a sensitive water, the stabilization deadlines are different (i.e., 14 days) than the deadlines that apply to portions of the site that do discharge to such waters.

Response 2.38 General comments on Stabilization Deadlines for Arid and Semi

- Arid Areas. Several commenters observed that the deadline requirem ents for arid and semi -arid areas were either confusing or that they did not go far enough to recognize the complexities of operating in these areas. One of these commenters noted that the deadlines require initiation, but do not appear to have a deadline for completion of stabilization. Another one of these commenters found contradictions between the deadlines in this Part of the proposed permit and other sections (Parts 5.1.3.1 and 4.2.2.3). EPA attempted to finalize language in Part 2.2.1.3 that is clear er and internally consistent with other sections of the permit. EPA believes these changes have addressed the commenters’ concerns. With respect to the comment regarding the lack of an apparent deadline for completing stabilization, EPA notes that Parts 2.2.2.1.a.i and ii provide deadlines for providing immediate non

- vegetative stabilization and, within 3 years of planting, vegetative establishment of 70 percent or more of the density of vegetation that existing prior to construction.

Response 2.39 Request For Comments On Whether To Combine The Proposed “As Soon As Practicable” Deadline With A Specific Fallback Deadline

Response 2.39.1 Comments supportive of concept . EPA received several comments that were supportive of the concept of combining the proposed stabilization deadline for projects taking place in arid or semi

- arid climates with a specific fallback deadline by which stabilization must have been initiated. These comments emphasized the fact that the “as soon as practicable” deadline in the proposed permit is vague and “may create situations in which the soil stabilization is unnecessarily delayed while the meaning of the phrase is debated.” A number of these comments also supported the use of a specific fallback deadline to provide a specific timeline reference for permittees and to make the requirement more enforceable. One commenter suggested adopting the approach in Arizona’s CGP, which requires that if by the 14th day after construction activity has temporarily or permanently ceased stabilization is precluded by seasonal arid conditions, stabilization measures must be initiated as soon as practicable. Two commenters suggested deleting the “as soon as practicable” language altogether, arguing for the application of the same stabilization deadlines as for all other projects.

EPA appreciates the feedback provided by these commenters, and found them instructive in finalizing the stabilization requirements for arid and semi

- arid areas. EPA agrees with those comments suggesting that a specific timeframe is needed. EPA believes that the final permit provides an appropriate balance between flexibility to recognize the constraints of establishing vegetation in arid or semi

- arid areas and the need for specific deadlines. For instance, Part 2.2.1.3.a.i req uires that if construction is occurring during the seasonally dry period of the arid or semi

- arid area that the permittee must “immediately initiate, and within 14 days [following the temporary or permanent cessation of construction activities in any area of the site] complete, the installation of temporary non

- vegetative stabilization measures to the extent necessary to prevent erosion.” At the same time, the permit recognizes that flexibility is needed to initiate vegetative stabilization by providing that, in Part 2.2.1.3.a.ii, permittees who intend toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

59 vegetatively stabilize exposed portions of their site “as soon as practicable, given conditions or circumstances on your site, complete all activities necessary to initially seed or plant the area to be sta bilized” on the site.

In response to the commenter’s suggestion that EPA eliminate the additional flexibility for construction in arid and semi

- arid areas, the Agency disagrees, but believes that its final permit language strikes the appropriate balance between such flexibility and specifically enforceable deadlines. EPA agrees with the commenter’s observations about the need for good erosion controls on sites in arid and semi

- arid areas. For this reason, EPA has adopted a requirement for all sites to inst all temporary non

- vegetative controls within 14 days of the cessation of construction activities. EPA notes that the flexibility provided in the permit for completing initial planting activities “as soon as practicable, given conditions or circumstances” on the site was anticipated in the C&D rule in 40 CFR 450.21(b). The provision specifically indicates that “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.”

Response 2.39.2 Comments opposing the concept

. Several commenters responded to the request for comment that they were opposed to providing a specific fallback deadline for initiating stabilization measures. A few emphasized the fact that a specific deadline, such as the 28

- day example in the proposed permit, would not be appropriate in all situations. One commenter indicated that it might not always be possible to seed the entire

area within 28 days. These commenters preferred leaving the proposed requirement to “initiate stabilization as soon as practicable following the temporary or permanent cessation of construction activities” as the sole stabilization deadline. A few commenters su ggested adopting the following approach from the Nevada CGP: “In arid areas (areas with an average annual precipitation of 0 to 10 inches), semiarid areas (areas with an average annual precipitation of 10 to 20 inches), and areas experiencing droughts where the initiation of stabilization measures by the fourteenth (14th) day after construction activity has temporarily or permanently ceased is precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable.”

EPA ackn owledges the need for providing flexibility to permittees as to when they are required to initiate stabilization activities, particularly vegetative stabilization. EPA has an interest in adopting requirements that are effective in preventing erosion and that are reasonable in light of the unique climatic conditions that occur in arid and semi

- arid areas. For this reason, EPA has adopted requirements in the final permit that strike the balance between flexibility and specificity. With that in mind, Part 2.2.1.3.a.i requires that if construction is occurring during the seasonally dry period of the arid or semi

- arid area, the permittee must “immediately initiate, and within 14 days [following the temporary or permanent cessation of construction activities in any area of the site] complete, the installation of temporary non

- vegetative stabilization measures to the extent necessary to prevent erosion.” At the same time, the permit recognizes that flexibility is needed to initiate vegetative stabilization by providing that, in Part 2.2.1.3.a.ii, permittees who intend to vegetatively stabilize exposed portions of their site “as soon as practicable, given conditions or circumstances, complete all activities necessary to initially seed or plant the area to be stabilized” on the site. EPA believes that this approach is reasonable in that it provides flexibility around the initiation of vegetative stabilization measures (i.e., “as soon as practicable ...”) and that it ensures that at least temporary erosion controls are in place within a shorter timeframe.

EPA did not adopt the suggestion of the commenters to rely solely on the “as soon as practicable” language. This language alone, while appropriate in that it acknowledges site specific constraints, does not provide permittees or EPA with a specific timeframe from which to assess whether the site is in compliance. EPA believes that the approach finalized in the permit accomplishes both objectives.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

60 Response 2.40 Request For Comment On Treating Construction Activities In C ritical Habitat Areas Or Areas Where Listed Endangered Species Exist As Sensitive Areas For Site Stabilization Purposes

. One commenter recommended that instead of automatically imposing stricter stabilization deadlines on projects in such areas, the permit should instead require more generally that the permittee comply with the Endangered Species Act (ESA). The commenter noted that adding additional, more stringent deadlines would add an unnecessary and potentially burdensome set of requirements. In response, EPA notes that it has not adopted more stringent deadlines for construction activities in critical habitat areas or areas where endangered species exist. However, where additional requirements are imposed on a permittee as a condition of eligibility, th ese conditions are enforceable under this permit and must be documented in the permittee’s SWPPP.

Response 2.41 General Comments on Arid/Semi

- Arid Stabilization Criteria.

Several commenters raised overall concerns with the proposed vegetative stabilizati on criteria for arid and semi

- arid areas, and one commenter suggested that EPA retain the 2008 CGP language regarding stabilization in these areas. EPA has modified the proposed stabilization criteria to more closely follow the 2008 CGP language, most notably in relation to the language in Part 2.2.2.1.a.ii, which stipulates the requirements for areal cover and the timing for vegetative establishment. EPA believes that these modifications should address many of these concerns.

Response 2.42 Requirement To Provide 70 Percent Vegetative Cover. EPA received a variety of comments on the draft permit’s requirement for permittees with sites in arid or semi- arid climates to achieve a 70 percent vegetative cover requirement. Commenters appeared supportive of the use of a 70 percent standard because, if nothing else, it provides a quantifiable goal that can be used for determining whether sites are in compliance. EPA agrees with these comments and notes that it has retained the 70 percent cover requirement in the fin al permit in Part 2.2.2.1.a.ii.

A few commenters suggested that permittees be required to achieve the 70 percent cover requirement before being allowed to terminate permit coverage. These comments expressed concern over what one commenter referred to as the “premature release of liability” without a further requirement to maintain established vegetation or an assurance that the vegetation is independently viable. EPA shares the concerns of the commenter that areas of sites that are being vegetatively stabilized actually achieve this standard. EPA also acknowledges the commenter’s point that the permit should not prematurely allow an operator to leave a site if the exposed portions will never achieve the required vegetative stabilization. However, EPA belie ves that, on balance, enabling permittees to terminate permit coverage despite the fact that the site may not have yet reached 70 percent vegetative cover, as long as the site has been reasonably prepared and planted to ultimately achieve the required vegetation cover, provides sufficient assurance of stabilization. Additionally, EPA notes that Part 2.2.2.1.a.i of the permit requires that non

- vegetative erosion controls be used to provide immediate cover so that continuous erosion control is provided until vegetation is established. EPA’s concern with requiring a permittee to remain permitted until complete stabilization in all cases, as the commenter recommends, is that it would risk incentivizing site operators to attempt to accelerate growth unnaturally at the site, resulting in vegetation that is not viable long

- term. This is especially true in arid and semi

- arid areas where practices such as watering can be counter -productive if, after seeds germinate and plants begin to grow, the watering is stopped and the vegetation returns to the natural precipitation levels of the area. Therefore, EPA has decided to continue to enable permittees to terminate permit coverage as long as the site has been reasonably prepared and planted to achieve the 70 percent vegetat ive cover requirement.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

61Response 2.43 Requirement to provide 70 percent vegetative cover within 3 years for arid/semiarid areas

. Commenters raised several issues with the draft Part 2.2.2.1.a.i requirement to provide “erosion control measures ... to achieve 70 percent vegetative cover within 3 years.” Several commenters provided feedback on the practicality of achieving vegetative cover within 3 years in an arid or semi

- arid climate. While one commenter suggested that 2 growing seasons was necessary to estab lish vegetation in these areas, others suggested that establishing vegetation within 3 years can be difficult, and that it is not uncommon for vegetation to take 3 years to germinate, and 2 to 3 more years to develop into plants that will achieve a 70 perc ent cover. EPA is sensitive to these concerns. EPA believes that it is necessary to include in the final permit, as it has in Parts 2.2.2.1.a.i and ii, a clear standard by which permittees and the Agency can assess compliance with this permit. At the same time, EPA understands that whatever standard is adopted must take into account the challenges of establishing vegetation in these areas. In the 3

- year standard that EPA has adopted in the final permit, it is EPA’s expectation that permittees will exercise care in selecting “an appropriate seed base” so that, in addition to taking steps in the installation and maintenance to promote growth through appropriate watering and other measures, 70 percent cover is reasonably expected to be achieved within 3 years. EPA anticipates that there could be extenuating circumstances, such as drought conditions, that could result in the vegetative establishment taking more than 3 years to achieve the 70 percent cover standard. In these cases, EPA would expect that as long as the actions taken by the permittee at the time were reasonably designed to achieve the 70 percent cover standard within 3 years, and in consideration of the circumstances that contributed to the incomplete vegetative establishment after the third year fol lowing the initiation of stabilization, the Agency could take these factors into account when assessing compliance. EPA notes that it has incorporated interim protections for the exposed area prior to the full establishment of vegetation by requiring that non

- vegetative erosion controls be implemented in order to provide continuous erosion control.

Several commenters also requested clarification on what type of non

- vegetative erosion control was necessary to be used in combination with seed to meet the vegetative stabilization criterion. These comments were in response to the example provided of using degradable rolled erosion control products. Commenters asked whether straw crimping would be acceptable under the permit, and one commenter observed that roll ed erosion blankets cost almost twice as much as crimped, dry mulch. This commenter also indicated that the use of rolled erosion control blankets would not accelerate vegetative establishment under desert climates since rolled products quickly evaporate o r sublimate precipitation in high evapo - transpiration conditions. This is in contrast, according to the commenter, to soil

- crimped straw mulches that infiltrate the type of “flashy” storms that predominate in these climatic conditions and that improve soil moisture conditions. EPA does not disagree with these observations. In response, the final permit clarifies that approaches, such as straw crimping, provide one example of the type of non

- vegetative erosion control that can provide immediate cover as req uired by Part 2.2.2.1.a.i.

Response 2.44 Requirement to water seeded areas until seeds germinate and grow . Commenters raised objections to the draft Part 2.2.2.1.c.iii.1 requirement to water seeded areas until the seeds germinate and grow, and suggested that this provision be removed in the final permit. The following is a summary of the specific concerns raised:

Water is not readily available in these areas. Requiring watering of seeded areas will be cost

prohibitive and is an inappropriate use of a pr ecious resource. The requirement runs counter to programs in some municipalities in these areas, which have been paying homeowners not to grow grass and other non

- desert plants because they use so much water.

Watering seeded areas is actually counter

- prod uctive to long -term vegetativeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

62 establishment. After germination, the plants will be forced to return to an arid/semi -arid condition, resulting in a reduction in vegetation after permit termination due to die - off/plant mortality once watering stops. Instead of watering, to establish vegetation in these areas, it is better to allow seeds to germinate naturally. Another problem with watering seeded areas in arid/semi

- arid areas is that it encourages the rapid establishment of noxious weeds.

EPA found these c omments informative, and after reconsideration, EPA agrees that it is better to leave it to the best professional judgment of the site operator to determine whether and to what extent watering is necessary. Instead of requiring watering until seeds germina te, EPA requires more generally that “other appropriate mechanisms to promote growth”, such as irrigation, be used to provide continuous erosion control until vegetation is established. Under the modified permit language, the permittee is given flexibility to determine how best to promote the growth of vegetation sufficient to meet the 70 percent cover standard.

Response 2.45 Reasonableness of Vegetative Stabilization Criteria

Response 2.45.1 General comments . Commenters observed that this section was overly prescriptive and does not reflect the variety of approaches that work for achieving the 70 percent cover requirement. These comments suggested that the specific practices used to promote vegetative growth are best left to the particular permittee, a nd can be documented in the site’s SWPPP. EPA agrees with these comments, and believes that it is sufficient to require the permittee to use appropriate practices to achieve the required 70 percent vegetative cover requirement, leaving to them the decision on which practices are best for their particular site. Therefore, in the final permit, EPA has removed many of the specific requirements in proposed Parts 2.2.2.1.c.iii and iv.

Response 2.45.2 Requirement to roughen area prior to application. While suppo rtive of the requirement to “roughen the area with furrows” prior to application, one commenter expressed concern about the expense and potential dangers of requiring that the furrows trend “along the contours of the slope.” The commenter indicated that this practice cannot be achieved without jeopardizing the slope and equipment operators. In response to this comment, EPA has decided to modify the permit to remove this requirement. EPA supports the practice of soil roughening prior to seed application, but believes that it is better to leave the decision of how best to prepare the seeding area to the permittee. For this reason, the final permit requires sites to achieve a 70 percent cover requirement for vegetative stabilization without specifying how this standard will be achieved.

Response 2.45.3 Requirement to water seeded areas . Related to the discussion on the previous page, several commenters expressed concern, mostly in the context of linear transportation construction projects, about the proposed re quirement to water seeded areas “until the seeds germinate and grow.” These concerns are encapsulated in the following comment excerpt:

“The use of vegetative watering will also increase cost tremendously and also result in the frequency of failed seeding operations. Watering on linear projects is very expensive due to trucking charges associated with the transportation of the water. Also, watering from water trucks can easily cause germination to occur, but without natural rainfall the seedlings will die (without continuous watering). It is best to not start supplemental watering until after a natural rainfall has occurred. Repeatedly trucking in water to establish vegetation on 18,000 acres (many of which are in remote areas of the state) is cost prohibitive. Additionally, in cases where we have trucked in water, we have gotten public complaints from nearby residents that may be under local water restrictions (e.g. can only water their lawns on certain days of the week). This issue would be compounded if w e were to water the roadside adjacent to agricultural property suffering from lack of water.”Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

63 Another commenter noted that “linear projects that pass through rugged terrain may not have a water source available or may be located in areas where water trans port equipment cannot access, and that vegetation can be established successfully without watering.” EPA found these comments to be informative in finalizing the language used for vegetative stabilization. After reviewing these comments, EPA concluded that it is better to leave the decision about how best to promote vegetative growth in order to achieve the 70 percent vegetative cover requirement to the permittee itself. Therefore, EPA has removed the watering requirement from the final permit, and in its place specifies that permittees must meet the 70 percent cover requirement and that they must take the actions that are necessary to facilitate the establishment of this vegetation. See Parts 2.2.1.2.a and 2.2.2.1. How the permittee achieves this requireme nt in terms of watering and other practices designed to promote vegetative establishment is up to them.

Response 2.45.4 Requirement to protect seeded areas with temporary, non

- vegetative cover. Several commenters expressed concern with the requirement in proposed Part 2.2.2.1.c.iii.2 to “immediately after seeding, protect seeded areas with a temporary, non -vegetative cover”, such as erosion control blankets or turf reinforcement mats. These commenters indicated that requiring protective non

- vegetative cove r over seeded areas could increase stabilization costs from $5,000 to $8,000 per acre. One of the commenters suggested that providing protective cover is not the only way to ensure vegetative growth, suggesting that for highway projects in Texas, successful vegetative establishment occurs through a combination of seed bed preparation, broadcast seeding, and rolling of seeded areas to help with germination and erosion prevention. These comments suggested to EPA the need to provide greater flexibility to permittees in how they meet the vegetative cover requirement. For this reason, in the final CGP it is left to the permittee to determine how best to achieve the 70 percent cover requirement.

Response 2.46 Use of the RUSLE C

- Factor Values as Vegetative Stabil ization Criteria EPA had proposed in Parts 2.2.2.1 and 2.2.2.2 to adopt as stabilization criteria specific C

- factor (or “cover management” factor) values from the Revised Universal Soil Loss Equation (RUSLE). The C

factor criteria would have provided an al ternative stabilization standard to the 70 percent vegetative cover requirement and a standard for the use of non- vegetative stabilization methods. EPA included an appendix (proposed Appendix H), which included C

- factor values from past studies on the effe ctiveness of various vegetative and non

- vegetative cover practices that are in

common use.
EPA received numerous comments in response to the proposed use of C

- factor values as enforceable stabilization criteria. While a few of the comments were supportive of the concept, with suggestions for how to improve the approach, the vast majority of comments found the approach to be extremely problematic. These commenters challenged the accuracy of the standardized testing procedures used to evaluate different cove r types (even noting the extent of disagreement within the erosion and sediment control industry about which standards should be in effect), expressed doubt about how well C

- factor values for commonly used stabilization practices are translated to actual s ites, raised concerns about the inequities between the 70 percent approach and the stringency of the proposed C

- factor values, warned of the confusion that would be created in the industry by adopting a more complicated approach based on RUSLE, and brought to EPA’s attention numerous other concerns.

In light of these comments, EPA has decided not to adopt the proposed C

- factor approach and instead has finalized stabilization criteria that more closely resemble that used in past permits. While EPA may revis it the C

- factor concept in the future to evaluate whether advances have been made in standardizing the methods for rating different stabilization cover types, the Agency does not believe that it could have addressed the many valid concerns raised through a ny straightforward set of changes in the final CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

64 Response 2.47 Request for Comment on Vegetative Stabilization 70 Percent Requirement

Response 2.47.1 General comments . In the proposed permit, EPA had requested comment on whether the final permit shoul d replace the 70 percent vegetative cover requirement that had been used in past permits with the new C

- factor approach. Commenters expressed support for retaining the 70 percent cover requirement because it is effective and easily understood. EPA appreciates the comments in support of the 70 percent criterion, and notes that this requirement has been retained in the final permit. The C

- factor approach has not been included s in the final permit.

One commenter asked that EPA retain the formula in the permit for determining how the 70 percent requirement applies to situations where the background vegetation prior to earth disturbance is less than 100 percent. EPA has retained this formula, however, the Agency has included this as part of the discussion in the fact sheet elaborating upon the 70 percent cover requirement.

Response 2.47.2 Clarification of requirement . Several commenters asked for clarification as to whether the 70 percent cover requirement applies to the area covered by vegetation prior to commencing earth

- disturbing activities. In response, EPA has clarified in the final permit that the 70 percent criterion applies to the “density of coverage that was provided by native vegetation prior to commencing earth

- disturbing activities.” See Part 2.2.2.1.

A few commenters interpreted the proposed permit as requiring the permittee to provide 70 percent vegetative cover of the entire site and as limiting the developable land to 30 percent of the entire site. EPA did not intend for the 70 percent vegetation stabilization requirement to be interpreted as a restriction on developable land. The Agency clarifies that the 70 percent requirement applies to areas of exposed soil remaining outside of the area where structures and other impervious surfaces will be built. Therefore, where areas of the site have been disturbed, but where structures will not ultimately be installed, to the extent the permittee will use vegetation to stabilize these areas, that vegetation will be required to cover 70 percent of the density of vegetation that existed in those areas prior to construction.

Response 2.47.3 Suggestions for alternative requirements . Several commenters offered recommendations on how EPA might modify the 70 percent vegetative cover requirement. Each rec ommended concept is considered below.

One commenter suggested the adoption of the following language: “A uniform (e.g., evenly distributed, without large bare areas) vegetative cover with a density of 70 percent of the native background vegetative cover f or the area has been established on all unpaved areas and areas not covered by permanent structures. Vegetated Stabilization of a site requires stabilization with vegetation to a 70% coverage rate. This does not mean that 30% of the area to be stabilized with vegetation can remain bare. The coverage is defined as looking at a square yard of coverage, in which 70% of that square yardage is covered with vegetation.” EPA believes that the final permit’s vegetative stabilization requirements adopt many of these suggestions. For instance, Part 2.2.2.1 specifies that the 70 percent requirement applies to the “density of coverage that was provided by native vegetation” prior to construction, which is similar to the language suggested above by the commenter. The provision also further clarifies, consistent with the commenter’s suggestion, that establishing “uniform vegetation” means that it should be “evenly distributed without large bare areas.”

Several commenters recommended that EPA increase the percent cover req uirement so that it is larger than 70 percent. These suggestions varied from commenter to commenter with some suggesting 80 percent vegetative cover, another suggesting 95 percent, and still anotherRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

65 suggesting 100 percent. EPA is sympathetic to these sugg estions and is open to considering the adoption of an alternative, higher vegetative cover standard in future permits. However, at this time, the Agency believes that the 70 percent cover requirement is a widely accepted standard that provides effective er osion control once established.

One commenter advised against requiring “uniform perennial vegetation” based on a percent vegetative cover. EPA disagrees. EPA believes that requiring that vegetation be established uniformly, so that it is evenly distribut ed without large bare areas, reflects widely accepted practices for reducing erosion on exposed soils. EPA also supports the use of a percent cover requirement because it is easily translatable to the permittee.

Another commenter recommended that the 70 percent cover requirement be replaced with a 70 percent stem density requirement. This commenter noted that stem density is a better indicator of vegetative establishment than canopy cover. The commenter also recommended that EPA require that vegetation mus t be native to the area. EPA understands why the commenter is suggesting the stem density approach especially for areas with sparse native vegetation, and agrees that this would be a workable approach. EPA believes that what has been adopted in the final p ermit offers some of the attributes on the commenter’s approach by requiring the permittee to “provide 70 percent or more of the density of coverage that was provided by native vegetation” prior to construction. This is because the focus of the vegetation reestablishment is on the density of vegetation, which is similar to the concept supported by the commenter.

While EPA acknowledges what the commenter says is true that permittees may be able to count weeds as cover in a manner that is equivalent to other types of vegetation, the Agency believes that any established vegetation will provide better erosion control than bare soil. EPA also believes that most permittees have shown a growing interest in using plant species that are effective at providing perman ent vegetative cover. EPA is open to further examining the stem density approach in future permits and welcomes the commenter to submit additional suggestions to the Agency in the meantime on this approach so that the concept can be further developed. Addi tionally, in response to the commenter’s suggestion that EPA require permittees to use only native plant species, while EPA agrees with this practice and suggests that all permittees use native species, the Agency does not believe it is necessary to explicitly require this in the permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

66 

### Comment Response Essay 3 C&D Rule and Numeric Turbidity Limit
Response 3.1 C&D Rule and Numeric Turbidity Limit Numeric Turbidity Limit EPA received many comments relating to the stay of the numeric turbidity effluent limit in the C&D rule. EPA notes that the C&D rule promulgation is a separate action from the CGP, and therefore EPA considers comments relating specifically to the C&D rule ELGs, including comments on the numeric limit and the litigation of the rule, to be outside the scope of the CGP. However, EPA believes certain comments can be addressed through the following information about the status of the C&D rule numeric turbidity effluent limit.
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) through (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 that the Court issue an order vacating and remanding to the Agency limited portions of the final C&D rule. To address the specific issues raised by petitioners, the motion also provided that EPA: “may address (and if necessary take further regulatory action on) certain impacts of the final rule specific to linear gas and electricity utility projects.” will “solicit site specific information regarding the applicability of a numeric limit” to cold

w eather 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 2 0, 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 Janua ry 4, 2011, resulting in an indefinite postponement of the 280 NTU limit. Since the numeric portion of the rule was stayed, EPA, states, and authorized tribes are no longer required to incorporate the numeric turbidity limitation and monitoring requirement s found at §450.22(a) and §450.22(b) into NPDES permits. However, the remainder of the regulation is in effect and must be incorporated into newly issued NPDES permits. EPA published a Federal Register notice on January 3, 2012 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. The final CGP is directly affected by the stay in that, due to the s tay, 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 limitRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

67 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. One commenter requested that EPA include specific language in the permit allowing EPA to reopen the CGP and insert the recalculated limit. As described above, EPA is in the process of collecting data to inform the basis for a recalculated numeric turbidity limit. EPA does not want to prejudge the timing and outcome of the data collection effort, and therefore will not include language in the permit to reopen the CGP and insert the recalculated limit. Once a new limit is promulgated, EPA will revisit options for incorporating it into the next CGP. However, given the uncertainty of the timing and outcome of the effort to recalculate the numeric limit, EPA thinks it is unlikely that a recalculated limit will be available to be inserted into the reissued CGP during the five -year permit term. Request t o Extend 2008 CGP One commenter requested that EPA extend the current 2008 CGP for its full five- year term. This will allow the 7 th Circuit Court of Appeals to fully adjudicate all issues associated with the pending C&D ELG lawsuit. EPA appreciates the co mment. However, EPA believes it is critical to issue the 2012 CGP in order to implement important new protections provided by the non - numeric effluent limits. Additionally, EPA believes it is imperative that EPA issue its CGP to provide needed guidance to the many NPDES

- authorized states that rely on EPA’s CGP for developing their state construction stormwater permits. Similarly, another commenter requested that EPA provide the basis for why the current permit is adequately protecting waters of the US. EPA notes that the new requirements in the permit largely relate to the C&D rule, which EPA is required to include in the new permit. Other new requirements EPA has included because EPA found they were necessary to provide protections to impaired waters and high quality waters. EPA’s Removal of the Numeric Turbidity Limit and Sampling Requirements EPA notes that, due to the stay of the numeric limit, as described in comment response essay “Numeric Turbidity Limit” above, the final permit does not include the numeric turbidity limit or sampling requirements. EPA believes that the removal of the placeholder for the numeric limit and associated sampling requirements negates the concerns expressed by commenters about these proposed requirements. See also discussi on above. Relationship Between C&D Rule BMPs and Discharges One commenter asserted that the C&D rule illegally imposes certain BMPs that regulate internal site processes that are not related to point source discharges. EPA disagrees. EPA has developed sh ort papers describing how each of the C&D rule ELGs relate to the minimization of pollutants in discharges. See the papers located on the C&D rule docket (Docket ID No. EPA – HQ

– OW –2010– 0884). EPA’s Implementation of the C&D Rule Non

- Numeric Requirements EPA received several comments on its implementation of the C&D rule effluent limitations guidelines as proposed in the permit. Some of the comments included: EPA should only include the C&D rule ELGs after the C&D rule rulemaking process is completed. Issues related to the new C&D ELG requirements that EPA has proposed in the CGP must be allowed to be litigated in full prior to inserting them into a new CGP and mandating compliance. The C&D ELG can only be assessed an entire package of non

numeric and numeric effluent limits. Accordingly, EPA should delink the CGP from the C&DRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

68 rule, and focus the new CGP on modifications and issues not embroiled in the C&D ELG. EPA should refocus its efforts on implementing the C&D ELG at an appropriate date in the futur e when the contents of that regulation are fully understood. Or, EPA should delay finalizing the CGP until the final C&D ELGs are reissued. Doing so would avoid confusion in EPA’s construction stormwater permitting program. EPA should put the C&D ELG and CGP in a joint review and comment process. EPA’s implementation of the C&D rule erosion and sediment control practices is overly prescriptive, cost

- prohibitive, and is a one

- size

- fits

- all strategy. The CGP should include just the ELG language, and EPA should develop separate non

- mandatory guidance with more specific implementation information. EPA has not determined that the C&D rule requirements as implemented in the permit are feasible. EPA should conduct further analyses to account for the specificity added to the C&D Effluent Limitations Guidelines (ELGs) and New Source Performance Standards (NSPS) in the final CGP. For each control measure promulgated, EPA must conduct an analysis that includes information about the industry, estimates costs and economic impacts of the proposed effluent control options, reviews comments on the proposed effluent limits, and incorporates those comments into a final regulation supported by documentation. EPA disagrees with the comment suggesting that EPA wait to implemen t the C&D rule ELGs after the C&D rule rulemaking process is complete. EPA clarifies that only the numeric limitation portion and associated monitoring requirements of the C&D rule at 40 CFR 450.22 have been stayed . The remainder of the regulation, including the non

- numeric effluent limitations, is in effect and must be incorporated into newly issued permits. Therefore, EPA is required to implement the non

- numeric ELGs into the new CGP. With regard to the comments that EPA was overly prescriptive in its implementation of the C&D rule, EPA believes that specificity was needed in order for the permit conditions to be clearly articulated, transparent, and enforceable. After receiving comments regarding the stringency of some of the specific permit conditions, EPA has in fact refined many of the provisions in the final permit to make them more flexible. For example, EPA does not require in the final permit for sites disturbing steep slopes to divert flows around steep slopes and use specialized controls. EPA a lso made the definition of steep slope more flexible to account for different regional and industry steep slope standards. EPA added flexibility to the buffer requirements for linear construction projects and for small residential lots to account for situations where the buffer compliance alternatives may be burdensome or infeasible to implement. EPA also removed much of the specificity that was proposed with regard to the requirements to preserve topsoil and minimize soil compaction. In the final permit, EPA believes that it has added appropriate specificity to the C&D rule ELGs to ensure the conditions are both protective of water quality and implementable by permittees. EPA notes that it has conducted an economic analysis to evaluate requirements an incremental increase in costs on permittees above and beyond the costs accounted for in the 2008 CGP or in the C&D rule requirements. See the Economic Analysis document in the permit docket. EPA disagrees with the suggestion that EPA must conduct further analy ses to account for the specificity added to the C&D ELGs and NSPS in the final CGP. EPA believes that its implementation of the C&D ELGs and NSPS in the final CGP is consistent with the CWA and its implementing regulations, and that further analyses are no t necessary. Under CWA section 301(b)(1)(A), 40 CFR 125.3(a)(2) and (c)(1), and 40 CFR § 122.44(a)(1), NPDES permits must include effluent limitations and conditions to implement any applicable ELGs and/or NSPS for the point source category that have been promulgated by EPA. There is no requirement under the CWA or its implementing regulations that EPA conduct the extra analysis suggested by commenters in deriving NPDES permit limits to implement the applicable ELGs and NSPS. EPA points out that the C&D rule intended to provide discretion to permitting authorities to determine how best to implement the provisions of the rule with respect to including in theirRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

69 permits limits and conditions (requiring controls and measures) appropriate for the conditions in th eir permitted areas. As the permitting authority responsible for issuing stormwater permits for construction activities in four states, Indian Country, Federal facilities, Washington, DC, and U.S. territories/protectorates, EPA believes that it is importan t in this final permit to include requirements that more specifically define what EPA believes is 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 the requirements to “Provide and maintain natural buffers” and “Minimize soil compaction”, among others.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

70 

### Comment Response Essay 4 Water Qua lity

- Based Effluent Limitations
Response 4.1 Water Quality

- Based Effluent Limitations 2012 CGP and Water Quality Standards and TMDLs EPA received comment suggesting that the Agency include a requirement that any activity authorized by the CGP undergo si te

- specific review to determine whether increased discharges are consistent with TMDL allocations. Similarly, EPA received comment asserting that the process of granting coverage under the CGP lacks sufficient opportunity for site

- specific analysis and has the potential to cause or contribute to water quality standard exceedances without appropriate levels of review, disclosure, public comment, and administrative appeal opportunities. The commenter described a past situation in which the state had issued a blanket certification for CGPs and asserted that, as a result, no recourse was available where site

- specific information later indicated exceedances of state water quality standards, the antidegredation policy, or TMDLs. The commenter asserts that such a b lanket certification also fails to advise permittees to contact the appropriate state staff to determine if their projects are in compliance with existing TMDLs and that, as a result, there is no mechanism to ensure that discharges covered under the CGP are in compliance with TMDLs and state water quality standards. Similarly, another commenter asserted that waters impaired for sediment or siltation or that are subject to a TMDL for these pollutants will almost certainly experience greater degradation under a general permit. The commenter suggested that individual permits should be required for discharges these waters, to high

- quality waters, and to streams listed as critical habitat for threatened and endangered species. The commenter argued that under an i ndividual permit, the projects would receive higher scrutiny and a more robust analysis. However, the same commenter also noted that if EPA moves forward with a general permit that the commenter supports the Agency’s decision to include new stabilization, inspection, and monitoring requirements in the CGP for sites discharging to nutrient - and sediment

- impaired waters, and for providing specific tools to help determine whether a proposed site will discharge to such waters. EPA also received comment assertin g that the CWA prohibits new discharges into impaired waters for which a TMDL has been established unless there is a WLA available to accommodate those discharges, and that this permit should similarly make this clear, disallowing its application at all in to TMDL

- established streams unless it is shown that a WLA is, indeed, available, or some other accommodation, such as an off

- site offset, is made. EPA disagrees that the 2012 CGP lacks sufficient opportunity for site

- specific analysis or scrutiny to prote ct water quality and water bodies listed as critical habitat for threatened and endangered species and notes that operators seeking coverage under the permit must first submit an NOI at least 14 days prior to beginning land

- disturbing activities. The 14

- da y NOI submittal deadline provides the Fish & Wildlife Service and the National Marine Fisheries Service, and the public, with an opportunity to review these submissions and to inform EPA if more time is needed to review the potential impacts from the project. If more time is needed, EPA can delay authorization to allow additional assessment to take place. EPA may use the waiting period to determine, for example, whether any more stringent requirements are necessary to meet applicable water quality standards , to be consistent with an applicable wasteload allocation (WLA), or to comply with state or tribal antidegradation requirements. Part 1.2.2 of the permit indicates that no permit shall be issued to a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. Under Part 1.4.5, EPA may deny coverage under the general permit and notify the permittee that an individual permit application is necessary. The individual permit may include additional controls or conditions to ensure that discharges from the construction or operation will not cause or contribute to an exceedance of water quality standards. For the comment on advising permittees to contact the appropriate state staff to determine if their projects are consistent with existing TMDLs, EPA also notes that the 2012 CGP requires potential permittees to identify in their NOIs the surface water(s) to which they will discharge,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

71 whether any waters are impaired, and whether any TMDLs exist for the receiving waters. To assist applicants, EPA is providing a mapping tool. Applicants must certify that all information is correct. EPA believes that this process will ensure that permittees know if any of the waters to which they will discharge are impaired and whether a TMDL exists for those waters. The information will be available during the 14

- day waiting period discussed above. EPA may impose additional water quality

- based limitations on a site

- specific basis, or require an applicant to obtain coverage under an individual permit, if information in the NOI, or from other sources, indicates that the discharges are not controlled as necessary to meet applicable water quality standards. These provisions will ensure that operators are aware of applicable water quality standards and TMDLs and to determine whether additional stormwater controls are necessary. EPA disagrees that the 2012 CGP provides no mechanism to ensure that discharges covered under the CGP are in compliance or consistent with TMDLs and state water quality standards and that the permit provides no mechanism for recourse for cases in which site

- specific information indicates occurrences of exceedances of state water quality standards. First, as discussed above, p ermittees must determine whether they discharge to impaired waters and whether those waters have TMDLs. Applicants will document this information in their NOIs when seeking coverage. While EPA expects that compliance with the stormwater control requirement s described in Part 2 of the permit will result in discharges that will not cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard, EPA also notes that the permit allows for the Agency to re quire corrective action and/or additional stormwater controls if the stormwater controls that the permittee has installed and is maintaining are not effective enough for the discharge to meet applicable water quality standards (See Parts 3 and 5.2.1.2). Fo r example, permittees are required to conduct routine inspections. As a result of these inspections, the permittees may become aware of the need to conduct repairs of existing controls or to install additional controls to protect water quality. Moreover, Part 1.5 of the permit requires permittees to post a sign or other notice conspicuously at a safe, publicly accessible location in close proximity to the project site. At a minimum, the notice must include the NPDES Permit tracking number and a contact name and phone number for obtaining additional project information. This requirement provides the public or other interested parties with the opportunity to obtain publicly available information about the construction site and to identify the site when reporting potential permit violations. Violations identified through such reporting could result in corrective action and/or the installation of additional stormwater controls to protect water quality. EPA also received comment questioning what is meant by requiring that discharges be controlled as necessary to meet applicable water quality standards and that unless EPA clarifies the requirement, permittees will be vulnerable to third party lawsuits, enforcement actions, or costly studies. EPA discusses the requ irement in Part 3 of the 2012 CGP. The requirement means that permitted discharges may not cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard. As discussed above, EPA expects that compliance with the stormwater control requirements described in Part 2 of the permit will result in discharges that will not cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard. However, with regard to third party lawsuits, enforcement actions, or studies, EPA believes that the permit must include mechanisms to allow the Agency to identify where corrective action and/or additional stormwater controls may be needed to meet applicable water quali ty standards and to require corrective action and/or the installation of additional stormwater controls. See Parts 3 and 5.2.1.3 of the 2012 CGP for description of requirements and sections VIII and X of the 2012 CGP Fact Sheet for a discussion on the purp oses of these requirements. EPA received comment on the requirement to install additional controls when needed to meet applicable water quality standards. The commenter asserted that the regulated party should have the opportunity to review and comment on new requirements before they are imposed. EPA notes that the permit does not include an additional public review and comment step.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

72 However, as discussed in Part 1.4.5, for cases in which permittees are denied permit coverage, following submittal of a complete and accurate NOI, the permittee may be notified in writing by EPA that they are not covered, and that they must apply for and/or obtain coverage under either an individual NPDES permit or an alternate general NPDES permit. This notification will include a brief statement of the reasons for this decision and will provide application information. Any interested person may request that EPA consider requiring an individual permit or alternate general permit under this paragraph. The section further explai ns that if the permittee is already covered under the 2012 CGP, or a previously issued CGP, the notice will set a deadline to file the permit application or NOI for an alternate general permit, and will include a statement that on the effective date of the individual NPDES permit or the date of coverage under an alternate general NPDES permit, coverage under this general permit will terminate. EPA may grant additional time to submit the application or NOI if the permittee requests it. If a covered permittee fails to submit an individual NPDES permit application or NOI as required by EPA, the applicability of this permit is terminated at the end of the day specified by EPA as the deadline for application or NOI submittal. EPA may take appropriate enforcement action for any unpermitted discharge. If a timely permit application is submitted, then when an individual NPDES permit is issued or coverage is provided under an alternate general NPDES permit, coverage under this permit is terminated on the effective dat e of the individual permit. Applicants are also permitted to discuss the notice with EPA to determine which additional controls may be sufficient. EPA notes that 40 CFR section 122.44(d)(1)(vii)(B) provides that where a State or EPA has established a TMDL, NPDES permits must contain effluent limits and conditions consistent with the assumptions and requirements of the WLAs in the TMDL. EPA also received comment asserting that sites discharging to waters with TMDLs should have an upper limit imposed for the amount of land that may be “opened” and worked at any given time. EPA acknowledges the comment but notes that the CWA gives the Agency authority to regulate point source discharges of pollutants to waters of the U.S. but not to establish upper limits of construction project sizes. However, while the 2012 CGP does not include an upper limit of the amount of land that may be worked on at any given time, EPA notes that permit provisions specifying effluent limitations including deadlines for stabilization apply to regulated sites, regardless of how large they may be. Thus, the permit provides protection to receiving waters from discharges from sites of all sizes at or exceeding minimum size thresholds. One commenter asserted that the special stabilization deadlines (Part 3.2.2.2) should apply if the permittee discharges to a surface water that is impaired for any parameter, not just for sediment

related pollutants or nutrients, unless a reasonable potential analysis shows that there is not likely to be a di scharge of the impaired parameter. EPA disagrees that the requirement should apply to waters impaired for any parameter. The requirement to stabilize more quickly applies to sites discharging to waters impaired for sediment or sediment

- related pollutants or nutrients because of the linkage between stabilization and discharges of these pollutants. However, See Part 3.2 of the 2012 CGP, which explains that if the permittee discharges to an impaired water that is impaired for a parameter other than a sediment

- related parameter or nutrients, EPA will inform the permittee if any additional limits or controls are necessary for the discharge to be consistent with the assumptions of any available wasteload allocation in the TMDL. EPA notes that 40 CFR 122.44(d)(1)(v ii)(B) provides that where a State or EPA has established a TMDL, NPDES permits must contain effluent limits and conditions consistent with the assumptions and requirements of the WLAs in the TMDL.
Stabilization For comments on stabilization, see response on stabilization in section 2 of this document. Inspections For comments on inspections, see response on inspections in section 5 of this document.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

73 2008 CGP was Sufficient / the Proposed Terms are Overly Burdensome and Unnecessary EPA received genera l comment asserting that the Agency has not provided any evidence that the existing permit program is not working and that because a problem with the current permit does not exist that EPA should not revise the current permit. In response to the comment, E PA directs the commenter to the 2012 CGP Fact Sheet in which the Agency provides background information on the permit and discusses the purposes of permit provisions. In particular, section I of the Fact Sheet explains that because the 2012 CGP is being is sued after the effective date of the C&D rule, EPA is required to incorporate the C&D rule requirements into this permit. For this reason, the 2012 CGP includes significant modifications to the 2008 CGP to reflect these new C&D rule requirements.

EPA Must Develop a Cost/Benefit Analysis EPA received comment suggesting that the Agency develop a cost

- benefit analysis and use that analysis to develop more reasonable alternatives. In response to this comment, EPA notes that the Agency did develop a cost

- benefit analysis in support of the Construction and Development Effluent Limitations Guideline and New Source Performance Standards (the “C&D rule”) on which the 2012 CGP is based. The analysis is available at http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm

. EPA also developed an economic analysis as part of the administrative record in support of the 2012 CGP. The analysis is available in the docket for the 2012 CGP. This analysis evaluates the cost implications of the significant changes to the permit. Each significant change is examined in light of the previous permit’s (the “2008 CGP”) requirements and th e requirements of the C&D rule, which for the first time is being incorporated into the CGP. The objective of this examination was to show where and/or to what extent the 2012 CGP includes requirements that impose an incremental increase in costs on permittees above and beyond costs that are already accounted for in the 2008 CGP or in the Economic Analysis developed in support of the C&D rule requirements, which together define the baseline of costs. EPA notes that the Agency developed the Construction and Development NPDES General Permit Environmental Assessment in support of the 2012 CGP. This document is available in the docket for the permit. All three analyses informed the development of reasonable alternatives and the final permit provisions.
Comments Related to Testing for Individual Nutrients EPA notes that the 2012 CGP does not include requirements for testing of individual nutrients. Comments Related to Turbidity Standard EPA notes that the 2012 CGP does not include a numeric turbidity standard. Comments Related to Benchmark Monitoring Reports EPA notes that the 2012 CGP does not include benchmark monitoring requirements. Exceedance of Applicable Water Quality Standard as a Violation EPA received comment suggesting that the water quality

- base d effluent limitations be applicable only to water bodies impaired for turbidity, sediment, and TSS and that biological impairments should be excluded. In response to the comment, EPA notes that while the specific effluent limitations discussed in Part 3.2 .2 of 2012 CGP apply to discharges to surface waters that are impaired for sediment or sediment

- related parameters, such as total suspended solids (TSS) or turbidity, and/or impaired for nutrients, including impairments for nitrogen and/or phosphorus, the general requirements in Part 3.2 applies more broadly. The general requirement explains that If a permittee discharges to an impaired water that is impaired for a parameter other than a sediment

- related parameter or nutrients, EPA will inform the permittee if any additional limits or controls are necessary for the discharge to be controlled as necessary to meet water quality standards, including for it to be consistent with the assumptions of any available wasteload allocation in any applicable TMDL, or if coverage under an individual permit is necessary inRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

74 accordance with Part 1.4.5. Thus, EPA disagrees that any impairments should be explicitly excluded and notes that if a permittee discharges to an impaired water that is impaired for a parameter other than a sediment

- related parameter or nutrients, that EPA will inform the permittee if any additional limits or controls are necessary to meet WQS. These provisions are intended to implement the requirements of 40 CFR 122.44(d)(1)(vii)(B), which requires that w ater quality based effluent limits in permits be “consistent with the assumptions and requirements of any available wasteload allocation for the discharge...” and of 40 CFR 122.4(i), which creates conditions for the issuance of permits for new sources.
What happens if a water becomes listed as impaired during the permit term? EPA received comment asserting that guidance is needed in the event that a waterway becomes listed as impaired during the permit term. In particular, the commenter asks whether a permittee would be required to a modification to the NOI and/or whether a permit modification will result. EPA notes that operators are required to determine whether they discharge into waters that are impaired at the time they submit their NOIs. Part 3.2 of the 2012 CGP requires permittees that discharge into to a surface water that is impaired at the time of NOI submission for sediment or a sediment

- related parameter to comply with specific water quality effluent limitation of Part 3 of the permit, including more frequent site inspections, faster stabilization schedules, and any additional state or tribal impairment

- related requirements. EPA does not expect and the permit does not require operators to regularly review updated lists of impaired waters to de termine whether waters that were not previously impaired have become impaired during the course of their permit coverage. However, as discussed in Part 3.2 of the 2012 CGP, If at any time a permittee become aware, or EPA determines, that a discharge permit ted under the 2012 CGP is not being controlled as necessary to meet applicable water quality standards, the permittee must take corrective action as required in Part 5.2.1, and document the corrective actions as required in Part 5.2.2 and Part 5.4. If they are notified that a water to which they discharge has become impaired for sediment or a sediment

- related parameter, they would be required to comply with the specific water quality

- based effluent limitations in Part 3.2.2 of the permit for discharges to an impaired water that is impaired for a sediment -related parameter or nutrients. Moreover, all permittees, regardless of whether they discharge to waters that are impaired are subject to Parts 3.1 and 5.2.1.3 of the permit, which allows the Agency to requi re corrective action and/or additional stormwater controls if the stormwater controls that the permittee has installed and is maintaining are not effective enough for the discharge to meet applicable water quality standards. What is EPA’s authority for including “EPA

- approved or established TMDL” within the CGP’s definition of impaired waters? EPA received comment asserting that the Agency has failed to cite controlling legal authority supporting its determination to include waters for which there is an EPA

- approved or established total maximum daily load within the draft CGP’s definition of “impaired waters.” In response to this comment, EPA included this language in the definition because, although most TMDLs are adopted by states, territories, or auth orized tribes and then approved by EPA, EPA has, in certain situations, established TMDLs for waters of the U.S., e.g., where EPA has disapproved a state established TMDL (see CWA section 303(d)(2). Regarding the inclusion of TMDLs in the provision of the permit, EPA notes that 40 CFR 122.44(d)(1)(vii)(B) provides that where a State or EPA has established a TMDL, NPDES permits must contain effluent limits and conditions consistent with the assumptions and requirements of the WLAs in the TMDL. Determining Whether Waters are Impaired / Definition for Sensitive Waters EPA received comment on the proposed provision explaining that “if you indicate that you do not discharge to an impaired water, EPA may determine, based on additional information, that you

are considered to be discharging into an impaired water.” Some commenters sought clarity on the language “additional information.” Other commenters questioned the Agency’sRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

75 authority supporting this clause. EPA notes that the 2012 CGP does not include this lang uage. However, the Agency reserves the right to review for accuracy any information provided in NOIs including the list of impaired waters to which a site discharges. One commenter asserted that the determination of whether a site discharges to an impaire d water should be based on whether hydraulic connectivity exists between the permitted discharge and a downstream water segment that is impaired, rather than on whether the first water body to receive a discharge from the site is impaired, even if the first water body is not impaired. Another asserted that the application of Part 4 of the Draft CGP does not address downstream protection beyond the discharger’s immediate receiving waters, particularly in the case when a discharger could potentially cause or contribute to the impairment of water bodies that flow into further downstream waters. In response to these comments, EPA notes that 2012 CGP requires operators of all sites covered under the permit, as a first step, to determine whether they discharge to impaired waters and, if so, to identify those waters. These dischargers are subject to additional requirements under the permit. EPA agrees that in some cases it may be appropriate to require additional stormwater controls to protect downstream waters, eve n if the immediate water body into which the discharge flows is unimpaired. In accordance with 40 CFR sections 131.10(b), 122.44(d), and 122.4(d), the Agency requires the consideration of water quality standards (WQS) of downstream waters when establishing WQS and NPDES permit limits. In addition, under 122.44(d)(1)(i), NPDES permits must contain limitations for all pollutants or pollutant parameters that are or may be discharged at a level that causes, has the reasonable potential to cause or contribute to an excursion above any State WQS including state narrative criteria for water quality. Effluent limitations must also be consistent with the assumptions and requirements made of any wasteload allocation value (e.g., TMDL). Thus, EPA believes that, under a general permit, such determinations for necessary downstream protection of WQS can be made case

- by

- case by considering the ranges of geographical sites and the variety of other site

- specific factors. One commenter suggested that EPA change the proposed language applying to discharges to impaired waters from “waters included in an EPA

- approved or established Total Maximum Daily Load (TMDL)” to a water that “has an EPA

- approved or established total maximum daily load (TMDL).” The commenter described situati ons in which a water body may not have a TMDL itself but it is nonetheless referenced in the documentation of a TMDL for another water body because of its relevance to the TMDL of that water body. The commenter points out that in some cases, the water body

- referenced water may even have a waste load allocation even though it is not impaired. EPA disagrees that such water bodies should be excluded from the requirements for sites that discharge to impaired waters. If a State has determined that the water qual ity of one water body is relevant enough to the water quality of another that it is included in the TMDL, then, in the absence of further information, the Agency believes that that water should also be subject to the additional requirements, in addition to the fact that 40 CFR 122.44(d)(1)(vii)(B) requires that that discharge be consistent with the assumptions and requirements of the relevant wasteload allocation in the TMDL. EPA received a suggestion that the Agency expand the requirement to include sites located within the watershed of major impaired waterways subject to TMDLs for sediment and nutrients. EPA notes that sites subject to TMDLs are included in the requirements. EPA also received comment asserting that the Agency is exceeding its authority by requiring operators to determine whether a waterbody is impaired for the purposes of local, state, and federal law. However, the commenter does support provisions that require operators to take measures to limit stormwater discharges to impaired waters. The commenter goes on to assert that the determination of whether or not a body of water is impaired should be left of the state. EPA notes that the 2012 CGP does not require the applicant to designate waters as impaired. Rather, the permit requires applic ants to determine (i.e., identify or look up) whether waters have already been designated as impaired by the state, tribe or EPA. For the comment on deferring to the state, EPA agrees that impaired waters are those that are identified as impaired on the CW A Section 303(d) list and thus has been identified by a State, Tribe, or EPA pursuant to Section 303(d)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

76 of the Clean water Act as not meeting an applicable water quality standard. EPA also defines as “impaired” waters that have an EPA

- approved or establish ed total maximum daily load (TMDL). See response above on EPA

- approved or established TMDLs. EPA received comment on the proposed definition of “Discharge to an impaired water.” The commenter suggested that EPA remove the word “named” from the proposed de finition indicating that a discharge occurs “if the first named water of the U.S. to which you discharge is identified” The commenter points out that some impaired water bodies may be listed as impaired. EPA agrees with the commenter that it is unnecessary to limit the definition to named waterbodies. The definition included in the 2012 CGP does not specify “named.” EPA received comment asserting that the Federal Register does not support including impaired waterbodies. EPA does not intend to publish a list of impaired waters in the Federal Register as part of this Action. EPA received comment asserting that provisions requiring that permittees identify the impairment status of their receiving waters along linear projects that may discharge in multiple wat ersheds is burdensome and has the potential for error due to various interpretations of impairments and stressors. In response to this comment, EPA notes that the Agency is developing a mapping tool that will assist potential permittees to identify in their NOIs the surface water(s) to which they will discharge, whether any waters are impaired, and whether any TMDLs exist for the receiving waters. The mapping tool functions for small construction projects occurring on a single lot as well as for linear projects spanning multiple watersheds. See discussion on the mapping tool in this section (Response 4.1). Use of Mapping Tools for Determining Whether Site Discharges to Impaired Waters
EPA received a comment that asserted that e

- mapping under the existing eNOI system is inaccurate, and suggested that EPA should rectify the existing eNOI e

- mapping tool prior to any further use by the public. EPA also received comment expressing concern that the mapping tool would not be ready in time for issuance of the 2012 CGP. EPA notes that it has not previously made available a discharge mapping tool within the eNOI system. The commenter may have been referring to problems with EPA’s Water Locator Tool. However, consistent with this comment, EPA has developed a new mapping tool embedded within the eNOI system for the 2012 CGP to assist permittees with determining the surface waters to which they discharge and whether any of the waters to which they discharge are impaired. The CGP Mapping Tool utilizes the best available d ata to determine whether or not a site is considered to discharge to an impaired water, and in the absence of any other information, EPA assumes that the tool correctly determines if a site discharges to an impaired water. However, due to limitations with the data, EPA recognizes that there could be circumstances where the mapping tool does not generate the correct results. If a permittee does not agree with the tool’s analysis, or is unsure if it is correct, EPA recommends that permittees verify the tool’s results by comparing the up

- to

- date and comprehensive list of impaired waters and EPA

- approved or established TMDLs associated with their state, tribe, territory, etc to the surface waters that the permittee believes they discharge to. Much of this information is accessible through the websites of individual states, tribes, territories, etc.; alternatively, you can conduct searches for this information through EPA’s website at located at http://epamap32.ep a.gov/radims/ or http://www.epa.gov/myenvironment/new/. If a permittee is able to verify through other means that the tool is not correct for your site, EPA allows applicants to edit the results generated. Or, if permittees prefer to determine which waterbodies their sites discharge to using alternate methods, EPA also notes that applicants are not required to use the e

mapping tool. EPA disagrees with the commenter’s assertion that e

- mapping is not legally defensible and that permittees should be solely responsible for accurate determinations on discharges to impaired waters. EPA agrees that the permittee is responsible for submitting accurate information. EPA believes, despite the limitations, that it is appropriate to provide discharge mapping assistance to permittees. As discussed above, in the absence of other information, because the CGP MappingRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

77 Tool is utilizing the best available electronic information, it is EPA’s assumption that the results g enerated by the CGP Mapping Tool are correct. However, EPA recognizes that there may be cases where the results generated by the tool are inaccurate. Therefore, if an applicant is unsure that the information is correct or disagrees with the tool’s results, that applicant should review the information generated by the tool prior to certifying their NOIs. EPA maintains that allowing permittees to certify the results of the mapping tool, or alternative if the permittee so chooses, on their NOIs will eliminate any legal defensibility questions. EPA received comment requesting clarification on the ability of the mapping tool to determine whether discharges enter CSOs or MS4s. EPA notes that the mapping tool does not have this ability. Permit applicants are not required to identify discharges to CSOs because such discharges are not covered by the 2012 CGP. However, they must identify discharges to MS4s or other storm sewers and the waterbodies to which the MS4 or storm sewer ultimately discharges. For these waterb odies, they must note whether the water bodies are impaired, the pollutants for which they are impaired, and/or whether TMDLs have been established or approved by EPA. EPA received comment recommending that EPA make the mapping tool available early for public comment, review, and/or to provide time for planning and that the tool go through adequate testing. Unfortunately, the Agency was not able to make the tool available for public comment due to timing and resource limitations. As noted above, the CGP Mapping Tool utilizes the best available data to determine whether or not a site is considered to discharge to an impaired water, and in the absence of any other information, EPA assumes that the tool correctly determines if a site discharges to an impaired water. However, EPA welcomes comment on the mapping tool once the tool becomes available for public use and intends to make any necessary corrections or updates to the tool as needed and as resources allow. EPA has created an email address for interested p arties to send EPA questions, comments, or concerns on the 2012 CGP. The email address is cgp@epa.gov

. Also, as noted above, applicants are not required to use the mapping tool. Comments on Sampling or Benchmark Monitoring EPA received multiple comments challenging the proposed requirements for certain dischargers to conduct water quality benchmark monitoring or to conduct sampling. EPA also received multiple comments in support of the proposed benchmark monitoring requirements. EPA notes that the 2012 CGP does not include these requirements. While EPA believes that monitoring can be helpful in assisting permittees and EPA in determining whether discharges are controlled sufficiently to meet applicable water quality standards, and therefore do not cause or contribute to an impairment, and identify situations where further controls may be necessary to comply with this requirement, EPA also expects, in the absence of information demonstrating otherwise, that compliance with the conditions in this permit will result in stormwater discharges being controlled as necessary to meet applicable water quality standards. This is because the permit includes several enhanced protections, including provisions to protect impaired and sensitive waters and several new requirements for (1) Eligibility for emergency

- related construction, (2) use of treatment chemicals, (3) In creased usage of the electronic notice of intent process, (4) Sediment and erosion controls, (5) Natural buffers or alternative controls, (6) Soil stabilization, (7) Pollution prevention, (8) Water quality

- based effluent limits, (9) Site inspections, (10) Corrective action, (11) Stormwater Pollution Prevention Plans, and (11) Permit termination. Nevertheless, EPA no tes that if at any time a permittee becomes aware, or EPA determines, that a discharge is not being controlled as necessary to meet applicable water quality standards, the permittee must take corrective action as required in Part 5.2.1, and document the corrective actions as required in Part 5.2.2 and Part 5.4. Daily Visual Examinations for Dischargers into Impaired Waters EPA received comment asserting that the proposed provision requiring daily examinations is overly burdensome and does not provide valuable information, especially during no stormwater flow conditions. The commenter believes that a more appropriate requirement would be to examineRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

78 critical stormwater controls specifically associated with an impaired pollutant within 24 hours after significant rainfall events during safe conditions. EPA also received comment asserting that all inspection requirements should be explicitly limited to include only those areas upon which earth

disturbing activities are taking place within the site.
EPA notes th at the 2012 CGP does not require daily visual inspections. See Part 4 of the 2012 CGP for a description of the inspection requirements and section IX of the 2012 CGP Fact Sheet for a discussion on the purpose of the requirements. Additional Requirements for Discharges to Impaired Waters / Water Quality

- Based Effluent Limits One commenter asserted that it is not appropriate for EPA to include water quality

- based effluent limit requirements in the 2012 CGP that do not yet have an EPA

- approved or establishe d TMDL and that establishing such requirements may be beyond EPA’s authority under the CWA. The commenter is asserting that EPA is inappropriately using the CGP to mandate additional requirements that may or may not be needed and may or may not help the wa terbodies meet their pollutant reduction goals. Another commenter asserted that both the language and legislative history of the CWA make it clear that NPDES stormwater permits should include water quality limits only when national technology

- based standar ds fail to produce the desired level of water quality in a given watershed. The commenter goes on to say that EPA cannot justify the additional water

- quality based effluent limits (i.e., the new stabilization, inspection and monitoring requirements for discharges to impaired waters) asserting that EPA may impose additional NPDES permit conditions only if EPA has determined based on specific factors set forth in EPA regulations that the terms are necessary to avoid an “excursion” above a specific water quali ty standard. The commenter asserts that EPA has not made the required determinations nor provided any justification or scientific rationale for these additional conditions, particularly for the benchmark levels. For the comment on benchmark monitoring, EPA notes that the 2012 CGP does not include benchmark monitoring requirements. For the comment on water quality

- based effluent limitations, EPA agrees that effluent limitations must be consistent with the assumptions and requirements made of any wasteload al location (i.e., TMDL) but also notes that under 40 CFR 122.44(d)(1)(i), NPDES permits must contain limitations for all pollutants or pollutant parameters that are or may be discharged at a level that causes, has the reasonable potential to cause, or contri bute to an excursion above any State WQS including state narrative criteria for water quality. See also CWA section 301(b)(1)(C) and 40 CFR 122.4(d). For this reason, the permit includes additional inspection and stabilization requirements for dischargers to waters impaired for sediment or a sediment

- related parameter, such as total suspended solids (TSS) or turbidity, and/or nutrients, including impairments for nitrogen and/or phosphorus. EPA discusses the purpose of these requirements in greater detail in section VIII.2.2 of the 2012 CGP Fact Sheet. As discussed in that section, the inspection requirements enhance the permittee’s ability to find and correct problems before a discharge of pollutants occurs, and the stabilization requirements restrict the am ount of time that areas exposed during construction on sites that discharge to sediment or nutrient

- impaired waters are left unstabilized. One commenter asserts that EPA should rely on its TMDL program to protect impaired waterbodies noting that the progr am enables the States readily to require NPDES stormwater permittees to comply with appropriate TMDLs, which may include numeric benchmarks, in addition to stringent controls if these permittees discharge pollutants to waters impaired for those pollutants. EPA has included additional requirements for permittees discharging to impaired waters for the reasons discussed in the previous paragraph. For the comment on States, EPA agrees that States may establish additional requirements. See Part 3.2.2.3.

EPA rec eived comment suggesting that the permit’s water quality effluent limitations should only apply to direct discharges to waters within a mile of a site; otherwise, a facility’s first receiving water may be miles away and not be a direct discharge and therefore the discharge would have no possible impacts on that receiving water. EPA disagrees with the suggestion to limit water quality

- based effluent limitations to sites discharging to impaired waters within one mile of a site. If a site is discharging into an impaired water, the distance between the site and the water isRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

79 irrelevant because the discharge, by definition, is introducing pollutants into a surface water. If a discharge of pollutants to waters of the U.S. does not exist, the requirement does not apply, nor is permit coverage needed. Discharges to Storm Sewers EPA received comment on the proposed provision establishing a linkage between discharges that enter a storm sewer system to the waters to which those storm sewers ultimately discharge. The 2012 CGP includes language indicating that "for discharges that enter a storm sewer system prior to discharge, the first surface water to which you discharge is the waterbody that receives the stormwater discharge from the storm sewer system." The commente r asserts that this provision redefines the point of discharge, that EPA is expanding its control via this provision, and that it is impossible for EPA to determine the separate or distinct impact of any one discharge into storm water sewer systems.
EPA d isagrees that it is redefining the point of discharge or expanding control via the 2012 CGP. The regulatory requirements apply to the discharges of pollutants from the construction site to surface waters, notwithstanding any conduit or conveyance carrying such discharge between the site and the surface water. Also, the regulatory requirement subjecting industrial stormwater discharges (including construction site discharges from construction activity of five acres or more) to NPDES permits applies, regardless of whether these discharges are to a municipal separate storm sewer system (MS4). See 40 CFR 122.26(a)(4); 55 Fed. Reg. 47990, 48006 (Nov. 16, 1990) ("Today's rule requires [all operators of industrial stormwater] discharges through municipal separate s torm sewer systems to apply for an individual permit, apply as part of a group application, or seek coverage under a promulgated general permit for storm water discharges associated with industrial activity."). EPA also notes that the 2008 CGP provided tha t it “authorizes stormwater discharges...where those storm water discharges enter surface waters of the United States or a municipal separate storm sewer system (MS4) leading to surface waters of the United States subject to the conditions set forth in this permit” (Part 1.1) and that it “does not authorize discharges that...will cause...or contribute to an excursion above any applicable water quality standard” (Part 1.3.C.4). The 2008 CGP also established that permittees “are not eligible for coverage under this permit for discharges of pollutants of concern to waters for which there is a total maximum daily load (TMDL) established or approved by EPA unless [the permittee] implement[s] measures or controls that are consistent with the assumptions and requirements of such TMDL.” (Part 1.3.C.5.a). Thus, the 2008 CGP already covered discharges to MS4s that lead to surface waters and required that such discharges not cause or contribute to excursions of water quality standards and be consistent with TMDL assumptions . Consistent with the 2008 CGP, the 2012 CGP covers discharges to storm sewer systems, including MS4s, that ultimately discharge to surface waters. For the comment on the possibility of determining separate or distinct impacts, EPA agrees that quantifying the impact on a receiving water of an individual discharge that first passes through an MS4 may be difficult. The extent to which EPA, states, or other authorities will be able to determine the separate or distinct impact of any one discharge will depend on the magnitude and nature of a particular discharge, the size and complexity of the MS4, and available modeling capabilities. However, the 2012 CGP does not require permittees to determine the separate or distinct impacts. Rather, the permit requires operators to determine whether they discharge to impaired waters, be it directly or through a storm sewer system. An untreated stormwater discharge passing through a storm sewer system can contribute a pollutant load including sediments and sediment

- related pa rameters, such as total suspended solids (TSS) or turbidity, and/or nutrients, including nitrogen and/or phosphorus, to receiving waters and contribute to water quality impairments. EPA is requiring additional protections for all sites that discharge to

se nsitive waters (including impaired waters as well as Tier 2, Tier 2.5, and Tier 3 waters) to minimize the potential that this discharge will contribute to an excursion above water quality standards. See section VIII.2 of the 2012 CGP Fact Sheet for a detai led discussion on the requirements and their purposes.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

80 For the comment on establishment of a water quality

- based effluent limitation for stormwater discharged into sewer systems if those systems eventually drain into impaired waterbodies, see above. Also, to the extent that the comment relates to numeric turbidity limits or benchmark monitoring, EPA notes that the 2012 CGP does not include numeric turbidity limits or benchmark monitoring requirements. EPA also received comment asserting that discharges in to a storm sewer prior to discharge should be regulated in a manner that accounts for the presence of other pollutant sources that discharge to the system. The commenter also suggested that discharges should be regulated in a manner that accounts for whether the system is subject to an MS4 permit and asserted that the application of additional requirements in urban storm sewer locations has the potential to contradict growth management goals with little or no water quality benefit and that EPA’s impervious surface data should be made more accurate before additional urban TMDL requirements are imposed through the permit. For the comment on accounting for other pollutant sources, EPA believes the issue is moot given that the proposed benchmark monitoring requi rements are not included in the final permit. The permit does not include other provisions that would require the quantification of pollutant loads from the site. For the comment on MS4 permits, EPA notes that, for the areas covered by the 2012 CGP, EPA re gions serve as the permitting authority, and discharges covered under this permit must comply with the terms of the permit. To the extent that additional protections are required by local MS4s, then EPA agrees that those additional requirements must be met. For the comment on contrasting growth management goals with little or no water quality benefit, EPA disagrees and directs the commenter to the economic analyses developed in support of the C&D Rule on which the 2012 CGP is based. See http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm

. Required use of GI and LID EPA received comments suggesting that the Agency require the use of green infrastructure an d low

- impact development, particularly at sites discharging to impaired or sensitive waters. As an advocate of green infrastructure and low

- impact development, EPA appreciates these comments and notes that the Agency encourages the use of green infrastructure and low - impact development. However, EPA crafted the non

- numeric effluent limits in the C&D rule on which the 2012 CGP is based to allow flexibility in how the permitting authority implements these requirements in permits. See 74 FR 63016. As an example, 40 CFR 450.21(a)(5) requires construction operators to design, install, and maintain controls to “minimize sediment discharges from the site.” EPA notes that the permit does allow for the Agency to require corrective action and/or additional stormwater controls if the stormwater controls that the permittee has installed and is maintaining are not effective enough for the discharge to meet applicable water quality standards (See Parts 3 and 5.2.1).
ESA

- Related Comment Commenter encourages EPA to consul t with the Fish and Wildlife Service and to reach an understanding of how much, if any, additional sediment or nutrient loading is compatible with maintaining habitats critical for the survival of imperiled species. Commenter points out that in
some cases, any additional pollutant loading may not be compatible with protecting critical habitats and these imperiled species and that in such cases developers should meet a higher standard of water quality protection for those projects that might impact designate d critical habitat. EPA has consulted with the Fish and Wildlife Service in developing the 2012 CGP. See also discussion on additional controls in this section (Response 4.1).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

81 

### Comment Response Essay 5 Inspections
Response 5.1 Inspections Persons Responsible for Inspecting Site EPA received a comment that EPA should allow the permittee to identify that staff are qualified by a state/municipality and have received inspection certifications to ensure qualified persons are on staff. EPA notes that if personnel have received a construction site inspection certification, this should be noted in Part 7.2.12.1 of the SWPPP. Frequency of Inspections EPA received numerous comments that disagreed with the proposed inspection frequency requirements in the draft permit of once every 14 calendar days and within 24 hours of the end of a storm event of 0.25 inches or greater and within 24 hours of a discharge generated by snowmelt. Many of the comments suggested that the proposed requirements were overl y complicated and that the increased number of inspections would cause a burden and increase costs. Some commenters suggested that the increased inspections would provide little to no environmental benefit. One commenter noted that an inspection requiremen t not tied to storm events would be easier to comply with. Another commenter noted that requiring all sites to inspect after qualifying storm events will be difficult when a project outsources inspections to a consultant. Many commenters also specifically disagreed with EPA’s proposal to reduce the storm event inspection trigger from 0.5 inches to 0.25 inches. The comments are summarized as follows: The requirement to inspect after 0.25 inch storm event is excessive. Reducing the inspection storm event trigger to 0.25 inches will significantly increase the frequency of inspections during rain events, increasing the costs. A 0.25 inch rain event will frequently result in no discharge in many locations, and does not apply well in the arid west.
It takes at least 0.5 inches of rainfall to cause enough damage to stabilization devices to necessitate a corrective action. Quantifying the storm event in inches doesn’t account for regional variation. Many commenters suggested modifications to EPA’s proposed inspection frequency requirements. These suggestions are summarized as follows: Retain the inspection frequencies in the 2008 CGP. The choice of inspection frequency provided in the 2008 CGP was adequate and provided needed flexibility. The requirement should be revised to allow inspections once every 7 days, with no additional requirements for storm events. The inspection frequency should be once every two weeks or once every 15 calendar days to encourage permittees to complete an inspection on the first working day every two weeks. The frequency of inspection requirements should be simplified by using measurable discharge as the trigger for site inspection. The most effective inspection program is to conduct weekly scheduled inspections of every

s ite, with discharge quality observations of every outfall. Sites that drain to impaired waters should be inspected twice per week, with 48 to 72 minimum hours between inspections.
Increase the post

- discharge inspection time period to 48 hours to provide a broader window to complete the inspection.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

82 Modify the inspection requirements to once per week for sites that do not drain to impaired waterways, and twice per week for sites that do discharge to impaired waterways. Retain a 0.5 inch storm event inspection trigger from the 2008 CGP. The storm event inspection frequency trigger should be increased to 0.75 inches or should be identified by the various EPA regions based on rainfall patterns within their respective jurisdictions. Apply the 0.25 inch storm trigger only to sites that are particularly vulnerable to erosion. EPA appreciates all of the comments and suggested modifications on the proposed inspection frequency requirements. EPA notes that, after reviewing the comments, it has retained a similar inspection frequency to the 2008 CGP. The final CGP requires inspections either (1) At least once every 7 calendar days; or (2) Once every 14 days and within 24 hours of the occurrence of a storm event of 0.25 inches or greater. EPA believes that providing the choice between these inspection frequencies will alleviate many of the concerns expressed by commenters about the storm event trigger inspection requirements. With regard to the concerns expressed about reducing the inspection trigger to storm e vents of 0.25 inches, EPA maintains, as described in Part IX.1.2 of the fact sheet, that the 0.5 inch threshold in the 2008 CGP accounted for an inadequate number of storms, thereby undermining the extent to which inspections would be achieving the type of performance evaluation that was intended under the 2008 CGP. Notably, a 0.5 inch storm accounted for only approximately 14 percent of storms in New Hampshire, 2 percent of storms in Idaho, and 11 percent of storms in New Mexico. In contrast, a 0.25 inch s torm accounts for approximately 24 percent of storms in New Hampshire, 10 percent of storms in Idaho, and 10 percent of storms in New Mexico. EPA believes that storms with rainfall totals between 0.25 and 0.5 inches have the potential to produce discharges of stormwater that could lead to discharges of pollutants to surface waters, particularly if stormwater controls are not functioning effectively. While EPA recognizes the concern of some commenters that a 0.25 inch storm will not always produce a discharge, EPA does not believe that site inspections should necessarily be linked to discharge

- generating events. The main purpose of the inspection is to catch problems on the site before a discharge of pollutants occurs. Therefore, EPA has retained the 0.25 inc h storm event as the inspection trigger in the final permit. However, as noted above, EPA believes that concerns about the 0.25 inch storm event trigger will be alleviated by the fact that the final permit provides permittees the option to elect to conduct weekly inspections, allowing permittees to avoid the storm event inspection requirements. On the contrary, some commenters suggested that EPA require a more stringent inspection frequency than proposed in the draft permit. EPA appreciates the suggestions, but believes that the inspection requirements in the permit are adequate to ensure that maintenance and corrective actions occur promptly, and believes that further increasing the frequency of inspections would be overly burdensome for permittees. Many commenters expressed concern with the proposed requirement that sites conduct inspections within 24 hours of a discharge generated by snowmelt. These concerns are summarized as follows: Snowmelt events often have no potential for erosion. The inspection r equirements for snowmelt will require daily inspections whenever temperatures exceed 32° F. In some areas, this requirement could require daily inspections for months, which would be b urdensome. EPA should instead only require inspections for snowmelt that has the potential to cause erosion. It is difficult to conduct inspections during snowmelt conditions in remote utility corridors where active construction activities are not actively occurring. EPA should remove the requirement to inspect during snowmelt conditions if a project is stabilized or inactive.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

83 The permit does not mention snowmelt generating a multiple day discharge, which is likely to occur in areas with significant snow accumulations that take weeks or months to melt off. It is unclear how one determines that a discharge has been caused by snowmelt. EPA notes that, in response to the comments on the proposed inspection requirements regarding snowmelt, it has removed the requirement to inspect after discharges caused by snowmelt. EPA b elieves this modification addresses the concerns of the commenters expressed above. One commenter requested that EPA describe the significance of adopting 0.25 inches as the trigger for storm event inspections and for removing the option to inspect once e very 7 days, as proposed. EPA notes that its intention in using 0.25 inches as the trigger for storm event inspections and in removing the option to inspect once every 7 days was to increase the number of inspections occurring at sites covered under the permit, thereby improving the ability for construction sites to identify any problems on the site and to take corrective action. However, after reviewing the comments, EPA believes that requiring all sites to inspect after a storm event of 0.25 inches would be burdensome. Therefore, to provide needed flexibility, EPA has modified the requirements in the final permit to allow permittees site inspection frequency options, as described above. One commenter indicated that the different inspection frequency requirements throughout the permit will complicate inspection tracking and records management, and suggested that EPA streamline and simplify the requirements. EPA notes that in the final permit, EPA has moved all of the inspections requirements into Part 4, which EPA believes will provide clarity to permittees about what the different inspection requirements apply. In the final permit, only sites discharging to sensitive waters are subject to different inspection frequency timelines. See Part 4.1.3.
Several co mmenters requested that EPA clarify the concept of a “storm event” and clearly define what a storm event of 0.25 inches is. EPA notes that “storm event” is defined in Appendix A of the permit as “a precipitation event that results in a measurable amount of precipitation.” Therefore, EPA clarifies that a storm event of 0.25 is one that produces 0.25 inches of precipitation. The commenter also requested that EPA clarify if inspections are required after a 0.25 inch storm event, after a discharge event, or aft er both. EPA clarifies that in the final permit, if the permittee elects to conduct inspections in accordance with the inspection schedule in Part 4.1.2.2, inspections are required within 24 hours of the occurrence of a storm event of 0.25 inches or greate r, regardless of whether or not a discharge has occurred. As further clarified the permit, this means that the permittee must conduct their inspection within 24 hours once a storm event has produced 0.25 inches, even if the storm event is still occurring, regardless of whether a discharge has occurred. A commenter requested clarification on how a permittee will determine whether a 0.25 inch storm event has occurred. EPA notes that the final permit requires permittees electing to conduct inspections in accordance with the inspection schedule in Part 4.1.2.2 to either keep a properly maintained rain gauge on the site, or to obtain the storm event information from a weather station that is representative of the site’s location, in order to determine whether a 0.25 inch storm event has occurred. EPA received comments requesting clarification on when an inspection would be required during multiple day storm events. EPA has provided clarification on what is expected during multiple day storm events in the final permit. Part 4.1.2 notes that if “...there is a storm event at the site that continues for multiple days, and each day of the storm produces 0.25 inches or more of rain, the permittee is required to conduct an inspection within 24 hours of the first day of t he storm and within 24 hours after the end of the storm.” EPA clarifies that the end of the storm during a multiple day storm event would be the last day of consecutive 0.25 inch daily storm events. A commenter questioned what is required if a storm event ends but a discharge continues more than 24 hours after the storm event ends. EPA clarifies that, if the permittee has elected to conduct inspectionsRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

84 in accordance with Part 4.1.2.2, as long as they conduct their required inspection within 24 hours after t he end of the 0.25 inch storm event, there are no further inspection requirements even if the discharge continues. However, EPA encourages permittees to monitor conditions on their site outside of their normal inspection schedule to ensure that their BMPs remain in effective operating condition, especially while the site is discharging. The commenter also questioned how an inspector will know if the project had a multiple day storm event without the requirement to conduct a daily inspection. EPA clarifies t hat if a permittee has elected to conduct inspections in accordance with Part 4.1.2.2, they must keep a record of rainfall occurrences, which will inform them of whether an inspection is required. See Part 4.1.7.1d. One commenter suggested the storm event inspection requirements to be redundant for pipelines projects with preexisting BMPs, and noted that inspecting within 24 hours of a rainfall event will be difficult because personnel are not typically scheduled on days of expected rainfall, and personnel are not scheduled on weekends. EPA disagrees that the inspection requirements are redundant, and conversely believes that they are necessary in order for permittees to ensure that their BMPs are properly maintained and operating effectively. EPA also clarifies that the permit only requires inspections to be conducted during the project’s normal working hours. So, if a 0.25 inch storm event occurs on a Saturday, and work is not scheduled until Monday, EPA would not expect an inspection to be conducted on that site until Monday. Some commenters noted confusion about whether the requirements in the proposed permit that apply “during discharge conditions” are in addition to the proposed requirement to inspect within 24 hours of a 0.25 inch storm event. One commenter suggested that EPA remove the requirements that apply during discharge conditions. EPA clarifies that in the proposed permit, it was EPA’s intention that during the regular site inspections, if the site is actively discharging, the permittee woul d be required to comply with the specific requirements that apply during discharge conditions, in addition to the other inspection requirements. EPA notes that within 24 hours of a 0.25 inch storm event, the site may not be discharging; therefore, EPA disa grees that these areas would already be observed during a normal inspection, as suggested by a commenter. In the final permit EPA has clarified this requirement by specifying the additional inspection requirements that apply only “if a discharge is occurri ng during your inspection.” See Part 4.1.6.6. To further clarify, if during an inspection a discharge is occurring, permittees are responsible for complying with all of the requirements in Part 4.1.6. If a discharge is not occurring during the inspection, the requirements in Part 4.1.6.6 do not apply. One commenter noted that the proposed inspection frequencies are not practicable, especially where active construction is complete. EPA notes that it provides flexibility in areas where active construction is complete and where stabilization has been implemented. For these areas, permittees may reduce the frequency of inspection to once per month. See Part 4.1.4.1. For more information, see the comment response essay “Reductions in Inspection Frequency” below. Increased Inspection Frequency for Sites Discharging to Sensitive Waters EPA received many comments that disagreed with the proposed requirement that sites discharging to sensitive waters conduct more frequent site inspections.
One commenter noted that the different inspection frequency requirements on a site could cause confusion as to what the requirements apply in different areas of the site. The commenter also noted the difficulty of making a determination of whether a site discharges to a water of the U.S. and whether that water is impaired. EPA recognizes that certain sites will have portions that discharge to impaired waters and portions that do not discharge to impaired waters, and understands the concern about potential confusion caused by different inspection frequency requirements on the site. The final permit requires, for any portion of a site that discharges to sensitive waters (i.e., sediment or nutrient

- impaired waters or waters identified as Tier 2, Tier 2.5, or Tier 3), that inspections be conducted once every 7 days and within 24 hours of the occurrence of a storm event of 0.25 inches or greater. EPA maintains that the increased inspection frequencyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

85 requirements for sites discharging to impaired waters will enhance a permittee’s ability to find and correct problems before a discharge of pollutants occur, and are necessary to ensure that discharges from sites discharging to impaired waters meet water quality standards. EPA notes that, if a permittee is concerned about the potential for confusion caused by the different inspection frequency requirements on their site, the permittee has the option of choosing to comply with the more frequent inspection requirement on the entirety of the site. EPA also notes that it understands that sites may have difficulty determining the waters to which they discharge and their impairment statuses. Accordingly, EPA notes that it will make available an electronic mapping tool that a permittee can access within the eNOI system that helps them to determine the waters to which they discharge and whether the waters are impaired. Many commenters specifically disagreed with the proposed requirement that sites discharging to impaired waters conduct daily visual examinations. The following summarizes their comments: Stormwater controls often do not require maintenance or need to be replaced or repaired even on a weekly basis. Many sites already perform BMP maintenance daily, so this shouldn’t be a permit requirement. Daily visual inspections are not necessary everyda y because wet weather events do not occur every day. This is particularly true in arid areas. It would be difficult to determine whether stormwater controls are working as intended if a wet weather event has not occurred. There are periods where activitie s on the site do not require personnel on a daily basis and weather conditions present little risk of discharge. A daily visual exam does not have any different result from weekly inspections. The weekly and/or post

- discharge inspections are sufficient to address any issues that could arise. The requirement to inspect daily would be a disincentive for using controls that are suited for extended use and that require decreased maintenance. Daily inspections would overburden personnel, particularly for large, irregularly shaped sites with long perimeters and for remote sites where little construction is occurring. For some sites, the requirement would require a full

- time inspection position, which would add undue complexity and would be unreasonable.

Da ily visual examinations are also not practicable for long linear projects where it could take a day to complete the inspection. A daily visual examination would be particularly onerous for linear projects with extreme terrain. Certain linear projects are not significant sources of pollutant loadings (e.g., linear communications projects), and more frequent inspections could cause further disturbance and would be counterproductive. Instead, linear projects should only be subject to biweekly inspection requirements and be allowed to perform representative inspections.

Commenters had several suggestions for modifying the inspection frequency requirements for discharges to impaired waters in the final permit, including: The inspection frequency requirements should be the same as those specified for sites not discharging to impaired waters. A visual examination should only be required prior to predicted storm events or after storms events. Inspections should be triggered where the National Weather Service predicts that the probability of precipitation is greater than 50 percent. Weekly inspections are sufficient. The daily visual inspection requirement should only apply in the areas where active construction is occurringRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

86 It would be more reasonable to require inspections within 48 hours of a storm event to allow a broader window to complete the inspection. The permit should allow each discharger to determine the specific frequency and location of visual inspections appropriate for their location and document this in the SWPPP. Instead of requiring inspections after a storm event, it would be more practical to require inspections at regularly scheduled times so that arrangements can be made to have appropriate personnel on site and repairs can be made. EPA also notes that several commenters supported the daily visual inspection requirements, citing the importance of the requirement near waters with TMDLS. A commenter also noted that daily visual examinations are the only way to ensure all practices are properly maintained and are functioning, and suggested that they be required for all sites. EPA appreciates the comments expressed about the proposed increased inspection frequency requirement in the draft permit and the suggestions for what the inspection frequency requirements should be. After reviewing the comments, EPA agrees that daily visual examinations may not be practicable for many sites discharging to impaired waters, and therefore EPA has removed this requirement from the final permit. However, as noted above, EPA believes that the increased inspection frequency requirements for sites discharging to impaired waters are necessary to ensure that discharges from sites discharging to sensitive waters meet water quality standards. Therefore, EPA has retained the requirement in the final permit that sites discharging to sensitive waters inspect more frequently than others sites. In the final CGP, sites discharging to impaired waters are required to inspect at least once every 7 days and within 24 hours of a storm event of 0.25 inches or greater. EPA believes that by removing the requirement to conduct a daily visual examination, it has addressed the majority of concerns about the increased inspection frequency requirements, and that the inspection frequ ency requirements in the final permit are practicable for sites discharging to sensitive waters. EPA also notes that there remains the opportunity for sites discharging to impaired waters to comply with more flexible inspection frequency requirements if areas of the site are stabilized, are frozen, or if the project occurs in arid or semi

- arid areas, as described below. Several commenters requested clarifications on the proposed increased inspection frequency requirements for discharges to sensitive waters . One commenter noted that it was unclear whether the daily visual examination is required to be recorded. EPA notes that because this requirement is no longer in the final permit, permittees are not required to keep records of daily visual inspections. EP A clarifies, however, that all sites are required to keep records of their inspections in accordance with Part 4.1.7. One commenter noted that the proposed language that the increased inspection frequency requirements apply to “certain portions of your si te” was unclear. EPA agrees that this language was not clear, and has clarified the language in the final permit. The final permit applies the impaired waters inspection frequency requirements to “[a]ny portion of the site that discharges to a sediment or nutrient

- impaired water ... or to a water that is identified by your state, tribe, or EPA as Tier 2, Tier 2.5, or Tier 3 for antidegradation purposes...” A commenter requested EPA clarify who is responsible for daily visual inspections and how should be repor ted. Some commenters suggested that the contractor be responsible for daily visual examinations. EPA again notes that daily visual examinations are no longer required in the permit. However, it is worth clarifying that the permit requires that the person(s) inspecting sites be a construction site staff person or a third party, and that they be “qualified”. EPA clarifies in the permit that a “qualified person” is a person knowledgeable in the principles and practice of erosion and sediment controls and pollution prevention, who possesses the skills to assess conditions at the construction site that could impact stormwater quality, and the skills to assess theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

87 effectiveness of any stormwater controls selected to meet the requirements of the permit. With regard to how inspections are reported, EPA again points out the permittees are required to report inspections in accordance with Part 4.1.7. Several commenters noted that it is unclear which inspection frequency requirements apply for sites eligible for reduced inspection frequency requirements and increased inspection frequency requirements. A commenter suggested that the allowance to reduce inspections supersede the increased inspection frequency requirements. EPA has clarified which requirements apply in thi s situation in comment response essay “Reductions in Inspection Frequency” below. A commenter requested that EPA clarify if the daily visual inspection requirements apply only during work days or if they apply every day of the week. EPA again notes the daily visual examination requirement does not apply in the final permit, but believes it is worth clarifying that inspections are only required during the project’s normal working hours. If a site’s normal working hours do not fall on a Saturday or Sunday, then the site would not be responsible for conducting inspections on Saturdays or Sundays. As an example, if a 0.25 inch storm event occurs on the Saturday, and that Saturday is not part of the site’s normal working hours, then an inspection would not be required until the next normal working day. Reductions in Inspection Frequency EPA received several comments on the proposed requirements for reductions in inspection frequencies. Commenters requested that EPA clarify whether the reduced inspection freq uencies replace the standard inspection frequency requirements, or if post

- storm event inspections would still be required. EPA clarifies if a permittee is qualified to conduct reduced inspections in accordance with Part 4.1.4 of the final permit, then the reduced inspection frequency replaces the standard inspection frequency requirements in Part 4.1.2 of the permit. Commenters requested that EPA clarify which inspection frequency requirements apply if a site is eligible for a reduced inspection frequency, but is also subject to the inspection frequency requirements for sensitive waters. EPA recognizes this discrepancy in the proposed permit, and in the final permit includes the following note: “If you qualify for any of the reduced inspection frequencies in Part 4.1.4, you may conduct inspections in accordance with Part 4.1.4 for any portion of your site that discharges to a sensitive water.” See Part 4.1.3. To clarify, if a portion of a site discharges to a sensitive water, but that portion of the site has also been stabilized in accordance with Part 2.2.1.2a and Part 2.2.1.2b, the permittee can conduct inspections at the reduced frequency in Part 4.1.4.1. However, if a different portion of the site also discharges to an impaired water, and that portion of the site has not been stabilized in accordance with Part 2.2.1.2a and Part 2.2.1.2b, then in that portion of the site the permittee must conduct inspections at the higher frequency required in Part 4.1.3. Several commenters suggested that EPA consider al lowing reduced inspections for frozen conditions. Upon further reflection, EPA agrees that reduced inspections for frozen conditions are justified under certain parameters. EPA notes that the 2008 CGP included reduced inspections for winter conditions, as well as a waiver of the inspection requirements for frozen conditions where land disturbances have been suspended. In the 2012 permit, EPA has made modifications to the inspection frequency requirements that apply during frozen conditions from the 2008 CGP . The 2012 CGP allows sites that have temporarily suspended earth

- disturbing activities due to frozen conditions to temporarily suspend their inspections until thawing conditions, and sites that are actively conducting earth

- disturbing activities during frozen conditions to reduce their inspection frequencies to once per month. EPA believes the reduced inspection frequency requirements for frozen conditions in the 2012 CGP provide needed flexibility to sites that have these conditions, but provide a greater assurance that any problems on the site will be identified expeditiously. EPA received several comments specific to the reduced inspection frequencies for stabilized areas. Once commenter suggested that a site should be eligible for reduced inspections if it hasRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

88 met the criteria for having completed the installation of stabilization. EPA agrees with this suggestion, and it was EPA’s intention that sites that have completed the installation of stabilization measures be eligible for the reduced inspection frequency. To provide more clarity, EPA has modified the requirement so that sites that complete the installation of stabilization as specified in Part 2.2.1.2a and 2.2.1.2b are eligible for reduced inspections. One commenter indicated that the reduction in inspection frequency to once a month would still be burdensome for long

- term linear projects that have little potential for erosion, and suggested that EPA consider less burdensome inspection requirements for linear projects, especially given that local permits already require inspections after storm events. EPA notes that, although there may be some overlap with state or local inspection requirements, EPA does not believe that these requirements should supersede EPA’s inspection requirements. A project that has to comply with local inspection requirements can take advantage of this by conducting one inspection that counts for both. For example, if a state has a requirement to conduct inspections after a 0.25 inch storm, the permittee can conduct one inspection that counts for both their state inspection requirement and the CGP’s monthly inspection requirement forstabilized areas. Additionally, EPA notes that state and local inspection requirements vary across the geographic areas covered under this pe rmit, and therefore EPA cannot take into account the fact that some areas already have these inspections in the CGP. EPA maintains that inspections are necessary at least once a month in order for permittees to ensure that their stabilized areas are workin g effectively. EPA believes that this requirement presents a minimal burden, as it would only require that the permittee visually determine whether the stabilization measures are effective. It is particularly important that permittee monitor the vegetative stabilization measures to ensure the vegetation is growing in order to meet the final stabilization criteria. With regard to the comment that EPA should consider a less burdensome standard for linear projects, EPA considered providing more flexible requirements for linear projects, but ultimately decided, as described in comment response essay “Inspections on Linear Projects” below, that all sites should inspect the areas described in Part 4.1.5 of the final permit so that any potential problems occurring on areas of disturbance or problems with stormwater controls are identified expeditiously. EPA received a few comments regarding EPA’s proposed reduced inspection frequency requirements for sites in arid and semi

- arid areas. One commenter indicated that, because in some arid areas precipitation only occurs during a small window of time, there is no reason to conduct any inspections at all during the time. The commenter suggested that EPA modify the provision to allow “monthly inspections during the rainy season after construction is completed in arid areas with average annual precipitation of less than 10 inches.” EPA disagrees with this suggestion. Although significant precipitation may not be probable during the dry season, throughout the year there always remains the chance that precipitation events may occur that could result in stormwater discharges from construction sites, and therefore, it is essential that sites are inspected regularly to ensure that erosion and sediment controls are properly maintained and in effective operating condition. Therefore, EPA believes that inspections should occur at least monthly in areas where rain is not expected so that operators are made aware of any potential problems before they result in pollutant discharges. In c ontrast, one commenter noted that reducing inspections in arid and semi

- arid areas to once per month is insufficient because it does not take into other pollution sources that commonly occur on construction sites. Another commenter suggested that EPA requi re post

- storm event inspections for arid and semi arid areas. EPA notes that in the final permit, EPA has included additional criteria for reducing inspections in arid and semi

- arid areas by requiring that construction occur during the seasonally dry peri od in order for a site to qualify for this reduced inspection frequency. In addition, EPA has added a post storm

- event inspection requirement. EPA believes that these additions to the provision address the concerns of commenters by ensuring that inspections occur in a timely manner during conditions that are more likely to produce discharge events.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

89 Areas that Need to be Inspected EPA received comments regarding the requirement for areas that have been “cleared, graded, or excavated” to be inspected. Commenters noted that areas cleared for overhead utility construction often do not meet the definition of land disturbance, and recommended that EPA exclude these areas from the inspection requirements by refining the wording of the requirement to state that “a ll areas that have been cleared and grubbed, graded, or excavated need to be inspected.” EPA disagrees with this suggestion. EPA believes that all areas that meet the regulatory definition of construction activity at 40 CFR §122.26(b)(14)(x) and (b)(15) should be subject to the inspection requirements, which is consistent with the requirement in Part 4.1.5.1 of the final permit that all areas that have been “cleared, graded, or excavated” are to be inspected. EPA believes that even minimal disturbances that meet the definition of construction activity should be inspected because these areas still have the potential to cause erosion and sedimentation, resulting in pollutant discharges. However, EPA believes that the burden caused by the inspection of disturbances from clearing right

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- way easements for overhead utility construction (as described by commenters) will be minimal, as they will primarily involve making sure any stormwater controls installed are operating effectively, checking for any signs of visible erosion, and checking for the presence of deposited sediment. Also, as described above, EPA notes that flexibility is provided for areas that have been stabilized. EPA believes that this flexibility will reduce the frequency of inspections for many projects, thereby reducing the burden, especially for certain types of linear projects where disturbances are quickly stabilized. Inspection Requirements When No Discharge is Occurring EPA received several comments on the proposed inspection requirements that apply where no discharge is occurring. Two commenters suggested that EPA remove the word “sufficient” from the requirement to “...check for the presence of sediment that is deposited in sufficient quantities...” because the word is subjective and will lead to inconsistent enforcement determinations. EPA agrees with this comment, and accordingly, EPA has removed this word from the final permit. A commenter also suggested that the requirement to check for areas of “visible erosion” is subjective, and would already be addressed in the requirements that apply during discharge conditions. EPA disagrees with this comment. EPA believes that checking for signs of erosion and sedimentation at points of discharge is critical in order to ensure that erosion and sediment controls are operating effectively on the site. EPA also believes that permittees have a good sense of what constitutes “visible erosion,” and can rely on their best professional judgment regarding whether there are signs of visible erosion and sedimentation. Therefore, EPA has retained this requirement in the final permit, but has slightly modified it to state, “At points of discharge and, if applicable, the banks of any surface waters flowing within your property boundaries or immediately adjacent to you r property, check for signs of visible erosion and sedimentation (i.e., sediment deposits) that have occurred and are attributable to your discharge.” EPA does not believe that this requirement is subjective because it does not require that the signs of

se dimentation be “sufficient.” A commenter suggested that EPA change the requirement to check that all stormwater controls are “working as intended to remove pollutants prior to discharge” to instead state “working as intended to minimize pollutant discharge” to account for stormwater controls that minimize pollutant discharges rather than “remove” pollutants. EPA agrees with this comment. Therefore, in the final permit EPA has modified the requirement to state “Check whether all erosion and sediment controls and pollution prevention controls are installed, appear to be operational, and are working as intended to minimize pollutant discharges. Determine if any controls need to be replaced, repaired, or maintained in accordance with Parts 2.1.1.4 and 2.3.2.” Inspection Requirements During Discharge Conditions EPA received several comments on the proposed inspection requirements that apply during discharge conditions. One commenter suggested that EPA not separate the requirements that apply during discharge conditions from the other inspection requirements. EPA agrees with this,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

90 and in the final permit combined all of the requirements for inspections into one part. See Part 4.1.6. Some commenters disagreed that discharge quality should be observed during inspections, especially given that certain sites under the proposed permit would also be required to conduct sampling during discharge conditions. One commenter questioned whether EPA has considered the costs of increased inspections under the proposed permit . EPA notes that the burden associated with observing discharge points during inspection in the final permit has been reduced due to the fact that the final permit does not include requirements for discharge sampling and the inspection frequency has been made more flexible (i.e., sites can choose whether they will conduct inspections after 0.25 inch storm event). EPA notes that it has taken into account the costs of the increased inspections under the permit. This analysis is included in the Economic Analys is for the permit which is located on the public docket. The analysis concluded that the cost of complying with the inspection requirements in the 2012 permit will result in an incremental cost increase to some permittees. EPA estimates that reducing the s torm event trigger from 0.5 inches to 0.25 inches will result in an increase of 2.3 additional inspections annually permit permittee, which amounts to an annual incremental increase of $62 for each permittee. EPA maintains that inspecting the visual quality during discharge conditions is essential during inspections in order to determine whether stormwater controls on the site are operating effectively. Therefore, EPA has retained this requirement in the final permit. EPA notes that it did receive support for this requirement from a commenter. A commenter requested that EPA clarify whether the permit requires that the discharge from each outfall be observed during inspections and the visual quality documented, or instead if representative observations are a llowed. EPA clarifies that if a discharge is occurring during an inspection, the requirement is that all discharge points be observed, and that the visual quality of all the discharges be observed and documented. Inspections on Linear Projects
In the dra ft CGP, EPA requested comment on whether linear construction projects should be subject to the same frequency of inspections as other construction sites. EPA received many comments on this topic, which are discussed as follows.

EPA received a comment that the proposed inspection requirements do not delineate clear lines of responsibility among other permitted and non

- permitted entities in the same right

- of

- way, which could cause linear utility and pipeline projects to incur unreasonable costs to coordinate more management and labor required to document events caused by other operators. EPA disagrees with this comment. EPA believes it has made it clear what is required by operators in the permit. EPA clarifies that if an operator is responsible for any of th e areas described in Part 4.1.5 of the final permit, then they are the party responsible for conducting inspections in those areas. EPA does not believe it would be appropriate for the permit to specify further the responsibilities of other permitted and n on

- permitted entities, and instead believes that operators should have the flexibility to determine their permit compliance responsibility arrangements. Several commenters indicated that the proposed inspection requirements are not always practicable for linear projects, and urged EPA to allow for representative inspection requirements or a waiver where inspections are infeasible, or only require inspections for areas that have likely erosion/sedimentation issues. The specific points raised by commenters a re summarized as follows: It may be challenging to observe and document the visual quality of the discharge at every discharge point due to limited access. It may also be difficult to reach all of the discharge points prior to the end of the discharge for some projects. EPA is incorrect in assuming that linear projects are completed in phases. Overhead utility construction is often phased in a way that results in small discreet disturbances separated by long undisturbed areas. In arid areas, stabilization of disturbed areas may need to beRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

91 postponed until climactic conditions are favorable. Linear projects face challenges with traffic and safety issues, restrictive boundaries and rights

- of

- way, and geographic constraints that make it difficult to phase. It is common for work to be performed within segments of disturbances concurrently. It could take days to complete an inspection of all disturbed areas along the length of the project. It is unreasonable to require an inspection within 24 hours of a storm ev ent. EPA should allow representative inspections within 24 hours of a storm event. It may be infeasible to inspect the entire length of a linear project at any frequency. EPA is incorrect in its assumption that representative inspections would impede the p roper upkeep of stormwater controls because those controls are independently mandated and enforceable under the CGP. Inspections along the entire site should only be required “where feasible” to eliminate challenges of inspecting long linear projects. EPA recognizes the potential difficulties projects may face in accessing discharge points and disturbed areas of the site during inspections. As described above, EPA has modified the inspection frequencies requirements that apply to all sites to allow site s the option of choosing either a once a week inspection frequency or a bi

- weekly and within 24 hours of a storm event inspection frequency. EPA believes that this modification will address many of the concerns expressed by commenters about the difficulties in accessing all required inspection areas on linear projects, particularly the concerns raised about accessing all discharge points. EPA clarifies that the permit does not require the entire length of the site to be inspected. Areas that have not been d isturbed are not required to be inspected. EPA also clarifies that the requirement to document the visual quality of discharges only applies if a discharge is occurring during the inspection. If a discharge is not occurring during the inspection, the permi t does not require discharge points to be inspected. In addition, the permit allows permittees to reduce the frequency of inspections on areas of the site that have been stabilized to once per month. EPA believes that this provision provides important flexibility, especially for long, linear projects. Although one commenter, as described above, suggested that the reduced inspection frequency requirement to once a month would still be burdensome, EPA, as described above, disagrees, as it would only require t hat the permittee quickly assess whether the stabilization measures remain effective. Although EPA understands that some linear projects have areas that are separated by many miles, EPA maintains its belief that all areas described in Part 4.1.5 of the final permit should be inspected on all sites so that any potential problems occurring on areas of disturbance or problems with stormwater controls are identified expeditiously. With respect to the comment that because the proper upkeep of stormwater controls is already required under the permit, EPA is incorrect in assuming that representative inspections would impede the proper upkeep of stormwater controls, EPA disagrees. EPA maintains its belief that without regular inspections of all areas described in Part 4.1.5, it would be impossible for permittees to detect problems that occur and fix any problems before a discharge of pollutants occurs. With respect to the comment about the challenges of inspecting linear sites, EPA recognizes that for many projects, particularly linear projects in difficult terrain, it may be unsafe to access all areas required to be inspected. EPA points out that the permit does not require areas of the site that are considered unsafe to inspection personnel to be inspected. Despite the comments that disagreed with the proposed requirements, EPA received several comments supportive of requiring linear projects to comply with the same inspection requirements as other sites. One commenter described that the differences in soil types, topography, types of construction activity, and stormwater controls are too great to assume that representative monitoring will provide a reasonable assessment of the site. These comments provide further support to EPA’s position that it is reasonable to require linear projects to inspect at the same frequency as other sites.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

92 Inspection Report Requirements EPA received a comment requesting that EPA clarify the extent to which inspection reporting is required by a project that operates on an area in which other non

- permit holders are causing disturbances. EPA notes that inspection reporting is not required, but clarifies that operators are required to keep records of inspections in accordance with Part 4.1.7 of the final permit. With regard to the concern ab out responsibilities among multiple entities on a site, as noted above, EPA does not believe it would be appropriate for the permit to specify the responsibilities of other permitted and non

- permitted entities, and instead believes that operators should ha ve the flexibility to determine their permit compliance responsibility arrangements. EPA clarifies that if an operator is responsible for the areas described in Part 4.1.5, then they are the party responsible for conducting inspections on those areas and keeping records as described in Part 4.1.7. A commenter requested that EPA clarify whether inspection records can be kept electronically, and recommended that EPA allow that permittees to store records that are over 6 months old electronically as long as they are accessible within 24 hours of an EPA request. EPA confirms that records may be kept electronically, but must be: In a format that can be read in a similar manner as a paper record; Legally dependable with no less evidentiary value than their paper equivalent; and Accessible to the inspector during an inspection to the same extent as a paper copy stored at the site would be, if the records were stored in paper form. Inspections by EPA One commenter noted that the proposed permit language allowing other federal, state, or local agencies to inspect sites would allow any number of persons or entities to enter where records are kept. The commenter questioned what constitutes a representative of a local agency, and whether coordination by a rep resentative is required to review private records. The commenter also questioned whether EPA has the authority to grant the power of inspections to other agencies. Upon further reflection, EPA has modified this requirement to be consistent with EPA’s regulations regarding inspections at 40 CFR § 122.41(i) and EPA’s authority under section 308 of the CWA. EPA believes this modification addresses the concerns of the commenter. A commenter disagreed with the requirement that inspections be conducted “at reasonable times”, and suggested that they instead be conducted “during normal business hours”, “during projects normal working hours”, or “during the hours of operation specified in the SWPPP.” EPA notes that EPA’s regulations at 40 CFR § 122.41(i) provide tha t EPA may inspect “at reasonable times.” Therefore, EPA has retained this language in the final permit. A commenter noted that inspectors must have appropriate safety training and personal protective equipment (PPE) for access to sites (utility line ROWs) and should contact the appropriate person named in the NOI. EPA notes that all EPA inspectors will have been provided with the training necessary for conducting inspections on construction sites. EPA also notes that EPA will communicate with the operator identified on the NOI regarding inspection actions.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

93 

### Comment Response Essay 6 Corrective Action
Response 6.1Corrective Action General Some commenters had general questions on the corrective action requirements, when corrective action is required, deadlines, and recordkeeping requirements. EPA notes that Part 5 of the 2012 CGP discusses corrective action requirements and the conditions under which permittees are required to take corrective action. As discussed in the permit, an operator ma y be required to repair, modify, or replace any stormwater control used at the site; clean up and properly dispose of spills, releases, or other deposits; or remedy a permit violation. Part 5 of the permit also discusses deadlines and recordkeeping require ments associated with corrective action. EPA received multiple comments on the relationship between corrective action requirements and violations and on the proposed provision explaining that the correction of permit violations (e.g., a violation of the numeric turbidity limit, evidence of tracked out sediment, excessively muddy discharge, occurrence of a prohibited discharge, exceedance of an applicable water quality standard) does not remove the original violation. Commenters asserted that the proposed

c orrective action requirements would expose permittees to unnecessary liabilities and enforcement actions. Commenters also suggested that permittees should be given an opportunity to make corrections or to modify stormwater controls before a violation is in curred. For the comment on the relationship between corrective action requirements and violations, EPA discusses in Part I.1 of the 2012 CGP’s Appendix I that any permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action, and in Part 5.1 of the 2012 CGP that corrective actions include actions taken to remedy a permit violation. For the comment on corrective action removing the original violation, EPA maintains that correction of an underlying permit violation does not and cannot remove the violation from the records. EPA disagrees with the comments asserting that the corrective action requirements expose permittees to unnecessary liabilities and enforcement actions. Both the corrective action requirements an d consequences of noncompliance will greatly help to ensure compliance with the permit and to protect water quality whenever there is a violation of an underlying permit condition. EPA discusses the purpose of the corrective action requirements in section X of the 2012 CGP Fact Sheet. For the comment on providing some opportunity to make corrections before a corrective action violation is incurred, EPA notes that the 2012 CGP does include that opportunity. The maintenance (Part 2.1.1.4) and inspection (Part 4) requirements give permittees the opportunity to identify circumstances or stormwater controls needing correction and to correct them before an unauthorized discharge occurs and before a corrective action violation is incurred. However, if permittees d elay maintenance or inspection or otherwise overlook the need for correction until after an underlying permit violation has been incurred, then the corrective action requirements in Part 5 are triggered, and the underlying permit violation becomes a part of the record for the site. EPA also received comment seeking clarification on the difference between corrective action and routine maintenance. Commenters sought to better understand in which cases the corrective action requirements described in Part 5 (e.g., reports, signatures, recordkeeping) would be triggered. For example, some commenters asserted that the completion of routine maintenance should not trigger corrective action. EPA generally agrees, and the 2012 CGP provides that routine maintenance activities will not always trigger corrective action. The 2012 CGP requires operators to maintain stormwater controls in effective operating conditions. EPA has defined “effective operating condition” in Appendix A, specifying that stormwater controls in effective operating conditions are those that are “implemented and maintained in such a manner that [they] are working as designed to minimize pollutant discharges.” MaintenanceRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

94 activities that do not disrupt the effectiveness of stormwater controls would no t trigger corrective action. However, if stormwater controls are no longer working properly or if stormwater controls malfunction or fail, then they would trigger requirements for corrective action, including the provisions on deadlines, reporting, and recordkeeping.
For comments on track

- out, EPA notes that the 2012 CGP requires operators to minimize track - out and, when track

- out does occur, provides operators with the opportunity to remove the track

- out without incurring a violation if they remove the t rack

- out by the end of the same 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. See Part 2.1.2.3 of the 2012 CGP for a description of the requirement and section VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the requirement. EPA also received comment suggesting that corrective action should be limited to those cases in which “unauthorized discharge” to U.S. waters has occurred. EPA notes that the 2012 CGP authorizes th e discharge of pollutants in accordance with effluent limitations and conditions set forth in the 2012 CGP. The corrective action requirements ensure that operators comply with the terms of the permit. Protection of receiving waters is dependent on compliance with all of the terms of the permit, taken as a whole. As a whole, the terms of the permit help to minimize unauthorized discharge. Also, under the terms of the permit, the only discharges that are authorized are those that occur while permittees meet the conditions of the permit. As a logical consequence, for the permittees to be authorized to discharge, they must meet the conditions of the permit. If any of the provisions of the permit are not being met, EPA believes that it is important for permittees to correct the situation pursuant to deadlines discussed in Part 5.2.1 to ensure that waters are protected rather than limiting corrective action to only those cases in which “unauthorized discharge” is currently occurring (i.e., those cases in which a permittee has not conducted corrective action AND a precipitation event and discharge occurs). Such a conservative approach is more protective of water quality protection and is in line with the goals of the CWA § 101(a). Response 6.2 Reason for Reorganiz ing EPA received comment on the organization of the 2012 CGP that the discussion of effluent limitation requirements, inspection requirements, and corrective action requirements in separate sections of the permit creates redundant requirements, additional burden, and confusion. EPA disagrees with these comments and notes that the Agency believes that the reorganization presents requirements in a more readable manner to enhance the permittees’ understanding of and compliance with the permit’s requirements. However, in response to the comment, EPA has reviewed the proposed text, and has made changes to clarify requirements and to remove redundancies and/or inconsistencies where necessary or appropriate. EPA discusses the purpose of the structure and appearanc e of the permit in section III of the 2012 CGP Fact Sheet. Response 6.3 Water Quality Standards EPA received comments challenging the immediate enforcement of exceedances of water quality standards without giving operators the opportunity to correct the issues. EPA also received comment challenging the designation of these exceedances as violations and not removing them, even after they have been corrected. Some commenters asserted that EPA should not characterize exceedances of water quality standards as a permit violation. Others agreed, also asserting that the CGP is inconsistent with the settlement agreement that led to the approach used in the MSGP. See also discussion above in “Corrective Action General.” See also Response 4.1.

EPA also notes that the terms of the referenced settlement agreement committed EPA to public noticing and taking comment on certain provisions and EPA fulfilled those terms: those provisions were included verbatim in the proposed fact sheet of the MSGP, along with a full explanation ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

95 the terms of the agreement. The agreement did not commit EPA to including those provisions in the final MSGP. EPA fulfilled its obligations under the settlement agreement and the petitioner withdrew the litigation. The final permit attempts to balance two potentially competing concerns that were also present when EPA issued the previous permit – (1) to comply with CWA requirements to include limitations as necessary to meet applicable water quality standards, and, at the same time, (2) to recogn ize that EPA, not the permittee (or a third party), has the initial responsibility to determine the need for such limits and, if so, what those limits should be. To meet the requirements of the CWA, the final permit contains a requirement that the discharg e must be controlled as necessary to meet applicable water quality standards. At the same time, the permit clearly states that EPA expects that compliance with the technology

- based limits and other conditions in the permit will control discharges as necess ary to meet water quality standards since these requirements because the permit includes several enhanced protections, including provisions to protect impaired and sensitive waters and several new requirements for (1) Eligibility for emergency

- related cons truction, (2) lIneligibility for coverage for sites using certain treatment chemicals, (3) lIncreased usage of the electronic notice of intent process, (4) lSediment and erosion controls, (5) lNatural buffers or alternative controls, (6) lSoil stabilization, (7), lPollution prevention, (8) lWater quality

- based effluent limits, (9) lSite inspections, (10) lCorrective action, (11) lStormwater Pollution Prevention Plans, and (11) lPermit termination. Nevertheless, EPA notes that if at any time a permittee beco mes aware, or EPA determines, that a discharge is not being controlled as necessary to meet applicable water quality standards, the permittee must take corrective action as required in Part 5.2.1, and document the corrective actions as required in Part 5.2 .2 and Part 5.4. Thus, only if EPA determines or the discharger becomes aware that the discharge causes or contributes to an exceedence of standards must the discharger take corrective action to ensure that further exceedances do not recur by reviewing an d potentially modifying existing control measures. This requirement is necessary under the Clean Water Act (CWA) to ensure that the permit’s limitations are at least as stringent as applicable water quality standards (CWA §301(b)(1)(c) and 40 CFR 122.44(d) and 122.44(d)(1)), and that they ensure a level of water quality that is tied to water quality standards (40 CFR 122.44(d)(1)(vii)(A)). Acknowledging that this narrative standard has been difficult to apply in the field, EPA also clarifies that it is the Agency’s expectation that compliance with the permit will control discharges as necessary to meet applicable water quality standards. Where this expectation does not hold true for a particular site, and either the permittee becomes aware or EPA determines that discharges from the site “causes or contributes to an exceedance of applicable water quality standards”, the permittee is required to take corrective actions to eliminate the problem, as required in Part 3.1. Additionally, as stated above, EPA may imp ose additional water quality

- based limitations or require the permittee to obtain coverage under an individual permit. EPA believes it is reasonable to ask this of the discharger where the discharger becomes aware of a problem. Response 6.4 Clean

- up of M aterials Should Not be Limited to Cleanup On

- Site One commenter suggested that cleanup of materials should not be limited to cleanup on

- site. EPA agrees and notes that the 2012 CGP does not specify on

- site or off

- site for the requirement to clean up and properly dispose of spills, releases, or other deposits to the extent that the cleanup relates to the discharge of pollutants from the site. See Parts 2.1.2.3.d, 2.3.3.1.e, and 2.3.3.3.c of the 2012 CGP for requirements to cleanup materials and sections VII .1.2 and VII.3.3 of the 2012 CGP Fact Sheet for discussion on the purpose of these requirements. Response 6.5 Corrective Action if Discharge Appears Excessively Muddy or Cloudy EPA received comment asserting that the proposed requirement to perform corrective action if stormwater discharges appear excessively muddy or cloudy was unclear, subjective, and may not have any negative impact depending on the receiving stream. Another commenter asserted that the appearance of stormwater discharge is subjective. EPA notes that the final 2012 CGPRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

96 does not specify that corrective action is required if stormwater discharges appear excessively muddy or cloudy. However, the permit does require inspectors to observe and document the visual quality of any discharge present during inspection and to take note of the characteristics of the stormwater discharge including color, odor, floating, settled, or suspended solids, foam, oil sheen, and other obvious indicators of stormwater pollutants. See Part 4.1.6.6.b of the 2 012 CGP for a description of the requirement and section IX.1.6 of the 2012 CGP Fact Sheet for a discussion on the purpose of the requirement. Also, the 2012 CGP requires stormwater controls to be maintained in effective operating conditions (2.1.1.4..a) a nd to repair stormwater controls. Part 2.1.1.4.b explains that if a permittee finds that controls need to be replaced, repaired, or maintained, the permittee must make the necessary repairs or modifications in accordance with the following: 1) Initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work day, if the problem does not require significant repair or replacement, or if the problem can be corrected through routine maintenance and 2) when installation of a new pollution prevention control or a significant repair is needed, permittee must install the new or modified control and make it operational, or complete the repair, by no later than 7 calendar days from the time of discove ry where feasible. If it is infeasible to complete the installation or repair within 7 calendar days, the permittee must document in his or her records why it is infeasible and document the schedule for installing the stormwater control(s) and making it op erational as soon as practicable after the 7

- day timeframe. While the 2012 CGP does not explicitly describe excessively muddy or cloudy water as a violation, EPA notes that it may be an indication that a violation has occurred to the extent that a stormwat er control has failed, water quality standards are being exceeded, or an unauthorized discharge is occurring. Response 6.6 Numeric Turbidity Limits For corrective action comments related to numeric turbidity limits, EPA notes that the 2012 CGP does not include numeric turbidity limits. The C&D rule also included a numeric limit for turbidity. However, the Agency has issued a stay for the numeric limit for turbidity so that the limit can be recalculated. As a result, the EPA and authorized states are no longer required to incorporate the numeric turbidity limitation or monitoring requirements into their permits. EPA published a Federal Register notice on January 3, 2012 requesting additional data on the performance of technologies in controlling turbidity in stormwater discharges from construction sites (77 FR 112). 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. Response 6.7 Quick Fixes EPA received comment on references in the proposed permit to quick fixes or easy fixes. Co mmenters had concern with the requirement for quick fixes to be completed by the end of the next full work day and that they would not always be able to comply with this requirement. One commenter asked whether EPA has an objective definition of “easy fix. ” Another asserted that “easily fixed” is subjective. Another commenter asserted that permittees should not be required to make repairs that are “easily fixed”, asserting that if they are easy to fix then they are probably not significant. EPA disagrees with the assertion that permitees should not be required to make repairs that are “easily fixed”. Any problem with the stormwater controls may contribute to potentially avoidable discharges to receiving waters and smaller problems can lead to bigger problems if left unchecked and thus should be repaired. The requirements to correct problems according to the timelines established in the permit help to ensure that stormwater controls are kept in effective operating conditions and to minimize the discharge of pollutants to receiving waters. Regarding the comment on defining “easy fix”, EPA notes that the 2012 CGP does not define “easy fix” but requires operators to initiate work to fix problems immediately after discovering them and to complete such work by the close of the next full work day, if the problem does not require significant repair or replacement or if the problem can be corrected through routine maintenance.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

97 See Parts 2.1.1.4 and 2.3.2 of the 2012 CGP. For comments on the subjectivity of “easy”, EPA n otes that the provision does not use the term “easy fix” or “easily fixed” but rather uses the phrase “does not require significant repair or replacement.” By not defining “easy fix” or “easily fixed”, operators will have incentive to correct the problem immediately or by the end of the next full work day if they can. Otherwise, they risk incurring a violation if the “easy fix” escalates to an unauthorized discharge that could have been avoided. EPA provides examples of easy fixes in the 2012 CGP Fact Sheet . For example, if the permittee discovers that a portion of the site’s perimeter controls have fallen down or been driven over, repairs to the control must be made by the end of that day. That same would be true if the permittee finds that a sediment control (e.g., sewer inlet control device, compost filter sock, check dam, silt fence, etc.) requires routine maintenance to remove accumulated sediment so that the control will operate effectively during the next storm event. By comparison, a more significant repair includes one that might include the complete removal and replacement of a device. For comments related to inability of some operators to make corrections by the end of the next full day, EPA notes that the permit allows for more time to complete co rrective action where installation of a new erosion or sediment control or a significant repair is needed (as neither of these would not qualify as an “easy fix”). In these cases, operators must comply with additional documentation requirements. Response 6.8 Residual Testing EPA received comment suggesting that field residual testing be conducted for all permissible treatment chemicals to ensure safety levels for all parties and that if a company does not have residual testing capability for its products that a batch treatment of flow be required and that the water be held on property until a Whole Effluent Toxicity (WET) test be completed showing safe discharge levels. EPA acknowledges the comments but disagrees as it believes that the multi

barrier appro ach outlined in Part 2.1.3.3 of the 2012 CGP is protective of receiving waters and better balances environmental protection with minimizing permittee burden. Under the provisions of the permit, operators must use conventional erosion and sediment controls prior to and after the application of treatment chemicals to ensure effective treatment. Chemicals can only be applied where treated stormwater will be directed to a sediment control (e.g., sediment basin, perimeter control, etc.). This will maximize the opportunity for the chemical to combine with sediment and minimize the direct discharge of chemicals. Chemicals must be selected that are appropriately suited to the types of soils likely to be exposed during construction and based on expected turbidity, pH, and flow rate of stormwater flowing into the chemical treatment system. They must comply with state or local requirements, which could include residual testing. They must use chemicals in accordance with good engineering practices and specifications of the chemical provider/supplier. All persons who handle and use treatment chemicals at the construction site must be provided with appropriate, product

- specific training. Among other things, the training must cover proper dosage requirements. The operator mu st document in the SWPPP the dosage they will use or how they will determine the dosage. See Part 2.1.3.3 for a description of the requirements and section VII.1.3 for a discussion on the purpose of the requirements. EPA also notes that residual tests are not available for all treatment chemicals. For comments related to corrective action following monitoring results, EPA notes that the 2012 CGP does not include requirements for monitoring. Response 6.9 Corrective Action Related to Chitosan Residual Level For comments related to the chitosan, EPA received multiple comments on the usage of chitosan. EPA notes that operators planning to use cationic chemicals as defined in Appendix A of the permit, including chitosan, to treat their stormwater prior to discharge must acquire authorization from their EPA regional office prior to submitting their NOIs. Such operators may be subject to additional permit requirements. See Part 2.1.3.3 of the 2012 CGP. See section VII.1.3 of the 2012 CGP Fact Sheet for a discussi on on the purpose of these requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

98 EPA also received comment asserting the benefits of chitosan, that it can be a highly effective tool for addressing turbidity at challenging sites, and asserting that over

- regulation of its use could hinder its potential use. EPA recognizes that treatment chemicals can be an effective means to reducing pollutant loads in stormwater discharges and, when used correctly, should not pose an environmental risk to receiving waters. The 2012 CGP includes several provisi ons related to chemical treatment to ensure proper and safe usage. See Part 2.1.3.3 of the permit. While both anionic and cationic chemicals can be safely and effectively used, EPA believes that the use of cationic chemicals may require more oversight and/or more stringent controls because of the higher risk of environmental impact if they are used improperly and because of the need for greater oversight and greater understanding of site

- specific conditions to ensure proper and safe use of the chemicals. Thus, operators planning to use cationic chemicals to treat their stormwater prior to discharge must acquire authorization from their EPA regional office prior to submitting their NOIs. Such operators may be subject to additional permit requirements. See Par t 2.1.3.3 of the 2012 CGP. EPA discusses its rationale for requirements on the use of treatment chemicals in section VII.1.3 of the 2012 CGP Fact Sheet. EPA also notes that the preamble to the C&D Rule (40 CFR Part 450) indicates that “NPDES permitting authorities may establish controls on dosage and usage, protocols for residual toxicity testing, require prior approval before the use of particular polymers, training requirements for site operators or other measures they deem appropriate.” 74 Federal Regist er 63008 (December 1, 2009). EPA has developed requirements on the use of treatment chemicals consistent with the C&D Rule and the preamble to the Rule. For comments related to corrective action after residual testing, EPA notes that the 2012 CGP does not require residual testing of polymers. For comments asserting that chitosan usage is safe, see discussion above on chitosan. Response 6.10 Deadlines for Completing Corrective Action EPA received multiple comments on the proposed requirement to install a new or to modify an existing stormwater control and to make it operational by no later than 7 days from the time of discovery (1) that the installation of a new stormwater control is needed or (2) that an existing pollution prevention measure requires significant redesign and reconstruction or replacement. Some commenters noted that certain repairs can be made quickly and would not require 7 days. One commenter suggested that the 7

- day deadline be limited to more structural or excavation

oriented control measures such as dikes, soil berms, traps, basins, wheel washes, etc. and that BMPs such as silt fences, inlet protection, mulch application, etc. should be installed within 24 hours. Other commenters asserted that there would be cases in which a 7

- day dead line would not be feasible. Such commenters cited the need for assessing stormwater controls, designing changes, ordering supplies, acquiring financial approvals, or, in the cases of catastrophic failure, cleaning and allowing inspections by insurance adju stors, lawyers, and government entities. Others asserted that weather or seasonal challenges could delay completion of corrective action. Some commenters suggested that deadlines for completing corrective action be removed completely or that the deadline should be linked to the next predicted storm event. EPA agrees that operators will be able to make some repairs quickly and notes that Part 2.1.1.4 requires operators to initiate work to fix problems immediately after discovering them and completing such work by the close of the next work day, if the problem can be easily repaired or replaced or if the problem can be corrected through routine maintenance. Moreover, in situations where corrective action is needed, Part 5.2 requires operators, in all circumstances, to immediately take all reasonable steps to minimize or prevent the discharge of pollutants until a permanent solution is installed and made operational. EPA disagrees that operators should be permitted to wait to take any corrective action until th e next scheduled weekly inspection or predicted storm event because the delay would not be protective of receiving waters and could result in avoidable discharges. See sections VII.1.1 and X of the 2012 CGP Fact Sheet for discussions on the purpose of thes e requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

99 EPA also agrees that in some cases operators may require more than 7 days to complete corrective action but disagrees that there should be no deadline at all. EPA discusses the purpose of the deadline requirements in section X of the 2012 CGP Fact Sheet. Part 5 of the 2012 CGP directs operators, by no later than 7 days from the time of discovery of a problem requiring correction, to install a new or modified control and to make it operational or to complete a repair, but the permit allows more time if 7 days is infeasible. In such cases, the permittee must document why it is infeasible to complete the installation or repair within the 7

- day timeframe and document the schedule for installing the stormwater control(s) and making it (them) oper ational as soon as practicable after the 7

- day timeframe. Response 6.11 SWPPP Modification EPA received comment asserting that a requirement to recertify the SWPPP after triggering corrective action and after corrective action is taken would be overly bu rdensome. EPA notes that the 2012 CGP does not require operators to recertify the SWPPP after triggering corrective action or after corrective action is taken. However, where corrective actions result in changes to any of the stormwater controls or procedu res documented in the SWPPP, permittees must modify the SWPPP accordingly within 7 days of completing the corrective action work. See Part 5 of the 2012 CGP for a description of the requirement and section X of the 2012 CGP Fact Sheet for a discussion on t he purpose of the requirement. In addition, permittees developing a corrective action report under Part 5 must indicate whether SWPPP modifications are required as a result of the condition identified or corrective action. See Part 5 for a description of the requirement and section X for a discussion on the purpose of the requirement. Response 6.12 Corrective Action Records EPA received comment on the proposed corrective action recordkeeping requirements. One commenter challenged the provision that would have allowed operators to conclude that, based on an analysis of site conditions, the source of a problem or violation is or was unrelated to their construction activities. The 2012 CGP does not include this provision. Another commenter asserted that the entire corrective action records section is redundant to the inspection form requirement to document corrective actions. The commenter also had suggestions for combining the inspection and corrective action recordkeeping requirements. EPA respectively disag rees and discusses the purpose of the corrective action recordkeeping requirements in section X of the 2012 CGP Fact Sheet. Response 6.13 Reporting Requirements and Deadlines EPA received comment on the proposed requirement for permittees to notify their applicable EPA regional office by the end of the next work day following certain triggers, including the occurrence of prohibited discharges. Some commenters supported the proposed deadlines while others suggested changes to the requirement. Some asserted that EPA should streamline documentation requirements. Others asserted that the documentation requirements are excessive. One commenter suggested longer deadline for conditions not hazardous to human health and well being. Another questioned the Agency’s need for the information at all and, in particular, by the end of the next full work day. EPA notes that the 2012 CGP does not include the proposed requirements to notify the EPA regional office except for cases where the stormwater controls the permittee has installed and is maintaining are not effective enough for the discharge to meet applicable water quality standards or applicable requirements in Part 3.1 of the 2012 CGP. In these cases, the permittee must notify the applicable EPA Regional Office by the end of the next full work day. See section X of the 2012 CGP Fact Sheet for a discussion on the purpose of this requirement. In response to the comments, EPA notes that the Agency has streamlined the permit and reduced burden. For example, the permit does not include much of the proposed corrective action notification requirements. The permit does include, however, deadlines for developing corrective action reports and provisions specifying how those reports must be developed and stored. Each corrective action report must be signed and certified, and operators are required to keep a currentRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

100 signed, paper copy of all corrective action reports at the site or at an easily accessible location, so that it can be made available at the time of an onsite inspection or upon request by EPA. See Part 5 of the 2012 CGP for a description of the permit corrective action requirements and section X of the 2012 CGP Fact Sheet for discussion on the purposes of the requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

101 

### Comment Response Essay 7 Staff Training
Response 7.1 Staff Training Requirements

EPA received a few comments on the proposed staff training requirements in the draft permit.

EPA received several comments that EPA believes can be addressed through a clarification of what EPA expects in terms of the minimum staff training requirements. The comments are summarized as follows: The permit is vague and unclear regarding what specific training is required, leaving it open to interpretation and difficult to demonstrate compliance. EPA needs to be clear about what must be included in each person’s training. EPA should consider establishing qualification or certification requirements for the persons conducting training, or should establish qualifications for the persons preparing the SWPPP fo r large sites. EPA should provide free online training so that operators know what level of staff training is expected to achieve compliance with the permit. Formal training requirements should only apply to personnel working on larger projects.

EPA clarifies that operators can achieve compliance with the staff training requirements in the permit merely by making sure that all relevant personnel are trained in the minimum areas described in Part 6 of the final CGP. EPA believes that the required minimum training for personnel in the permit should already be provided as standard practice on construction sites. Therefore, EPA clarifies that staff training is not required to be formal, and disagrees that training should only be required for large sites. E PA has purposely developed the staff training requirements to be general, i.e., applicable to all sites large and small, recognizing that operators will conduct training as appropriate for the specific stormwater control practices on their site. Therefore, EPA disagrees that it needs to add more specificity to the training requirements. EPA clarifies that training can come in many different forms, including instruction from the operator or other personnel, professional certification programs, and/or state or local programs, among others. EPA notes that EPA will be conducting outreach on how to comply with the new permit through webcasts after the permit is finalized, and also has several documents on its website that can assist permittees in complying with t he permit. EPA also disagrees that personnel need to be certified because it believes that training can be provided without having obtained certification. Additionally, because there are many different erosion and sediment control certification programs in existence, EPA does not believe it would be appropriate to require any one specific professional certification or qualification program. Commenters suggested that EPA exempt from the training requirements personnel already holding professional certifications and experienced builders and developers who have been using appropriate stormwater controls. A commented also suggested that it would be inappropriate for EPA to require that off

- site personnel that prepare the SWPPP or design the stormwater controls be trained due to the fact that SWPPP development and stormwater control design often occur prior to active construction. EPA has noted in the fact sheet that new training may not be necessary for some employees if the permittee is able to ensure that the employee, due to prior training, already understands the applicable topic area. So, if as a result of a certification or prior experience an employee already has the proper understanding required under the staff training requirements, EPA clarifies that new training is not necessary. EPA also clarifies that with regard to off

- site personnel, as long as operators ensure that these personnel have existing knowledge of the minimum areas of understanding required under Part 6, no additional training is necessar y. One commenter requested that EPA provide an option for documentation of prior training that would “pre- qualify members of the stormwater team to perform required activities under this permit.” EPA clarifies that Part 7.2.13 of the final permit requires that the SWPPP include documentation that theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

102 required personnel were trained in accordance with Part 6. This could include documenting that certain personnel have existing qualifications that make additional training unnecessary. A commenter requested cl arification on how to document that the required personnel have been trained. EPA clarifies that documentation could simply be confirmation that the required personnel have received training to understand the minimum elements required under Part 6, and hav e read and understand the relevant permit provisions. If certain personnel have specific certifications, qualifications, or experiences relating to their responsibilities, EPA suggests that the operator include documentation of this in the SWPPP, as well. One commenter suggested that EPA require documentation of names and titles of the persons providing training. EPA clarifies that while this information is not required, that it would be appropriate information to include in the SWPPP if the operator choose s. A commenter expressed concern that there will not be sufficient time for operators to develop training programs to achieve compliance with the new permit conditions, and questioned whether EPA would consider an implementation phase. As described above, EPA believes that the content and extent of the required training in the permit are consistent with standard construction site staff training practices, and therefore, EPA does not believe that it will be necessary for operators to develop new training programs. Because many of the new provisions implement the C&D rule non

numeric ELGs and New Source Performance Standards (NSPS) published in December of 2009, and because EPA proposed the vast majority of the conditions that appear in the final CGP in the d raft CGP in June of 2011, EPA believes that many operators are already familiar with the conditions in the final permit. Furthermore, EPA believes that operators will have the opportunity to become familiar with the new conditions in the process of developing their SWPPP prior to obtaining permit coverage. Therefore, EPA does not agree that an implementation phase is necessary for operators to prepare for the final permit. A commenter suggested that it is not appropriate to require personnel to be trained on reporting violations and submitting reports because of the fact that individuals would not already be familiar with these processes, and suggested that EPA provide a training program on this requirement. EPA agrees that this should not be a standard aspect of training, and has removed this requirement from the permit. One commenter expressed that the staff training requirements in the proposed permit are inadequate because there is no requirement that they actually construct and maintain the various

con trols and practices or understand the range of controls and practices and their purposes and uses on a construction site. EPA disagrees that the staff training requirements are inadequate. EPA believes that the minimum training requirements will ensure that personnel understand how to achieve compliance with the permit. EPA notes that because operators are held to the erosion and sediment control requirements in Part 2, operators must ensure that their personnel adequately install and implement their stormwater controls. Therefore, although the staff training requirements in Part 6 of the permit are general, EPA believes that operators will be compelled to ensure that their staff have an understanding adequate to achieve compliance with all of the permit

con ditions.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

103 

### Comment Response Essay 8 Stormwater Pollution Prevention Plan (SWPPP)
Response 8.1 SWPPP Preparer of SWPPP Should Meet Minimum Qualifications One commenter suggested that EPA require those preparing SWPPPs for sites that disturb 10 acres or more to meet some minimal qualifications. EPA disagrees with the need to require minimum qualifications for preparers of SWPPPs. Rather, the Agency is specifying the minimum information that a SWPPP must include. The requirement creates a minimum standard for SWPPPs while maintaining flexibility for operators. EPA discusses requirements for SWPPPS in Part 7 of the 2012 CGP and the purpose of those requirements in section XII of the 2012 CGP Fact Sheet. One commenter suggested that the SWPPP mus t contain all of the current provisions of the CGP (or any applicable State CGP), including an inspection schedule; that the SWPPP should designate all known discharge points; and that the SWPPP should designate responsible personnel and ensure that they understand their requirements and responsibilities. EPA notes that the 2012 CGP is consistent with these recommendations. See Part 7 of the 2012 CGP and section XII of the 2012 CGP Fact Sheet. Exceptions for Pro

- Active Restoration Projects
EPA received comments requesting that EPA consider exceptions for pro -active restoration projects from the preparation of a full SWPPP if other permits, certificates, and/or permissions required to undertake the project cover the intent of a SWPPP. EPA disagrees with t he comment. SWPPPs are an integral part of ensuring and documenting compliance with the permit. EPA discusses the rationale for the SWPPP requirements in section XII of the 2012 CGP Fact Sheet. EPA does note, however, that those developing the SWPPP would be permitted to reuse material gathered through the processes of acquiring other permits, certificates, and/or permissions. That is, the preparer would not be required to start from the beginning. This will allow the preparer take advantage of work that ha s already been completed and thus reduce burden.
Narrative or Numeric Effluent Limits in SWPPP The proposed permit included language explaining that “the SWPPP does not contain narrative or numeric effluent limits.” One commenter asserted that the SWPPP should contain effluent limits. Other commenters sought clarity on this language. EPA has clarified the language in the 2012 CGP from the language that was used in the proposed permit. The language now explains that “the SWPPP does not establish the effluent limits that apply to your site’s discharges; these limits are established in this permit.” In other words, the operator identifies in the SWPPP the control measures that he or she has put in place to comply with the effluent limitations established in t he permit, but the SWPPP does not establish the limits. The limits are established in the permit, itself. Person(s) Responsible for Developing the SWPPP EPA received comment on the proposed provisions regarding person(s) responsible for developing the SW PPP. Some commenters had general questions regarding who is responsible for developing the SWPPP. See Part 7.1.1 of the 2012 CGP. Several others had concerns on a proposed requirement for owners to be responsible for SWPPP development. Some commenters supp orted the proposed requirement. EPA disagrees with the need to specify who prepares the SWPPPs. Rather, the Agency is specifying the minimum information that a SWPPP must include. The requirement creates a minimum standard for SWPPPs while maintaining flexibility for operators. See Part 7 of the 2012 CGP and section XII of the 2012 CGP Fact Sheet. Requirement to Develop a SWPPP Prior to Submitting the NOI EPA explains in Part 7.1.1 of the 2012 CGP that permittees are required to develop the site’s SWPPP p rior to submitting the NOI. See section XII.1.1 of the 2012 CGP Fact Sheet for a discussion on the purpose of this requirement. In addition, the Agency notes that permittees are not required toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

104 submit their SWPPPs. However, they are required to keep a curr ent copy of the SWPPP at the site or at an easily accessible location so that it can be made available at the time of an onsite inspection or upon request by EPA; a state, tribal, or local agency approving stormwater management plans; the operator of a sto rm sewer system receiving discharges from the site; or representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS). See Part 7 of the 2012 CGP and section XII of the 2012 CGP Fact Sheet. Management of Stormwater Post

- Construction EPA received comment suggesting that the 2012 CGP address “post

- construction” stormwater discharges. Post

- construction stormwater discharges and the control of post

- construction stormwater discharges are outside the scope of the 2012 CGP.
Stormwater Team EPA received comment on the proposed requirements to assemble a “stormwater team.” Some commenters sought clarity on the requirements. The requirements can be found at Part 7.2.1 of the 2012 CGP. One commenter asked whether the permittee has discretion to determine the size of the team and the roles of individual members. Another asserted that “team” connotes multiple members and suggested that the language maintain the flexibility to allow for an individual SWPPP person for smal ler projects. EPA notes that the 2012 CGP neither specifies the size of the SWPPP team nor does it preclude the permittee from establishing a one

- person “team” and assigning all team responsibilities to that person. One commenter indicated that an applican t may not know the names of all members of the stormwater team at the time the NOI is submitted. EPA notes that the provisions in Part 7.2.1 of the 2012 CGP require that the SWPPP identify the personnel “by name or position” that are part of the stormwater team. Thus, the applicant need not necessarily know the name by the time the time the NOI is submitted as long as they know the position of the employee who will fill the roll in question. The permittee may add names and positions to the SWPPP as team mem bers are added, as suggested by the commenter. One commenter requested that EPA require documentation of training requirements in the SWPPP. EPA notes that Part 7.2.13 of the 2012 CGP requires that the SWPPP include documentation that the required personnel were trained in accordance with the staff training requirements of the permit. Coverage of Construction Support Activities EPA received comment requesting clarification of whether off

- site borrow/fill areas are part of a common plan of development of a project and, thus, are part of the project required to be authorized by a permit. EPA notes that off

- site borrow/fill areas may be construction support activities subject to permit requirements. See Parts 1.1 and 1.3.c of the 2012 CGP for a discussion

on requirements for stormwater discharges from construction support activities. The commenter goes on to suggest that the permitting of off

- site facilities be required of the “operators” of those sites. EPA notes that if the operator of a construction support activity is different than the operator of the main construction site, then that operator is required to obtain permit coverage. The commenter also asserts that discharges from off

- site staging and equipment storage areas do not satisfy the definition of “storm water associated with industrial activity” and thus not be subject to permitting. EPA disagrees with the comment and notes that the definition of “Storm water discharge associated with industrial activity” includes “material handling sites...; sites u sed for the storage and maintenance of material handling equipment...; shipping and receiving areas...; storage areas...for raw materials, and intermediate and final products...; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water. For the purposes of this paragraph, material handling activities include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by

- product or waste product...” (40 CFR 122.26 (b)(14)). Coverage of Primary Versus Secondary Operators EPA received comments on the proposed requirements to indicate in the SWPPP the names of both the primary and the secondary operators. Commenters asserted that this requir ement wouldRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

105 cause legal confusion. EPA also received comment requesting that the Agency modify its proposed requirement for secondary operators to be able to work under a primary operator’s SWPPP, to include government contracts and projects like those of the Department of Transportation. The 2012 CGP includes no references to secondary operators. The permit explains that where there are multiple operators associated with the same project, all operators are required to obtain permit coverage. If an operator only has operational control over a portion of larger project (e.g., one of four homebuilders in a subdivision), the operator is responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to the acti vities on their portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation of control measures described in the SWPPP. If one operator has control over plans and specifications and a different operator has control over activities at the project site, they may divide responsibility for compliance with the terms of this permit as long as they develop a group SWPPP (see Part 7.1.1), which documents which operator has responsibility for each requirement of the permit. If the operator of a “construction support activity” (see Part 1.3.c) is different than the operator of the main construction site, that operator is also required to obtain permit coverage. See Parts 1.1 and 1.3 of the 2012 CGP for the permit requirements and section VI.1 of the 2012 CGP Fact Sheet for the purpose of the requirements. Sequence and Estimated Dates of Construction Activities EPA received comment suggesting that applicants may indicate “estimated dates” to comply with the requirement to include the sequence and dates of construction activities in the SWPPP. EPA agrees and notes that both the proposed CGP as well as the 2012 CGP permit language use the language “sequence and estimated dates of construction activities.” See Part 7.2.5. EPA also received comment asserting that providing dates for certain activities would be difficult, if not impossible. See Part 7.2.5 of the 2012 CGP for the requirements. EPA notes that references to “dates when total disturbances occurring at one time” have been removed. EPA believes that applicants will be able to estimate dates for the remaining activities listed in Part 7.2.5 to the extent that they are applicable to the project in question by referring to project timelin es or schedules or by using best professional judgment. The commenter also questioned the purpose of the requirement to indicate sequence and estimated dates of construction activities and suggested that it be removed. EPA disagrees that the requirement sh ould be removed and explains the purpose of the requirement in Section XII.2.5 of the 2012 CGP Fact Sheet. Site Map EPA received comment on the proposed requirement to include a site map in the SWPPP. EPA received comment asserting that the proposed provision to include locations of stormwater control measures on the SWPPP site map is a good requirement. EPA agrees and the 2012 CGP retains this requirement. EPA discusses the purpose of the requirement in section XII.2.6 of the 2012 CGP Fact Sheet.
EPA al so received comment suggesting that the Agency remove the requirement “to indicate stormwater flow...after major grading activities” because it will not be accurate, will be confusing, and would be best represented in a separate series of maps. The commenter suggests that the requirement be delayed until project is nearing completion. EPA disagrees with the commenter and believes that including an indication of stormwater flow is fundamental to complying with the permit. Operators will need to have an idea of the volume of stormwater that will enter and leave the site and of the general direction(s) that the stormwater flow will take to be able both to design stormwater controls and also to design and structure stormwater controls on the site itself (e.g., to ensure proper drainage and to avoid flooding). Even where operators lack certainty of stormwater volume and flow, they will make assumptions in developing their designs. Operators should indicate in their site maps with as much certainty as they have how the site will be graded and where they expect the flow to occur as a result of the grading and construction. EPA disagrees that the information will be confusing. The partyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

106 responsible for creating the site map should develop it to present the information clearly. Regarding the comment that presenting would require the development of a series of maps, EPA notes that the 2012 CGP includes flexibility to allow applicants to provide the required information in either a map or a series of maps. The information provided in the site map, including changes to flow, will help reviewers to understand the potential impacts of projects. See section XII.2.6 of the 2012 CGP Fact Sheet for a discussion on the purpose of the permit’s SWPPP site map requirements. Regarding the comment that the SWPPP is a living document, EPA notes that operators are required to update the SWPPP if the site will be graded differently than initially indicated as this would be a change to the construction plans. See Part 7.4.1 for a list of conditions requiring SWPPP Modifications. EPA received comment requesting that the Agency define “immediate vicinity” for the proposed requirement that applicants indicate locations of all surface waters that exist in the immediate vicinity of the site. EPA notes that the 2012 CGP does not define the term “immediate vicinity”. The Agency wanted to keep the provision broad enough to give operators flexibility in complying with Part 7.2.6. The requirement in Part 7.2.6 compels permittees to develop an understanding of the location of any waters flowing through or near the property where the construction will take place. Requiring a visual showing these waters will provide permittees with information necessary to comply with the requirements for impaired waters (Parts 3.2.2), and Tier 2, 2.5, and 3- protected waters (Part 3.3.2). Identifying the location of these waters on the site map will also help permittees comply with the Erosion and Sediment Control requirements (Part 2.1), particularly those related to buff ers, and Pollution Prevention Standards (Part 2.3.3). EPA received comment suggesting that the Agency require operators to identify inlets to sanitary sewers and on

- site stormwater management features which the commenter asserts might be impacted by the project. For the comment regarding on

- site stormwater management features, EPA notes that the 2012 CGP requires operators to identify locations of stormwater control measures (Part 7.2.6.8). For the comment on inlets to sanitary sewers, EPA notes that disc harges from sanitary sewers are covered under separate regulations and are beyond the scope of the 2012 CGP. Thus, the permit does not require operators to identify inlets to sanitary sewers in their SWPPP site maps. EPA received comment requesting that t he permit include exceptions to linear facilities that do not routinely collect topographic information or alter the topography along a ROW for the requirements to indicate topographic information in their SWPPPs. EPA disagrees. Topographic information is widely available and easy to collect at low cost. EPA describes the requirements at Part 7.2.6.5 of the 2012 CGP and discusses the purpose of the requirements in section XII.2.6 of the 2012 CGP Fact Sheet.
Construction Site Pollutants The 2012 CGP requir es applicants to provide a list and description of all the pollutant

- generating activities on the site. See Part 7.2.7 of the 2012 CGP. The permit provides examples of pollutant generating activities to help guide the applicant in providing the required information. EPA disagrees that the requirement is impractical or that it will provide inaccurate information and discusses the purpose of this requirement in section XII.2.7 of the 2012 CGP Fact Sheet. Description of Stormwater Control Measures
EPA recei ved comment on the proposed requirements to provide a description of stormwater control measures. One commenter suggested that EPA require permittees to include “any manufacturer’s or owner’s specifications” in the descriptions of stormwater control measur es. Another commenter suggested that EPA incorporate flexibility into the requirement and require permittees to include “specifications for installation and maintenance based on the industry standard and good engineering practice including manufacturer’s specifications where appropriate.” The requirements of the 2012 CGP are consistent with both comments. PartRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

107 2.1.1.3.b of the 2012 CGP requires permittees to install all stormwater controls in accordance with good engineering practices, including applicable design specifications, and Part 7.2.10.1 requires permittees to include in their SWPPPs information on the type of stormwater control measure to be installed and maintained, including design information. The provisions require good engineering practices in all cases but allow permittees the flexibility to follow manufacturer’s design specifications where “applicable.” EPA also received comment on the requirements to describe the use of chemical treatment. The commenter suggested that EPA include requiremen ts for documenting any chemical additives used, including the dosages used, applicable Material Data Safety Sheets (MSDS), manufacturer’s application instructions and subsequent monitoring results. EPA notes that the 2012 CGP requires applicants to indicate chemicals to be used, their dosage or methodology for determining dosage; to include MSDS where applicable; and to describe manufacturer’s application instructions. The commenter also refers to monitoring results. EPA notes that the 2012 CGP does not req uire monitoring and thus does not require the submission of monitoring results. Training EPA received comment on the proposed requirement to document training. One commenter suggested that the requirement is redundant. EPA disagrees that the reference to staff training in the SWPPP section of the 2012 CGP is redundant. Part 7.2.13 of the 2012 CGP requires that applicants include documentation that the required personnel were trained in accordance with the staff training requirements of the permit, while Part 6 discusses the actual training requirements. EPA discusses the purpose of the requirement to document training in Section XII.2.13 of the 2012 CGP Fact Sheet. The commenter also recommended that all EPA inspectors be required to successfully complete training programs with instruction in construction applications. EPA acknowledges the suggestion but notes that comments related to training requirements of EPA inspectors are beyond the scope of the 2012 CGP.
On

- Site Availability of Your SWPPP

EPA rece ived comment suggesting that the Agency also require that a representative of applicable and appropriate land management agencies also have access to the SWPPP and relative monitoring records. Representatives of “appropriate land management agencies” shoul d be able to access the SWPPP, or portions of the SWPPP. EPA notes that Part 7.3 of the 2012 CGP requires the permittee to keep a current copy of the SWPPP at the site or at an easily accessible location so that it can be made available at the time of an o n- site inspection or upon request by EPA; a state, tribal, or local agency approving stormwater management plans; the operator of a storm sewer system receiving discharges from the site; or representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS). EPA may also provide access to portions of the SWPPP to a member of the public upon request.

For the comment on relative monitoring records, EPA notes that the 2012 CGP does not include monitoring requirements so the 2012 CGP does not include requirements related to monitoring records. EPA received comment seeking clarification on the relationship between the proposed requirement to post notice of permit coverage to the proposed requirement to post notice of th e plan’s location. EPA notes that the permittee does not preclude complying with both requirements using the same sign. EPA received comment seeking clarification whether the SWPPP may be electronic. EPA notes that the 2012 CGP does not specify what form the SWPPP must take and that electronic copies are acceptable.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

108 Submission of SWPPPs to Permitting Authority EPA received comment suggesting that SWPPPS should be submitted to the permitting authority. EPA notes that the 2012 CGP requires that the SWPPPs be available at any time to the Agency. See Part 7.3. The requirement to make the SWPPP available at any time to the EPA is sufficient to provide the Agency with the ability to review the SWPPP when necessary or appropriate while also providing operators with the flexibility to develop SWPPPs in either electronic or paper form. Public Availability of SWPPP EPA received comment suggesting that SWPPPs should be available for the public to view including initial and subsequent versions of the SWPPPs. Some commenters specifically recommended that electronic copies of the SWPPP be made available to the public. EPA notes not all SWPPPs will be electronic because the 2012 CGP gives operators the flexibility to develop SWPPPs in either electronic or paper form. Al so, EPA notes that Part 7.3 of the 2012 CGP indicates that EPA may provide access to portions of SWPPPs (including updated versions) to a member of the public upon request. Confidential Business Information (CBI) will be withheld from the public. See Part 7.3 of the 2012 CGP for a description of the requirements and section XII.3 of the 2012 CGP Fact Sheet for the purpose of the requirements. The provisions in Part 7.3 will ensure that the public have access to pertinent parts of SWPPPs. Consistent with the approach taken under the 2008 CGP, EPA intends to assist members of the public in obtaining access to permitting information, including SWPPPs. Changes to SWPPP EPA received comment suggesting a change in text to prevent the modification of a SWPPP by

u nqualified staff. EPA notes that any changes to the SWPPP must be authorized by a person identified in Appendix I, Part I.11.b. The provision to require changes to be authorized will ensure that any changes are approved by the appropriate and qualified sta ff. EPA also received comment seeking clarification on whether any changes to the site map require SWPPP modification records. See Part 7.4.1.2 and 7.4.3 of the 2012 CGP. In response to comment, EPA has clarified the requirement to specify that permittees must “maintain records” on SWPPP modifications rather than “log” changes. EPA received comment on the requirement to provide notice to other operators of changes. The commenter suggested that operators be notified of changes to the SWPPP at the same time that they sign weekly or biweekly inspection forms. EPA notes that the 2012 CGP does not specify how permittees must notify other operators of SWPPP modifications. Operators have flexibility. See Part 7.4.5 of the 2012 CGP for a description of the requirement and section XII.4.5 of the 2012 CGP Fact Sheet for a discussion on the purpose of this requirement.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

109 

### Comment Response Essay 9 Appendices
Response 9.1 Definitions and Acronyms EPA received multiple comments on the proposed definitions and acronyms included with the proposed CGP. One commenter supporting the Agency’s proposal to provide a definition for the term “minimize,” noting that it was “important to provide this clarification.” EPA agrees. See Appendix A.

Another com menter noted that the word “areas” was missing from part of the proposed definition of the term “action area.” EPA has made the correction. One commenter asked whether the term “impervious surface” includes porous pavement or vegetated rooftops if such su rfaces are designed to have high capacity for soil infiltration. EPA notes that the definition of impervious surfaces includes surfaces with “low or no capacity for soil infiltration.” Thus, to the extent that the surfaces identified by the commenter have high capacity for soil infiltration, they would not be considered impervious surfaces for the purposes of the 2012 CGP. Another commenter suggested that EPA expand the definition of “linear project” to include the construction of railroads and pedestrian or bicycle trails. EPA agrees and has made the change. For comments on the proposed definition of “perennial stream,” EPA notes that the 2012 CGP neither uses nor defines this term. EPA received comment asserting that the proposed permit prohibits the discharge of vehicle and equipment wash water. EPA notes that the 2012 CGP does not prohibit the discharge of vehicle and equipment wash water. The permit allows operators to discharge water used to wash vehicles and equipment in accordance with Part 1.3.d. However, such discharges may not contain soaps, solvents, or detergents. See Part 1.3.d. EPA also received comments questioning the inclusion of the person “holding the title” of the land or property in the definition of “operator.” Commenters asserted that the owners or title holders would not necessarily have any involvement in the design or details of the construction project or in regulatory compliance issues. EPA has clarified the definition of “operator” in the 2012 CGP. The operator is specified as any party associated with a construction project that meets either of the following two criteria: 1) The party has operational control over construction plans and specifications, including the ability to make modifications to those plans and specification s; or 2) The party has day

- to

- day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit) . See Appendix A. EPA received comment on the proposed definitions of “toxic waste” and “hazardous waste.” The commenter noted that hazardous waste is defined in the Resource Conservation and Recovery Act (RCRA) and suggested that a regulatory definition be provided for “toxic waste.” Specifically, the commenter was concerned with a proposed requirement to label containers as “Hazardous/Toxic Waste,” asserting that such a labeling approach would be inconsistent with the marking requirements of 40 CFR 262.21 or 49 CFR 172. Commenter stated that “permittees should not be directed to violate the law.” EPA notes that the 2012 CGP does not direct permittees to violate the law. Part 2.3.3.3 of the permit requires operators to label hazardous or toxic waste in

acc ordance with applicable Resource Conservation and Recovery Act (RCRA) requirements and all other applicable federal, state, tribal, or local requirements. The 2012 CGP does not separately define “toxic waste” or provide a regulatory definition, as suggested by the commenter. Rather, EPA defines “hazardous or toxic waste” concisely as “for the purposes of this permit, any liquid, solid, or contained gas that contains properties that are dangerous or potentially harmful to human health or the environment.” The definition also refers to the regulatory definition of hazardous waste at 40 CFR §261.2. EPA believes that the concise definition makes the permitRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

110 readable and understandable and will help to ensure compliance with effluent limitations, in particular, th e pollution prevention standards of the permit. One commenter suggested that EPA change the proposed definition of the term “footprint.” EPA notes that the 2012 CGP does not define the term “footprint.” Another commenter suggested an alternate definition for the term “stormwater inlet.” EPA agrees and has incorporated the suggested definition into the 2012 CGP. EPA received comment suggesting that the Agency add “BMP” to the list of acronyms in the permit. EPA notes that the 2012 CGP does not use the term “BMP,” but rather uses the term “stormwater control.” EPA also received comment suggesting that the Agency define “immediately” in the permit. It was not clear from the comment to which use of the term “immediately” the commenter was referring.

EPA notes that in the stabilization provisions of the permit (Part 2.2), the term “immediately” is used to define the deadline for initiating stabilization measures. In the context of this provision, “immediately” means as soon as practicable, but no later than the end of the next work day, following the day when the earth

- disturbing activities have temporarily or permanently ceased. See Part 2.2.1. EPA did not define the remaining uses of the term “immediately” in the 2012 CGP because the Agency believes that the term is already widely used and understood by the regulated community and does not need a separate, Agency definition. EPA received comment suggesting that the Agency expand the proposed definition of “dewatering” to include well point dewatering and draining of any impoundments such as ponds or lakes. For the comment on well point dewatering, EPA notes that the 2012 CGP allows permittees to discharge uncontaminanted, non -turbid ground water or spring water (see Part 1.3). For the comment on impoundments such as ponds or lakes, it is unclear from the comment whether the "draining of any impoundments such as ponds or lakes" referenced in the comment would currently require an NPDES permit. It is also unclear whether the impoundment referenced in the comment is a water of the United States. Despite the lack of specificity in the comment, EPA notes that under the Water Transfers Rule, discharges from a water transfer do not require a NPDES permit. The rule states: "Water transfer means an activity that con veys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being t ransferred." 40 C.F.R. Sec. 122.3(i). Under this rule, if water is released from a water of the United States to another water of the United States without subjecting the water to an intervening industrial, municipal, or commercial use, the release will not require a NPDES permit. However, if the conveyance itself introduces pollutants into the water being conveyed, the release will require an NPDES permit. For further information, please see the National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 73 Fed. Reg. 33697 (June 13, 2008 (codified at 40 C.F.R. Sec. 122.3(i)). EPA also notes that if the impoundment referenced in the comment is a waste treatment system and is thus not a water of the United States, then a NPDES permit would be required for a discharge from the impoundment into a water of the United States. See 40 C.F.R. Sec. 122.2.2. Response 9.2 Permit areas eligible for coverage EPA received comment asserting that in the 2008 CGP, the White Mountain Apache Tribe required a copy of the NOI and asking whether this has changed under the 2012 CGP. The 2012 CGP does not require potential permittees to provide copies of their NOIs to states, Tribes, or territories. However, EPA notes that permit conditions applicable to specific states, Indian Country lands, or territories will be established as the states, Indian Country lands, and U.S. territories complete their Section 401 certifications for the permit. The White Mountain Apache Tribe mayRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

111 include a requirement to receive a cop y of the NOI as part of the 401 certification process. See Part 9. Response 9.3 Small Construction Waivers and Instructions EPA received comment requesting clarification on the proposed requirement for small sites with revised small construction waivers to retain a copy of the revised waver as part of the SWPPP. The commenter noted that if the contractor has a waiver, then they will not have a SWPPP. The commenter suggests that small sites keep copies of the waivers. EPA agrees with the commenter and has made the change in the permit. As described in Appendix C of the 2012 CGP, the permit requires small sites with revised small construction waivers to retain a copy of the revised waiver as part of site records. Response 9.4 ESA Criteria
EPA received comm ent on the proposed ESA criteria described in Appendix D of the proposed CGP. One commenter asserted that the appendix is unworkable and that EPA is shirking its ESA responsibilities by not providing clear guidance on the type of stormwater discharges and their effects to a variety of different endangered species. The commenter suggested that EPA do a programmatic consultation under Section 7 of the ESA with the USFWS to identify which species may be adversely affected and to what extent in order to reduce the impacts to endangered species and their habitats. The commenter suggested that having each construction agent responsible for a development contact USFWS is inefficient and does not result in any measurable conservation benefit. The commenter suggested that the Agency instead provide guidance on types of construction activities, how they may affect listed species, and how those activities can be curtailed to minimize effects. For the comment on types of stormwater discharges and their potential effects on a variety of different endangered species, EPA notes that the Agency developed a Biological Evaluation (BE) for the 2012 CGP that describes the anticipated stressors associated with discharges authorized by the permit, their potential effects on species, and how the discharges are addressed by permit requirements. With respect to the programmatic consultation under Section 7, EPA notes that the Agency has consulted with both the USFWS and the NMFS in compliance with Section 7 of ESA.

For the comment on each construction agent responsible for a development contacting USFWS and on EPA guidance, EPA notes that the Agency has developed a step

- by

- step guidance on compliance with the Endangered Species Act requirements of the 2012 CGP in Appendix D of the p ermit. As discussed in the guidance, the permit recommends that potential permittees contact local USFWS, NMFS, and/or State or Tribal Heritage Center offices if there are listed species and/or critical habitats in the county or township in which the project is occurring. EPA disagrees that this is inefficient, noting that the permit does not recommend that potential permittees contact these offices in every case. Rather, EPA believes that it may be useful for potential permittees to contact these offices w hen species or critical habitats exist in the counties or townships of the projects because these local offices are likely to be more familiar with the locations of such species and/or critical habitats than either EPA or the potential permittees.
One com menter because the proposed permit included language explaining that the proposed eligibility criteria were draft and subject to change. The commenter recommended that EPA asserted that EPA did not provide an opportunity for review and comment on the crite ria postpone issuance of the final eligibility criteria until after consultation with USFWS and NMFS is complete to allow for public review and comment. EPA disagrees with the commenter, noting that the ESA criteria in the 2012 CGP are essentially the same as the proposed criteria. However, based on public comment, EPA did add detailed step

- by

- step guidance to the appendix to assist applicants in determining the correct eligibility criteria.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

112 EPA also received comment requesting that EPA remove the requirements for listing endangered species, asserting that they are irrelevant to stormwater management. EPA disagrees with the commenter, noting that the issuance of the 2012 CGP is a Federal action subject to review under ESA. Thus, to be eligible for c overage under the CGP, permittees must meet one of the criteria listed in Appendix D with respect to the protection of any and all species that are federally

- listed as endangered or threatened under the Endangered Species Act (ESA) or of habitat that is fe derally

- designated as “critical habitat” under the ESA in order to be eligible for coverage under this permit. EPA requires operators to indicate any listed species or their designated critical habitats in their action areas in their NOIs as part of the documentation/basis for the eligibility criterion they have selected. Response 9.5 Historic Properties EPA received comment on the proposed historic property requirements. One commenter indicated that he was pleased to see the requirements in place.

Anoth er commenter asserted that the proposed requirements were not consistent with the Advisory Council on Historic Preservation’s regulations 36 CFR 800 that implement Section 106 of the National Historic Preservation Act of 1966 as amended. The commenter asse rted that it is EPA’s responsibility to meet the requirements of Section 106 of the National Historic Preservation Act and to make critical decisions and determinations about the presence of or effects on historic properties and to enter into consultations and agreements to mitigate or avoid adverse effects with the SHPO. The commenter further asserted that EPA remains legally responsible for all findings and determinations and that the responsibilities to make determinations of adverse effect, to participate in consultation, and to enter into agreement documents cannot be wholly delegated to applicants or their consultants (36 CFR 800.2(a) and 800.3 to 800.6). The commenter also suggested alternative language. EPA thanks the commenter for the comment and the suggested language. EPA notes that Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to take into account the effects of Federal “undertakings”, such as the issuance of this permit, on historic properties that are ei ther listed on, or eligible for listing on, the National Register of Historic Places. To address any issues relating to historic properties in connection with the issuance of this permit, EPA has developed the required screening process in Appendix E of th e 2012 CGP that enables construction operators to appropriately consider the potential impacts, if any, of their installation of stormwater controls on historic properties and to determine whether actions can be taken, if applicable, to mitigate any such impacts. See Appendix E. The screening procedures and eligibility criteria involve more detailed documentation requirements related to the potential effects resulting from the installation of ground

- disturbing stormwater controls, and include opportunities for such historic preservation partners to request that EPA place a hold on particular authorizations based on concerns regarding potential impacts on historic properties. In such circumstances, EPA involvement would include careful evaluation of the reque sted hold and consideration of whether additional measures to address adverse impacts to historic properties are warranted. These screening procedures were informed by views EPA received from the Advisory Council on Historic Preservation (“ACHP”). In addit ion, EPA’s efforts to consider potential impacts on historic properties as they relate to NHPA Section 106 included a conference call joined by the ACHP to obtain the views of State and Tribal Historic Preservation Officers. EPA notes that the coverages of individual construction sites under this permit do not constitute separate Federal undertakings.

Response 9.6 Appendix Impaired Waters EPA received comment on the proposed benchmark monitoring requirements. Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

113 EPA received comment asking whether the Agency intends to provide tables of impaired waters for Federal Facilities in Colorado. EPA also received comment suggesting that the Agency remove the Appendix (which lists impaired waters) completely. EPA has removed the Appendix and i s not providing a table of impaired waters in the 2012 CGP, but EPA is developing a mapping tool that will assist potential permittees to identify in their NOIs the surface water(s) to which they will discharge, whether any of those waters are impaired, and whether any TMDLs exist for those waters. EPA also received comment asserting that while the mapping tool being developed by EPA to help identify discharges to impaired waters is likely to be useful for permittees, it will also lead to many false positives asserting that in a given catchment area there are likely to be numerous areas that are waters of the U.S., and that, therefore, it is likely that many discharges from locations within the catchment will drain to other waters of the U.S. before the impaired segment in the catchment. In addition, the commenter asserted that it is possible that the discharge would be downstream of the impaired segment. The commenter believes that neither of these cases should be considered a discharge to an impaired water. EPA agrees that the mapping tool will be useful for permittees. EPA disagrees that the tool will lead to many false positives. This is because the CGP Mapping Tool utilizes the best available data to determine whether or not a site is considered to disch arge to an impaired water, and in the absence of any other information, EPA assumes that the tool correctly determines if a site discharges to an impaired water. However, due to limitations with the data, EPA recognizes that there could be circumstances where the mapping tool does not generate the correct results, i.e., leads to a false positive or a false negative. If a permittee does not agree with the tool’s analysis, or is unsure if it is correct, EPA recommends that that permittee verify the tool’s res ults by comparing the up

- to

- date and comprehensive list of impaired waters and EPA

- approved or established TMDLs associated with their state, tribe, territory, etc. to the surface waters that the permittee believes that it will discharge to. Much of this information is accessible through the websites of individual states, tribes, territories, etc.; alternatively, permittees could conduct searches for this information through EPA’s website located at http:// epamap32.epa.gov/radims/ or http://www.epa.gov/myenvironment/new/. If a permittee is able to verify through other means that the tool is not correct for its site, EPA allows applicants to edit the re sults generated by the Mapping Tool in the NOI.. Or, if permittees prefer to determine which waterbodies their sites discharge to in their NOIs using alternate methods, EPA also notes that applicants are not required to use the Agency’s Mapping Tool.

EPA received comment questioning whether the metrics employed by the Agency to develop the draft CGP’s technical provisions, particularly those in Appendix J, Section 4, were created using procedures that are consistent with the requirements of the section and that more administrative transparency is needed and appropriate. EPA notes that Appendix J did not include a Section 4. Without knowing which technical provisions to which the commenter refers, EPA is unable to provide a specific response to the comment. If the commenter is referring to Part 4 of the proposed CGP, please refer to Response 4.1 on water quality

- based effluent limitations. See also Section VIII of the 2012 CGP Fact Sheet, which discusses the purposes of the water quality

- based effluent limitations in the permit. Response 9.7 Standard Permit Conditions EPA received comment suggesting that the Agency include a reopener clause in the CGP so that requirements from the revised national post

- construction requirements for discharges from areas of

n ew development and redevelopment can be incorporated into the permit. EPA notes that like the 2008 CGP, the 2012 CGP also includes a reopener clause. See Part I.16. As discussed in Part I.16, permit modification or revocation will be conducted according to 40 CFR §122.62, §122.63, §122.64 and §124.5. EPA also received comment on the proposed SWPPP certification language. The commenter asserted that the language for certifying the SWPPP is inappropriate, claiming that where a contractor has had no involvement in developing a SWPPP, it is inappropriate to require thatRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

114 contractor to certify that the SWPPP was prepared under the contractor’s direction or supervision. EPA disagrees that the requirement is inappropriate. As discussed in Part 7.1.1 of the 2012 CGP, the permit gives the option of developing a group SWPPP where more than one operator will be engaged in construction activities at a site. For instance, under the group SWPPP option, if both the owner and the general contractor of the constructi on site are permitted, the owner may be the party responsible for SWPPP development, and the general contractor can choose to use this same SWPPP, as long as the SWPPP addresses the general contractor’s scope of construction work. Thus, the general contractor would not be required to certify that the SWPPP was prepared under the general contractor’s direction or supervision if the owner developed one that addresses the general contractor’s scope of construction work.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

115 

### Comment Response Essay 10 General Statement of Support
Response 10.1 Support for Proposed CGP EPA received multiple comments expressing general support for the proposed CGP. EPA appreciates the support. Response 10.2 Examples of Impacts of Stormwater Discharges from Construction Sites EPA received comments identifying some of the potential impacts on surface waters caused by stormwater discharges from construction sites. Some commenters provided examples. EPA thanks commenters for providing the information. The Agency has considered all comments in developing the final 2012 CGP. Response 10.3 Permit Should Require State

- of

- the -Art Control Measures EPA received comments suggesting that the Agency should further strengthen the permit “to require state- of

- the

- art control measures ”. While EPA has not incorporated this language into the permit, EPA believes that permittees will use state

- of

- the

- art control measures to the extent that they are technologically available and are economically practicable and achievable in light of best industry practices. EPA notes that the 2012 CGP implements the technology

- based effluent limitations in the C&D Rule (40 CFR part 450). The C&D Rule and, more directly, EPA’s 2012 CGP, provide and maintain flexibility for operators to choose site

- specific BMPs to most appropriately meet the non

- numeric effluent limitations. The permit requires operators to design, install, and maintain erosion and sediment controls that minimize the discharge of pollutants from earth disturbing activities, as described in Part 2 of the permit. The permit defines “minimize” as “to reduce and/or eliminate to the extent achievable using stormwater controls that are technologically available and economically practicable and achievable in light of best industry practices.” EPA b elieves that this definition includes the use of “state

- of

- the

- art control measures” to the extent that they are technologically available and economically practicable and achievable in light of best industry practices. EPA also believes that this approach ensures that permittees, each of which faces unique situations, have maximum flexibility in complying with permit requirements while allowing them to consider site

- specific factors.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

116 

### Comment Response Essay 11 General Statement of Opposition
Response 11.1 Comments Expressing General Concern with the Proposed CGP EPA received comments expressing general concern with the proposed permit. In general, these comments are summary statements that are part of larger comment letters in which commente rs elaborated on their concerns or provided more specific comments. The comments expressing general concerns included the following issues: Level of flexibility in the permit for all construction projects and for linear construction projects in particular, Assertions that the permit should take a “BMP approach”, Feasibility of requirements, Provisions related to numeric effluent limits, Economic impacts on construction industry and the economy, Environmental benefit, Clarity and understandability of the permit, Waiting period, and Buffer requirements. For the comment on flexibility, see Response 2.1.1 and Response 13.1. For the comment on “BMP approach,” to the extent that the commenter means that EPA should issue a permit with non

- numeric effluent limitations and exclude numeric turbidity limits, EPA notes that the 2012 CGP includes non

- numeric effluent limitations but does not include a numeric turbidity limit. For the comment on “feasibility”, see Response 13.1.
For the comm ent on numeric effluent limits, see Response See Response 4.1 and Response 6.6. For the comments on economic impacts, refer to Response 21 on economic impacts.

For the comments on environmental benefits, see the Construction and Development NPDES General Permit Environmental Assessment developed in support of the 2012 CGP and available in the docket for the permit.

For the comment clarity and understandability of the permit, see Response 13.1. For the comment on waiting period, see section II of the 2012 CGP Fact Sheet. For the comment on buffer requirements, see Response 2.3.

EPA also refers the reader generally to the 2012 CGP Fact Sheet in which the Agency explains permit provisions in detail and discusses the purpose of each provision.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

117 

### Comment Response Essay 12 Request to Extend Permit Period
Response 12.1 Request to Extend Permit Period EPA received several comments on the proposed timeline for issuance of the 2012 CGP. Some commenters suggested that the EPA del ay issuing the permit. Others asserted that the Agency needed additional time to clarify or to develop numeric turbidity limits. And others suggested that the Agency wait until EPA finalizes the C&D Rule, presumably the numeric limit portion of it since th e non

- numeric portions are already finalized. Some suggested that the Agency keep the 2008 permit in place for a full five

- year term and wait to issue the new permit until June 30, 2013. One commenter suggested this in order to give EPA time to streamline the permit, to incorporate final C&D rule effluent limitations (presumably numeric since the non

- numeric limitations are already final), and to allow courts time to fully adjudicate all issues. Still others suggested that the Agency wait to issue the permi t long enough to accommodate the actions that need to occur, as well as to foster a meaningful public process on those actions. For comments related to delaying the issuance of the permit because of delays related to the turbidity limit, EPA notes that the C&D rule did include a numeric limit for turbidity, but the Agency has issued a stay of the numeric limit for turbidity (and related monitoring requirements) so that the limit can be recalculated. Until a new numeric turbidity limit has been promulgate d, the EPA and authorized states are not required to incorporate the stayed numeric turbidity limitation (or any other numeric turbidity limitation) or monitoring requirements into their permits. However, the remainder of the regulation, including the non

- numeric effluent limitations in the C&D Rule (40 CFR 450.21), is still in effect and must be incorporated into newly issued permits. EPA notes that the 2008 CGP and the authorization to discharge under the 2008 CGP expired at midnight, February 15, 2012. EPA is issuing a new CGP rather than extending the 2008 CGP to incorporate new requirements that implement the technology

- based Effluent Limitation Guidelines and New Source Performance Standards for the construction and development industry (i.e., the C&D rule), which were issued by EPA on December 1, 2009. The 2012 permit also includes water quality

- based requirements for construction sites discharging stormwater to all surface waters, including impaired and high quality waters requiring additional pollut ant control. EPA believes that issuing a new permit that incorporates the new C&D rule requirements now, rather than waiting until June 30, 2013, is more protective of water quality because the permit includes several enhanced protections, including provisions to protect impaired and sensitive waters and several new requirements for (1) Eligibility for emergency

- related construction, (2) provisions for sites using certain treatment chemicals, (3) increased usage of the electronic notice of intent process, (4) Sediment and erosion controls, (5) Natural buffers or alternative controls, (6) Soil stabilization, (7) Pollution prevention, (8) Water quality

- based effluent limits, (9) Site inspections, (10) Corrective action, (11) Stormwater Pollution Prevention Plans, and (11) Permit termination. EPA also received comments suggesting that the Agency delay issuance of the CGP to give EPA time to develop a “single lot permit” and provisions for “qualifying local programs.” As discussed above, EPA issued the 2012 CGP on February 16, 2012 because the 2008 CGP and the authorization to discharge under the 2008 CGP expired at midnight, February 15, 2012 and EPA did not want to leave operators without this option of seeking permit coverage for construction stormwater discha rges. See also responses on “single lot permit” and “qualifying local program” in Response 13.1. EPA also received a comment suggesting that the Agency provide additional time to states in developing their state

- specific construction stormwater permits. See discussion above regarding the need for EPA to issue this permit now to ensure that operators have coverage options for construction stormwater dischargers. In addition, this comment is beyond the scope of the EPA’s 2012 CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

118 

### Comment Response Essay 13 Miscellaneous Comments
Response 13.1 Miscellaneous Comments
General Miscellaneous EPA received several general suggestions for Agency consideration. Some of these comments pointed out typographical and other inadvertent errors in the proposed permit. EPA has reviewed these comments and made corrections as necessary to the final permit. EPA appreciates all of the suggestions the Agency received and considered them in developing the final 2012 CGP. Some comments included suggestions for the permit that would have been inconsistent with the effluent limitation guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants from construction sites. See 74 Fed. Reg. 62996, and 40 CFR 450.21. These requirem ents, known as the “construction and Development Rule” or “C&D rule”, became effective on February 1, 2010. Because the 2012 CGP is being issued after the effective date of the C&D rule, EPA is required to incorporate the C&D rule requirements into this pe rmit. For this reason, the 2012 CGP includes significant modifications to the 2008 CGP to reflect these requirements. Many comment letters included introductory language or general statements. EPA has read these comment letters in full and responded to the specific comments contained in the letters. Similarly, some comment letters indicated that the commenter agrees with the comments of others or request that the comments of others be incorporated by reference into their own comments. EPA notes that the A gency has responded to these comments where they appear. Permit Clarity and Objectivity EPA also received comment suggesting that the Agency improve clarity of the proposed permit and that the Agency ensure that the final permit is implementable. EPA app reciates the comment and has made changes such that EPA believes the final permit is clear and implementable. EPA made the proposed permit available for public review and comment and, as documented in this response to comment document, EPA has reviewed and considered all public comments and made changes, as necessary. In addition, the final permit has gone through thorough review both internally, within the Agency, and externally, through inter - Agency review. These reviews have enhanced the final permit and ensure that the permit is clear and implementable. For comments on permit objectivity, EPA appreciates the comment and believes that the final permit is sufficiently objective. However, the permit is balanced between provisions that have numeric components (e.g., stabilization deadlines, buffer requirements, inspection and corrective action deadlines, etc.) with provisions that provide more flexibility or are based on the concept of minimizing pollutant discharges (e.g., disturbing steep slopes, minimizing track

- out, etc.). Applicability to Other States Where EPA is Not the Permitting Authority Some commenters sought clarity on the implications of the 2012 CGP for states for which EPA is not the permitting authority. The CGP provides permit cover age in states and other areas where EPA is the permitting authority. EPA is the permitting authority in four states (i.e., Idaho, Massachusetts, New Hampshire, and New Mexico); the District of Columbia; Puerto Rico; all other U.S. territories, with the exception of the U.S. Virgin Islands; federal facilities in four states (i.e., Colorado, Delaware, Vermont, and Washington); most Indian lands; and for a few other specifically designated activities in specific states. While some states for which EPA is not t he permitting authority may choose to refer to the 2012 CGP as a model as they develop their own general permits for discharges from construction sites, EPA notes that they are not required to do so, and the 2012 CGP does not apply to discharges where EPA is not the permitting authority. Instead, these states are required to incorporate the C&D rule requirements into permits that they issue after February 1, 2010, the effective date of the C&D rule. See 74 Fed. Reg. 62996, and 40 CFR 450.21.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

119 Permit Flexibility EPA received general comments asserting that the proposed CGP lacked flexibility, was too prescriptive, and was not accommodating of the full range of applicable construction activities, including heavy construction and linear construction. EP A disagrees with these comments. EPA has been responsive to many of the concerns expressed about the permit being too prescriptive, and has made many provisions in the final permit more flexible, including requirements to avoid steep slopes, to remove sedi ment track

- out, to minimize soil compaction, to stabilize construction entrance and exit points, regarding inspection frequency, and to prevent pollution. Where EPA has retained specificity in the permit, EPA believes the specificity is necessary so that the permit conditions are clear to permittees and also are protective of water quality. See also Response 2.1.1 on permit specificity and complexity. For general comments related to flexibility with respect to buffer requirements, see Part 2.1.2 of the permit for a description of buffer requirements, including alternative options, and section VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the buffer requirements. For general comments related to flexibility with respect to stabiliz ation requirements, see Part 2.2 of the permit for a description of stabilization requirements, including flexibilities in the requirement. See section VII.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the stabilization requirements.
Som e commenters asserted that EPA should not issue a permit with requirements that are more specific than those in the C&D rule. EPA disagrees with these comments and notes that the C&D rule gives the permitting authority discretion in developing permits. EPA is the permitting authority for the 2012 CGP. Where EPA has included requirements in the 2012 CGP that are more specific than those in the C&D rule, EPA has done so to minimize the discharge of pollutants from active construction sites, as authorized by the C&D rule, but also to finalize a clear and enforceable active construction activity stormwater general permit. Comment Asserting that Proposed Permit is Arbitrary EPA received comment asserting that the proposed permit is arbitrary. EPA disagrees. As discussed above, the permit implements the requirements of the C&D rule. EPA discusses the purpose of permit requirements in the 2012 CGP Fact Sheet.
Permit Burden EPA received comment asserting that the 2012 CGP is burdensome. EPA disagrees that the 2012 CGP adds significant burden. See the economic analysis developed in support of the permit available in the docket for the 2012 CGP. Permit Length EPA received comment asserting that the permit is voluminous. EPA reviewed the proposed permit, looking for areas where the Agency could streamline requirements and reduce permit length while maintaining permit protections. EPA notes that the Agency was able to significantly shorten the final permit. Mapping Tool EPA received comment asking when the mapping tool will be available and suggesting that the tool be made available prior to issuance of the permit. EPA intends to make the mapping tool available with the issuance of the 2012 CGP. Some commenters asserted that EPA should make the mapping tool available early to provide time for review and comment or to give operators time to plan. Unfortunately, the Agency was not able to issue the mapping tool early due to timing and resource limitations. As noted in Response 4.1, the mapping tool utilizes the best available data to determine whether or not a site is considered to discharge to an impaired water, and, in theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

120 absence of any other information, EPA assumes that the tool correctly determines if a site discharges to an impaired water. However, EPA welcome s comment (e.g., via the email address created in support of the 2012 CGP, cgp@epa.gov) on the mapping tool once the tool becomes available for public use and intends to make any necessary corrections or updates to the tool as needed and as resources allow. Also, as noted in Response 4.1, applicants are not required to use the mapping tool. See Response 4.1. SWPPP Template and Inspection Report Template EPA received comment asking when a new SWPPP Template or Inspection Report Template will be provi ded. One commenter asserted that it is important that the Agency provide the SWPPP template in a sufficient amount of time before permit issuance to allow operators to develop their new SWPPPs. EPA intends to make the SWPPP template available with the issu ance of the 2012 CGP. Unfortunately, the Agency was not able to issue the SWPPP template earlier due to timing and resource limitations. EPA also intends to make an inspection report template available soon after the issuance of the 2012 CGP, as Agency res ources allow. Nephelometers EPA received comment asking whether the Agency will make any recommendations for nephelometers or provide training for their use. EPA does is not planning to make any recommendations for nephelometers or to provide training for their use under the 2012 CGP at this time, noting that the permit does not include the proposed numeric turbidity limit. Training and Guidance EPA received comment asking whether the Agency will provide any training on the permit before its issuance. EPA also received suggestions that the Agency include tables, flow charts, or similar devices in the guidance materials. EPA intends to provide training and other implementation assistance through webcasts and guidance documents after the issuance of the 2012 CGP. EPA plans to include tables, diagrams, and/or other similar devices in the webcasts and guidance documents.
SWPPP Administration Software EPA received comment asking whether the Agency will be making recommendations for SWPPP administration software or site inspection software. EPA does not intend to make recommendations for SWPPP administration software or site inspection software. Information Quality EPA received comment asserting that the Agency must comply with the Information Quality Act, 44 U.S.C § 3516 and that, “to comply, EPA must ensure all information disseminated with respect to a listing determination meet OMB’s high standards for objectivity, utility, and integrity before it is disseminated and to substantiate information quality ‘through documentation or other means appropriate to the information.’ 67 Fed Reg. at 8459.” The commenter also asserts that EPA should demonstrate that the Agency has complied. EPA notes that the 2012 CGP was reviewed by OMB prior to permit issuance. EPA believes that the permit is consistent with the Information Quality Act and EPA’s Information Quality Guidelines (located at http://www.epa.gov/qua lity/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf). The Agency has utilized the best available sources of data and information, including peer - reviewed journals and state - and university

- developed guidance manuals. EPA has documented the sources used by the Agency in support of the 2012 CGP in the docket for the permit. 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. Materials may also be available through http://www.regulations.gov. The docket ID for the 2012 CGP is EPA- HQ

- OW -2010-0782.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

121 Rationale for SWPPP
EPA received comment questioning the need for the SWPPP requirements. EPA explains the purpose of the SWPPP requirements in section XII of the 2012 CGP Fact Sheet. Jurisdictional Determination Requests EPA received comment asking whether the Agency will provide guidance on identifying “waters of the U.S.” The commenter asked whether the CGP “will include ‘jurisdictional determination (JD) requests’ and ‘preliminary JDs (PJDs)’” and whether the Army Corps of Engineers or EPA will respond to JD requests made for the p urposes of the CGP or other, state

- issued, CGPs (for the buffer requirements, in particular) and whether such requests will be part of the NOI system. EPA notes that JD of Waters of the US is outside the scope of this action. Invasive Species EPA received comment suggesting that the Agency require measures to prevent the spread of invasive species. The commenter did not provide a connection between the concern about invasive species and pollutant discharges from construction sites. Exceptions and Flexibility for Restoration or Revitalization Projects EPA received comment suggesting that the Agency include exceptions or flexibility in the 2012 CGP for restoration or revitalization projects. EPA notes that the 2012 CGP includes flexibility throughout the permit. See discussion on flexibility above. While EPA recognizes the ecological benefit of restoration or revitalization projects, EPA notes that discharges from construction activities (including those associated with restoration or revitalization projects) that meet the eligibility criteria under Part 1 of the 2012 CGP would be subject to the permit to protect receiving waters from discharges resulting from such projects. Requirements for Projects Covered Under 404 Permits
EPA received a comment in which a commenter requested clarification whether “projects permitted under §404 of the Clean Water Act need [to] obtain coverage under the general construction stormwater permit.” EPA notes that operators of active construction sites that will discharge p ollutants to waters of the U.S. are subject to section 402 of the CWA (NPDES) and must obtain coverage under a section 402 (NPDES) permit (whether the CGP, an individual permit, or a state CGP) for such discharges from their construction activities. Part 1 of the permit explains the eligibility conditions for the permit.
Use of Term “Infeasible” EPA received comment suggesting that the Agency should avoid use of the term “infeasible”, asserting that the term is subjective and makes it difficult for regulators to ensure that an owner is complying with a permit requirement. EPA notes that the Agency has defined infeasible for the purposes of the 2012 CGP. See Appendix A. The term allows EPA to incorporate flexibility into the permit and balances environmental protection with technical and economic limitations. EPA notes that the 2012 CGP incorporates the requirements established in the C&D rule, which also uses the term “infeasible.”

Access to Internet EPA received one comment asserting that not all owners or operators have access to the Internet. To the extent that the commenter is concerned with the Internet

- based eNOI system, EPA notes that the Agency will allow paper NOIs in limited circumstances if applicants receive permission from EPA regional offices prior to submission of application. To the extent that the commenter is concerned with Internet access in general, EPA notes that the 2012 CGP does not require Internet access but recognizes that Internet access will be helpful. For example, webcasts and guidance materials will be available through the Internet. However, noting that EPA received only one general comment on this issue, EPA does not believe that a significant number of owners orRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

122 operators will have difficulty accessing the Internet. EPA notes that Internet access in homes and offices is common and that many public libraries offer free Internet access which will be helpful for those who may not have access in the home or office. EPA also notes that owners or operators who cannot access the Int ernet can always call the Agency. EPA has provided phone numbers of EPA regional contacts in the FR notice for the 2012 CGP. Technical Proficiency to Understand Requirements EPA received comment asserting that small and rural projects will lack the technical proficiency to understand requirements. EPA disagrees. See discussion on clarity above. While EPA believes the requirements are clear as written in the 2012 CGP, the Agency still plans to host webcasts and to develop guidance materials to help permittees fully understand the requirements.
Removal of All Sediment EPA received comment asserting that the removal of all sediment is not always positive and that removal of too much sediment may result in downstream erosion. EPA notes that the 2012 CGP does not require the removal of all sediment and also that the permit does not address all sources of sediments. Rather, the permit requires operators to design, install, and maintain erosion and sediment controls that minimize the discharge of sediment and other pollutants from earthdisturbing activities . That is, the permit uses a “minimization” framework for these pollutants rather than a “100% removal” framework, and the permit addresses discharges from “earth - disturbing activities” and not runoff from n atural sources. Statutory Authority EPA received general comments on EPA’s authority to issue the 2012 CGP. For any comments or questions related to EPA’s authority to issue the 2012 CGP, see Part I of the 2012 CGP Fact Sheet.
EPA received comment that the Agency is regulating land use through the permit and lacks the authority to do so. EPA notes that the Agency is not regulating land use but rather the discharge of pollutants from construction sites and from construction support activities to waters of the United States. For further information, see generally the 2012 CGP, the 2012 CGP Fact Sheet, and the responses to comments in the docket for this action. Determining Receiving Waters and Impairment Status EPA received comment asserting that determi ning the receiving water body and impairment status would be difficult. Commenters were concerned with the requirement to identify the receiving waters and impairment status of the discharges from the site, asserting that such a requirement is onerous. See Response 4.1. Daily or Day EPA received comment requesting that the Agency clarify the use of the word daily or day to clearly distinguish between calendar day and working day. EPA has reviewed the proposed permit and clarified the language in the final permit to clearly distinguish between calendar day and working day, as necessary.

Waiting Period Several commenters criticized the proposed 30

- day waiting period for being too long. EPA notes that the 2012 CGP establishes a 14- day waiting period.
Comme nts Related to Numeric Turbidity Limit or Sampling See Response 3.1, Response 4.1, and Response 6.6. Suggestions for Implementation, Enforcement, Compliance, and Public Participation EPA received multiple comments with suggestions for implementation, en forcement and compliance of the permit, including suggestions to include opportunities for public participation.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

123 Some commenters asserted that the causes of erosion and sediment transport are rooted in improper implementation of the current permit requirements and a failure on the part of contractors or developers to follow current rules. Another commenter asserted that the enforcement community is facing dwindling resources and suggested that the Agency establish an online information and reporting resource, available to the general public, for “enlisting the general public’s assistance” and “to meet the goals of transparency, public participation, and collaboration”. EPA appreciates the comments and suggestions and notes that the 2012 CGP includes provisions to allow for public participation including (1) an opportunity to review during the waiting period (operators must submit their NOIs at least 14 days prior to commencing earth disturbing activities, which NOIs EPA will immediately post on our website, which gives the public the ability to review those NOIs [see www.epa.gov/npdes/cgpenoi ]), (2) a requirement for permittees to post a notice of permit coverage at a publicly accessible location in close pr oximity to the project site (Part 1.5), and (3) a provision explaining that EPA may provide access to portions of the SWPPP to members of the public upon request (Part 7.3). EPA believes these provisions will result in increased accountability and complian ce. EPA also received comment asserting that permittees will not comply unless they are forced to do so through enforcement action. EPA disagrees. While EPA will implement an enforcement program as one way to ensure permit compliance, EPA believes that operators will comply because of increased awareness of permit applicability (because of EPA outreach activities including public meetings, outreach activities, and communication strategies) and because of the ability for public participation and associated accountability (see above). Others asserted that EPA will negotiate away fines and that, therefore, non

- compliance is a safe business risk. EPA disagrees with this comment, noting that the Agency intends to enforce the 2012 CGP. The Clean Water Act and its implementing regulations require strict compliance with the CGP. EPA takes its enforcement responsibilities very seriously. EPA will actively enforce the 2012 CGP requirements. In addition to EPA's civil enforcement program that protects human health and the environment by taking legal action to bring polluters into compliance with federal environmental laws, the Agency's criminal enforcement program focuses on cases involving negligent, knowing, or willful violations of these laws.
EPA also received comment suggesting that the Agency ensure that the final permit is implementable. EPA believes the final permit is implementable. EPA headquarters developed the final permit in collaboration with EPA regional offices. EPA made the proposed permit available for public review and comment and, as documented in this response

- to

- comment document, EPA has reviewed and considered all public comments and made changes, as appropriate. Included among these comments were comments from states, local governments, NGOs, environmental groups, and the regulated community. In addition, the final permit has gone through a thorough review both internally, within the Agency, and externally, through inter

- Agency review. These reviews have enhanced the final permit and ensure that the permit is implementable. See also response on permit clarity above. Permit Training Some commenters asserted that the permit is complex and suggested that EPA should offer training. To help with permit clarity and implementation, EPA plans to ho st webcasts and to develop and update existing guidance materials. One commenter asserted that her department will require lead time to identify budget and scope necessary to implement training and requested clarity on when the final permit would be relea sed and when the final permit would be become effective. EPA notes that the 2012 permit was released and became effective at the same time. While EPA understands that the release date means that any training on the final permit will have to occur after the permit is issued, the Agency notes that EPA made every effort to make the final permit easy to read and implementable. See discussion on “permit clarity” above. EPA also notes that the 2012 CGPRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

124 implements the requirements established in C&D rule, which be came effective on February 1, 2010. See 74 Fed. Reg. 62996, and 40 CFR 450.21.
Use of Chemical Treatment For general comments on chemical treatment, EPA notes that the 2012 CGP does not require the use of chemical treatment. See Part 2.1.3.3 of the 2012 CGP for a description of provisions related to the use of treatment chemicals and section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the purpose of the provisions. Permit Provisions Related to Federal Regulations
One commenter asserted that t he proposed permit appears to include provisions that duplicate and/or expand upon federal requirements such as Endangered Species Act and Spill Prevention Control and Countermeasure (SPCC) requirements. The commenter questioned the reasonableness of including such provisions. For the comment on ESA, EPA discusses the purpose of the ESA permit requirements in section XV.D of the 2012 CGP Fact Sheet. For the comment on SPCC, EPA discusses the purpose of the permit pollution prevention standards in section VI I.3.3 of the 2012 CGP Fact Sheet. If applicable, permittees must comply with the SPCC requirements in 40 CFR 112 and Section 311 of the CWA. Applicability to Mining Industry EPA received comment asking the Agency to clarify the applicability of the 2012 CGP to the mining industry. EPA notes that the 2012 CGP does not cover discharges from mining operations unless they involve construction activity and are covered by 40 CFR 122.26(b)(14)(x) or (b)(15). Thus, the 2012 CGP covers discharges from construction activities required to obtain NPDES permit coverage and performing the following activities: construction of buildings, including building, developing and general contracting; and heavy and civil engineering construction, including land and subdivision. S ee Part 1.1 of the permit. Required Use of GI and LID EPA received comments suggesting that the Agency require the use of green infrastructure and low

- impact development, particularly at sites discharging to impaired or sensitive waters. As an advocate o f green infrastructure and low

- impact development, EPA appreciates these comments and notes that the Agency encourages the use of green infrastructure and low impact development. However, EPA crafted the non

- numeric effluent limits in the C&D rule on which the 2012 CGP is based to allow flexibility in how the permitting authority implements these requirements in permits. See 74 FR 63016. As an example, 40 CFR 450.21(a)(5) requires construction operators to design, install, and maintain controls to “minimiz e sediment discharges from the site.” EPA notes that the permit does allow for the Agency to require corrective action and/or additional stormwater controls if the stormwater controls that the permittee has installed and is maintaining are not effective enough for the discharge to meet applicable water quality standards (See Parts 3.1 and 5.2.1.2).

Qualifying State, Tribal, or Local Programs (QLP) EPA received comment asserting that the Agency should revamp the QLP program to remove impediments and make i t more attractive for state and local adoption. The commenter also asserted that EPA should also work with the regions to educate them about the QLP and provide incentives or other enticements to increase state adoption of this language and streamline the permitting process and that EPA should develop a process for facilitating and encouraging implementation of the QLP in the CGP. EPA also received comment suggesting that EPA allow state agencies to work with local municipalities in the arid Southwest to develop permit requirements that are appropriate for local conditions.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

125 The Agency is not incorporating any QLPs into the CGP at this time. EPA’s NPDES regulations at Parts 122 and 124 require that EPA provide public notice for any draft permit before issuing a final permit, with the exception of minor modifications, which do not have to follow the Part 124 procedures. Incorporation of a QLP into the CGP would not be considered a minor modification, as defined in 40 CFR § 122.63, thus EPA acknowledges the requirement to publish any QLP in a draft permit to provide public notice and opportunity for comment in advance of final permit issuance. When approving QLPs, EPA will identify the specific QLP requirements; however, the applicability of those local requirements will not change. Qualifying those local requirements will eliminate the potential for duplicative or conflicting language in the CGP from being applicable to those construction sites operating in QLP jurisdictions. As designed, QLP requirements become conditions of the permit, by reference, and as such, incorporating such requirements into the permit are considered permit modifications that , as described above, must be made consistent with 40 CFR Parts 122 and 124 requirements and procedures. As reflected in 40 CFR §122.63, incorporating qualified local program requirements into the CGP does not meet criteria eligible for minor permit modifications. EPA envisions that QLPs can be incorporated into construction permits as the permits are issued and then again periodically during the life of the permit. No mechanism is available to the Agency to provide for automatic incorporation of QLP requirements into NPDES permits without first undergoing a 30

- day public notice process (as they would not be minor modifications, as explained above). However, the 2012 CGP does allow for collaboration between local municipalities and states to occur and notes that the permit construct allowed for the applicable states to establish permit conditions specific to their states, Indian Country lands, or territories as part of their Section 401 certification for the permit (Part 9). For the comment on regional programs, see discussion on QLP above. To the extent that the commenter was not referring to a QLP, EPA notes that nothing in the 2012 CGP precludes the establishment of other types of regional programs. No Discharge Certification EPA received comment suggesting that the Agency develop a “no discharge” certification program. Under the program, construction sites that do not discharge and receive certification that they do not discharge would not require coverage under the CGP. EPA has decided not to establish a “no discharge” certification program under the 2012 CGP. EPA notes that neither this permit nor CWA section 402 apply to construction sites without discharges of pollutants to waters of the U.S. See 40 CFR 122.26(a)(1)(v), (b)(14)(x), (b)(15)(i), and (b)(15)(ii) Single Lot Permit EPA received comment suggesting that the Agency develop a single lot permit that would authorize stormwater discharges from residential construction activities that occur on single lots. EPA recognizes the concerns raised by the commenter regarding the challenges faced by small developers or developers of small sites. EPA evaluated the possibility of doing a single lot permit. EPA determined that a single lot permit would not be significantly different in length or scope from the 2012 CGP permit, which was central to the commenter’s reasoning for this suggestion. One reason is that like the 2012 CGP, a single lot permit would also include the requirements included in the C&D rule. Another reason is that, like construction sites in general, single lots are made up of a diverse universe. For example, single lots may be located in wet clima tes or dry climates; they may or may not be around or adjacent to (i.e., within 50 feet of) surface waters; they may or may not discharge into impaired waters; and they may exist in flat areas or in steep areas. Given these circumstances, EPA believes it would be difficult to significantly simplify the permit or to develop a significantly shorter permit for single lots. However, EPA notes that the Agency has incorporated flexibility throughout the permit (see discussion on flexibility above). In addition, EPA plans to provide technical support including webcasts and guidance materials.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

126 Stabilization For comments on stabilization including comments on C

- factor, see response on stabilization in section 2 of this document. Linear Projects

For comments on linear projects, see Response 2.3.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

127 

### Comment Response Essay 14 Structure of the Permit
Response 14.1 Consistency of Requirements in Proposed Permit Several commenters raised concerns about the inconsistency of definitions and requirements in the proposed permit. The following specific issues were raised, to which EPA responds below:
Definitions – A few commenters raised general concerns about terms that were defined differently in the proposed permit than in the definitions in Appendix A. EPA found several inconsistencies between the permit and the Appendix A definitions, and has corrected these in the final permit. Sampling and reporting requirements – One commenter noted the redundant inclusion of sampling and reporting requirements in two different sections of the proposed permit (Part 3 and 4). These requirements have been removed from the permit, and therefore the comment is no longer applicable. No further response is required.
Stabilization deadlines – One commenter noted the confus ion of imposing different sets of deadlines on sites, one that applies generally , and then different ones that apply where the site discharges to an impaired water, where the project disturbs steep slopes or the buffer, or where stormwater conveyances are being built. EPA has attempted to simplify these requirements in the final permit. See Essay Response 2.28, 2.33 thru 2.39. Antidegradation and impaired waters requirements – One commenter noted the redundant references in Parts 4.2 and 4.2.3 of the proposed permit to the fact that EPA will inform the permittee if additional requirements are necessary. EPA notes the commenter’s concern, however, the Agency believes it is important to emphasize in both the impaired waters and antidegradation sections that additional requirements may be imposed on a case

- by

- case basis. This is especially important given the fact that the requirements for impaired waters and for Tier 2, 2.5, and 3 waters are written to apply to all sites discharging to such waters, and the fact that EPA believes that these additional requirements, together with the Part 2 technology

- based requirements and general Part 3 water quality

- based requirements, will be s ufficiently protective to achieve water quality standards. Where additional requirements are considered necessary for a specific site, EPA wants permittees to be on notice that the Agency may require compliance with such additional requirements or, alterna tively, that the operator may be required to apply for coverage under an individual permit. Water quality sampling and inspection requirements – One commenter noted the inconsistencies between the benchmark monitoring requirements and the inspection frequency requirements in the proposed permit. The commenter argued that because the requirements for inspecting the site during a rain event and those for taking samples both depend on precipitation, they should be consistent. EPA appreciates the comment. The benchmark monitoring requirements have been removed in the final permit, and therefore the comment is no longer applicable. No further respons e is required. Response 14.2 Permit Structure One commenter raised concerns about the readability of the permit given the organization of the permit in two “micro

- sublevel headings.” EPA appreciates the comment, and agrees with the commenter regarding th e importance of the permit readability. During permit finalization, EPA attempted to streamline the entire permit in response to comments with the hopeful result being that the permit is more readable. EPA believes that these modifications should address t he commenter’s concerns.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

128 

### Comment Response Essay 15 Environmental Assessment
Response 15.1 Environmental Assessment Notice to Prepare an Environmental Assessment (EA) EPA received comment through the scoping process pursuant to the National Environmental Policy Act (NEPA) regarding the environmental issues and reasonable alternatives related to the reissuance of the Construction General Permit (CGP) to be examined in an Environmental Assessment (EA). One commenter questioned the req uirement of conducting a NEPA review for the reissuance of the CGP and believes that the initiation of the scoping process should be delayed until the C&D ELG is finalized and incorporated into the CGP. The commenter also suggested EPA limit its review of environmental issues associated with construction site stormwater runoff to sediment only and requested that a modified CGP option be analyzed as an alternative. Another commenter requested the scope of analysis addressed in the EA include impacts to thre atened and endangered species, water quality including oceans and sea

- level rise and historic properties. Additionally, the commenter stated that “other (State) agencies requirements must be reviewed by EPA to its appropriateness in the contribution of wat er pollution”. EPA thanks both of the commenters for their comments and suggestions. EPA regulations (40 CFR 122.29(c)) specify that the issuance of a “new source” NPDES permit, such as the CGP, under Section 402 of the Clean Water Act (CWA) is considered a “federal action” that is subject to the National Environmental Policy Act (NEPA) and is subject to the review provisions set forth at 40 CFR Part 6. As a result, EPA must analyze, document and make public the potential direct, indirect, and cumulative environmental impacts that may arise from the reissuance of a CGP. EPA believes that the EA considered all reasonable alternatives to the proposed action, including a no action alternative. The EA was published in the Federal Register for a 30

- day public comment period on December 23, 2011 (76FR80366, Dec. 23, 2011). The scope of the EA was limited to the environmental resources that may be affected by the reissuance of the CGP, including impacts to threatened and endangered species, water quality and historic properties. EPA appreciates that there may be additional State protections beyond those provided by the CGP; however, EPA focused its EA on the potential impacts of the permit. Additionally, the scope of the EA was limited both geographically to those coverage areas specified in the CGP (i.e., in which EPA is the permitting authority for the stormwater general permit), and categorically to cover only new sources.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

129 

### Comment Response Essay 16 EPA Interaction with Stakeholders
Response 16.1 Process EPA received comments regarding the Agency’s interaction with the public and stakeholders. Commenters encouraged EPA to work closely with stakeholders during the comment review process. EPA agrees and notes that it worked closely with stakeholders throughout the development of the permit. Through this interaction, EPA became informed about areas of the permit that needed flexibility or were overly burdensome. EPA also took into consideration all of the significant comments on the proposed permit from the public and from stakeholders. This process helped EPA to develop a permit that EPA believes to be both environmentally protective and practicable for permittees. EPA greatly appreciates the input provided to Agency during the permit development proce ss. One commenter insisted that EPA develop the permit in a manner that is transparent, and based on sound science and reasoned decision

- making that accounts for economic and other factors. For the protection of small businesses and to limit excessive cos ts of federal regulatory requirements, the commenter urged EPA to allow for public participation in its decision

- making process. EPA believes that the process for developing this permit was indeed transparent and based on sound science and reasoned decisio n- making. As noted above, during the comment review period, EPA was very receptive to the concerns expressed by stakeholders and the public on the proposed permit. EPA took these concerns into consideration in developing its final permit. Also noted above, EPA met with stakeholders when requested to discuss permit provisions of concern and ideas for addressing the concerns. EPA was deliberately transparent in the information it relied on in developing its final permit language, and provides this information for each permit provision in the 2012 CGP in the permit fact sheet. Commenters also expressed public participation to be a critical component of the permitting program, and noted concern about the lack of a provision in the CGP that allows opportunities for public review and participation in the permit coverage process. EPA notes that the Agency will make available to the public Notices of Intent on its website, which the public can view prior to a permit applicant becomes covered under the permit. This will provide the public the opportunity to view the relevant information provided in the NOI about proposed stormwater discharges and to voice any concerns to EPA in advance of the discharge occurring. EPA believes has worked well in the past, and therefore EPA disagrees that there should be a specific provision in the CGP for a separate public comment process. EPA also notes that the permit includes a requirement that operators post a notice of permit coverage so that it is viewable from a public right

- of -w ay, and a provision that EPA provide access to portions of SWPPPs to the public upon request. A commenter also requested that permit applicants notify the applicable local government that an NOI has been filed. EPA disagrees with this suggestion. EPA does not believe it is the role of the Agency to require information to be provided to local governments. However, EPA notes that it may be a requirement that permit applicants also notify their local government about their proposed discharges in addition to EP A.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

130 

### Comment Response Essay 17 General Comments about Linear Construction
Response 17.1 Linear EPA received numerous comments that suggested that EPA provide more flexibility in the CGP for linear projects. Commenters asserted that the requ irements in the draft CGP are more applicable to conventional perimeter

- bound projects, and do not provide practicable guidelines for linear projects. The commenters suggested that due to differences between conventional construction and linear projects, some of the requirements in the permit are impracticable or infeasible. Some commenters expressed that the implementation of the impracticable provisions would be costly for linear communications projects, and provide little to no additional environmental b enefits to the existing effective stormwater management programs employed by linear projects. One commenter suggested that permit imposes disproportionate burdens on natural gas utility construction. Commenters pointed out the following differences betwee n linear projects and conventional construction projects that make it infeasible or impracticable to implement some of the erosion and sediment control requirements in the draft permit: Linear projects extend tens or hundreds of miles over different natural terrains, soil types, waterbodies and watersheds, regulatory boundaries, and numerous stormwater flow barriers. Unlike conventional construction, linear projects have uncontrolled perimeters. They have little or no capacity to control run

- on from off

- site sources or run

- off from the site, and an inability to isolate discharges from the disturbance itself. They also have many discharge points. Implementation of some permit requirements are beyond the control of linear utilities. Linear projects are constructed on narrow easements provided by multiple landowners, and operate alongside other permitted and non

- permitted entities doing road improvements in the same right

- of

- way, which make it difficult to comply with reporting and inspection requirement s that apply to conventional construction. Linear communication projects are often very narrow and have limited environmental impact. Impacts are often temporary, isolated, and disconnected, and only a small fraction of the total project is usually disturbed at any given time. Linear communications projects rarely involve fill. Therefore, there is limited potential to contribute to sediment loading. Impacts from linear communications projects are best controlled with BMPs appropriate for linear settings; there is little need for artificial stormwater controls. Installing erosion and sediment controls may be more disruptive than the project itself. Stormwater generally flows naturally over the landscape (i.e., isn’t channelized), and if flows are contaminated, they are subject to a best practices filtering method. One commenter suggested that EPA include the following language in the permit to provide flexibility for linear projects: “for utility projects disturbing a narrow corridor of earth, erosion controls need only be installed in areas of concentrated flow of stormwater runoff.” Some of the specific permit requirements that were pointed out as being difficult to comply with include requirements related to: Perimeter controls; Entry
and ex it points; Controlling peak flowrates and total stormwater volume;

Steep slopes;Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

131 Natural buffers or equivalent controls;
Sediment basins; Designating fueling areas; Monitoring discharges; Active treatment systems; and Minimizing exposure of stormwater to building materials and other construction site materials. EPA appreciates the comments provided about the differences between linear projects and conventional construction projects. In the final permit, EPA was responsive to concerns expressed about sp ecific proposed permit requirements. Specifically, EPA provided additional flexibility and eliminated proposed permit provisions in response to concerns expressed by commenters relating to the following proposed permit requirements:
Natural buffers and/or equivalent controls; Marking off sensitive areas; Additional requirements if steep slopes are disturbed; Minimize stream crossings; Required design factors;
Perimeter controls; and Soil Compaction, among others. For additional information regarding the flexibility provided to linear facilities regarding these erosion and sediment controls, see the comment response essay in Part 2. EPA also clarifies that certain provisions in the permit that were of concern to linear projects only apply if those stormwater controls are being installed. For example, the requirements regarding conveyance channels, sediment basins, and treatment chemicals only apply if the site chooses to implement these controls. EPA disagrees with the suggestion from some commente rs that EPA consider a different regulatory approach for linear projects, such as exempting certain types of linear projects from the permit, or developing an alternative permit approach, such as an NPDES General Permit for linear projects. EPA also disagr ees with the suggestion from a commenter that statewide permitting programs are appropriate for linear construction projects in lieu of the CGP. Although EPA recognizes linear projects have many differences that warrant different erosion and sediment control approaches than other types of construction projects, EPA believes that the CGP accounts for these differences by provided flexibility regarding the implementation of erosion and sediment control requirements in the permit. See comment response essay in Part 2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

132 

### Comment Response Essay 18 No Code, Supplemental Information
Response 18.1 No Code, Supplemental Information EPA appreciates the supplemental information (e.g., datasets, attachments) provided with the comments received. The supplemental information was informative for EPA to better understand the comments.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

133 

### Comment Response Essay 19 Cumulative Impact of CGP and other Regulations of Industry
Response 19.1 Cumulative Increase in Burden on Construction Industry

A number of commenters observed that the requirements in the proposed permit are burdensome and impracticable, and that the cumulative impact of the permit would be damaging to the construction industry, which is already impacted heavily by the recession. S everal of the commenters observed that the new and additive requirements would render the permit unusable. The commenters specifically mentioned provisions that were of greatest concerns, among which included the 30

- day waiting period, the requirement to install stormwater controls prior to construction disturbance, the numeric turbidity limit and related sampling requirements, the water quality benchmark monitoring requirements, among others. The commenter argued for a more streamlined permit, greater flex ibility, and less prescription in terms of the required stormwater controls. EPA is sensitive to the concerns of the commenters, and found these comments to be persuasive in many ways. In response, EPA has attempted in the final permit to address many of the cumulative burden issues raised by these concerns. The final permit is more streamlined than the proposed permit. In addition, several of the provisions of greatest concern were either removed or significantly modified in response to comments received. The following is a list of changes made, which EPA believes address the bulk of the commenters’ concerns: Authorization waiting period: EPA reduced the waiting period from the proposed 30 days to 14 days. EPA has also included additional flexibility for existing and new projects that will commence earth

- disturbing activities immediately after the permit is issued. Stormwater controls: EPA has modified a number of the proposed requirements relating to the design and installation of stormwater controls. These modifications provide greater flexibility to the operator. For instance, the requirement to stabilize all entrance and exit points for a minimum of 50 feet was replaced with a more flexible provision that requires sediment track

out onto off

- site stree ts and other paved areas to be minimized using appropriate stabilization techniques. See Part 2.1.2.3. Another example is the buffer provision, where the final permit includes additional flexibility for small lot construction and linear projects so that op erators can utilize mostly standard sediment and erosion control practices to achieve the buffer requirement. See Part 2.1.2.1.e.v. Still another example is the stabilization section of the permit, which has been modified to remove provisions related to me eting numeric C

- factor criteria for stabilization measures. For further discussion, refer to EPA’s response to comments related to Part 2.2.2 of the proposed permit. Requirement to install controls prior to disturbance: This requirement has been modified, in response to comments received, to focus on the installation of controls prior to each individual phase of disturbance rather than requiring their installation for all phases up front. Although it was not our intent to require the installation of stormwater controls for the entire project prior to construction even though a particular phase of the project will not commence for a significant period of time later, many commenters expressed concern about this issue, and EPA believed that a clarification was warranted. Additionally, EPA emphasized in the final permit (see Part 2.1.1.3) the fact that not all controls need to be installed at once for an individual phase of the project, but only those that are needed to control the initial discharge.
Numeric turbidity limit, monitoring provisions, and reporting requirements: EPA has removed the numeric turbidity limit and all related monitoring and reporting requirements from the final permit. This change was made as a result of the continuing work that EPA is conducting on recalculating a numeric turbidity limit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

134 Benchmark monitoring requirements: EPA has removed the benchmark monitoring requirements that were proposed for sites discharging to sediment and nutrient

- impaired waters. This change was made in re sponse to the numerous comments received. Refer to EPA’s response to comments related to Part 4.2.2 of the proposed permit. Permit streamlining: The final permit has been modified from proposal to streamline many of the sections of the permit, including most notably the water quality

- based effluent limit, inspection, corrective action, and training requirements. In conclusion, EPA believes that the modifications made to the final permit go a long way towards addressing the cumulative impacts of concern to the commenters. Response 19.2 Executive Order 13175 Consultation One commenter mistakenly submitted its tribal Clean Water Act Section 401 certification as a public comment. EPA has incorporated the requested conditions into Part 9 of the permit, along with other tribal requirements. No further response is necessary. Response 19.3 Executive Order 12866 Review One commenter raised the concern that there was no indication in the proposed permit that E.O. 12866 review was completed prior to proposal. EPA completed E.O. 12866 review for both the proposed and final permits. EPA has included documentation of the changes made in response to this review in the docket for this permit, and references the completion of this review in the final Federal Register notice. Response 19.4 Regulatory Flexibility Act Several commenters raised concerns about the apparent lack of cost

- benefit analysis associated with the Regulatory Flexibility Act (RFA) to support the proposed permit. EPA conducted an economic analysis in support of the proposed permit, which has been updated based on modifications in the final permit. The economic analysis is included in the administrative record for the final permit. The economic 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. In arriving at this conclusion, EPA used as its baseline data included in the C&D rule’s Economic An alysis of the Final Construction & Development Effluent Limitation Guidelines (November 23, 2009), Table 4-3 Baseline Firm Level Data by Revenue Range and NAICS Sector, page 4 -27. Response 19.5 Executive Order 13563 Several commenters challenged the adeq uacy of the proposed permit based on the lack of documentation demonstrating consistency with E.O. 13563. EPA performed an economic analysis of this general permit, including an examination of the economic impact this permit may have on the construction industry as a whole. This economic analysis is included in the docket for this permit. EPA concluded from its analysis that the issuance of this permit will not have a significant impact on the construction industry. In terms of evaluating alternatives to fi nalizing the general permit, EPA conducted an analysis as part of its Environmental Assessment for complying with the National Environmental Policy Act (NEPA), which is relevant to the comment. A copy of the Environmental Assessment is included as part of the docket for the final permit. Response 19.6 Compliance with 33 U.S.C. 1314(b)(1)(B)

Two commenters raised concerns regarding the proposed permit’s failure to account for the CWA Section 304(b)(1)(B) factors required in the establishment of Best Practicable Technologies Currently Available (BPT). This comment is not relevant to the issuance of the final permit. The BPT factors are required to be assessed when promulgating effluent limitation guidelines for point source categories. This analysis was completed during the promulgation of the C&D rule, andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

135 does not apply to the inclusion of the related BPT requirements (see 40 CFR 450.21 of the C&D rule) in an NPDES permit. EPA notes that it is required to implement the effluent limits in the C&D rule pursuant to CWA section 301 and 306, 33 U.S.C. 1311 and 1316, and 40 CFR 122.44(a)(1). No further response is necessary.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

136 

### Comment Response Essay 20 Duplicate Comments
Response 20.1 Duplicate EPA received comment letters that were duplicates of other letters, and portions of comment letters that were duplicates of other letters. EPA also received comment letters that incorporated others’ comments by reference. EPA notes that it has responded to all of the significant comments, but where comme nt letters and portions of comment letters were identified asRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

1

. How t o Obtain Permit Coverage under the
CGP

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

137 

# 1 HOW TO OBTAIN PERMIT COVERAGE UNDER THE CGP
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 1.1 APPLICABILITY OF THIS PERMIT

Comment ID 00 57

- A1.001.002

Author Name: Newlon Thornton Organization: Virginia Coal Association, Inc. (VCA) Issue Category: 1.1 As NMA points out, the draft General Permit for Stormwater Discharges from Construction Activities confirms that it is focuse d upon
the construction industry sectors classified as "Building, Developing and General Contracting" (NAICS Code 233) and "Heavy Construction" (NAICS Code 234). These construction sectors are part of the broader NAICS Code 23 for the Construction Sector. Mining is l isted under an entirely different NAICS Code, number 21. The draft also notes its close relationship to the pending rulemaking to establish numeric Effluent Limitations Guidelines ("ELG") for the new Construction and Development Point Source Category. See 76 Fed. Reg. at 22,885 (Apr. 25, 2011). Coal mining is not subject to the proposed Construction and Development Point Source Category, in part, because it is subject to its own longstanding effluent limitations (e.g., 40 C.F.R. Parts 434 (Coal Mining) and the specific mining sectors of the 2008 Multi

- Sector General Permit ("MSGP") for Storm Water Discharges from Industrial Activity.

For these reasons VCA requests that the draft be amended to clarify that coal mining will not be subject to the General Perm it for Stormwater Discharges from Construction Activities and the associated Construction and Development ELGs.

Response Refer to Response 1.1 and 1.3.



# Comment ID 0064

- A1.001.004

Author Name: Dees Richard Organization: City of Meridian Issue Category: 1.1 Section 1.1, page 1

- "You may submit a Notice of Intent (NOI) to be covered by this permit if..."

•One of the two key criteria that mandated Construction General Permit (CGP) coverage in the 2008 permit was disturbed acreag e of 1

or m ore acres AND discharging to waters of the United States. However, the new permit does not mention "discharging to waters of the U.S." as a key criterion. Has this been removed from Section 1.1 or is this simply an oversight in the draft language of the pe rmit?

Response Refer to Response 1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

138 

# Comment ID 0087

- A1.001.009

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.1 CGP Eligibility (Section 1.1) [FN 6]

The need and opportunity for coverage under the CGP is predicated on land "disturbance." However, disturbance is not defined in either the CGP or any of the relevant underlying stormwater regulations. UWAG asked EPA to include such a definition in the C &D Rule but, to date, EPA has not done so. Such a definiti on is vital to distinguishing between actual soil disturbance (which may lead to erosion and sedimentation if not properly controlled) and other activities on land that may disturb vegetation but not the soil itself (e.g., site preparation activities where vegetation is cut to ground level but stumps, root mats, and other cover are left in place). We submit that only soil disturbance is subject to permitting requirements, if above applicable acreage thresholds.

[FN 6] EPA should note in the eligibility section that no NPDES permit is required for construction activities that disturb less than one acre, and that special waivers are available for some "small construction" projects that disturb between one and five acres, in keeping with EPA stormwater regula tions at 40 C.F.R. Part 122.

Response Refer to Response 1.1. EPA has included information about waivers in Appendix C.



# Comment ID 0090

- A1.001.029

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 1.1 The Notice states that the Draft Permit will cover "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" that en ga ge in building, developing, contracting and heavy construction. [FN 10] EPA should exclude linear projects from "common plan" cover age or revise the definition to the extent that linear projects running on public or private ROWs will not be included as part of the traditional development construction site and thus are not required to follow the traditional development site' sediment plan . These changes reflect the reality that only those utility pipeline projects running within a larger "common plan" constr uction project will be able to follow the larger operation's sediment plan. The remainder of linear projects are instead installing some or all of the gas line contiguous to the construction area, in ROWs. The current definition of a "common plan" would fo rce this group of utilities into complying with a contiguous construction project's sediment plan, a compliance obligation that they simply cannot perform on their ROW excavation area. Further, these types of private ROW areas contiguous to a construction project site only run 5

- 10 feet wide

thus, the 1

- 5 acres requirement in the "common plan" definition is a misfit for linear pipeline projects. Linear construction projects involve a lengthy, narrow excavation on private and public property: each work day, only a small portion of the project area is excavated and then backfilled, rendering traditional sediment control and design requirements unworkable and ineffective for the purposes contemplated in the Draft Permit.

[FN 10] 76 F.R. 22883 (April 25, 2011)

.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

139 Response EPA notes that it is not within the scope of this action to exlude linear projects from "common plan" coverage or to revise t he regulatory definition. EPA defines "construction activity" at 40 CFR §122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i) to include disturbances that are part of a larger common plan of development or sale. Therefore, EPA disagrees with the suggestion to exclude linear projects from "common plan" coverage or to revise the regulatory definition. EPA notes the final CGP doe s not require utility pipeline projects running within a larger "common plan" to comply with a contiguous construction project's sediment plan. Whi le they operators of a common plan have the option to develop a group SWPPP (see Part 7.1.1 of the final CGP) , they are not required to. In fact, EPA clarifies in Part 1.1 that if an operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a subdivision), the operator is responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to the activities on their portion of the construction site. EPA notes that it recognizes the need for the permit to be flexible for linear projects. Refer to Response 17.



# Comment ID 0130

- A2.001.008

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 1.1 There is no longer a qualifier that links the requirement to obtain permit coverage to a discharge to a water of the United S tates. Is it

t he intent of the new permit that any construction project, regardless of whether it has the potential to discharge to waters of the United States, will require CGP coverage? If that is not the intent, why was this qualifier removed from the proposed permit ?

Response Refer to Response 1.1.



# 1.2 PERSON(S) RESPONSIBLE FOR OBTAINING PERMIT COVERAGE

Comment ID 0025

- A1.001.005
Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 1.2 Please add clarification as to where the owner fits into the definition of Primary Operator and Secondary Operator. For example, in Arizona the DOT is required to obtain coverage as the owner with control over specifications and plans; however, the DOT is n ot the primary operator (th e Contractor) or secondary operator (Contractor's sub

- contractors). Consider "Primary Operator/Owner" & "Secondary Operator" or "owner", "Primary Operator" & "Secondary Operator."

Response Refer to Response 1.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

140 

# Comment ID 0030

- A2.001.004

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 1.2 Section 1.2, page 1 In our field experience, not all operators should be held jointly and severally responsible. Permittees should be held solei responsible
fo r their permitted area. If there are multiple operators, they should be left to decide if a current permittee wants secondary operators to work under their permits or if operators associated with a common plan of development have to pull their own separate permits. The
2008 CGP language allows the owners and operators to decide who should be the permittees and allows secondary operators to be covered under the permit with permission from the permittee. The proposed 2011 CGP language relies on defining an operator as someone with operational control at a site, and we believe some operators have limited capacity to influence operational control over a large development and therefore should not assume joint liability. Clarification needs to be provided on who needs to apply as co

permittees and if operators with operational control can opt out of applying as co

- permittees and can apply separately when they are part of a common plan of development.

Response Refer to Response 1.2. EPA also notes that it does n ot require, where there are multiple operators on a site, for all operators to "apply

as co

- permittees." Where there are multiple operators on a site, operators may consider themselves to be co

- permittees, but it is not required by EPA. EPA clarifies that when there are multiple permittees, all permittees are responsible for applying for permit coverage. EPA provides clarity regarding permit compliance responsibilities where there are multiple operators on a site in Part 1.1 of the final CGP: "Where there are multiple operators associated with the same project, all operators are required to obtain permit coverage. If an operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a subdivision), t he operator i s responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to the activities on their portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation of control measures described in the SWPPP in the areas under their control. You must ensure either directly or through coord ination with other permittees, that your activities do not render another party’s pollutant discharge controls ineffective."



# Comment ID 0047

- A2.001.001

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 1.2 Section 1.2, page 1

The 2008 CGP language allows the owners and operators to decide who should be the permittees and allows secondary operators to be covered under the permit with permission from the permittee. The proposed 2011 CGP language defines an operator as someone wi th operational control at a site. Not all operators on a project have the same level of impact on a project and therefore should not be held jointly and severally responsible. If there are multiple operators, the project should decide if secondary operators should w ork under primary operator's permits or if associated with a larger common plan of development does it make more sense for secondary operators to pull their own separate permit. Primary verses secondary is getting too complicated and Xcel Energy recommends that the la nguage from the 2008 CGP remain the same in the new permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

141 Response Refer to Respo nse 1.2.



# Comment ID 0064

- A1.001.005

Author Name: Dees Richard Organization: City of Meridian Issue Category: 1.2 Section 1.2, page 1 - "Secondary operator - for a construction project that has..."

•What is the purpose of designating someone a secondary operator? Is the secondary operator any more or less responsible than a subcontractor performing work on the project?

Response Refer to Response 1.2.



# Comment ID 0066

- A1.001.004

Author Name: Saenz Amadeo Organization: Texas Department of Tran sportation (TxDOT) Issue Category: 1.2 EPA proposes to, where there are multiple operators at a single site, distinguish between "primary operators" and "secondary operators" based on the point in time at which coverage under the CGP is obtained (i.e., "primary operators" are operators who seek coverage under the CGP for work in an area for which no other operator has already obtained coverage, whereas "secondary oper ators" are operators who seek coverage under the CGP for work in an area for which another operator has already obtained coverage). It appears that the only purposes for this distinction are to, as explained in Parts 1.5.3 and 1.5.4, allow "secondary operators " to (1) file their NOls later in time as compared to "primary operators" (7 days prior to commencing earth

- disturbing activities, versus 30 days prior to commencing earth

- disturbing activities), and (2) be authorized by the CGP sooner after EPA's acknowledgment of NOI receipt as compared to "primary operators" (7 days after acknowledgment versus 30 days after acknowledgment).

While TxDOT is not opposed to the differences in timing of NOI filing and authorization under the CGP afforded "primary opera tors" and "secondary operators," TxDOT is opposed to using the terms, "primary operators" and "secondary operators," to categorize operators based on the order in which they seek authorization for work at a given site. The terms may be construed to imply t hat "primary operators" have more substantive responsibilities or potential liabilities t han do "secondary operators," which is not the case. TxDOT recommends that EPA simply make the timing distinctions at Parts 1.5.3 and 1.5.4 without using the terms "primary operators" and "secondary operators," and remove reference to those terms from thro ughout the draft permit.

Response Refer to Response 1.2 and 1.6.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

142 

# Comment ID 0068

- A1.001.006

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.2 Beyond defining "operator," there is no reason to further complicate permitting matters by creating a system in which multiple parties will be held potentially responsible for a single discharge. Liability under the CWA applies to the "owner and operator" and is joint and several. EPA should allow the various parties operating at a site covered by a permit to determine overall NPDES permit compliance responsibilities through their construction contracting practices, which will be made clear by the NOI filing. If EPA identif ies a permit violation, it should assert liability against the party filing the NOI. By creating a primary and secondary "co

- permittee" and potentially creating multiple permittees for a single discharge, EPA is confusing the NPDES permitting process and creating more levels o f potential liability for "operators" than intended by the CWA and potentially conflicting with normal contracting practices. EPA should allow maximum flexibility regarding whether multiple parties want to become co

- permittees or ensure an alternative compliance

strat egies, as long as all regulated discharges are permitted.

Response Refer to Response 1.2.



# Comment ID 0068

- A1.001.007

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.2 EPA also should clarify that it does not intend "subcontractors" to obtain permits. As EPA stated in its Stormwater Question and Answer
Guidance:
28. What are the responsibilities of subcontractors at the construction site under EPA's storm water construction general per mits?

A. EPA storm water construction general permits require subcontractors to implement the measures stated in the pollution prevention plan and to certify that he/she understands the terms and conditions of the permit requirements. Under EPA's general permits,
subco ntractors are not required to submit NOIs.

(NPDES Storm Water Program Question And Answer Document Volume II; USEPA B33 -F- 93

- 002B; July 1993; at 11).

Response Refer to Response 1.2.



# Comment ID 0068

- A1.001.008

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

143 EPA also should specifically exempt from CGP requirements those parties that have individual NPDES permits that include appropriate sediment and erosion control obligations, whether in the form of non

- numeric or numeric effluent limitations for sediment

related discharges. Many individual permittees collect stormwater as well as process water and treat all of that water throug h BMPs or advanced treatment devices (of combination thereof) . If discharges from any ongoing construction activities is captured and also becomes subject to the effluent limits set forth in and contemplated in the development of the individual permit, such person s overseeing such activities should not have to obtai n separate CGP coverage.

Response EPA notes that the permit excludes parties that are already covered by a different NPDES permit for the same discharge. See P art 1.1.d.i of the final permit.



# Comment ID 0087

- A1.001.014

Author Name: Smith Brooks Organiz ation: Utility Water Act Group (UWAG) Issue Category: 1.2 Section 1.2 of the CGP imposes joint and several liability for compliance on all parties involved in the construction project , regardless of their respective roles and responsibilities. This is contrary to EPA's long

- standing approach of looking to the party most directly responsible for the permitted activity. See, e.g., 40 C.F.R. § 122.21(b) ("When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit"). As proposed, Section 1.2 could lead to inequitable results, e.g., the joint and several liability of a secondary permit holder who did not have control over operations at the site. This is particularly true of linear utility projects, which are usually constructed on easements and where, consequently, landowners are typically not involved in the construction project.

Response Refer to Response 1.2.



# Comment ID 0089

- A1.001.001

Author Name: Keenum Michael Organization: City of Lubbock Issue Category: 1.2 Section 1.2 Person(s) Responsible for Obtaining Permit Coverage defmes the terms operator and further defines primary and sec ondary operators. However, it is unclear as to which category a municipality would fall for a project that is constructed by a third party contractor yet financed by that municipality.

It seems that the way the rules are written that potentially every project administered by a municipality should have at leas t two NOr's. If we as a municipality have the "right" to initiate changes to plans and specifications, then by definition that would make us an operator and most likely a primary operator (and not secondary operator). At the same time, if the general contractor has day

- to

- day operational control then that would make him a primary operator as well. Is that a correct interpretation of the rules and the intent? I cannot think of many instances at all of a "tum

- key" operation where the owner would not have the "right" to initiate changes if he so desired. It may not be the "intent" to make changes, but the reality is that changes do occur out of necessity.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

144 Ultimately, this interpretation would mean that a municipality is essentially paying for NO[ fee twice because the general co ntractor will bill his fee back to the owner. Please clarifY the intent of the operator and how it is supposed to be applied to municipalities

.

Response With regard to the comment on primary and secondary operators, Refer to Response 1.2. With regard to the comment sugge sting that every project should have at least two NOIs be submitted, EPA clarifies that only the parties meeting the definition of opera tor, as defined in Part 1.1.a are required to obtain permit coverage. EPA notes that there is no fee for operators apply ing for coverage under
EPA's CGP.



# Comment ID 0093

- A2.001.021

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.2 AGC notes that the definition of "operator" in this part is different from the definition of "operator" provided in Appendix A on page
A- 8. AGC prefers the definition in Appendix A because it adds the phrase: "The party possesses the title of the land where the construction activity will take place ..." in the first part of the definit ion, as shown below.

"Operator" - for the purpose of this permit and in the context of stormwater associated with construction activity, any party associated with a construction project that meets either of the following two criteria:

1.The party posse sses the title of the land where the construction activity will take place and has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or

2.The party has day

- to

- da y operational control of those activities at a project which are necessary to ensure compliance with a SWPPP for the site or other permit conditions (e.g., they are authorized to direct workers at a site to carry out activities requir ed by the SWPPP or comply with other permit conditions)... (emphasis added).
The extra language in Part 1 helps to clarify that the property owner has responsibility for obtaining permit coverage.

Of concern, however, is that Appendix A (as currently drafted) goes on to state: "This definition is provided to inform permittees of EPA's interpretation of how the regulatory definitions of ‘owner or operator' and ‘facility or activity' are applied to disch arges of stormwater associated with construction activity." AGC finds this sen tence to be completely misplaced and confusing. The
above

- referenced definition does not help permitees understand the role of the owner or how that term varies from "operator" or whether the two terms are to be considered one and the same for purposes of determining who is to obtain permit coverage. AGC
recommends that EPA delete this sentence.

AGC also requests that EPA clarify where the owner fits into the newly

- proposed definitions of "primary operator" and "secondary operator."

In addition, AGC asks that EPA clarify that it does not intend for "subcontractors" to obtain permits. As EPA stated in its Stormwater Question and Answer Guidance:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

145 28. What are the responsibilities of subcontractors at the construction site under EPA's storm water construction general permits?

A. EPA storm water construction general permits require subcontractors to implement the measures stated in the pollution prev ention plan and to certify that he/she understands the terms and conditions of the permit requireme nts. Under EPA's general permits, subcontractors are not required to submit NOIs. See NPDES Storm Water Program Question And Answer Document Volume II;
USEPA B33 -F- 93

- 002B; July 1993; at 11.

To avoid the sort of confusion called out above - which has pla gued the construction and development industry since the introduction of the construction stormwater permit program - AGC recommends that EPA specifically reference in Part 1.2 of the permit all of the parties to the construction process that EPA seeks to require to obtain permit coverage. Beyond that (and throughout the entire permit) EPA should clearly identify the exact party(ies) who are responsible for compliance with each specific part of the permit. For example,
see AGC's comments below on Draft CGP Part 8.1.2, Person(s) Responsible for Developing SWPPP. To this end, AGC continues to be concerned by the fact that there is no reference anywhere in the Draft to the architect, designer or professional engineer , all of whom clearly play key roles in contr olling construction site stormwater runoff on any given project.

Response Refer to Response 1.2. In addition, EPA appreciates the comment on the definition of "operator" in Appendix A. However, EPA n otes that it has received comments that disagree that t he "operator" should be the party that possesses title of the land because those holding title to the land will not always be the entities in control of the plans and specifications. EPA agrees that this definition could cause confusion, and therefore, EPA has retained the definition of "operator" that was included in the permit body.



# Comment ID 0096

- A1.001.020

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.2 Under EPA’s proposed framework, the developer remains the owner of a subdivision for as long as the individual lot builders/owners are still operating. As often occurs in the home building industry, a developer initiates the development of a subdivision, a nd then sells
off individual lots to home builders to construct single

- family homes on each lot. Typically, the developer and the home builder do not have any continuing business relationship after the initial purchase and sale. Considering the nature of these transactions, it is
unrealistic and v ery problematic for EPA to expect the developer (or a single lot owner) to shoulder all responsibilities under the permit even after the developer’s activities on the development property cease.

NAHB is unaware of any other industry where EPA holds multi ple permit holders responsible for an infraction by a single permit holder. EPA must allow for the transfer of stormwater responsibilities to new owners, builders, and contractors after the dev eloper finishes his work at the development property. The origi nal developer should not be held responsible for any NPDES Construction Stormwater Permit requirements placed on new permit holders. EPA’s provision to hold multiple operators responsible under a s ingle permit for the same property is bound to cause unnece ssary confusion and litigation, is unlikely to enhance compliance, and appears beyond EPA’s authority under the Clean Water Act.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

146 Response Refer to Response 1.2. In addition, EPA notes that Part 1.1 of the final permit clarifies that where there are mult iple operators associated with one site, if an operator only has operational control over a portion of a larger project (e.g., one of four h omebuilders in a subdivision), the operator is responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to the activities on their portion of the construction site. EPA also notes that Part 8.2.2 of the final permit provi des that where an operator has transferred control of all areas of the site for which they ar e responsible under this permit to another operator, and that operator has submitted an NOI and obtained coverage under this permit, the operator may terminate permit coverage (for example, a developer can pass permit responsibility for lots in a subdivisi on to the homebuilder who purchases those lots, providing the homebuilder has filed his or her own NOI). EPA believes that these clarifications address the comment.



# Comment ID 0096

- A1.001.021

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.2 The proposed CGP considers all operators within a particular construction and development project co

- permittees and holds all of them jointly and severally responsible for compliance with the permit in part 1.2 of the pe rmit. NAHB urges EPA to retain the language in
the 2008 CGP section 5.12 C. Requiring multiple businesses to obtain one permit and then holding them joint and several liable is impractical, inconsistent with the way the agency treats other industries and f undamentally unfair. By way of example, a developer who owns a 100 acre parcel contracts with four separate builders, each of which would separately construct homes on separate 25 acre parcels on individualized schedules. Under this scenario and the propos ed CGP definitions, the developer would be considered an operator, as the developer owns the 100 acre parcel and (under EPA’s theory) has operational control over the construction plan for the entire 100 acre parcel. As operator is defined in Appendix A of the CGP, an operator may be the“party [that] possesses the title of the land where the construction activity will take place and has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications.”

However, each of the builders would also be considered an operator, as each builder would both have operational control over the construction plans and specifications for the individual homes to be constructed on the smaller parcels within the 25 acres, and would also be considered to have day

- to

- day operational control of the activities at a project that are necessary to ensure compliance with the permit conditions in section 1.2. Based on the proposed CGP’s provisions for joint and several liability, NAHB is concerned that the developer and all of the builders would be considered liable for any violation of the terms of the proposed CGP on any portio n of the larger 100 acre parcel even though they lack control over the operations oc curring on the other 75 acres, and do not have a direct contractual relationship. In NAHB’s view, the addition of joint and several liability to the proposed CGP in this regard is i mpractical, inappropriate and should be removed.

The addition of joint and several liability provisions is problematic because it is contrary to applicable law. Joint and several liability is not expressly authorized under the Clean Water Act.[FN 35] Section 301 states that “the discharge of any pollutant by any per son shall
be unlawful.” [FN 36] A “discharge of a pollutant” is “any addition of any pollutant to navigable waters from any point source.” [FN 37] A “point source” is any discernible, confined and discrete conveyance, including butRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

147 not limited to any pipe, ditch, chan nel, tunnel, conduit . . . from which pollutants are or may be discharged.” [FN 38] Every operator at a construction site will not have control over every discharge and every point source at a construction site. Thus, it is in appropriate to impose joint a nd several liability; it is inconsistent with the Act and fundamentally unfair.

Moreover, the implementing regulations for NPDES permits expressly provide for segregation of responsibility to comply with a permit’s requirements as between a facility’s ow ner and its operator. In the case of an individual NPDES permit: "when a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit."[FN 39] The implementing regulations for general permits additionally provide that a discharger’s filing of a Notice of Intent fulfills the duty to obtain a permit. [FN 40]

While the Proposed CGP would require only “operators,” as defined in the Proposed CGP, to obtain permit coverage, the definition of operator could be so broadly construed as to include owners as well (as in the case of a developer as discussed above), who a re not required to obtain permit coverage under the NPDES regulations described above. [FN 41] The Proposed CGP’s expansive definit ion of an operator, such that it would include the developer

- owner of a development project, and then hold that developer

- owner jointly and severally responsible for the actions of other operators on the property owned, is contrary to the NPDES’ implementi ng regulations
and the Clean Water Act.

Even under the CWA, due process considerations require that there be causation between the discharge by a permittee and a vio lation of the permit. [FN 42] There are federal pollution laws pursuant to which joint and several liability for polluters has been upheld. For example, the scope of liability in a cost recovery action under § 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) is said to be strict, joint, and se veral - unless the harm is divisible. [FN 43] However, potentially responsible parties will not be held jointly and severally liable where a defendant can show that the harm at issue is capabl e of apportionment and provide sufficient evidence for the court to allow it to apportion liability. [FN 44] Here, EPA is trying to impose joint and several liability without a congressional mandate and without the protections (such as apportionment) provided in statutes where Congress intended to impose joint and seve ral liability.

Under the proposed CGP and its definition of operators, an operator could be liable for violations resulting from the non

- compliance of other operators on a large development project even where the cause of the violation is readily apparen t and limited to one of several operators. As violations of the requirements of the proposed CGP will be easily attributable to particular acreage under deve lopment, assigning joint and several liability is unnecessary and is contrary the Clean Water Act a nd the legal requirement of causation
discussed above.

[FN 35] If Congress had intended to create a joint and several liability scheme, it knows how to do so. See e.g., Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 960 7. [FN 36] 33 U.S.C. § 1311(a). [FN 37] Id. at § 1362(12). [FN 38] Id. at § 1362(14). [FN 39] 40 CFR 122.21(b) [FN 40] 40 CFR 122.28(b)(2)). [FN 41] For this reason, the definition of “operator” in Appendix A, which discusses a party’s possession of the title to land where a construction activity will take place, is also inappropriate under the CWA.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

148 [FN 42] See Appalachian Power Co. v. Train (4th Cir. 1976) 545 F.2d 1351, 1377 (It is beyond EPA’s authority to require permittees to treat and reduce polluta nts other than those added by each individual point source’s process); American Iron and Steel Institute v. EPA (3d Cir. 1975) 526 F.2d 1027, 1055

- 1056 (individual point sources entitled to adjustment in effluent where inability to meet limitation is due t o significant background pollutants); and see Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995) 515 U.S. 687, 712 (O’Connor concurring) (Under ESA, “In the absence of congressional abrogation of traditional principles of causation,, th en, private parties should be held liable... only if their habitat

- modifying actions proximately cause death or injury to protected animals”) (emphasis added). [FN 43] See U.S. v. Burlington Northern & Santa Fe Ry. Co., 520 F.3d 918, 934 (9th Cir.2008) (citi ng Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002) and Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 871 (9th Cir.2001)). [FN 44] See Burlington Northern & Santa Fe Ry. Co., 520 F.3d at 942 (9th Cir.2008); Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir.2001) [Once liability is established, the defendant may avoid joint and several liability by establishing that it caused only a divisible portion of the harm].

Response Refer to Response 1.2.



# Comment ID 0098

- A1.001.001

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.2
The definition of "operator" that appears in the 2008 CGP is a definition that has been used for several permit cycles. It is well understood by the regulated community and, because of that, it is generally well understood who must obtain a permit in states where EPA is the permitting authority. We believe that the new permit should retain this definition, both because it functions well and
because a change could unnecessarily throw a settled and important issue into confusion. We would ask that the Agency clarify that the new concepts of "primary" and "secondary" permittees do not alter the fundamental definition of "operator."

Response
Refer to Re sponse 1.2.



# Comment ID 0100

- A2.001.003

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 1.2 The USEPA should define role of the "owner" as well as its responsibility.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

149 Response EPA clarifies in the final permit fact sheet that the party that meets the first part of the definition of "operator" (the party has operational control over construction plans and specifications, including the ability to make modifications to those plans an d specifications) i n most cases will be the owner of the site. See Part VI.1. If an "owner" meets this definition, then EPA clarifies that they are required to obtain permit coverage.



# Comment ID 0103

- A3.001.004

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 1.2 In Part 1.2, Persons responsible for obtaining permit coverage, EPA provides separate NOI requirements for "primary operators " and "secondary operators." It appears that most landowners who are operators would be considered "primary operators," while all other persons meeting the definition of "operator" at a regulated construction site would be considered "secondary operators," and have slightly different requirements. For instance, "secondary operators" would have provisional coverage within seven days while "primary operators" would have coverage in 30 days. "Primary operators" would be responsible for SWPPP implementation.

TCEQ recommends that EPA clarify that individual landowners, who tend to have l imited operational control at their sites, would not be considered primary operators and would not be required to submit a NOI nor be responsible for SWPPP implementation. This would be consistent with TPDES Construction General Permit (CGP), TXR150000, wh ich also includes the terms "primary operator" and "secondary operator," however, they are used quite differently. In the current TPDES permit, which was issued March 2008, a landowner may be a secondary operator due to having very limited operational cont rol at the site; while most operators under the TPDES CGP are considered "primary operators."

Response Refer to Response 1.2. EPA clarifies that all parties meeting the definition of "operator" are required to submit an NOI, and that if the owner meets the definition of operator, then they will be required to be covered under the permit.



# Comment ID 0128

- A2.001.002

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 1.2 Beyond defining "operator," there is no reason to further complicate permitting matters by creating a system in which multiple parties will be held potentially responsible for a single discharge. Liability under the CWA applies to the "owner and operator" and is joint and
several. EPA should allow the va rious parties operating at a site covered by a permit to determine overall NPDES permit compliance responsibilities through their construction contracting practices, which will be made clear by the NOI filing. If EPA identif ies a permit violation, it shoul d assert liability against the party filing the NOI. By creating a primary and secondary "co

- permittee" and potentially creating multiple permittees for a single discharge, EPA is confusing the NPDES permitting process and creating more levels o f potential liability for "operators" than intended by the CWA and potentially conflicting with normal contracting practices. EPA should allow maximum flexibility regarding whether multiple parties want to become co

- permittees or ensure an alternative compliance strategies, as long as all regulated discharges are permitted.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

150 EPA also should clarify that it does not intend "subcontractors" to obtain permits as expressly indicated in its "NPDES Storm Water Program Question And Answer Document Volume II; USEPA B33 -F-93- 002B; July 1993; at 11, Question #28".

Response Refer to Response 1.2.



# Comment ID 0130

- A2.001.009

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 1.2
8. OPERATORS. Part 1.2. We believe the contractor should be the sole operator, responsible for temporary controls, within specified parameters. The contractor has day

- to

- day control over phasing, construction methods, SWPPP implementation, and BMP maintenance. The option to have the Contractor as sole ope rator is available in many state permits. Requiring both DOT‟s and Contractors to obtain permit coverage as operators forces DOTs into a pseudo regulatory role over contractors on projects. In Part 1.2 the Secondary Operator requirement is ambiguous and redundant. The prime contractor, by definition, is the responsible party. EPA echoes this responsibility in Part 1.2.2. Managing the NOI‟s and NOT‟s of secondary operators (subcontractors) will become a complex contract administration issue for the state, although the task would be more feasible if the Prime Contractor were the sole operator.

Response Refer to Response 1.2.



# Comment ID 0131

- A1.001.001

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 1.2
The Proposed CGP, unlike the 2008 CGP, considers all operators within a particular construction and development project co

permittees and holds all of them jointly and severally responsible for compliance with the permit. Proposed CGP, § 1.2; see F act Sheet

at 16

- 17. While the Proposed CGP largely maintains the same definition of an operator for the purposes of designating who must obtain permit coverage, the proposed permit adds joint and several responsibility for compliance.

Section 1.2 provides in relevant part:
For the purposes of this permit, an "operator" is any party associated with a construction project that meets either of the f ollowing two
criteria:

1. The party has operational control over construction plans and specifications, including the abil ity to make modifications to those plans and specifications; orRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

151 2. The party has day

- to

- day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct worke rs at a site to carry out activities required by the permit)."

Section 1.2 then explains that all "operators" associated with the same parcel will be jointly and severally responsible for permit compliance associated with the project:

Where there are multiple operators associated with the same project, all operators are required to obtain permit coverage. Once covered by a permit, all such operators are to be considered as co

- permittees if their involvement in the construction activities affects the same project site, and are held jointly and severally responsible for complying with the permit. In contrast, the 2008 CGP provi ded at § 5.12.C. If you have operational control over only a portion of a larger project (e.g., one of four homebuilders in a subdi vision), you are responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to your activities on your portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation
of control measures described in the SWPPP.

LBA respectfully submits that this language from the 2008 CGP should be retained.
The change is concerning to LBA and its members for two reasons. First, given the manner in which LBA and its members frequently undertake construction and development projects that would be subject to the requirements of the Proposed CGP, the proposed c hange to joint and several liability is impractical and fundamentally unfair. By way of example, a developer who owns a 100 acre parcel often contracts with four separate builders, each of whom would separately construct homes on separate 25 acre parcels utilizing se parate, individualized schedules. Under this scenario and the Proposed CG P definitions, the developer would be considered an operator, as the developer owns the 100 acre parcel and theoretically has operational control over the construction plan for the entire 100 acre parcel.
The definition of an operator in Appendix A provide s that an operator may be the "party [that] possesses the title of the land where the construction activity will take place and has operational control over construction plans and specifications, including the a bility to make modifications to those plans a nd specifications." Proposed CGP, Appendix A, at A

- 8. That definition is not consistent with industry practice, however, because the owner may not have operational control over construction plans and specifications in each separate 25 acre parcel. In contrast, each of the builders would also be considered an operator, and actually has both have operational control over the construction plans and specifications for the individual homes to be constructed on the smaller parcels with in the 25 acres, and also has actual day

- to

- day operational control of the activities at a project and would be the only ones in a position to ensure compliance with permit conditions only on that builder's individual 25 acre site. Proposed CGP, § 1.2. Based on the Proposed CGP's

pro visions for joint and several liability, LBA is concerned that the developer and all of the builders would be considered liab le for any violation of the terms of the Proposed CGP on any portion of the larger 100 acre parcel even though the owner does not h ave operational control over construction on the entire parcel, and each individual builder lacks control over the operations occ urring on the other 75 acres, and does not have a direct contractual relationship with any of the other builders. In LBA's view , the addition of joint and several liability to the Proposed CGP in this regard is impractical, inappropriate, and should be removed.

Second, the addition of joint and several liability provisions is problematic because it is contrary to applicable law. Nowhere does the Clean Water Act provide for joint and several liability for violation of an NPDES permit. On the contrary, the implementing regulations for NPDES permits expressly provide for segregation of responsibility to comply with a permit's requir ements as between a facility's owner and its operator. In the case of an individual NPDES permit:

"when a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit." 40 CFR 122.21(b).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

152 The implementing regulations for general permits additionally provide that a discharger's filing of a Notice of Intent fulfills t he duty to obtain a permit. 40 CFR 122.28(b)(2)).

While the Proposed CGP would require only "operators," as defined in the Proposed CGP, to obtain permit coverage, the definition of operator could be broadly construed to include owners as well (as in the case of a developer in the hypothetical discussed ab ove), who are not required to obtain permit coverage under the NPDES reg ulations described above..[FN 1]

The Proposed CGP's expansive definition of an operator, such that it would include the developer

- owner of a development project, and then hold that developer

- owner jointly and severally responsible for the actions of operators on the property owned, is contrary to the NPDES' implementing regulations.

Even for strict liability statutes such as the Clean Water Act, due process considerations require that there be causation be tween the discharge by a permittee and a violation of the permit. See Appalachian Power Co. v. Train (4th Cir. 1976) 545 F.2d 1351, 1377 (It is beyond EPA's authority to require permittees to treat and reduce pollutants other than those added by each individual point s ource's process); American Iron and S teel Institute v. EPA (3d Cir. 1975) 526 F.2d 1027, 1055

- 1056 (individual point sources entitled to adjustment in effluent where inability to meet limitation is due to significant background pollutants); and see Babbitt v. Sw eet Home Chapter of Communities for a Great Oregon (1995) 515 U.S. 687, 712 (O'Connor concurring) (Under ESA, "In the absence of congressional abrogation of traditional principles of causation,, then, private parties should be held liable... only if their habitat

modifying actions proxima tely cause death or injury to protected animals") (emphasis added).

Concepts from other statutes governing pollution control have been imported into the Clean Water Act previously, but that has been done by Congress in statutes. See, e.g., NRDC v. EPA (D. C. Cir. 1987) 822 F.2d 104, 116 fn. 13 (Congress borrowed "standards of performance" from the Clean Air Act and imported into Clean Water Act). Here, it appears that EPA is doing the same thing by creating joint and several liability. There are federal pol lution laws under which joint and several liability for polluters has been upheld. For example, the scope of liability in a cost recovery action under § 107(a) of the Comprehensive Environmental Respo nse, Compensation and Liability Act of 1980 (CERCLA) is said to be strict, joint, and several - unless the harm is divisible. See U.S. v. Burlington Northern & Santa Fe Ry. Co., 520 F.3d 918, 934 (9th Cir.2008) (citing Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002) and Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 871 (9th Cir.2001)).) However, potentially responsible parties will not be held jointly and severally liable where a defendant can show that the harm at issue is capabl e of apportionment and provide sufficient evid ence for the court to allow it to apportion liability. See Burlington Northern & Santa Fe Ry. Co., 520 F.3d at 942 (9th Cir.2008); Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir.2001) [Once liability i s established, the defendant may avoi d joint and several liability by establishing that it caused only a divisible portion of the harm].

Under the Proposed CGP and its definition of operators, an operator could be liable for violations resulting from the non

- compliance of other operators on a large development project even where the cause of the violation is readily apparent and limited to one of several operators. As violations of the requirements of the Proposed CGP will be easily attributable to particular acreage under deve lopment, assig ning joint and several liability is unnecessary and is contrary to the policy rationale expressed in the CERCLA case law and the legal requirement of causation applicable to the Clean Water Act.

In addition, the joint and several liability requirement ha s left the NEL compliance obligation in section 3.1.1 unclear. Based on Proposed CGP section 1.2, described above, Proposed CGP section 3.1.1's requirement of compliance with the turbidity NEL - should it be in place at the time the Proposed CGP is finaliz ed - is unclear. Section 3.1.1 requires compliance with the turbidity NEL based on the number of acres disturbed at one time. Proposed CGP, § 3.1.1. Between August 1, 2011 and February 1, 2014, if more than 2 0 acres are disturbed at one time, a permittee's discharges will be subject to the turbidity NEL. On or after February 2, 2014, theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

153 threshold for compliance with the turbidity NEL decreases to 10 acres. Id. Based on section 1.2's requirement that all operat ors, as defined, be co

- permittees and based on the manner in which many LBA members' construction and development projects proceed, it is unclear how the thresholds for compliance will be calculated when different portions of a larger acreage under common ownership are under construction by different o perators. Consistent with LBA's proposal to remove the joint and several liability provision from the Proposed CGP, LBA proposes that the compliance threshold be evaluated based strictly on the acreage under construction by the operator who is individually and separately developing specified parcels under its control.

In summary, LBA urges EPA to remove the joint and several responsibility provisions included in section 1.2 of the Proposed C GP. Such removal is consistent with the provisions of the CWA and the policy pursuant to which responsibility for environmental compliance is allocated based on easily identifiable actions. LBA proposes that the designation of responsibility for CGP com pliance remain as is required under the 2008 CGP - on an operator

- by operator basis. See, e.g., 2008 CGP at § 5.12.C. ["If you have operational control over only a portion of a larger project (e.g., one of four homebuilders in a subdivision), you are respon sible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to your activities on your portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation of control measures described in the SWPPP."]. This approach makes clear what each operator's responsibility is and makes clear for EPA which operator is responsible for any permit violations.

[FN 1] This is additionally the case, as the definition of an operator in Appendix "A" of the Proposed CGP - which differs significantlyfrom that in Part 1.2 - includes the concept of "title to the land." Proposed CGP, Appendix "A". Adding a "title to the land component" to the permit confuses the issue of who qualifies as the operator since, ,as described herei n, those holding title to the land will not always be the entities in control of the plans and specifications. For example, there will be instances where long t erm lessees or utility companies with easements will be the entities with control over the plans and specifications. For this reason, the definition of "operator" in Appendix A, which discusses a party's possession of the title to land where a construction activity will take p lace, is also inappropriate under the Clean Water Act. Consistent with LBA' s recommendation that the present CGP's language in section 5.12.C. regarding the compliance responsibility of an operator with operational control over only a portion of a larger project be re vised, LBA submits that the definitions of operator in section 1.2 and Appendix A be made consistent with EPA's regulations, and that title to land be omitted from the definition of operator in Appendix A.

Response Refer to Response 1.2 and 3.3.



# Comment ID 0133

- A2.001.004

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 1.2 As specified in 40 CFR 122.21 , when a facility or activity is owned by one person, but operated by another, it is the operator's duty to obtain an NPDES permit. While MDT agrees that it is use ful to further define "operator" within the cap, MDT is concerned with both the proposed definition, as well as the requirement that all operators obtain permit coverage.

In the last year, MDT has worked cooperatively with the EPA Region VIII office to determine the appropriate entity responsible for obtaining permit coverage on our public transportation projects. In accordance with public contract law, our contracts must b eRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

154 structured in a manner that allows for open and competitive bidding, so that tax payer dollars are expended in the most cost

- effective manner. Activities that do not affect the end product are an important variable in contract bidding. As such, MDT does not di ctate construction methodologies, sequencing, equipment, etc. As a result, ou r ability to exert the operational control necessary to ensure pennit compliance is limited. Instead, our control is primarily associated with permanent structures and facilities. Because of this issue, the EPA Region VIII, Helena Office, has expressed a preference for the contractor to be the sole permittee under the CGP for our transportation projects. This permitting scenario has been successfully implemented on MDT projects covered under the state's Montana Pollutant Discharge Elimination System stonn w ater construction general permit. Specifying the contractor as the sole permittee eliminates potential for " finger

- pointing," which can hamper actions to bring a facility into compliance in the most expeditious manner possible and complicate enforcement a ctions. For that reason, MDT recommends modifYing the definition of "operator " to clarify that the operational control over construction plans and specifications, including the ability to make modifications, must include the control necessary to ensure co mpliance with permit conditions. In addition, flexibility should be allowed in the permit for determining the appropriate permit holder in each situation.

Response Refer to Response 1.2.



# Comment ID 0170

- A2.001.001

Author Name: Davis Scott Organization : Arizona Public Service Company (APS) Issue Category: 1.2 APS appreciates EPA's efforts to promote responsibility for permit compliance among multiple operators at a site. However, th e inclusion of joint and several responsibility creates risk that is unreasonable and unmanageable for contractors with limited site control. It is not uncommon for subcontractors who are "operators" on a project to be separated by distance and time in their site ope rations even though they may have concurrent Construction General Permit ("CGP") permit coverage for the same project. Holding one operator responsible for the actions of another operator where there is not common place or time between them is unreasonable

. Furthermore, a subcontractor typically has no recourse a gainst another subcontractor from committing permit violations due to the contractual nature of subcontracts. To hold these subcontractor operators jointly and severally responsible for each other's compliance activities creates a risk that cannot be manag ed. If a subcontractor at a project is deemed to be in violation of the permit it is reasonable to hold that subcontractor and the "primary operator" responsible for the violations but not all other site operators. The pr ovision for joint and several liabi lity should be removed from the permit.

Response Refer to Response 1.2.



# 1.3 ELIGIBILITY CONDITIONS

Comment ID 0021

- A1.001.003
Author Name: Unrein Terrance Organization: TepaRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

155 Issue Category: 1.3 3. Will Construction Sites currently holding an EPA NPDES CGP be held liable to follow the conditions of this new CGP?

Response Refer to Response 1.3.



# Comment ID 0034

- A1.001.001

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 1.3 Proposed Requirement/Section Addressed: CGP Sections 1.3.1.7 and 2.1.1.3, Requirement for CWA section 404 permits to be obtained prior to filing an NOI.

Comment: Requirement to obtain CWA Section 404 permits for stream crossing and other potential wetland impacts prior to filin g NOI
for CGP coverage is unnecessary.

Discussion: In general, permits under sections 402 and 404 of the CWA are two independent processes with different regulatory agencies and timelines. The limited benefit to be gained by requiring that section 404 permits be obtai ned first is not commensurate with the potential impact of delaying application for the CGP, particularly since the waiting period has been extended from 7 to 30 days.

Recommendation: Recommend deleting the requirement to obtain CWA Section 404 permits b efore filing an NOI for coverage under
the CGP.

Response Refer to Response 1.3.



# Comment ID 0068

- A1.001.009

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.3 Proposed Part 1.3.1.7 (see also similar language in Part 2.1.1.3) would establish an eligibility provision requiring CGP applicants to already have obtained any appropriate CWA 404 permits for actions subject to such permitting. But construction sites that req uire CWA Section 404 permitting must obtain such permits regardless of what EPA sets forth in its CGP. However, EPA should not repeat those obligations within a final CGP to avoid creating additional and unnecessary liability under the NPDES program for requi rements clearly set forth in the CWA's Section 404 program. FSWA recommends that EPA avoid such unnecessary cross

- referencing and further simplify the CGP by removing extraneous and unnecessary duplication with other programs.

Appropriately regulated sites are subject to these requirements whether or not they also must obtain NPDES stormwater permits. In addition, the requirement to have "already" obtained any necessary CWA Section 404 permits prior to seeking coverage under th eRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

156 Proposed CGP could result in difficult timing and implementation issues especially for larger construction sites that may have only a small portion needing CWA Section 404 permit coverage, but such coverage could hold up all other construction activities. Wit hout the provision, construction operators coul d commence construction on certain parts of the property while awaiting its final Section 404 approval. The eligibility requirement in Part 1.3.1.7 should be removed (as well as the similar language in the last sentence of Part 2.1.1.3).

Response
Refer to Response 1.3.



# Comment ID 0087

- A1.001.010

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.3 As drafted, a construction project is not eligible for CGP coverage unless the operator has "already obtained any nece ssary CWA Part 404 dredge and fill permit(s) for any disturbances (e.g., stream crossings, infrastructure work, stream restoration) to water s of the U.S., including wetlands, associated with [the] construction project." Section 1.3.1.7. In effect, this makes the CGP the "critical path" permit, which may be unworkable for some projects. Along long linear projects, in particular, other permits may only be necessary for discrete areas (e.g., at jurisdictional water crossings). In these situations, the operator should be authorized to begin work under the CGP outside of these discrete areas while the other necessary permits are being processed.

Response Refer to Response 1.3.



# 1.3.1 ELIGIBILITY CONDITIONS FOR ALL PROJECTS

Comment ID 0037

- A1.001.001
Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 1.3.1 The permit has conflicting information regarding when a CWA Part 404 dredge and fill permit(s) must be obtained. In Part 1.3. 1.7, it states that you must ha ve already obtained any necessary CWA Part 404 permits in order to be eligible to obtain coverage under the CGP. However, in Part 2.1.1.3 Minimize stream crossings of the CGP, it states that the CWA Part 404 permit must have been obt ained prior to any disc harge of dredge or fill materials to waters of the U.S. In the Purpose section for the Part 2.1.1.3. Minimize stream crossings in the Fact Sheet (page 32), it states "This section also reinforces the sequence that operators are required to fo llow with

resp ect to wetland disturbances - they must first obtain coverage under a CWA Part 404 permit to authorize the discharge of dredged or fill material prior to obtaining coverage under the CGP." The statement in Part 2.1.1.3 does not support the requirement listed in Part 1.3.1.7 nor the statement in the Purpose section for Part 2.1.1.3 in the Fact Sheet. EPA should clarify what the time frame i s for obtaining a CWA Part 404 permit for consistency.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

157 The requirement to have CWA Part 404 permit coverage prior to obtaining CGP coverage is not practicable particularly for projects that will be covered by a Nationwide Permit requiring the submittal of a preconstruction notification and that have a short t urnaround time from project conception and funding to project completion. It is not always possible to plan a year or more in advance particularly for small linear projects which also have a great potential for requiring coverage under a Section 404 Nationwide Permit. For these fast track projects where project plans may not be finalized, any required permits are typically obtained concurrently if at all possible. The U.S. Army Corps of Engineers has 45 days to approve a complete application. If wetlands will be impacted, a wetland delineati on report must be submitted prior to or with the preconstruction notification. There may be time constraints on when the wetland delineation can be conducted (typically, after vegetation has matured in the spring and before vegetation has died back in th e fall). Assuming 30 days are r equired to complete a wetland delineation and prepare the report, the operator would have to initiate Section 404 permitting at least 105 days prior to the start of any disturbance at the project to meet the proposed permit requirement . Finally, the
CWA Se ction 404 permit coverage, unlike the CGP coverage, may be required for only certain locations within the project; and these locations may not be disturbed immediately but later in the project timeline. Because operators need as much flexibility as p ossibl e when planning and scheduling permit activities in order to meet project deadlines, it is recommended that EPA only require th at the CWA Section 404 permit is obtained prior to any discharge of dredge or fill material.

Response Refer to Response 1.3.



# Comment ID 0038

- A1.001.001

Author Name: Minervini W. Organization: Issue Category: 1.3.1 For consistency with Part 1.4.1.2, expand Part 1.3.1.2 to include construction projects with "stormwater discharges designate d by EPA as needing a permit under 40 CFR § 122.26(a)(1)(v) or § 122.26(b)(15)(ii)."

Response Refer to Response 1.3.



# Comment ID 0064

- A1.001.006

Author Name: Dees Richard Organization: City of Meridian Issue Category: 1.3.1 Section 1.3.1, page 2 - "In order to determine if you are eligible for permit coverage..."
•Is "discharging to waters of the U.S." still a key criterion requiring National Pollutant Discharge Elimination System (NPDE S) coverage?

Response Refer to Response 1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

158 

# Comment ID 0067

- A1.001.003

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 1.3.1
One complicating factor in determining the impact of the proposed CGP is that some NPDES

- delegated states (Arkansas in particular) have adopted an interpretation that the acreage threshold triggers used to determine the application of the CGP are tied to a broader definition of "soil disturbance" rather than to the actual acreage of excavation trigger historically used by EPA. Within the definition of soil disturbance, ADEQ include s haul roads and essentially any other activities that denude the ground surface of cover vegetation. Entergy reasonably can control and sequence areas where actual excavation it to occur, but since support structure erection c an involve positioning equipment throughout a utility line right

- of

- way ("ROW"), roadway and equipment trail or tracking areas are also captured in the acreage of impact. Consequently, on a linear project the ten acre threshold existing in the draft permit concerning mo nitoring requir ements could be quickly exceeded even though the actual excavation for the project is well under ten acres and the project's design is not reasonably expected to cause the type or amount of offsite stormwater runoff that logically requires the more s tringe nt monitoring requirements. ESI requests that EPA provide direction to the States that, as far as the CGP is concerned, the ten

- acre threshold should be measured as areas of actual excavation.

Response Refer to Response 1.1. EPA also notes that the 10 ac re threshold with regard to the numeric turbidity limit is not in the final permit. Refer to Response 3.3.



# Comment ID 0067

- A1.001.008

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 1.3.1
C. The CGP establishes an autho rization to conduct emergency repairs under the CGP conditioned upon the receipt of the notice of intent to conduct work under the CGP within 7 days of starting work. However, language in the CGP effectively prohibits initi ation of construction in upland a reas prior to securing a wetland dredge or fill permit under § 404 of the Clean Water Act, if such a permit will be required for completion of the portion of the work to occur in waters of the United States ("WOUS"), such as a jurisdictio nal
wetland. It wo uld be impossible to apply for and receive a § 404 permit in order to comply with the previous condition within that time period. Entergy requests that EPA remove this §404

- related requirement from the CGP and allow the permit applicant to begin work in

an upland area associated with the emergency project immediately, with the understanding that the applicant must separately obta in the appropriate authorization for dredge or fill of a WOUS.

Response Refer to Response 1.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

159 

# Comment ID 0067

- A1.001.021

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 1.3.1 Regarding eligibility requirements in section 1.3.1.4(c) of the permit, one criteria of CGP coverage is that the project coul d not have been "covered by another NPDES stormwater permit within the past 5 years...". It should be noted out that electrical lines are very vulnerable to storm events and that it is within the realm of possibility that a line could be destroyed and require rebuildi ng immediately following submitt al of a NOT. Entergy requests that EPA add an exception to the CGP for this type of situation.

Response Refer to Response 1.3.



# Comment ID 0098

- A1.001.002

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.3.1
We understand that the provision stating that the new CGP is not available to authorize a discharge that was covered by another permit in the past 5 years is intended to avoid "permit shopping" where the holder of a permit that contains water quality

- based ef fluent limitations might seek coverage under the CGP to avoid those conditions. The language of this subsection (c) is broad, however, and could apply to other circumstances, including cases where a prior permit was appropriately terminated during an extended cessation of work. We would ask either that EPA clarify the narrow scope of this subsection or that it state that the "Note" appearing imm ediately below subsection (c) is intended to provide relief from the broad language of subsection (c) in cases whe re "permit shopping" is not a

concern.

Response Refer to Response 1.3.



# Comment ID 0106

- A2.001.001

Author Name: Hamanishi Henry Organization: J. R. Simplot Company Issue Category: 1.3.1 1.A. General Comment on Applicability of the Proposed Permit

Simplot believes that EPA needs to clarify that this draft General Permit is focused on the construction industry and not the mining industry. As noted below (1.B. Specific Comments), there are other Clean Water Act (CWA) permitting requirements specific t o mining activities. In order to avoid confusion as to what regulatory requirements are applicable to mining operations in relation to the General Permit for Stormwater Discharges from Construction Activities, EPA should address this issue in the final per mit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

160 Response Refer to Response 1.3.



# Comment ID 0106

- A2.001.002

Author Name: Hamanishi Henry Organization: J. R. Simplot Company Issue Category: 1.3.1

Eligibility Conditions (1.3)

To be eligible for CGP permit coverage, there are several conditions. The proposed permit states in section 1.3.1.4 that: Your project is not (eligible if):
a) Already covered by another NPDES stormwater permit for the same discharge, except where a site requires permit coverage un der this permit and a state cons truction stormwater permit because earth disturbing activities will take place in areas covered by both permits;

In the 2008 Multisector Stormwater General Permit (MSGP), the current stormwater permit for Subpart J - Sector J - Non

- Metallic Mineral Mining and Dressing, four specific stormwater discharges are covered in 8.J.1.1 through 8.J.1.4:

8.J.1.1 Covered Discharges from Inactive Facilities. All stormwater discharges.

8.J.1.2 Covered Discharges from Active and Temporarily Inactive Facilities. All stormwater discharges, except for most stormwater discharges subject to the existing effluent limitation guideline at 40 CFR Part 436. Mine dewatering discharges composed enti rely of stormwater or uncontaminated ground water seepage from: construction sand and gravel, industrial sand, and crushed stone mining facilities in Regions 1, 2, 3, 6, 9, and 10 are covered by this permit.

8.J.1.3 Covered Discharges from Exploration and Construction of Non

- Metallic Mineral Mining Facilities. All stormwater discharge s.
8.J.1.4 Covered Discharges from Sites Undergoing Reclamation. All stormwater discharges.
In particular, in 8.J.1.3, the covered discharges from Construction have the following definition in the permit:
8.J.3.3 Construction phase - Includes the buildi ng of site access roads and removal of overburden and waste rock to expose mineable minerals. The construction phase is not considered part of "mining operations".

For Simplot's phosphate mining activities in southeastern Idaho, SIC code 1475, which is included in Subsector J3 of Sector J of the MSGP permit, Simplot asserts that the MSGP permit is the only permit required for stormwater in construction related activiti es as described in S.J.3.3 based on the proposed CGP section 1.3.1.4 a.

In addition, t he Clean Water Act section 402(/)(2) exempts uncontaminated stormwater discharges associated with "mining operations" from NPDES permitting requirements:

The Administrator shall not require a permit under this section, nor shall the Administrator directly or indirectly require any State to require a permit, for discharges of stormwater runoff from mining operations ... composed entirely of flows which are from conveyances or systems of conveyances ... used for collecting and conveying precipitation runoff and which are not contaminated byRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

161 contact with, or do not come into contact with any overburden, raw material, intermediate products, finished product, byprodu ct, or waste products located on the site of such operations.

EPA should recognize in the CGP a nd Fact Sheet the applicability of the exemption to qualifying stormwater dischargers from mine construction sites, particularly site access roads.

Response Refer to Response 1.3.



# Comment ID 0128

- A2.001.003

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 1.3.1 EPA also should specifically exempt from CGP requirements those parties that have individual NPDES permits that include appropriate sediment and erosion control obligations, whether in the form of non

- num eric or numeric effluent limitations for sediment

related discharges. Many individual permittees collect stormwater as well as process water and treat all of that water throug h BMPs or advanced treatment devices (of combination thereof). If discharges from any ongoing construction activities is captured and also becomes subject to the effluent limits set forth in and contemplated in the development of the individual permit, such person s overseeing such activities should not have to obtain separate CGP cover age.

Response Refer to Response 1.1.



# Comment ID 0170

- A2.001.002

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 1.3.1 The requirement to obtain the necessary CWA Part 404 dredge and fill permits prior to obtaining CGP permit coverage is unneeded and will result in unnecessary project delays. The 402 and 404 programs are separate CWA programs which in no way rely on eac h other for implementation or enforcement. It is entirely possible to engage in a project that requires a 404 permit but does not require a 402 permit and vice versa; this clearly illustrates the independence with which each program operates. EPA's justification in the CGP Fact Sheet offers little to support the addition of this requirement to the permit: "By requiring that such permits be abtained first, EPA believes that it will enable those agencies charged with 404 permit issuance to be able to evaluate the proposed impacts to w etlands and/or surface waters independent from the construction project as a whole." The 404 program already evaluates proposed impacts to jurisdictional waters independent from the construction project as a whole. In fact, not only does the 404 program evaluate i mpacted waters separately from the project as a whole but it evaluates each impacted water as a sole and separate project. That is to say, a linear construction project which crosses multiple distinct jurisdictional waters must obtain separate 404 permit coverage for each crossing. The 404 program has a long history of successfully evaluating the distinct areas of a project over which it has jurisdiction and has not shown any deficiency that would warrant the requirement at Part 1.3.1.7.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

162 Furthermore, the 404 permit requirement will make it nearly impossible to pursue multiple permits concurrently during the permitting phase of a project. It is not uncommon for local construction permitting authorities or federal land agencies to require a co py of a CGP Notice of Intent many months before a project begins. Historically, these requests have not created delays, as obtaining CGP coverage was not dependent on the issuance of other, unrelated permits. Given the long lead time that 404 permits can require, in some districts the process can take more than a year, a bottleneck will be created in the permitting process if project permitting cannot proceed without the needed 404 permit. This requirement has no clear justification or benefit and will serve to slow the construction permitting process significantly. We respectfully request that Part 1.3.1.7 be removed from the permit.

Response Refer to Response 1.3.



# 1.3.2 ELIGIBILITY FOR EMERGENCY

- RELATED CONSTRUCTION ACTIVITIES

Comment ID 0025

- A1.001.006

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 1.3.2 For emergency

- related construction projects, please add language "as soon as safe to reasonably do so or as soon as practicable." A common emergency for a DOT is a failed highway slope - such as landslide or a de bris flow. In this case, it may not be safe to attempt to comply with all the requirements in the permit.

Response Refer to Response 1.3.



# Comment ID 0034

- A1.001.002

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 1.3.2 Proposed Requirement/Section Addressed: FR 22888; CGP Section 1.3.2, Emergency related construction.

Comment: Proposed deadlines for NOI submission (within 7 days) and Stormwater Pollution Prevention Plan (SWPPP) development (within 7 days of submitting NOI) during emergency

- related construction may be unattainable.

Discussion: DoD supports EPA's proposal to provide immediate authorization for construction activities required for response to publicRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

163 emergencies; however, submission of an NOI within 7 day s of commencing earth

- disturbing activities may not be feasible in some emergency situations. Likewise, development of a SWPPP within 7 days of the NOI submission is unattainable given some emergen cy situations (i.e., those which result in loss of power fo r several days at a time or require evacuation of personnel).

Recommendation: Extend the NOI submission to within 14 days after earth

- disturbing activity commences. Recommend extending the proposed SWPPP development to within 14 days of NOI submission.

Response Refer to Response 1.3.



# Comment ID 0067

- A1.001.005

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 1.3.2 It should also be noted that, for emergency construction, the requirement to submit a SWPPP within seven days following submittal of the NOI would be extremely difficult for a major line repair project, particularly during hurricane restorations where numero us lines may be damaged and require total rebuild. ESI requests that EPA revisit this timeline to allow construction to begin in a more timely manner, such as within seven days of submission of the NOI unless the permitting authority notifies the applicant that constr uction should be further delayed.

Response Refer to Response 1.3.



# Comment ID 0080

- A2.001.004

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 1.3.2 Partner Comment: The Permittees appreciate the ability to perform work in emergency situations and supports the addit ional flexibility with the inclusion of this new permit language.

Response EPA appreciates the comment.



# Comment ID 0087

- A1.001.012

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.3.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

164 UWAG supports EPA's provision for emergency

- related construction activities in Section 1.3.2. However, UWAG is concerned that 7 days may not be sufficient time to prepare and submit an NOI after commencing the emergency earth

- disturbing activity. After the emergency (e.g., wi ldfires, floods, earthquakes, hurricanes), utilities (e.g., electric, gas, communications) are the first services that must be restored to support other response activities. Delays in restoring these utilities will lead to overall delays in restorin g commu nities. A short deadline (i.e., 7 days) is particularly problematic in emergency situations that are, themselves, on

- going and for which the scope of the work can expand over time. For example, in a flood emergency, the flood conditions may continue for da ys if not weeks. Rather than require the NOI to be submitted within 7 days after commencing the earth

- disturbing activity, EPA should allow the NOI to be submitted "within 30 days after commencing the earth

- disturbing activity or after the emergency condit ions have been abated, whichever occurs later." We note that for some emergencies, like earthquakes, the physical disruption may occur for just a fe w minutes, but the emergency conditions may persist for days if not weeks or longer. If EPA does not provide the requested relief, project operators may be forced to put paperwork ahead of emergency response. [FN 7]

[FN 7] We support EPA's decision in Section 8.1.3 to extend the deadline for developing a SWPPP for emergency projects. To av oid confusion, EPA sh ould include the same language in Section 1.5, which would otherwise compel the operator to develop a SWPPP prior to submitting the NOI.

Response Refer to Response 1.3.



# Comment ID 0093

- A2.001.023

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.3.2 For emergency

- related construction projects, Part 1.3.2, operators would receive immediate authorization to discharge stormwater provided that "all relevant requirements in the permit" are met. AGC recommends that EPA add language "as soon as safe to reasonably do so" or "as soon as practicable" to the end of this sentence. A common emergency on a highway project is a faile d highway slope - such as a landslide or a debris flow. In this case, it may not be safe to attempt to comply with all of the requirements of the permit.

Response Refer to Response 1.3.



# Comment ID 0099.001.001

Author Name: Anonymous Anonymous Organization: Issue Category: 1.3.2 The reguirements for a construction permit for emergency events in Section 1.3.2 - Eligibility for Emergency

- Related Construction Activities are unreasonable and impractical, particularly for small government entities with only a few people handling clean ups. In an emergency, everyone should be busy wi th initial response and clean up which may take up to several weeks depending on the type and extent of the emergency which has most probably done most of the environmental damage even before clean up begins. Preparing aRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

165 lengthy NOI within seven (7) days i s unreasonable and beyond the capability of small government entities. Small government units
also face limited resources.

Thought should be given to less detailed response reports and longer time frames within which to report.

Response
Refer to Response 1.3.



# Comment ID 0125

- A2.001.001

Author Name: Johnson Michelle Organization: Northeast Ohio Areawide Coordinating Agency (NOACA) Issue Category: 1.3.2 B. There are two (2) types of emergencies: major and minor.

1. In a minor emergency (which could be a train wreck, bridge washout, fire, minor storm damage) requiring a permit might be reasonable. However, requiring all of the intricate details such as wetlands, endangered species, impaired waters, etc. is not reasonable or practical.

2. In a major emergency, everyone is too busy saving lives and cleaning up the damage which generally will take many days to several weeks depending on the type and extent of the event. Also, in a major emergency, the environmental damage has been done. If t here

a re impaired waters, historical issues, etc. these issues are not important until after the initial cleanup, assessment of the overall damage and impact to the area. The idea of having to prepare a lengthy NOI within seven (7) days is unreasonable and will take important resources from the incident during critical time.

Recommend:
A. Define major and minor event with the following modifications:

1. Minor event - submit your NOI within thirty (30) days waiving the historical, endangered species, SWPPP, sa mpling, records keeping, TMDL's etc., and only require very basic information.

2. Major event - the NOI should be totally eliminated and replaced with a letter giving notice of the event containing the type of event, a list of responsible parties and the estimated duration of the cleanup and a brief, verbal damage assessment.

You might require the lead agency to provide a general assessment report following the completion of the cleanup indicating t he type of event; a timeline for restoration; what gener al precautions will be taken to protect any historical areas, impaired waters, endangered species; and also the impact to wetlands, waters, forests and other sensitive facilities in the event area.
The report could indicate what (if any) provisions for sed iment, TMDL monitoring, etc. were used during the cleanup and restoration, including what provisions to comply with the permit were considered and applied.

This report should be submitted within six (6) months of the completion of the cleanup and damage assessment phase.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

166 Response EPA appreciates the recommended modifications to the eligibility procedures regarding emergency

- related construction activities. However, EPA believes that that 30 days is a reasonable amount of time for a site to develop its necessary stormwater pollution prevention procedures and to comply with the permit. Refer to Response 1.3.



# Comment ID 0125

- A2.001.002

Author Name: Johnson Michelle Organization: Northeast Ohio Areawide Coordinating Agency (NOACA) Issue Category: 1.3.2 3. The permit process is impossible for small communities and rural areas who do not have the expertise or the personnel to p repare a permit submittal even in seven days. They will have to hire the expertise - money they may not have. Remember FEMA, if dec lared, is a reimbursement process at 75/25 and takes several days/weeks to get approval and cash flowing. A state usually has some emer gency funds which can help, however they still don't have the expertise to complete the NOI nor the time to do it.

4. M any areas have an emergency management cooperative group. However this group manages a large number of activities in a major event. In an event that would cover several jurisdictions, the questions become:

A Is the EMA responsible for the NOI and all the permit provisions?

B. Who's responsible if the event covers multiple EMA jurisdictions?

C. Is each individual government unit responsible for an NOI in its individual jurisdiction?

D. If EMA is responsible for an overall NOI and compliance, do they assign to one of the government units the NOI and compliance work? Do they hire outside help and where are the funds coming from?

5. Emergencies are like a Chinese fire drill. Lots of things are happening at once and even when you think you're ready, you frequently find that you are not (as we found out in New Orleans and Houston in the past, or recently with all the bad weather in spring of 2011). With nature devastating the environment we know the environment is taking a hit. Therefore, we need to addre ss the emergency at hand. It will take some serious time for the environmental impacts to right themselves. No governmental unit involved in a cl eanup and restoration will neglect good stewardship in protecting its sensitive assets.

There is a time and place for everything in a major emergency. It is not the time for excessive paperwork or regulations.

Response In response to the concern about the time required to submit the NOI, Refer to Response 1.3. To address the questions raised, EPA clarifies that EMA is responsible for the NOI and compliance with the permit to the extent the EMA meets the definition of "operator" (i.e., the party has operational control over construction plans and specifications, including the ability to make modificati ons to those plans and specifications; or the party has day

- to

- day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities re quired by the permit). If the event covers multiple EMA jursidctions, all parties meeting the definition of "operator" within those jursidi ctions are responsible for being covered under the permit. Similarly, to the extent that any individual government un it meets the definition ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

167 "operator", they are required to be covered under the permit. If EMA is an operator, they would be required to comply with th e NOI and the permit for the areas covered under their permit, as would other operators covered under th e permit. With regard to the question about hiring outside help and obtaining funds, EPA notes that it is not the role of the Agency to determine whether personnel need to be hired or where funding for the construction activities come from.



# Comment ID 0126

- A2.001.002

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 1.3.2 The CSC is pleased with the proposed ability to perform work in an emergency situation pending subsequent submission of an NO I.

Response EPA appreciates the comment.



# 1.3.3 WATER QUALITY STANDARDS – ELIGIBILITY FOR NEW SOURCES AND EXISTING UNPERMITTED DISCHARGERS

Comment ID 0040

- A1.001.005

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 1.3.3
The Section 1.3.3 requirement that permittees identify the impairment status of their receiving waters (especially along linear p rojects that may cross or discharge into multiple different watersheds) is similarly burdensome and is rife with potential for

Re sponse Refer to Response 4.1.



# Comment ID 0040

- A1.001.006

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 1.3.3 confusion and/or error, particularly in states where impairments are described generally (e.g., aquatic life use impairment) without reference to particular pollutant stressors (e.g., nutrients or sediments).

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

168 

# Comment ID 0068

- A1.001.010

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.3.3 EPA should maintain the same impaired waters eligibility requirements as set forth in the 2008 CGP, which relies extensively and appropriately on EPA's TMDL program to address these issues. While that is what EPA has proposed, the CGP Fact Sheet references proposed Appendix J, which FSWA believes is an inappropriate complication of the 2008 CGP approach (see Section III.D. commen ts below). In this case, EPA is properly establishing eligibility based on the CWA's water quality pr ogram by certifying compliance with any appropriate TMDLs, which would require compliance before construction activity commences.

Response EPA notes that the proposed APP J has been removed from the permit, and the reference to it in this provision of th e fact sheet has been removed. See also response Part 4.



# Comment ID 0086

- A1.001.008

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 1.3.3 The Section 1.3.3 requirement that permittees identifY the impairment status of their receiving waters (especially along linear projects that may cross or discharge into multi ple different watersheds) is similarly burdensome, and is rife with potential for conf usion andlor error, particularly in stat es where impairments are described generally (e.g. , aquatic life use impairment) without reference to particular pollutant stressors (e.g., nutrients or sediments).

Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.024

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.3.3 In addition, Part 1.3.3 describes permit eligibility with regard to new sources and existing unpermitted dischargers who are discharging to impaired waters. EPA should mai ntain the same impaired waters eligibility requirements as set forth in the 2008 CGP, which relies
extensively and appropriately on EPA's TMDL program to address these issues. The proposed CGP Fact Sheet (see page 19) appear s to confirm that EPA intends to follow this approach: "The proposed requirements in Part 1.3.3 are the same as the corresponding requirements in Part 1.3.C.4 of the 2008 CGP." However, the exact same page of the Draft references proposed Appendix J, whic h AGC believes is an inappropriat e complication of the 2008 CGP approach (see AGC's comments, Section IV above).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

169 

# Comment ID 0105

- A2.001.012

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 1.3.3 [ The Draft Permit does not sufficiently address the requirements of 40 C.F.R. § 122.4(i) [FN 5] as interpreted by the Ninth Circuit in Friends of Pinto Creek v. EPA 504 F.3d 1007 (9th Cir. 2007), and should be revised to require a more rigorous and supportable demonstration that water quality s tandards will be met in the receiving water prior to issuance of coverage for new sources.[FN 6] In the absence of such a demonstration, new sources would need to retain all stormwater (and associated pollutants) on site. Mor eover, the process for review of new sources (or existing unpermitted discharges) proposing to discharge to waters with a TMDL is only vaguely alluded to in the Fact Sheet, and the entirety of the analysis appears to rest with EPA during the 30

- day waiting period prior to coverage. EPA should clarify in the Final CGP how this demonstration will be made prior to permit coverage or commencement of
construction.

[FN 5] 40 C.F.R. Part 122.4(i) provides: No permit may be issued . . . [t]o a new source or a new discharger, if the discharg e f rom its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a ne w source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standar ds or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1 )(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to c ompliance schedules designed to bring the segment into compliance with applicable water quality standards. The Director may waive the submission of information by the new source or new discharger required by paragraph (i) of this section if the Director determines that the Director already has adequate information to evaluate the request. An explanation of the development of limitations to meet the criteria of this paragraph (i)(2) is to be included in the fact sheet to the permit under §124.56(b)(1) of thi s chapter.

[FN 6] "New Source" is defined in Appendix A of the Draft CGP as "a construction project that commenced construction activities after February 1, 2010, and that requires NPDES permit coverage for its construction discharges . . . ."

Response Refer to Response 1.3.



# Comment ID 0119

- A2.001.001

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) 1. General Eligibility Provisions (Section 1.3.3): The Draft Permit provides that a discharger is not eligible for coverag e under the Permit if EPA determines, before authorization of the discharge, that the discharge will cause, have the reasonable potential to cause, or contribute to an excursion above an applicable water quality standard. It is very important that this pro vision only disqualifies a discharger from eligibility if EPA determines, before authorization, that there is a water quality problem associated with the discharge. This gives the discharger notice, before coverage is granted, that EPA has identified a pro blem. The discharge then has the opportunity to fix the problem and obtain coverage, without having to be concerned about civil or criminal penalties for permit violation s or about qualifying for the permit and then losing coverage. We agree with EPA's approach and urge that it be retained in the final Permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

170 Response EPA appreciates the comment. EPA notes that it has retained this permit language.



# Comment ID 0128

- A2.001.004

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 1.3.3 EPA should maintain the same impaired waters eligibility requirements as set forth in the 2008 CGP, which relies extensively and appropriately on EPA's TMDL program to address these issues. While that is what EPA has proposed, the CGP Fact Sheet references proposed Appendix J, which the Chamber believes is an inappropriate complication of the 2008 CGP approach (see Section III.D. comments below).

Part 1.3.3 of the Draft Permit provides that a discharger is not eligible for coverage u nder the Permit if EPA determines, prior to authorization of the discharge, that the discharge will cause, have the reasonable potential to cause, or contribute to an ex cursion above an applicable water quality standard. It is very important that this provision only disqualifies a discharger from eligibility if EPA determines, before authorization, that there is a water quality problem associated with the discharge. This gives the dischar ge notice, before coverage is granted, that EPA has identified a probl em. The discharge then has the opportunity to fix the problem and obtain coverage, without having to be concerned about civil or criminal penalties for permit violations or about qualifying for the permit and then losing coverage. We agree with EPA's approach and urge that it be retained in the final Permit.

Response EPA notes that the proposed APP J has been removed from the permit, and the reference to it in this provision of the fact she et has been removed. See also response Part 4.

EPA also notes that it has retained the language in proposed Part 1.3.3 referenced above.



# Comment ID 0158

- A1.001.008

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 1.3.3 The Section 1.3.3 requirement that permitte es identify the impairment status of their receiving waters (especially along linear projects that may cross or discharge into multiple different watersheds) is similarly burdensome and is rife with potential for confus ion and/or error, particularly in sta tes where impairments are described generally (e.g., aquatic life use impairment) without reference to particular pollutant stressors (e.g., nutrients or sediments).

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

171 

# 1.3.4 ELIGIBILITY FOR NEW SOURCES AND EXISTING UNPERMITTED DISCHARGERS DISCHARGING TO WATERS WITH HIGH WATER QUALITY

Comment ID 0068

- A1.001.011

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.3.4 The Proposed CGP also appears to expand the application of antidegradation requirements to tier 2 and 2.5 waters unnecessarily. In such waters, newly permitted discharges may be allowed without the additional limitations proposed by the Proposed CGP. EPA should treat such waters consistently with its own guidance and not unnecessarily encumber construction in such watersheds. FSWA agrees with EPA's statement and the Agency's general approach that compliance with the CGP presumes compliance with Tier 2 or 3 antidegradation requirements.

Response
Refer to Response 1.3.



# Comment ID 0093

- A2.001.025

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.3.4 Also, Part 1.3.4 of the Draft appears to unnecessarily expand the application of antidegradation requirements to Tier 2 and 2.5 waters. EPA should not unnecessarily encumber construction in such watersheds. AGC recommends that EPA follow the general approach that compliance with the CGP presumes compliance with Tier 2 or 3 antidegradation requirements.

Response Refer to Response 1.3.



# Comment ID 0100

- A2.001.002

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 1.3.4 Section 1.3.4 suggests projects will be considered to discharge to a water identified by a state, tribe, or EPA as Tier 2, Tier 2.5, or Tier 3 for antidegradation purposes if the first water of the U.S. to which you discharge is identified by a state or EPA as a Tie r 2, Tier 2.5, or Tier 3 water. The City is concerned with this approach in that the 303d list issued by the State of Indiana Department of Environmental Management (IDEM) is inconsistent impaired waterbodies described by USEPA.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

172 Response EPA notes that the 303(d) listed by a state is the list by which permittees will be required to use to determine if they discharge to an impaired water. Therefore, EPA disagrees that the approach in the permit is inconsistent. EPA also clarifies that the require ments that apply to discharges to Tier 2, Tier 2.5, or Tier 3 waters are different than the requirements that apply to discharges to impaired waters.



# Comment ID 0119

- A2.001.002

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 1.3.4 2. Eligibility Provisions for Discharges to High Quality Waters (Section 1.3.4): For discharges to Tier 2, Tier 2.5 or Tier 3 waters, EPA provides that the discharge is eligible for coverage only if it "will not lower the water quality of the applicable water." We have two concerns about this provision, which re lates to the three tiers of EPA's antidegradation policy (found in 40 CFR 131.12). First, we do not think that EPA should specify requirements that apply to Tier 2.5 waters. The concept of Tier 2.5 does not appear in EPA regulations or guidance; it is stri ctly up to each State whether it wants to create a category between Tier 2 and Tier 3, and there are no Federal requirements that apply to these waters beyond what is required for Tier 2 waters. Second, the test of "will not lowe r the water quality" is not the correct test to apply to Tier 2 waters. In EPA's antidegradation policy and guidance, new or increased discharges to Tier 2 waters can lower water quality if certain demonstrations are made related to their economic or social benefit. Also, E PA allows States to adopt exceptions to antidegradation review for certain discharges, including those that meet a "de minimis" test of significance. Therefore, Section 1.3.4 should be modified to clarify that the test of eligibility for Tier 2 (and Tier 2.5) w ater s is
different than the test for Tier 3 waters.

Response Refer to Response 1.3.



# Comment ID 0119

- A2.001.003

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 1.3.4 In one other respect, though, we support the language of Section 1.3.4: it provides that in the absence of contrary information, EPA expects that compliance with the requirements of the Draft Permit will result in discharges that "will not lower the water quality of the applicable water." We agre e with that determination, which is justified given the stringent conditions contained in the Draft Permit.[FN 1]

[FN I] In fact, we do not believe that all of the Draft Permit's conditions are necessary in order for EPA to make this deter mination. We

en courage EPA to reconsider the Draft Permit's stringent conditions, such as the proposed notice, buffer and monitoring provisions, to
streamline the Permit and make its conditions more reasonable and flexible. Recommendations on these issues are set forth i n the comments of FSW A and FWQC member organizations.

Response EPA appreciates the comment. Refer to Response 1.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

173 

# Comment ID 0128

- A2.001.005

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 1.3.4
Part 1.3.4 of the Draft Permit proposes that discharges to Tier 2, Tier 2.5 or Tier 3 waters that the discharge is eligible for coverage only if it "will not lower the water quality of the applicable water." The Chamber has two concerns with this provision, which relate s to the three tiers of EPA's antidegradation policy (found in 40 CFR 131.12).

• First, the EPA should not specify requirements that apply to Tier 2.5 waters. The concept of Tier 2.5 does not appear in EP A regulations or guidance; it is strictly up to ea ch State whether it wants to create a category between Tier 2 and Tier 3, and there are no Federal requirements that apply to these waters beyond what is required for Tier 2 waters.

• Second, the test of "will not lower the water quality" is not the correct test to apply to Tier 2 waters. In EPA's antidegradation policy and guidance, new or increased discharges to Tier 2 waters can lower water quality if certain demonstrations are made related to their economic or social benefit. Also, EPA allows Stat es to adopt exceptions to antidegradation review for certain discharges, including those that meet a "de minimis" test of significance. Therefore, Section 1.3.4 should be modified to clarify that the test of eligibility for Tier 2 (and Tier 2.5) waters is different than the test for Tier 3 waters.

In one other respect, though, the Chamber supports the language of Section 1.3.4. It provides that in the absence of contrary information, EPA expects that compliance with the requirements of the Draft Permit will result in discharges that "will not lower the water quality of the applicable water." The Chamber agrees with that determination, which is justified given the stringent co nditions
contained in the Draft Permit.

Response EPA appreciates the comment. Refer to Response 1.3.



# 1.4 TYPES OF DISCHARGES AUTHORIZED UNDER THE CGP
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 1.4.1 LIST OF ALLOWABLE DISCHARGES

Comment ID 0024

- A2.001.007
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 1.4.1 The CGP should be limited to storm water discharges. EPA should revise the section addressing non

- storm water discharges to ensure the permit language will not be construed as aut horizing the discharge of pollutants through non

- stormwater discharges. Specifically,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

174 section 1.4.1 .4 of the draft 2011 CGP authorizes the following non

- stormwater discharges, which have the potential to carry significant amounts of various pollutants to receiving streams: (a) Discharges from fire

- fighting activities, (c) Waters used to wash vehicles where detergents are not used, (d) Water used to control dust, (f) Routine external building wash down that does not use detergents, and (g) Pavement wash wat er where spills or leaks or hazardous materials have not occurred (unless all spilled material has been removed) and where detergents are not used. Absent further qualification to these allowable non

- storm water discharges, as suggested below, the CGP shou ld not authorize these discharges at all.

Response Refer to Response 1.4.


# Comment ID 0025

- A1.001.007

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 1.4.1 Consider adding: water for compaction of earth and aggregate base course for routine maintenance of dirt roads and shoulders provided reclaimed or other wastewaters are not used; water used for compacting soil provided effluent or other wastewaters a re not used; diverted stream flows; discharges from riparian habitats and wetlands; and flows used for drilling and coring such as for evaluation of foundations materials, where flows are not contaminated with additives.

Response Refer to Response 1.4.



# Comment ID 0038

- A1.001.002

Author Name: Minervini W. Organization: Issue Category: 1.4.1 For consistency with Part 1.4.2.1, change the opening clause of Part 1.4.1.4 to read "The following non

- stormwater discharges from your construction activity:" This change makes it clear that the stormwater discharges listed in Parts 1.4.1.4.a through 1.4.1.4.k are the only non

- stormwater discharges allowable under Part 1.4.1, and are not merely examples of allowable non

- stormwater discharges.

Response EPA agrees with the suggestion, and has made the permit and fact sheet consistent with the suggestion.



# Comment ID 0069

- A1.001.001

Author Name: Cramer M. Organization: Issue Category: 1.4.1
1. Part 1.4.1.4 of the draft EPA CGP identifies additional non

- stormwater discharges from construction activity, including:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

175 k. Uncontaminated construction dewatering wastewaters that have been treated by an appropriate control under Part 2.1.4.6. Wastewaters that have been treated in accordance with Part 2.1.4.6, but still contain trace amounts of sediment, are not considered
contaminated.

This is a new allowable non

- storm water discharge to NPDES. We do not believe that it should be added to the allowable non

- storm water list because dewatering of sediment ponds does not produce wastewater, but only captured stor m water. The term "trace amounts" is ambiguous and could be considered unachievable when dewatering colloidal soils.

Response Refer to Response 1.4.



# Comment ID 0098

- A1.001.003

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.4.1
It is unclear how this section treats various off

- site areas that are not contiguous with the permitted site. Please see comments to Part 8.2.2 (Nature of Construction Activities) below and accept those comments in connection with this Part 1.4.1.3 as well.

Response Refer to Response 1.4.



# Comment ID 0131

- A1.001.030

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 1.4.1 Landscape irrigation should be added to the Proposed CGP as an allowable nonstormwater discharge. Part 1.3 B of the current permit includes "landscape irrigation" as an allowable non

- stormwater discharge; Part 1.4.1.4 of the Proposed CGP does not include landscape irrigation as a non

- stormwater discharge.

The instal lation of sod and other types of vegetation is a permit stabilization requirement and requires significant watering during th e initial stages of establishing the vegetation as a soil cover. It is agreed that, like other allowable non

- stormwater discharges, landscape irrigation has the potential to carry pollutants off site but it is unrealistic to prohibit landscape irrigation waters as an allowable

non

- stormwater discharge.

The permit includes controls to minimize the impact of allowable non

- stormwater d ischarges from the site and these same measures, when applied to landscape irrigation waters, will minimize impacts of non

- stormwater discharges from landscape irrigation.

Part 8.2.9 of the Proposed CGP requires the SWPPP to identify the sources of nonst ormwater and to describe the measures taken to comply with the requirements in Part 2.1.3.1d to route non

- stormwater discharges to sediment controls. The Proposed CGP also includes fertilizer discharge restrictions in Part 2.3.4 that are designed to minimi ze discharges of fertilizers containing nitrogen and phosphorus.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

176 Landscape irrigation is not specifically included as a prohibited discharge in the Proposed CGP or the C & D rule and should be specifically included as an allowable nonstormwater discharge in the Proposed CGP.

Response Refer to Response 1.4.



# Comment ID 0401.001.002

Author Name: Unknown Unknown Organization: Colorado Department of Public Health and Environment - Colorado Issue Category: 1.4.1
Part 1.4.1.4 ofthe Permit authorizes discharges from several non

- stormwater sources. Part 8.2.9 of the permit requires the routing of

non

- stonnwater discharges to sediment controls. Sediment controls are primarily focused at removal of suspended solids from the discharge, and may not address additional pollutant sources. As currently defined in 1.4.1.4, there is a potential for some of the listed

non

- stormwater discharges to contain dissolved

- pollutants, or other pollutants that may not be adequately controlled with sediment
controls. The Divi sion requests that EPA evaluate the discharges in this list to determine if sediment controls will adequately minimize the potential pollutants in the discharges as necessary to meet applicable water quality standards. If the EPA finds that thi s condition is not being met, the Division requests that EPA further define or restrict the list of non

- stonnwater discharges to remove those discharges which would result in a potential to exceed water quality standards, or require additional effluent limits for tho s e discharges. Specific examples include, but are not limited to:
Evaluate the need for limitations restricting the source water used for the activity, where applicable (e.g., only authorize discharges from potable water sources for dust control, washing, e tc.).

1.4.1.4 .c: Evaluate the need for limitations or prohibitions for washing activities that may introduce dissolved pollutants (e.g., limit washing to the exterior ofvehicles and prohibit discharges from washing vehicle beds, chutes, or other surfaces used for containing or transferring materials).

Evaluate the need for additional limitations to address chlorine.

4.1.4.i and j: Evaluate the need for limitations and/or monitoring necessary to determine if contaminants are present. Note t hat the presence of contaminants may be variable throughout the period of discharge since there is a potential for contaminant plumes to be
"drawn in."

Note that some of these discharges are addressed by the Division's Low Risk discharge policy. For these so urces, the Division has done a full evaluation and included specific exclusigns and limitations to address potential pollutants. From more information, se e the Low Risk Policy and Fact Sheets, available here: http://www.cdphe.state.co.us/wq/PermitsUnitlguidanceandpolicynewpage.html

Response Refer to Response 1.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

177 

# 1.4.2 LIST OF DISCHARGES NOT ADDRESSED BY THIS PERMIT

Comment ID 0038

- A1.001.003
Author Name: Minervini W. Organization: Issue Category: 1.4.2 Under this provision, "stormwater and/or allowable non

- stormwater discharges associated with construction activities that are discharged to a combined sewer system" are among the discharges "that are not addressed under this permit because they are either covered by another permit or they are not within the scope of designated discharges requiring NPDES permit coverage."

Please confirm (and provide legal basis for that confirmation) that under no circumstan ce can any stormwater or non

- stormwater discharge to a combined sewer system be designated by EPA or a State as needing a permit under 40 CFR § 122.26(a)(1)(v), § 122.26(a)(9), or § 122.26(b)(15)(ii), or under section 402(p) of the Clean Water Act.

(40 CFR § 122.26(a)(7) states that "conveyances that discharge storm water runoff combined with municipal sewage are point source s that must obtain NPDES permits in accordance with the procedures of § 122.21 and are not subject to the provisions of this se cti on."
40 CFR § 122.26(a)(7) makes it clear that discharges from combined sewer systems cannot be required to obtain a permit under 40 CFR § 122.26. However, 40 CFR § 122.26(a)(7) might not make it clear that discharges to combined sewer systems cannot be re quired
to obtain a permit under 40 CFR § 122.26 or section 402(p) of the Clean Water Act. In contrast, USEPA's April 1991 Guidance Manual For The Preparation Of NPDES Permit Applications for Storm Water Discharges Associated With Industrial Activity states flatly (page 9) that "permits are not required for industrial [storm water] discharges to sanitary sewers systems, including combined sewer systems" [underline in original].)

Response Refer to Response 1.5.



# Comment ID 0056

- A2.001.002

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 1.4.2 Section 1.4.2.2 of the draft permit appears to indicate projects regulated under part 404 of the Clean Water Act (CWA) are ex empt from the general construction stormwater permit. Several restoration projects advanced by the division have obtained both a § 404 permit and applied for a general stormwater permit per instructions from the regulating authorities. DER would like clarification on this section of the stormwater permit. If a project obtains a §404 permit from the Corps of Engineers, is the entire project exempt from the NPDES stormwater program? Are there qualifications or limitations?

Response Refer to Response 1.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

178 

# Comment ID 0093

- A2.001.022

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.4.2 EPA also should specifically exempt from CGP requirements those parties that have individual NPDES permits that includ e appropriate sediment and erosion control obligations, whether in the form of non

- numeric or numeric effluent limitations for sediment

related discharges. Many individual permittees collect stormwater as well as process water and treat all of that water t hrough BMPs or advanced treatment devices (of combination thereof). If discharges from any ongoing construction activities is captured and a lso becomes subject to the effluent limits set forth in and contemplated in the development of the individual permit , such persons overseeing such activities should not have to obtain separate CGP coverage.

Response Refer to Response 1.1.



# Comment ID 0105

- A2.001.017

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 1.4.2 [ EPA should clarify the requirements and regulatory pathway applicable to construction and development site operators locate d in combined sewer drainage areas. Section 1.4.5 of the Draft CGP states that "[s]tormwater and/or allowable non

- stormwater discharges associated with construction activities that are discharged to a combined sewer system" are not eligible for coverage under t he CGP. This appears to presume that all construction site runoff will receive treatment at a municipal treatment plant. However, given the frequency of combined sewer overflows in many geographic areas with this type of infrastructure, it is entirely predictable t hat untreated construction site runoff will contribute to the likelihood of overflows and will directly contribute substantial loads of pollutants into receiving waters during overflow conditions.[FN 7] Absent CGP coverage, rational site operators in CSO areas will not install a comparable level of control measures to prevent stormwater volume and pollutants from r eaching municipal drainage systems. For these reasons, EPA should strongly consider requiring construction and development sites discharging to combined systems to meet stormwater control and pollution prevention requirements no less stringent than sites i n MS4 areas, with an emphasis on retaining stormwater volume on site. Alternatively, EPA should clarify that construction site operators must obtain coverage under the NPDES pretreatment program and meet requirements analogous to the CGP.

[FN 7] Further compounding the problem, the routine discharges of sediment

- laden runoff from construction sites to municipal combined sewer infrastructure will increase maintenance requirements and costs. A number of communities in Massachusetts and New Hampshire face substantial financial and technical challenges in reducing or eliminating CSOs. 24 communities in Massachusetts discharge combined sewer effluent from a total of 312 outfall locations. See MassDEP, Combined Sewer Overflows: Frequently As ked Questions, availa ble at http://www.mass.gov/dep/ water/wastewater/csofaqs.htm. In New Hampshire, six communities discharge combined sewer effluent from 35 remaining CSO outfalls. See New Hampshire Dep't of Envt'l Services, Environmental Fact Sheet: Combined Sewer Overflows (2010), available at http://des.nh.gov/organization/ commissioner/pip/factsheets/wwt/documents/web

9.pdf. Costs of reducing CSOs in New Hampshire have been estimated in the hundreds of millions of dollars. Id.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

179 Response Refer to Response 1.5.



# 1.5 SUBMITTING YOUR NOTICE OF INTENT (NOI)
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 1.5.1 INFORMATION REQUIRED IN YOUR NOI

Comment ID 0075

- A2.001.001
Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 1.5.1 The Operator is required to identify "Impaired Waters" (i.e., 303(d) listed waters) which in Wyoming is not user friendly, comprising five different tables including TMDL listings. The DEQ listing priorities (tables) also change from year

- to

- year. The contractor must be able to understand Hydrologic Units (HUC's), the 8

- digit sub

- basin codes used in Federal water databases. A separate 16 digit
watershed 10 must also be used. A 10

- mile linear highway project may cross many individual watersheds that would be typically be researched by a general contractor, not a hydrologist.

Response Refer to Response 1.6.1.



# Comment ID 0075

- A2.001.002

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 1.5.1 The NOI further requires repetitious documentation of threatened and endangered species and historic (Sec. 106) NEPA document ation already in public record from the project planning stage. These documents are not normally part of a contractual bid package that is available to the general contractor (i.e., operator).

Response Refer to Response 1.6.1.



# Comment ID 0130

- A2.001.010

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 1.5.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

180 9. INFORMATION ON NOI. In Part 1.5.1, the applicant is required to provide the latitude and longitude of discharge points. Th e discharge points are already shown in the SWPPP. A requirement for latitude & longitude on the NOI is additional work with no apparent benefit. On DOT linear projects, this requirement will be particularly cumbersome due to the potential number of dis charge points.

Response
Refer to Response 1.6.1.



# 1.5.2 HOW TO SUBMIT YOUR NOI. [REQUEST FOR COMMENT] - USING ELECTRONIC NOTICE OF INTENT SYSTEM (ENOI) – DEVELOPMENT OF A “PAPERLESS” APPLICATION PROCESS

Comment ID 0024

- A2.001.019

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 1.5.2 We support EPA's proposal to require that all construction operators use the e

- NOI system in the interest of developing a "paperless" process, see Part 1.5,

Response Refer to Response 1.6.2.



# Comment ID 0030

- A2.001.005

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 1.5.2 Section 1.5.2, page 6 While we support EPA's efforts to transition to a paperless system, some operators may not be able to access the e

- NOI system, due to computer or firewall restrictions. E

- NOI submittal should be encouraged, but not required.

Response Refer to Response 1.6.2.



# Comment ID 0051

- A2.001.002

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

181 Issue Category: 1.5.2 The required use of the paperless eNOI except where a paper NOI is specifically authorized (Part 1.5.2). MRWC supports this sustainable initiative and EPA's efforts to hold a standard of environmental protection in all aspects of permitting and regulation. This requirement will not only reduce costs related to processing paper NOIs, but it will also help to reduce natural resource con sumption. Additionally, we hope that this more efficient system of submitting NOIs will result in the development of an online public permit database, thus making permit information available to local conservation organizations and the public. We understand that thi s process is still in transition and therefore support the temporary acceptance of paper NOIs in limited circumstances until the transition is complete.

Response Refer to Response 1.6.2. EPA also notes that it will make available permit application information on its website.



# Comment ID 0053

- A2.001.001

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 1.5.2 1. Page 5; Section 1.5. SUBMITTING YOUR NOTICE OF INTENT (NOI). Past experience using the ENOI system Latitude and Longitude Validation page under the "Project Site Information" Tab resulted in coordinates delineated to be 850 miles away from verified project coordinates.

Consider revisions/updates to the ENOI system Latitude and Longitude Validation page.

Response Refer to Response 1.6.2 and 1.6.3.



# Comment ID 0068

- A1.001.013

Au thor Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.5.2 While EPA continues to implement an eNOI system, FSWA supports a flexible system in which the party filing the NOI can select to use the eNOI system or file a paper NOI.

Response Refer to Response 1.6.2.



# Comment ID 0080

- A2.001.005

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 1.5.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

182 Partner Response: The ease of electronic filing and reporting is appreciated. However, a 30

- day review time on most Notices of Intents (NOIs) is problematic. The variance from the existing 7

- day waiting period makes it difficult for permit holders, such as the NMDOT to begin construction on projects tha t are on a fast track or ones that become available within a very short notice. Electronic submittals are much quicker than paper submittals, with that being the case, why require a 30 day advance notice?

Response Refer to Response 1.6.2 and 1.6.4.



# Com ment ID 0085

- A2.001.003

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 1.5.2 The City supports and encourages a transition to a paperless NOI system.

Response Refer to Response 1.6.2.



# Comment ID 0093

- A2.001.028

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.5.2 In addition, as a threshold matter, AGC is very concerned that EPA's new process of making NOIs (and discharge monitoring rep orts) publicly acces sible through EPA's website is furthering public confusion in ways that will harm job growth and economic recovery. As EPA states in the proposed CGP Fact Sheet, during the extended 30

- day waiting period, "the public will have the opportunity to review
the NOIs, to request to review the SWPPPs, and to provide feedback to EPA." This will foster situations wherein people who have objectives unrelated to protection of water quality will take issue with construction site operator's electronic submissions in ord er to delay important projects. These concerns are compounded by the draft permit provisions that would allow "any interested perso n" to object to coverage under the CGP (see AGC's comments at Section IX on Draft CGP Part 1.5.6, Procedures for Denial of Coverage), as well as provisions that would require site operators to electronically report within 24 hours any exceedances of the numeric turbidity limit (see AGC's comments at Section V above and at Section IX on Draft CGP Part 3.3.8, Actions Required if You Violate Numeric Turbidity Limit and Part 6.6, Reporting to EPA).

Response Refer to Response 1.6.3.



# Comment ID 0107

- A2.001.003

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 1.5.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

183 In addition, Amigos Bravos supports EPA's efforts to transition towards a paperless NOI process. EPA's resources have been continuously attacked and whittled away in recent years and Amigos Bravos supports any efforts to spend less time and resourc es on administration paperwork and more on inspe ctions and enforcement actions. The lack of EPA and state oversight of stormwater activities in the state of New Mexico, due in no small part to the lack of staff and resources to conduct inspections and enf orcement actions, is common knowledge among the N ew Mexico regulated community. As a result, many don't bother to obtain permit

coverage.

Response Refer to Response 1.6.2.



# 1.5.2Q TRANSITION TO A PAPERLESS NOI SYSTEM FOR THE CGP

Comment ID 0015

- A2.001.002
Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 1.5.2Q Ql. Electronic NOls - Agree, seems reasonable

Response Refer to Response 1.6.2.



# Comment ID 0037

- A1.001.002

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 1.5.2Q The Southern Ute Growth Fund supports the proposed requirement in the CGP to require the use of the eNOI except where a paper NOI is specifically authorized because the eNOI is a paperless process and the waiting period begins the same day. If the NOI is submitted via mail, the waiting period does not start until EPA Stormwater Processing Center receives the NOI and enters it i nto the NOI system. Since there is no delay waiting for the NOI to be received and entered into the system by EPA, it is more advantageous for the operator to use the eNOI system.

Response Refer to Response 1.6.2.



# Comment ID 0037

- A1.001.003

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 1.5.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

184 With respect to EPA's request for comments on the experience of using the eNOI system, the Southern Ute Growth Fund has the following comments. If a person uses the eNOI system frequently, it is fairly user friendly. However, the system can be intim idating
for the infrequ ent user, e.g., the responsible corporate officer or manager who only certifies the documents that have been prepared by others. Typically, these infrequent users require guidance every time they need to use the system. Because there can be a cha nge in

per sonnel, it is highly recommended that EPA improve the process for transferring access to existing permits from an existing pr eparer to a new individual who is taking over responsibilities for preparing NOTs and submitting reports for certification for existing permits. The current process requires the information on the eNOI to be re

‐ entered.

Response Refer to Response 1.6.2 and 1.6.3.



# Comment ID 0046

- A1.001.001

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 1.5.2Q The Department currently utilized the electronic system to submit Notice of Intent (NOI) and other notices Without issue.

Response Refer to Response 1.6.2.



# Comment ID 0047

- A2.001.002

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 1.5.2Q Section 1.5.2, page 5

Xcel Energy supports EPA's efforts to transition to a paperless system; however some operators may not be able to access the e- NOI system, due to computer or firewall restrictions. E

- NOI submittal should be encouraged, but not required.

Response Refer to Response 1.6.2.



# Comment ID 0054

- A2.001.003

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: 1.5.2Q Issue: U. S. Steel supports the concept of an electronic Notice of Intent (eNOl) or electronic submission of the necessary application forms and encourages the use of technology to improve the efficiency of the permitting process.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

185 Recommended Change: U. S. Steel recommends that EPA go beyond automating the application step and provide the necessary tools and access for applicants to receive confirmation of eNOl receipt and to track the approval process electronically.

Response Refer to Response 1.6.2. and 1.6.3.



# Comment ID 0055

- A1.001.002

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 1.5.2Q ODOT agrees with the transition to a paperless NOI submittal. Members of our staff have experience using the eNOI submittal p rocess in other states. We e ncourage the use of a paperless submittal process with the following suggestions:

- Using an online form provides the opportunity to incorporate GIS mapping links for ease of the user when filling out the form

. Project data required on the form including outfall coordinates; watershed mapping; ecological critical areas; etc. should be incorporated into the electronic format for convenience of use.

- Integrate online tracking of NOI. Create a format for applicant to submit questions during process to the EP A.

- Allow the eNOI to be saved and accessed repeatedly by the applicant before final submission.

Response Refer to Response 1.6.2 and 1.6.3.



# Comment ID 0062

- A1.001.006

Author Name: McClure Bach Organization: Brevard County, Natural Resources Manageme nt Office Issue Category: 1.5.2Q Brevard County Comment: EPA is assuming that every business has internet access and computer literate staff. This is not the case in many rural areas. Requiring E permitting discriminates against the rural and marginal operators. Most permittees will use E

- permitting without the requirement. EPA should also accommodate organizations which require a hard copy trail of signatures.

Response Refer to Response 1.6.2.



# Comment ID 0064

- A1.001.007

Author Name: Dees Richard Organization: City of Meridian Issue Category: 1.5.2Q Section 1.5.2, pages 5

- 6 - "Nevertheless, EPA is aware that the permitting program is still in the process of making the transition to a paperless process..."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

186 •If a paperless process is EPA's goal, is there an opportunity to simply maintain an electronic Stormwater Pollution Prevention Program (SWPPP) for a project requiring CGP coverage?

Response Refer to Response 8.1.



# Comment ID 0066

- A1.001.006

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 1.5.2Q Comment: An electronic reporting and permitting system has been in place in Texas for several years, and has been a great ben efit to obtaining coverage in a timely manner for our projects. We reco mmend that EPA encourage the use of their eNOl system for filing electronically. The primary benefit of the electronic STEERS program in Texas is that we are able to obtain permit coverage a lmost immediately, when we are prepared to begin actual constructi on on any of our sites that meet the existing requirements for obtaining an
NOI.

Response Refer to Response 1.6.2.



# Comment ID 0070

- A1.001.003

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 1.5.2Q a. "Paperless" NOI - Alcoa agrees with the concept of electronic filing of the NOI.

Response Refer to Response 1.6.2.



# Comment ID 0074

- A2.001.004

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 1.5.2Q
EPA's CGP should preserve the ability to accept paper NOls, as well as eNOls in all circumstances, since the DEQ's permitting program is still in the process of making the transition to a paperless process.

Response Refer to Response 1.6.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

187 

# Comment ID 0077

- A1.001.008

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 1.5.2Q The commenter agrees with EPA's strong preference to require all construction operators to use the eNOI system in the interes t of developing a "paperless" application process and of minimizing the administrative cost of continuing to process paper NOIs.

Response Refer to Response 1.6.2.



# Comment ID 0087

- A1.001.034

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.5.2Q
While UWAG welcomes an e

- NOI system (Section 1.5.2), the system needs to be capable of accepting location information for linear projects, such as starting point and ending point GPS

- type locations with routes attached, rather than limiting the available input to
onl y one physical address. The system also needs to allow for many potential outfalls, since a long linear project may cross mul tiple waterbodies. Two or three lines will not be enough to capture all the outfall names. As an alternative, linear projects should identify the watersheds into which the projects will discharge.

Response Refer to Response 1.6.2 and 1.6.3.



# Comment ID 0090

- A1.001.022

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 1.5.2Q EPA requested input on Section 1.5.2 of the draft permit, regarding how to submit filings through the Notice of Inquiry System and the possible mandatory use of the eNOI system, as well as current experience in the use of eNOI. [FN 9] AGA members have observed
that the eNOI f iling system is an efficient method to submit the NOI and allows the 30

- day waiting period for permit authorization to start ticking upon electronic submission. The system works well for updating permit information, verifying that the permit's receipt and review status, and receiving a paperless approval. The system also allows immediate authorization when amendments are submitt ed for a project NOI.
[FN 9] Proposed CGP, at 13.

Response Refer to Response 1.6.2.



# Comment ID 0093

- A2.001.029

Author Name: Pilc onis LeahRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

188 Organization: Associated General Contractors of America (AGC) Issue Category: 1.5.2Q EPA has requested comment on the transition to a "paperless" NOI system for the CGP. The agency has made clear its strong preference to require all construction operators to use the eNOI system in the interest of developing a "paperless" application process and of minimizing the administrative cost of continuing to process paper NOIs. A total paperless system for the NOI may be de sirable for EPA, but the agency ad mits that the permitting program is still transitioning to a paperless process.

AGC strongly urges EPA to continue accepting paper NOIs. There are still some small contractors that are hesitant about total ly relying on the computer and also the security of electronic sites.

In addition, EPA must be mindful of circumstances that would require a paper submittal. For example, some construction compan ies are required to generate the paperwork for the project owner, and they must obtain written signature of the responsible authority prior to submission. This can only be accomplished via paper submittal. Also, if EPA expects state permitting authorities to switch over to an all electronic NOI filing system, it must make provisions for payment of permit fees by non

- electronic means (a paper check) to accommodate operators that do not have an available means of electronic payment. For example, a company must pay by credit ca rd to use the current electronic notice system in Florida. Many AGC member companies do not put these types of expenses on credit cards and/or do not issue company credit cards to the people who will be completing these tasks. Also, some AGC companies report th at when they are required to generate paperwork for the project owner, they must get the signature of the responsible authority prior to submission. This can only be accomplished via paper submittal.

In any event, EPA should phase in any requirement for electronic NOI and provide training to small businesses. Some AGC membe rs who have ex perience using the eNOI system reported problems with the Latitude and Longitude Validation page (under the "Project Site Information" Tab).

Response Refer to Response 1.6.2. EPA also notes that it doesn't expect state permitting authorities to switch over to an all electronic NOI filing system.



# Comment ID 0096

- A1.001.019

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.5.2Q While EPA continues to implement an eNOI system, NAHB supports a flexible system in which the party filing the NOI has the option to select the eNOI system or file a hard copy NOI. There are many cases where a business entity may prefer to submit hard cop ies, including where computer access and availability is limited. At a minimum, EPA s hould phase in any requirement for electronic NOI submission and provide training to potential permittees.

Response Refer to Response 1.6.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

189 

# Comment ID 0097

- A1.001.001

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 1.5.2Q 1. I would support electronic filing of the NOI provided an electronic receipt is generated at that time.

Response Refer to Response 1.6.2.



# Comment ID 0105

- A2.001.002

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 1.5.2Q [ Required use of eNOI system (Part 1.5.2). Electronic Notices of Intent ("NOIs") have already proven a convenient means of compliance for permittees and an efficient mechanism for gathering basic information about construction storm water discharges for dissemination to the public, while reducing the costs, waste, and potential for errors associated with paper NOIs. Requiring electronic NOI submission (absent special provision by an EPA Regional Office) is a sound step consistent with electronic filing required by other regulatory programs and courts around the country. To maximize the public benefits of this requirement, EPA should prov ide transparent, automatic, and comprehensive online access to information associated with covered a ctivities, including the information in reports required of permittees under the new provisions of the Draft CGP. In addition, EPA should add a requirement that Stor mwater Pollution Prevention Plans ("SWPPPs") - in most cases the essential document governi ng permittee activities - be filed and accessible to the public in electronic form.

Response Refer to Response 1.6.2 and 8.1.



# Comment ID 0110

- A1.001.001

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 1.5.2Q
The use of electronic NOI is a great idea and is what should be done moving forward.

Response Refer to Response 1.6.2.



# Comment ID 0111

- A2.001.001

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 1.5.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

190 Dow generally supports the proposed use of an electronic system for submission of Notification of Intent. However, Dow also recommends that EPA provides sufficient time for delegated authorities to implement the electronic system to accept NOI input and submissions from affected operators in accordance with 40 CFR §122.22, including those requirements for a corporation's responsible corporate officer. Dow also supports the proposal to allow paper NOI submission and related items to the appropriate permitti ng authority.

Response
Refe r to Response 1.6.2. EPA also notes that EPA does not require authorized states to follow the same NOI submittal process as E PA.



# Comment ID 0117

- A1.001.008

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 1.5.2Q The commenter agrees with EPA's strong preference to require all construction operators to use the eNOI system in the interest of developing a "paperless" application process and of minimizing the administrative cost of continuing to process paper NOIs.

Response Refer to Response 1.6.2.



# Comment ID 0123

- A2.001.002

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 1.5.2Q Comment: CRWD supports the requirement to submit NOIs electronically, with exceptions for Regional Offices that have determined it is acceptable to submit paper NOIs

Response Refer to Response 1.6.2.



# Comment ID 0126

- A2.001.003

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 1.5.2Q The CSC acknowledges and appreciates the ease of electronic filing.

Response Refer to Response 1.6.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

191 

# Comment ID 0128

- A2.001.006

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 1.5.2Q While EPA continues to implement an eNOl system, the Chamber supports a flexible system in which the party filing the NOI can select to use the eNOl system or file a paper NOI.

Response Refer to Response 1.6.2.



# Comment ID 0131

- A1.001.003

Author Name: Gear Ken Organization: Leading Builders of America, I nc. (LBA) Issue Category: 1.5.2Q LBA supports the transition to a paperless system. The use of electronic submittal process provides an efficient, timely, and cost effective means for NOI submittal.
Response Refer to Response 1.6.2.



# Comment ID 0133

- A2.001.005

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 1.5.2Q While MDT generally supports the use of an e

- NOI system, tribal application submittals are not addressed in this proposed cap. MDT encourages EPA to work cooperatively with the Tribes to develop a streamlined electronic submittal process that includes all entities.

Response Refer to Response 1.6.2. EPA also clarifies that NOIs for tribal areas covered under this permit are submitted in the same manner as all other projects.



# Comment ID 0134

- A2.001.004

Author Name: Gaines John Organization: City and County of Denver, Department of Public Works Issue Category: 1.5.2Q Section 1.5.2, page 6 We support EPA's effort to transition to a p aperless system.

Response Refer to Response 1.6.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

192 

# Comment ID 0137

- A2.001.003

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 1.5.2Q The paperless eNOI seems fairly straightforward and streamlined and allows for a staff member to prepare the report before sending to a certifying member. It makes sense that all requests are required to be filed online since it is easily accessible and strai ght forward. Exceptions to th e eNOI should be made on a case by case basis and subject to the regional office's preference and circumstances.

Response Refer to Response 1.6.2.



# Comment ID 0145

- A2.001.002

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 1.5.2Q From our perspective, the general permitting process is a compromise between easing the regulatory burden for developers and regulators associated with collecting pertinent information about a proposed project and providing the gener al public access to information about development projects in their community. Up to now, this "balance" has been more to the benefit of regulato rs and developers than to those of us seeking information about those projects. We understand that electronic submission of a developer's "Notice of Intent" (the eNOI) may facilitate the general permitting process and minimize the expense involved, both for the d eveloper and the regulator. We see the wisdom of electronic submissions and support the use of eNOIs wit h very few exceptions.

We hope the EPA will not miss the opportunity to enhance the public's access to that information by storing the eNOI in a sea rchable database available to the public. Public access and review of that information can improve account ability of all the parties and help identify misinformation or shortcomings in the information listed in Section 1.5.1 upon which the NOI is based.

Response Refer to Response 1.6.2. and 1.6.3.



# Comment ID 0153

- A1.001.002

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 1.5.2Q It is acceptable to allow an eNOl as an option to submit. However there are many "operators" who will not be able to do so electronically. EPA should allow for paper copies to be submitted.

Response Refer to Response 1.6.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

193 

# Comment ID 0159

- A1.001.002

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 1.5.2Q The paperless eNOI seems fairly straightforward and streamlined and allows for a staff member to prepare the report before sending to a certifying member. It makes sense that all requests are required to be filed online since it is easily accessible and strai ght forward. Exceptions to the eNOI should be made on a case by case basis and subject to the regional office's preference and circumstances.

Response Refer to Response 1.6.2.



# 1.5.3 DEADLINES FOR SUBMITTING YOUR NOI

Comment ID 0021

- A1.001.011
Author Name: Unrein Terrance Organization: Tepa Issue Category: 1.5.3
1. In Section VI.5.3 of the Proposed CGP Fact Sheet, guidance is provided for the NOI submission deadlines for different types of construction projects. Particularly the "Previously Permitted New Source" and "Existing Permitted Discharger" requirements st ate the re is a requirement for these types to submit an NOI 90 days after permit issuance. This can pose many detrimental obstacles for these projects considering these contracts were likely solicited and awarded years ago before any draft permit or known new

reg ulations existed. I would propose that "Existing Permitted Dischargers" and "Previously Permitted New Sources" can maintain permit coverage under the 2008 CGP.

Response Refer to Response 1.3.



# Comment ID 0025

- A1.001.008

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 1.5.3 Please add language that allows the NOI to be processed sooner if proof that the Endangered Species Act and historic properties have been addressed through the NEP A process. A 30

- day period for NOI submittal may have an extremely negative impact on a DOT. Contractors are not allowed to submit an NOI until the DOT has reviewed and approved their SWPPPs; this process alone usually takes about two weeks. By adding an additional mo nth for NOI submittal, we could potentially have a contractor for a small 60

- day project who is unable to commence work for the first 45 days

Response Refer to Response 1.6.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

194 

# Comment ID 0030

- A2.001.006

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 1.5.3 Section 1.5.3, Table 1

- 1, page 7
The 2008 CGP eNOI has a 7

- day review period. 30 days is a significant change, given the limited information required on the NOI
form. We feel that 7

- 14 days would be more appropriate and provide adequate time for review, the NOI system should be set up so that multiple agencies can be reviewing simultaneously especially if permittees are using the eNOI system.

Also, it isn't clear if a secondary operator can fill for permit coverage before a primary. For example, a light rail project is proposed for an area and utilities start being relocated when the design of the light rail is only at 70%. Can the utilities pull their ow n permit even though in some ways they are secondary operators? This language on primary and secondary operators may need to be adjusted (see

comment 1), and the time lines for approval may need to be clarified based on these definitions.

Response Refer to Response 1.6.4.



# Comment ID 0033.001.001

Author Name: Soga Cheeta Organization: Nitsch Engineering Issue Category: 1.5.3
Docket ID No. EPA

- HQ

- OW

- 2010

- 0782 Comment regarding "1.5.3. Deadlines for Submitting Your NOI." Nitsch Engineering would like clarification on the permit requirements for construction projects that fall under the following two categories: "previously permitted new source" and "existing permitted discharger." Specifically, will these two categories of construction projects be grandfathered under the 2003 or 2008 CGP that they are currently covered under? Or will they be required to meet the conditions of the proposed new CGP once they have been granted coverage under this permit? If projects that are curr ently under construction have to meet the new permit requirements, this could create additional costs and disruption on a construction project and confusion if the project is substantially complete. Please clarify.

Response Refer to Response 1.3.



# Comment ID 0037

- A1.001.004

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 1.5.3 A 30 day deadline is not practicable for some projects. A 10

‐ day deadline is more reasonable especially for small construction projects (such as residential lot size) that are on a fast track and do not fall under the secondary operator category.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

195 Response Refer to Response 1.6.4.



# Comment ID 0047

- A2.001.003

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 1.5.3 Section 1.5.3, Table 1

- 1, page 7

The 2008 CGP eNOI has a 7

- day review period. 30 days is a significant change. Given the limited information required on the NOI form, 7- 14 days would be more appropriate and provide adequate time for review.

Also, it isn't clear if a secondary operator can file for permit coverage before a primary. For example, Xcel Energy (a secondary operator) needs to relocate utilities as part of a larger common plan of development (i.e. before a street widening project begins or a light rail project is built). Quite often the utility relocation work nee ds to occur long before the primary operator is ready to pull their permits. Again, this concept of primary verses secondary operator is confusing. Can Xcel Energy pull our own permit even thou gh we are secondary operator?

Response Refer to Response 1.6.4

.



# Comment ID 0063

- A1.001.002

Author Name: Tobin Kathleen Organization: Verizon Issue Category: 1.5.3 Verizon is also providing an additional comment within this letter. The proposal is increasing the "waiting period" from 7 da ys to 30 days for new projects. The new timeframe is intended to better reflect the endangered species

- related reviews that must take place prior to authorization. If the project has already conducted a National Environmental Policy Act (NEPA) review for endangered speci es ther e does not appear to be a need for additional time. Since EPA is proposing to maximize the use of the electronic Notice of In tent (NOI) process for authorizing construction discharges to be more efficient, projects that have already completed an endangere d species review, be allowed to maintain the 7 day "waiting period".

Response Refer to Response 1.6.4.



# Comment ID 0064

- A1.001.008

Author Name: Dees Richard Organization: City of Meridian Issue Category: 1.5.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

196 Section 1.5.3, Table 1

- 1, page 7 - "Except for secondary operators, at least 30 days prior to commencing..."

•For operators with extensive environmental programs, a 30

- day waiting period seems overly burdensome and could result in significant delays in construction. Departments of Transportation (DOTs) and many large cities often have experienced environmental staff that completes environmental clearance documents well in advance of NOI submission. In the case of DOTs, this work is o ften mandated as a means of ensuring federal funding for construction projects. Perhaps as part of the NOI submission process, an operator would indicate whether or not clearances have been obtained. If an operator does not have existing environmental and/or histo rical clearances clearly documented at the time of NOI su bmission, then their waiting period would be 30 days. If an operator already has the proper environmental and/or historical clearances, then their waiting period would only be 7 days.

Response Refer to Response 1.6.4.



# Comment ID 0066

- A1.001.007

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 1.5.3 Discussion: In Table 1.1, the requirement that primary operators submit NOI at least 30 days prior to commencing earth distur bing activities is too long. This could delay construction activities/project schedules that are dictated by contract requirements. As noted above in 1.5.2, we currently experience very little lag time in when we submit, versus when coverage is obtained.

Additionally, all projects previ ously permitted under the 2008 permit or existing state permit should be allowed to be completed under the existing permit. For state DOTs, contract requirements and specifications have been developed specifically for the 2008 p ermit. Requiring a new permi t with new requirements will require development of new specifications, training, guidelines, and contract
modifications to on

- going permitted projects. These changes are not feasible and would be very costly to state DOTs.

Suggestion: A more reasonable time period is to allow 7 days for obtaining permit coverage/submitting an NOI. Also, allow all projects permitted under the 2008 permit or existing permit to complete construction without being required to retroactively comply with the new rules (grandfat her ongoing projects).

Response Refer to Response 1.3 and 1.6.4.



# Comment ID 0067

- A1.001.004

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 1.5.3
A. NOI submittal timing requires that the document be filed via the e- NOI process thirty days prior to initiation of construction activities. The applicant then is required to delay construction start for 30 days following notification by the agency that the NOI/SWPPP package is complete. Assuming a typical agency processi ng lag of one month from NOI submission to a completenessRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

197 determination, permittees could face a sixty

- day minimum interval from NOI submittal until construction could commence under the CGP. For major linear energy projects, this delay can be factored into the overall project management sequence; however, for minor line upgrade projects that may not qualify as true emergencies but that are otherwise dependent upon receiving an electrical outage authorization from a customer, or that are being driven from a Federal Energy Regulatory Commission ("FERC") or regional electric reliability organization mandate, that time delay could affect electrical reliability to customers as well as potentially pla ce Entergy in violation of FERC or derivative electrical reliability standards.

Response Refer to Response 1.6.4.



# Comment ID 0068

- A1.001.012

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.5.3 EPA should not implement new source performance standards set forth in the C&D ELG (see Section II. above). EPA also should remove the provisions relating to "primary" and "secondary" operators, which could result in multiple permits for a single di scharge (see Section II.A.1. above).

Response Refer to Response 1.2 and 3. 5.



# Comment ID 0093

- A2.001.027

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.5.3 Also, AGC requests that EPA add language to Part 1.5.3, Table 1

- 1 that would allow the NOI to be processed soone r if the permit applicant demonstrates that the legal requirements under the Endangered Species Act and Historic Properties Act were addresse d previously through the National Environmental Policy Act (NEPA) process. In addition, if the permit applicant can show that a site does not have endangered species or historic properties (which are EPA's reasons for requiring the additional review time), t hen EPA should allow for an expedited permit approval process.

Response Refer to Response 1.6.4.



# Comment ID 0098

- A1.001.004

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.5.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

198 The language here is confusing, mixing timing provisions that will apply only during the changeover to the new permit with NO I deadlines that will apply for the rest of its term. We suggest that the Agency separate these two kinds of timing provisions for the sake of clarity.

Response EPA appreciates the comment, but believes it is necessary that these timelines be included in the permit so that all typ es of operators are aware of when they need to submit their NOI. EPA simplified this provision in the final permit.



# Comment ID 0105

- A2.001.004

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 1.5.3 [ 30

- day submittal deadlines for new sources (Part 1.5.3). Requiring the submission of NOIs for new sources at least 30 days prior to covered activities promotes advance planning by permittees and could enable appropriate review of NOI information by EPA, ot her federal, state, and local resource agencies, and the public. Secondary operators should also be subject to the 30

- day deadline, rather
than the 7

- day deadline proposed in the Draft CGP.

Response Refer to Response 1.6.4.



# Comment ID 0107

- A2.001.002

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 1.5.3 Amigos Bravos believes that it is appropriate to require NOI submittal at least 30 days prior to commencement of construction activities. A minimum of thirty days is needed to review a NOI submittal and to ensure that all relevant requirements, such as compliance with the Endangered Species Act (ESA) are met.

Response Refer to Response 1.6.4.



# Comment ID 0111

- A2.001.002

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 1.5.3 Dow does not support the proposed NOI submission deadline of 30 days for new sources. Alternatively, Dow recommends that the current 7 days NOI submission deadline (from the 2008 Construction General permit (CGP) be maintained in order to provide the necessary time for affected stakeholders to develop and implement their Stormwater Pollution Prevention Plans (SWPPP).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

199 Response Refer to Response 1.6.4.



# Comment ID 0130

- A2.001.011

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 1.5.3 10. PERMIT GRANDFATHERING. Part 1.5.3 discusses deadlines for submitting the NOI for the new permit. Per Part 1.5.3, all existing projects must initiate a new permit NOI within 90 days. It will be a burden to operators, with little to no return on effort, to terminate NOIs, update SWPPPs, and fill out new NOIs to apply for coverage under the new 2011 permit.

We request the EPA allow the applicants to determine if they should complete the project under the old permit, or apply for the new one, based on their individual project schedule circumstances. If that is not acceptable, we request consideration of the fol lowing options:

[ „Grandfather‟ projects with 2008 permit coverage where construction activi ties are complete, and all that remains is final vegetative stabilization. This is especially pertinent to projects completed and seeded in the fall of 2011, which would achieve vegetat ive stabilization in spring 2012 and would file a NOT just outside the 90 day window.

[ Extend the 90 window for projects awaiting final vegetative stabilization (under the 2008 CGP) to allow one full spring gro wing
season to achieve stabilization

Response Refer to Response 1.3.



# Comment ID 0133

- A2.001.006

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 1.5.3 MDT notes that the time for 'existing permitted dischargers' and 'previously permitted new sources' to submit an NO! for cove rage under the renewed CGP is 90 days. Th is time is not reasonable given the substantial changes proposed in the CGP. Storm Water
Pollution Prevention Plans (SWPPPs) will need to be updated; additional and/or different controls may need to be implemented in order to comply with the proposed efflu ent limitations; design changes will need to be explored; and contract amendments will need to be negotiated and issued. MDT strongly encourages EPA to consider a longer period of time for existing discharges to obtain p ermit coverage under the renewed CGP, perhaps a year or more.

Response Refer to Response 1.6.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

200 

# Comment ID 0136

- A1.001.002

Author Name: Conlon Royce Organization: PDC Inc. Engineers Issue Category: 1.5.3 The change from 7 to 30 days from NOI to beginning of construction does not seem to have any productive purpose and could further impede construction progress in our Alaska's short seasons. Project funding has been later and later every year, this change could cause further impediments in the initiation of construction. Alaska has very short construction seasons and further impediments have huge ramifications. What is the purpose and value of this change?

Response Refer to Response 1.6.4.



# Comment ID 0171

- A1.001.010

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 1.5.3
The 30

- day waiting period for coverage may be unworkable and cause undue project delay. While the CGP establishes authorization to conduct emergency repairs conditioned upon the receipt of the notice of intent wi thin 7 days, it would be unworkable to apply for and receive documentation on eligibility under other federal laws in order to comply with notice of intent requirements within th e time period provided.

Response Refer to Response 1.6.4.



# 1.5.4 YOUR OFFIC IAL START AND END DATES FOR PERMIT COVERAGE

Comment ID 0024

- A2.001.020

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 1.5.4 and for increasing the waiting period before authorizing coverage from 7 to 30 days, see Part 1.5.4.

Response Refer to Response 1.6.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

201 

# Comment ID 0034

- A1.001.003

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 1.5.4 3. Assessment of Impacts under Endangered Species Act (ESA) and National Historic Preservation Act (NHPA)
Proposed Requirement/Section Addressed: CGP Section 1.5.3, Table 1

- 1; Fact Sheet pages 23, 25 & 26, 30 day waiting period for assessment of impacts under the ESA and NHPA for new sources.
Comment: The fact sheet (page 23) states that if the Fish and Wildlife Service , the National Marine Fisheries Service or a State or Tribal Preservation Office request additional assessment time to address ESA or NHPA concerns, EPA can delay authorization to allow the assessment to be completed.

Discussion: The proposed permit already extends the time for this assessment from 7 to 30 days. The fact sheet (page 26) stat es that EPA can delay authorization even further, although this is not stated in the CGP. This practice could significantly delay c onstruction. Although it may be useful to allow some flexibility for additional assessment for impacts under ESA or NHPA, there should be a limit on the amount of time that EPA can delay authorization for these assessments.

Recommendation: Recommend that the provision for allowing additional assessment time to address ESA or NHPA concerns be limited to 30 days. Also recommend that language be added to the permit to clarify the assessment process.

Response Refer to Response 1.6.4.



# Comment ID 0040

- A1.001.004

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 1.5.4
The 30

- day waiting period for coverage (Section 1.5.4) may be unworkable and cause undue project delay. While the CGP establishes
authorizat ion to conduct emergency repairs conditioned upon the receipt of the NOI within 7 days. It would be unworkable to apply for and receive documentation on eligibility under other federal laws in order to comply with NOI requirements within the time pe riod

pr ovided. For example, EPA estimates that, on average, Section 404 permits are issued within 2 to 6 months from receipt of a completed application.

Response Refer to Response 1.6.4.



# Comment ID 0046

- A1.001.002

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 1.5.4Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

202 The Department beiieves the increase from a 7

- day waiting period to a 30

- day waiting period for new source NOls is too long. This will have a substantial and negative effect on our p rojects.

Response Refer to Response 1.6.4.



# Comment ID 0076

- A1.001.002

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 1.5.4 Target would encourage the EPA to hold their current permit processing waiting period of 7 days after permit acknowledgement.

Response Refer to Response 1.6.4.



# Comment ID 0086

- A1.001.007

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 1.5.4
The 30

- day waiting period for coverage (Section 1.5.4) may be unworkable and cause undue project delay. While the COP establishes authorization to conduct emergency repairs conditioned upon the receipt of the NOI within 7 days, it would be unworkable to apply for
and receive documentation on el igibility under other federal laws in order to comply with NOI req uirements within the time period
provided. For example, EPA estimates that, on average, Section 404 permits are issued within 2 to 6 months from receipt of a completed application.

Response Refer to Response 1.6.4.



# Comment ID 0087

- A1.001.011

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.5.4
UWAG believes that the 30

- day waiting period for coverage under Section 1.5.4 is far too long, is a rbitrary, and presents undue project complications. UWAG acknowledges that EPA has imposed 30

- day waiting periods in other permits, such as MSGP

- 2008. However, the activities authorized under those permits are not nearly as episodic or dynamic as activities under the CGP. As a result, UWAG believes that a shorter waiting period (e.g., 7 days or 14 days) would be appropriate for the types of activities covered by the CGP. EPA should also clarify that the 30

- day waiting period is triggered upon submittal of a complete NOI, rather than administrative acknowledgement by EPA.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

203 Response Refer to Response 1.6.4.



# Comment ID 0087

- A1.001.013

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.5.4 In addition, in Section 1.5.4, EPA says that "[f]or operators of emergency

- related projects, you are considered provisionally covered under the terms and conditions of this permit immediately, and are unprovisionally covered 30 days after EPA acknowledges rec eipt of your NOI ... unless EP A notifies you that your authorization has been delayed or denied." EPA should clarify that such notification of delay or denial will simply keep the provisional coverage in place until such time as EPA specifies what further steps the pe rmittee may need to take and gives the permittee a reasonable period to respond.

Response Refer to Response 1.3.



# Comment ID 0088

- A1.001.007

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 1.5.4 Among the unrealistic requirements are:

-- the 30

- day waiting period for coverage

Response Refer to Response 1.6.4.



# Comment ID 0093

- A2.001.026

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.5.4 The Draft would require NOI submission at least 30 days prior to commencing earth

- disturbing activities. This is a significant change
from the 2008 CGP which includes a 7

- day waiting period. Specifically, EPA proposes to increase the "waiting period" from 7 days to 30 days to accommodate the endangered species and historic properties

- related reviews that must take place prior to authorization.

AGC strongly urges EPA to retain the 7

- day waiting period. A 30

- day waiting period would increase the cost of construction projects
and it would be impracticable on many small

- scale projects that may only last a few months. If the 7

- day period cannot be retained for all projects, at a minimum, AGC recommends that it continue to apply on all small projects (e.g., those disturbing less than 10 acres). In addition, if EPA determines a change is absolutely necessary for larger projects, a two week (14

- day) waiting period would be much better than 30 days.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

204 Response Refer to Response 1.6.4.



# Comment ID 0096

- A1.001.022

Author Name: Asmus Susan
Or ganization: National Association of Homebuilders Issue Category: 1.5.4 EPA is proposing to require NOI submission at least 30 days prior to commencing earth disturbin g activities. This is a significant change from the 2008 CGP which had a 7 day waiting period. EPA proposes to increase the “waiting period” from 7 days to 30 days to accommodate the endangered species and historic properties

- related reviews that must take place prior to authorization. EPA should consider adopting an expedited permit approval process for sites that do not have Endangered Species or Historic Properties – the stated reason behind the additional review time. A 30 day waiting period increases the costs for construction projects, but h as little effect on improving overall environmental protection. NAHB strongly urges EPA to retain the 7 day waiting period. If the 7 day period cannot be retained for all permittees, at a minimum, it

Response Refer to Response 1.6.4.



# Comment ID 0098

- A1.001.005

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.5.4
Where off

- site borrow/spoil sites are obtained by contractors after the commencement of work on a job the 30

- day waiting period for a permit to become effective could delay projects and result in additional costs. In many cases contractors are required to procure their own borrow/spoils sites. This information would not be known at the time of primary permitting and may not be known at the ti me of
bid. A 30

- day lead time would be problematic in s uch cases, and especially where the contractors are typically the primary permit holder on these borrow/spoil sites. We request that the Agency consider clarifying that, in such circumstances, the contracto r would be a "secondary" permittee subject to the more reasonable 7

- day waiting period.

Response EPA appreciates the comment. EPA believes that the reduced waiting period in the final permit to 14 days will be less problem atic for these situations. See also Response 1.6.4.



# Comment ID 0127

- A2.001.001

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 1.5.4 Proposed LanguageRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

205 1.5.4 Following your submittal of complete and accurate NOI consistent with this Part, unless you are a secondary operator, n ew operators of a new source or existing permitted discharger, and operators of emergency

‐ related projects, you are considered covered under the terms and conditions of this permit 30 calendar days after EPA acknowledges receipt of your NOI through posted
information on EPA's website.

Concern

The 30

‐ day waiting period is too long. The long waiting period requires the SWPPP to be completed too early in the process, potentially resulting in an inadequate product. Since the SWPPP must be completed prior to submi tting the NOI and with multiple revisions during the approval process, the SWPPP may be written approximately 60 days prior to the permit coverage beginning. The plans and scope of work may be incomplete 60 days prior to construction commencing. The result will be in incomplete SWPPP based on assumptions.

7

‐ day waiting period for all projects. Or at least a 7

‐ day waiting period for all projects less than 10 acres.

Response Refer to Response 1.6.4.



# Comment ID 0130

- A2.001.012

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 1.5.4 11. WAITING PERIOD. Part 1.5.4. This is a significant adverse impact for our business. The change from a 7 day NOI waiting pe riod to a 30 day NOI waiting period will impact project d elivery & startup times significantly, especially in mountainous regions with potentially short work windows. This will also affect projects in or near water, where work must be completed under no or low flow conditions, again with very small work windows. DOT transportation projects have received Endangered Species Act (ESA) and Cultural Clearances prior to filing the NOI for the Project. ITD strongly encourages EPA to continue to utilize the 7 day NOI waiting period. Require all parties to have required clearances prior to the NOI to facilitate the 7 day waiting period.

Response Refer to Response 1.6.4.



# Comment ID 0133

- A2.001.007

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 1.5.4
MDT notes that the lime for obtaining permit coverage after submittal of a complete and accurate NOI has increased from 7 days to 30 days. This increased waiting period may result in costly delays in project construction and delivery. MDT is of the understan ding that
EPA has proposed this increased waiting period to allow for additional administrative time to address compliance with such laws as th e National Historic Preservation Act and the Endangered Species Act. In the interest of environmental streamlining, MDT suggest s i ncorporating an expedited review time for federal agencies thaI are able to submit their own demonstration of compliance with these Acts similar to the US Army Corps of Engineers' Clean Water Act Section 404 Nationwide Permits.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

206 Response Refer to Response 1.6.4.



# Comment ID 0158

- A1.001.007

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 1.5.4
The 30

- day waiting period for coverage (Section 1.5.4) may be unworkable and cause undue project delay. While the CGP establishes authorization to conduct emergency repairs conditioned upon the receipt of the NOI within 7 days, it would be unworkable to apply for and receive documentation on eligibility under other federal laws in order to comply with NOI requirem ents within the time period provided. For example, EPA estimates that, on average, Section 404 permits are issued within 2 to 6 months from receipt of a completed application.

Response Refer to Response 1.6.4.



# Comment ID 0170

- A2.001.003

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 1.5.4
The 30

- day waiting period for permit coverage is too long and should be reduced to 10 business days with an expedited option for permit coverage within 24 hours. Furthermo re, a lack of response by EPA within 10 business days of submittal of a complete and accurate Notice of Intent should result in automatic permit coverage for the operator. Currently, the Arizona Department of Environmental Quality offers immediate permit coverage under the Arizona Construction General Permit through its Smart NOI system. That is to say that the moment an operator submits a complete and accurate NOI via the Arizona Smart NOI system it re ceives coverage under the Arizona CGP permit. This type of efficient permitting should serve as an example to EPA. While, under proposed Part 1.3.2, EPA would offer immediate permit coverage for projects that occur in response to natural disasters ("e.g., tornad o, hurricane, earthquake, flood"), it would not r ecognize other situations where earth disturbing activities are required on short notice to avoid severe economic or social consequences. For example, a damaged transmission line tower may require immediate replacemen t to avoid a disruption in electrical s ervice or to re

- establish electrical service. When one considers access roads and the area of actual construction it is not uncommon for these projects to exceed one acre in earth disturbance and therefore require CGP coverage . A 30

- day delay to engage in this type of critical work is not reasonable. EPA must provide an expedited option for permit coverage for those emergency situations requiring work to be started inunediately, but which are not specifically listed in Part 1.3.2.

Response
Refer to Response 1.6.4 and 1.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

207 

# 1.5.5 CONTINUATION OF COVERAGE FOR EXISTING PERMITTEES IF THE PERMIT EXPIRES
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 1.5.6 PROCEDURES FOR DENIAL OF COVERAGE

Comment ID 0025

- A1.001.009

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 1.5.6 "Any interested person may request that the EPA consider requiring an individual permit ... " This could become a tool for pe rsons to delay projects simply because they do not like them. There needs to be safeguards in place to protect against nuisance requests and an allowance for the permittee to respond. Please include some sort of response deadline a allow projects to move forward.

Response Refer to Response 1.6.5.



# Comment ID 0034

- A1.001.004

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 1.5.6 Proposed Requirement/Section Addressed: CGP Section 1.5.6, Procedures for denial of coverage.

Comment: The permit requires EPA, if denying coverage, to "include a brief statement of the reasons for this decision." Denial of coverage would significantly postpone a construction project and in some cases force cancelling the project. Providing only a "brief

statem ent" of the rationale for the decision is not sufficient for an action with such significant ramifications.

Discussion: It is unclear whether EPA can deny coverage after it has already been granted, and what the standards/criteria EP A would

use to remove or deny coverage. Denying coverage on a project that is underway could reasonably result in work to stop with significant cost ramifications. Additionally, removing coverage would tend to minimize (and conceivable prohibit) upkeep of i n- place practices to minimize soil erosion. The U.S. Army Corps of Engineers (USACE) Nationwide Permits allow the applicant to develop a mitigation plan that would reduce the adverse effects on the aquatic environment instead of being denied coverage under the p ermit.

Recom mendation: DoD recommends EPA develop a similar process to that in the USACE Nationwide Permits. EPA should allow the permittee to mitigate concerns prior to coverage denial.

Response Refer to Response 1.6.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

208 

# Comment ID 0093

- A2.001.030

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.5.6 This Part of the Draft states that "any interested person may request that EPA consider requiring an individual permit...." Thi s language is very problematic because it could force contractors to submit individual permits for invalid reasons. Of utmost concern to AGC is the likelihood that this provision would become a tool for persons to delay projects either in protest to a specific p roject or out of ideologi cal or political motivations. Individual permits are extremely burdensome, time consuming, and costly, and the CGP already contains requirements to ensure water quality is not compromised.

In addition, AGC is very concerned that EPA has not identified the specific criteria that would require an individual permit. This lack of specifics would likely result in unnecessary project delays and illegitimate claims. EPA must also clarify that it is the decision

maker and establish an appeals process or other mec hanism that applicants can use if they believe the requirement to obtain an individual permit is not warranted. In addition, there need to be safeguards in place to protect against nuisance requests an d an opportunity for the prospective permittee to respo nd. There should also be a deadline by which this process must conclude to allow projects to move forward in a timely manner.

Response Refer to Response 1.6.5.



# Comment ID 0096

- A1.001.023

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.5.6 EPA has not identified the specific criteria that will trigger the obligation to operate under an individual permit. In Part 1.5.6 “Procedures for Denial of Coverage” EPA states that “Any interested person may request tha t EPA consider requiring an individual permit under this paragraph.” Because this language contains no criteria for when an individual permit is appropriate, it cou ld lead to operators being required to submit individual permits for invalid reasons, such a s opposition to the project because of reasons unrelated to stormwater or other arbitrary reason. Individual permits are extremely burdensome, time consuming, and costly, and the CGP already contains requirements to ensure water quality is not compromised. EPA should first remove the language “Any interested person may request that EPA consider requiring an individual permit under this paragraph.” Then, EPA should list the specific criteria that may lead to a project being required to obtain an individual p ermit to avoid unnecessary project delays and illegitimate claims. EPA must also clarify that it is the decisionmaker and establish an appeals process or other mechanism that allows applicants to challenge the requirement to obtain an individual permit.

Response Refer to Response 1.6.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

209 

# 1.6 REQUIREMENT TO POST A NOTICE OF YOUR PERMIT COVERAGE.

Comment ID 0066

- A1.001.008

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 1.6 Discussion: The posting location of the NOI and other permit documents must take safety into consideration. The main entrance for a typical transportation related construction site at TxDOT may not necessarily be a safe location for the traveling public, an d in fact the project location may have multiple "primary entrances". On a linear project, these entrances may be where new phases of construction have commenced and be miles apart.

Suggestion: Add in language that the NOI must be posted at a safe, publicly accessible location near where construction is occurring and where it will be apparent to someone who is looking for it. On a linear transportation project the main entrance may not be clearly defined or marked, and many of these posting locations may be potentially unsafe f or public access. We suggest that the permit be written that allows for flexibility regarding where the NOI is located, with consideration given to existing on

- site safety conditions.

Response Seee Response 1.6.6.



# Comment ID 0087

- A1.001.035

Author Name : Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.6 Additionally, the Section 1.6 requirement that permittees post a notice of permit coverage is a significant challenge for linear utility construction projects. There is no main entrance to a linear utility construction area. Sometimes there will be a construction trailer and lay down area, but the property leased for the lay down area is rarely located within or adjacent to the right

- of

- way in which the actual
construction will take place. EPA needs to provide linear utility project operators with flexibility to post or provide notice in a manner that makes the most sense for the particular project, including the option simply to post such notice on

- line.

Response Refer to Respo nse 1.6.6.



# Comment ID 0098

- A1.001.006

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.6 There may be times when posting permit documents on a public right of way is unnecessary. For example, on projects where ther e is a publicly accessible location that is not on a public right of way (in a parking lot, for example), document posting at that l ocation wouldRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

210 provide the same or better access without requiring viewers to actually enter the active construction site. Indeed , posting on a public right of way could result in dangerous situations where someone stops to read the posting from a travel lane. We request that EPA consider expanding the approved locations for such postings as described.

Response Refer to Response 1. 6.6.



# Comment ID 0105

- A2.001.003

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 1.6 [ Requirement to post notice of coverage (Part 1.6). The new requirement in the Draft CGP that site operators post a notice of CGP coverage and key contact information at the facility entrance is an important improvement to the public notification provisio ns, and should be retained in the final permit. This requirement imposes minimal burden on the site operator while pr oviding clear and immediate information to the public.

Response EPA appreciates the comment.Refer to Response 1.6.6.



# Comment ID 0127

- A2.001.002

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 1.6
Section 1.6

Proposed Language
You must post a sign or other notice conspicuously near the main entrance of the construction site, which at a minimum, must include the NPDES Permit tracking number and a contact phone number for obtaining permit information, such a s the SWPPP. The notice must be located so that it is visible from a public road that is nearest to the active part of the construction site, and it must use a font large enough to be readily viewed from a public right

‐ of

‐ way.

Concern

On a Federal Installa tion, the posting would be located at the gate entrance to be visible from a public right

‐ of

‐ way and could be miles
from the construction entrance site.

Suggested Correction Revise language as follows "...readily viewed from a public right

‐ of

‐ way or general base population access road."

Response Refer to Response 1.6.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

211 

# Comment ID 0133

- A2.001.008

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 1.6 The proposed CGP requires a sign or other notice to be posted conspicuously near the main entrance of the construction site. The posting of additional signs on linear transportation projects can present considerable safety risks both by placing additiona l obstacles within the clear zone (total roadside border area available for safe use by errant vehicles) and by changing driving behaviors whereby
drivers un

- expectantly slowdown in order to read the sign. Additionally, in a semi

- arid state such as Montana, there can be a substantial amount of time from the end of active construction to final stabilization. Maintaining a sign for long periods after construction has ended and stabilization measures have been implemented does not seem warranted, as it will not lead to any w ater quality improvements and can present safety hazards within roadside clear zones. MDT suggests exploring other methods for informing the public, such as a more robust EPA website. If a sign must be posted, it should be required during active constr uction periods only.

Response Refer to Respo nse 1.6.6.



# Comment ID 0145

- A2.001.003

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 1.6
This requirement is very important from our perspective. The lack of "before

- the

- fact" public notification about projects covered u nder "general permits" is a challenge for those of us hoping to understand what activities are planned for our watersheds. However , when no information can be located for an ongoing project that is need of regulatory attention, our frustrations are multiplied. Without accessible, on

- site posting of that information, bringing attention to problems, if those exist, is much more difficult. We appreciate seeing an explicit requirement here.

Response EPA appreciates the comment. Refer to Response 1.6.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

2

. Effluent Limitations Applicable to All Discharges from Construction Sites

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

212 

# 2 EFFLUENT LIMITATIONS APPLICABLE TO ALL DISCHARGES FROM CONSTRUCTION SITES

Comment ID 0024

- A2.001.003

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 2
EPA should include Low

- Impact Development ("LID") requirements in the cap. LID is a nationally

- proven set of site

- specific architectural and engineering practices that both reduce the volume of and pollutants in storm water coming off of a site, approximate

pre

- development hydrologic conditions, and often bring economic benefit to the operator if incorporated into the project's initia l design. LID has been shown to reduce damaging impacts of urban storrnwate r runoff more than conventional site designs and Best Management Practices ("BMPs"). LID should therefore be required in NPDES permits as part of the Clean Water Act's mandate to reduce stormwater pollution. Accordingly, EPA should add to the site plarming requirement set forth in § 2.1 a requirement that operators design their sites using LID or similar environmental site design principles and approaches.

Response See Response 2.1.2.



# Comment ID 0024

- A2.001.004

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 2 Related to the need for more robust LID language is the lack of clear language relating to post

- construction runoff, which can often be a more significant long

- term contributor to pollution than sediment escaping a site during construction. As an example, over 125 miles of the Cahaba River that flows through Alaban1a are impaired by siltation (causing habitat . alteration), and about 55 miles of Shades Creek, a major tributary of the river, are the subject of a TMDL for siltation, turbidity, and habitat alteration. The Shades Creek TMDL found that between 62% (2001) and 73% (1991) of the sediment loading is from "Streambanks." In other words, the majority of
sediment in Shades Creek is from bank er osion associated with increased storm water discharges arising from a cumulative increase in the amount of impervious surfaces in that watershed. Field observations and the draft Cahaba River TMDL prepared in October 2 003
indicated that instream erosion an d scour due to increased post

- construction runoff is also a significant and growing source of sedin1ent and habitat destruction in the Cahaba mainstem and many of its tributaries. This significant and harmful source of sediment can only be managed through post

- construction controls. Unless LID and environmental site design become standard practice in the Cahaba and sin1ilar watersheds throughout the nation, TMDL targets carmot be met and degradations will cumulatively worsen wi th approval of each new develo pment.

Response See Response 2.1.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

213 

# Comment ID 0068

- A1.001.014

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2 In its final C&D ELG, EPA relaxed many of the overly

- prescriptive erosion and sediment control practices that it had proposed, often stating that, for example, the "need for these controls is dictated by site

- specific considerations," because they were "not always feasible," or that "implementing the requirement would be cost

- prohibitive." See 74 Fed. Reg. at 63,018. Now, EPA, through its permitting authority in four states and in various parts of many other states (recognizing also that EPA's CGP "acts" as a mo del CGP for the other 46 states), is reverting to the type of overly

- prescriptive BMP mandates that it addressed in promulgating the final C&D
ELG.

If in fact many BMPs are best assessed on a site

- specific basis or may prove to be "cost

- prohibitive" in certain circumstances, EPA should develop guidance for implementing the BMPs set forth in the C&D ELG rulemaking and then rely upon the individual permittee to assess and analyze the appropriate BMPs and their implementation to meet the standards set forth in the C&D ELG. For example, at the appropriate time after the C&D ELG is completed (the next CGP renewal process, not the current process subject to these comments), EPA should adopt in a final CGP only that which is required by the C&D ELG with regard to slopes; "minimize the disturbance of steep slopes" and then require the permitt ee to justify in its stormwater management plan the appropriate steps it will take to achieve that end. EPA should be proposing separate guidance concurrent with the C&D ELG rulemaking that sets forth mo re precise implementation strategies that reflect the need for site

- specific flexibility. Under no circumstance should EPA be attempting to provide what appears to be essentially a one

- size

- fits

- all implementation strategy as proposed in the Proposed CGP.

Response See Response 3.5.



# Comment ID 0068

- A1.001.016

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2 After a dozen years of studying technology controls to support the C&D ELG rulemaking during which concluded that a flexible approach is appropriate, why is EPA now attempting to implement an approach even more prescriptive than the C&D ELG proposal by way of promulgating a new CGP permit? When the appropriate time arrives to implement a revised C&D ELG, EPA should require precisely what is contained i n that regulation (as EPA states, "simply parroting" the C&D ELG), and use the extensive information (and more) in developing separate guidance that may assist site operators to more knowledgably implement such requirements wi thout unnecessarily complicati ng the Proposed CGP.

Response See Response 3.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

214 

# Comment ID 0098

- A1.001.007

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 2 The statement that the requirements in Part 2 apply in addition to any applicable state or local requirements "regardless of whether they are more or less stringent" is confusing. We suggest that the Agency delete the quoted language or otherwise replace it with a savings clause making clear that this permit and other applicable state or local r equirements constitute independent compliance obligations.

Response See Response 2.1.3.



# Comment ID 0102

- A2.001.011

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2 8. What about suggesting the use of vegetative solutions, such as composting, as a first priority, with structural measures to be used as a second priority? This is consistent with the approach to reduce erosion first (pollution prevention) and trap sediment seco nd (pollution treatment). Thi s approach is more technically effective in minimizing sediment discharges from sites and is a more cost

effective approach to erosion and sediment control.

Response See Response 2.1.3.



# Comment ID 0131

- A1.001.002

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2 A review of EPA's materials in support of the Proposed CGP indicates that EPA has not undertaken a separate analysis of the Technology

- Based Effluent Limitations (TBELS) for the non

- numeric standards included in proposed permit. Although EPA conducted a technology control analysis of certain non numeric standards when it promulgated in the Construction and Developm ent Rule ("C&D Rule") in 2009 [ http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm ], these were admittedly far less specific than those included in the Proposed CGP. Fact Sheet at 12 ["The proposed permit includes specific requireme nts that implement the C&D rule's sediment and erosion control limits. While many of these requirements are included in the 2008 CGP, the proposed permit includes more specifics in order to properly implement the C&D rule."] EPA has not conducted the requi red analysis for the specific requirements added (which EPA states are simply explanation (id.)) in crafting the proposed TBELs in the CGP even though the additions materially affect the technology utilized and the feasibility and cost of implementation. T his is because in incorporating the C&D Rule limitations, EPA has applied them with greater specificity than what is included in the C&D Rule C ode of Federal Regulations section to which the permit refers. E.g., compare 40 CFR § 450.21(a)(6) ["Minimize the disturbance of steep slopes"] with Proposed CGP § 2.1.1.2 [Avoid earth

- disturbing activities on steep slopes (i.e., slopes of 15% or greater), unlessRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

215 infeasible or inconsistent with the requirements of the project. Where avoiding disturbance to such are as is infeasible you must comply with the design requirements in Part 2.1.4.2."]; compare 40 CFR § 450.21(e) ["Prohibited discharges"] with Proposed CGP, §§ 2.3.2.1, 2.3.2.3 [EPA request for comments on practicabili ty of providing secondary containment for fueling and maintenance areas (§ 2.3.2.1), staging and storage areas (§ 2.3.2.3)].

Another problem with the CGP's inadequate TBEL analysis is that EPA is requesting comments on 26 different aspects of the Proposed CGP, including requests for information regarding feasibility of certain aspects of the permit's non

- numeric effluent limitations (see, e.g., Proposed CGP at 12 [EPA requests comments on the buffer compliance alternatives in Part 2.1.2.1....EPA is also interested in comments relating to whether a dditional flexibility is warranted for small sites that intend to implement the buffer alternative...EPA welcomes the submission of performance and cost data for treatment devices that might be implemented under compliance alternatives"]). While EPA has requested that commenters include information regarding the costs of some of the non

numeric limitation options described, it has not conducted any economic analysis of its own for these provisions or shown tha t the proposed permit requirements are feasible as required.

Dr. David Sunding, Principal Economist for the Brattle Group, has examined the costs of compliance with the non

- numeric effluent limitations included in the Proposed CGP. As described in his attached letter (attached hereto, along with Dr. Sun ding's present curriculum vitae), there may be significant costs to permittees associated with the aspects of the non

- numeric effluent limitations upon which EPA has requested comment. For example, in regard to the requirements for the use of chemical trea tment included in sedition 2.1.4.5 of the Proposed CGP, implementation information and hypothetical cost estimates for chemical treatment show that the costs of the technology become prohibitive as the volume of runoff decreases (either in dry climates and/or for smaller sites). Comparative studies show that chemical treatment costs are significantly higher than implementing both standard and/or enhanced tradition al BMPs on a construction site. Additionally, the costs of specific runoff controls such as secondary containment can be large on a per

- acre basis, especially for small projects (see Proposed CGP §§ 2.3.2.1 and 2.3.2.3). As described in Dr. Sunding's report, EPA has not analyzed the costs associated with these options.

EPA's adoption of TBELs requ ires rigorous assessment of technology factors specified in the CWA and its implementing regulations.
33 U.S.C. §1314(b)(2)(B); 40 C.F.R. §125.3(d); 51 Fed.Reg. 24974, 24980; NRDC v. EPA (9th Cir. 1988) 863 F.2d 1420, 1424. Failure to conduct the requisite analysis is a violation of the CWA. Each factor must be fully considered for each control measure promulgated, and the economic achievability based on the total cost to the industry and overall effect of the proposed regula tion on the industry's financial health must be considered. This entails an iterative process requiring the permit drafter to gather information about the industry, estimate costs and economic impacts of the proposed effluent control options, review comments on the proposed e ffluent
limi ts, and incorporate those comments into a final regulation supported by documentation. Mark A. Ryan, The Clean Water Act Handbook (2003 ed.) at 24. The fact that the analysis has not been made available for public comment for these additional spe cific

perm its requirements has impaired the ability of LBA and others in the homebuilding and construction industry to provide meaningf ul

comments.

EPA recognizes that the Proposed CGP will include TBELs in the form of both nonnumeric effluent limitations and a turbidity ELG (if EPA is able to promulgate a supportable ELG prior to the finalization of the CGP). See Fact Sheet at 4

- 5. For the inclusion of TBELs in the Proposed CGP, EPA has not considered any analysis of the pollutant control factors mandated by 33 U.S.C. §1314. The technology control factors "shall" be considered. 33 U.S.C. §1314(b)(4)(B). EPA is required to but has not considered the tec hnology control factors. 33 U.S.C. §1314(b)(4)(B); 40 C.F.R. §125.3(d)(2); NRDC v. EPA, 863 F.2d at 1424. Accordi ngly, the iterative processRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

216 required to establish the CGP's TBELs has not been followed, and must be before the permit is issued. Marathon Oil. Co. v. EP A (9th Cir. 1977) 564 F.2d 1253, 1268; The Clean Water Act Handbook at 24.

Response See Response 3.5.



# Comment ID 0166

- A1.001.002

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: 2 II. My company warns EPA against implementing overly

- prescriptive erosion and sediment control requirements not specifically called for by the C&D ELG. EPA's CGP must be adjustable to site conditions. EPA should develop guidance for implementing the

non

- numeric best management practices (BMPs) required by the C&D ELG rule so the individual permittee can assess and analyze the most appropriate met hod of implementation to meet the standards. Historically, EPA's CGP has recognized and provided sufficient flexibility to address the stochastic nature of precipitation and the variability of other site attributes (such as soils typ e and topography) by al lowing discretion in the design and implementation of BMPs. My company is concerned that EPA's CGP proposal reverts back to the type of overly

- prescriptive erosion and sediment control mandates that the Agency appropriately eliminated from the final C&D
EL G rule. In the final C&D ELG rule, EPA recognizes the 'need for these [BMP ] controls is dictated by site

- specifc considerations,' because they are 'not always feasible,' or that 'implementing the requirement would be cost

- prohibitive.' See 74 Fed. Reg. at 63,018. We oppose EPA`s attempt to use the new CGP to implement an approach even more prescriptive than the C&D ELG rule.

Response See Response 3.5 and 2.1.1.



# Comment ID 0168

- A1.001.014

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2

-- Many new permit requirements, such as site stabilization using the uniform soil loss equation ("e

- factors"), site buffer design, water quality monitoring, and the potential use of chemicals to enhance flocculation and clarification wat er treatment processes, are typically taught in upper level college engineering classes. Many contractors and local regulatory staff do not have the necessary trai ning or expertise to correctly implement these measures, or assess effectiveness. This means that the projects may entail additional costs for necessary consultant assistance, increased levels of staff technical expertise or that significant training that will be requ ired to support effective implementation and compliance.

Response See Response 2 .1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

217 

# 2.1 EROSION AND SEDIMENT CONTROL REQUIREMENTS

Comment ID 0029

- A1.001.004

Author Name: Pebley Trey Organization: McAllen Construction, Inc. Issue Category: 2.1 EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit requirements, and proven effective in protecting water quality..

Response See Response 2.1.1.



# Comment ID 0031

- A2.001.005

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: 2.1 The COP must be adjustable to site conditions. The current NPDES program for construction site discharges recognizes and prov ides sufficient flexibility to address the variable nature of precipitation and other site a ttributes (such as soils type and topography) by allowing flexibility in the design and implementation of Best Management Practice (BMPs) and other pollutant control measures . This approach has fostered the implementation of appropriate controls on a state and regional basis, while guarding against inappropriate andlor overly excessive requirements. We continue to support that approach, and EPA's new requirement mandating buffers or alternatives practices and steep slope provisions, and stabilization requir ements are highly prescriptive and does not take into account limitations posed by individual site conditions. OHBA encourages EPA to maintain the flexibility in the ELO language when ado pting
it into the COP.

Response See Response 2.1.1, 2.2.2, and 2.3.



# Comment ID 0031

- A2.001.008

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: 2.1 EPA should focus on implementation of erosion and sediment control Best Management Practices (BMPs) that are practical and consistent with existing state and local permit requirements, and proven effective in protecting water quality.

Response See Response 2.1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

218 

# Comment ID 0052

- A1.001.002

Author Name: Hamilton Kristopher Organization: E.S. Wagner Company Issue Category: 2 .1 EPA should avoid implementing overly

- prescriptive erosion and sediment control requirements. EPA's CGP must be adjustable to site conditions. Mandating specific BMPs at a national level is an inappropriate way to protect water quality. We are concerned that EPA's CGP proposal reverts back to the type of overly

- prescriptive erosion and sediment control mandates that the Agency appropriately eliminated from the Final C&D ELG rule. If implemented, these overly

- prescriptive requirements will lead to unnecess ary and costly implementation of BMPs that may not be appropriate for a specific site. Instead, EPA should issue guidance documents that wil l allow the design professionals to tailor the proper BMPs to each specific site.

-- Recommendation - Remove the overly

- prescriptive erosion and sediment control requirements not specific to the December 2009 C&D ELG rule and issue guidance document(s) for proper implementation of various BMPs.

Response Se Response 2.1.1 and 3.5



# Comment ID 0074

- A2.001.003

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.1 Where possible, DEQ also encourages EPA to remove the overly prescriptive erosion and sediment control requirements not speci fic
to the ELGs. DEQ appreciates the opportunity to offer written comments on the proposed revisions.

Response See Response 3.5.



# Comment ID 0090

- A1.001.015

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1
Given the distinct and minimal nature of earth disturbance from linear installation projects, EPA should exempt these projects from any erosion controls in the Draft Permit that focus on reducing impacts from soil stresses and impervious surface creation. W hile the
earth distur bed in constructing or renovating a housing development or suburban shopping mall is rectangular in nature, natural gas pipeline projects do not install acres of new impervious surfaces (e.g., asphalt parking lots, roads, buildings, concrete sid ewalks or

p atios) that will make permanent changes to the hydrology of a large track of land. Instead, linear excavations take a short time and once the pipe is installed or repaired, the soil is replaced, original contours are restored, and the area is re

- seeded wit h grass and/or native foliage. Further, when existing impervious surfaces (e.g., pavement) are disturbed as part of a linear project, they are typically replaced after the project but do not result in an increased amount of impervious surfaces.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

219 Response See Response 17.



# Comment ID 0090

- A1.001.024

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1 It is difficult if not impossible to implement many of the proposed stormwater controls in a linear project. Gas pipeline work typically takes place in public and private utility ROWs under easement contracts with respective surface owners. During construction, the utility easements generally remain in use by the landowners. Requiring the same generic stormwater cont rols for linear projects as for traditional projects would limit landowner access and use of their property, including their front lawn, sidewalks, and acces sible portions of paved roadway. Even if adequate space were available to install stormwater retention areas within or adjacent to the ROW, the required manipulation would merely add to the disturbed surface area. This would also increase the utility's liability ri sk in areas beyond the natural gas line project easement for possible hazards to the healt h and property of others, particularly in populated, urban

areas.

Response See Response 17.



# Comment ID 0093

- A2.001.003

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1
The C&D ELG includes non

- numeric requirements for erosion and sediment control, stabilization, and pollution prevention (see 40
CFR § 450.21(a) thru (f)). And now, according to EPA, the CGP "must incorporate the C&D rule requirements." See 76 Fed. Reg. at 22,885. The C&D ELG does require site operators to implement several specified best management practices (BMPs) to control erosion and the runoff of sediment from construction sites. And at an appropriate point, EPA and the state permitting authori ties will have to incorporate these requirements into their CGPs. The Draft, however, is far more prescriptive than the C&D ELG, and does not merely incorporate its non

- numeric requirements.

From the final version of the C&D ELG, EPA properly excluded the overly

- prescriptive requirements that had made their way into its proposal (such as the requirement for sediment basins on all large construction sites), and the agency sought to respond to t he great variation in construction sites, often stating, for example, that the "need for these controls is dictated by site

- specific considerations," that they are "not always feasible," or that "implementing the requirement would be cost

- prohibitive." See 74 Fed. Reg. at 63,018. In the process of revising its CGP, EPA now improperly attempts to reverse its reasoned decision to exclude such requirements. The Draft inappropriately reverts back to the type of overly

- prescriptive BMP mandates that it eliminated from the final C&D ELG.

If, in fact, many BMPs are best assessed on a site

- specif ic basis or may, in certain cases, prove to be cost

- prohibitive, then EPA should simply provide non

- mandatory guidance for implementing those BMPs and give site operators the latitude to assess and determine the BMPs they require to meet the standards set forth in the C&D ELG. The CGP should, for example, mandate only the controls that theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

220 C&D ELG requires for slopes (i.e., "minimize the disturbance of steep slopes") and then give the site operator the latitude t o develop a stormwater management plan that includes the appropriate steps it will take to achieve that end. The operator will still have and retain the obligation to justify whatever plan it develops. This more flexible approach is preferable to Part 2.1.1.2 of the Draft, which would add that the op erator must "[a]void earth

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

Response See Response 3.5.



# Comment ID 0093

- A2.001.008

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1 Historically, EPA's CGP has recognized and provided sufficient flexibility to address the stochastic nature of precipitation and the variability of other site attributes (such as soil types and topography) by allowing discretion in the design and implementation of BMPs. This approach has fostered the implementation of appropriate controls on a state and regional basis, while guarding aga inst inappropriate and/or excessive requirements. AGC continues to support such a flexible approach and does not agree that the C&D ELG requirements support such a dramatic departure from that approach in its implementation into the CGP. AGC encourages EPA to
delete its overly

- prescriptive requirements for erosion and sediment controls from the Draft, limiting itself to the requirements found in the C&D ELG, and then, as appropriate, issuing non

- mandatory guidance on such controls.

In addition, AGC urges EPA fully to comply with the CWA. Ostensibly, the Draft sets forth the "best practicable control technology" that the agency has found necessary to meet the technology

- based effluent limits that the agency has established under CWA section 301 (33 U.S.C. § 1311) and section 306 (33 U.S.C. § 1316). See 76 Fed. Reg. at 22,885. There is, however, no evidence the agency has "considered the total cost of the application of this technology in relation to the effluent reduction benefits to be achieve d from such application," in accordance with the Act. The relevant subsection of the statute, 33 U.S.C. § 1314(b)(1)(B), provides in part:

Factors relating to the assessment of best practicable control technology currently available to comply with...section 1311 of this title
shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application , and shall also take into account...the engineering aspects of the application of various types of contr ol technology, proces s changes, non

- water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate... .

Unless and until EPA properly calculates and considers both the total costs and the effluent reduction benefits of the very prescriptive measures that it has included in the Draft, the Draft will not only go well beyond anything the C&D ELG requires, but also co nflict
with the CWA.

Response See Response 3.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

221 

# Comment ID 0093

- A2.001.031

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1 In its final C&D ELG, EPA relaxed many of the overly

- prescriptive erosion and sediment control practices that it had proposed, often stating that, for example, the "nee d for these controls is dictated by site

- specific considerations," because they were "not always feasible," or that "implementing the requirement would be cost

- prohibitive." See 74 Fed. Reg. at 63,018. The Draft inappropriately reverts back to the type of overly

- prescriptive BMP mandates that EPA eliminated from the final C&D ELG.

If, in fact, many BMPs are best assessed on a site

- specific basis or may prove to be "cost

- prohibitive" in certain circumstances, then EPA should develop non

- mandatory guidance for implementing the BMPs set forth in the C&D ELG rulemaking and then rely upon the individual permittees to assess and analyze the appropriate BMPs and their implementation to meet the standards set forth in the C&D ELG. For example, at the appropriate t ime, EPA should adopt in a final CGP only that which is required by the C&D ELG with regard to slopes; "minimize the disturbance of steep slopes" and then require the permittee to justify in its stormwater mana gement plan the appropriate steps it will take to achieve that end. EPA should be proposing separate guidance concurrent with the C&D ELG rulemaking that sets forth more precise implementation strategies that reflect the need for site

- specific flexibility. Under no circumstance should EPA be attemptin g to provide what appears to be essentially a one

- size

- fits

- all implementation strategy as proposed in the Draft (see AGC's comments at Section III above).

Response See Response 3.5 and 2.2.2.



# Comment ID 0093

- A2.001.033

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1 When the appropriate time arrives to implement a revised C&D ELG, EPA should address more precisely the requirements containe d in that regulation and use the existing extensive information (and more) in developing separate non

- mandatory guidance that may assist site operators to more knowledgably implement such requirements without unnecessarily complicating the proposed CGP.

Response See Response 3.5.



# Comment ID 0096

- A1.001.017

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1 In the final C&D ELG, EPA purposely relaxed many of the overly

- prescriptive erosion and sediment control practices that it had proposed, often s tating that, for example, the “need for these controls is dictated by site

- specific considerations,” because they were “not always feasible,” or that “implementing the requirement would be cost

- prohibitive.” [FN 33] Now, EPA is reverting to the type ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

222 ove rly

- prescriptive BMP mandates that it addressed and dismissed in promulgating the final C&D ELG. Until now, EPA has relied on a flexible program that allowed permittees to select their BMPs based on Best Professional Judgment and consideration of site
cond itions. This has worked well, and although EPA has provided no details to suggest otherwise, the Agency is now proposing an about face by essentially dictating what must occur on every project every time. As the Agency has recognized in the past, ho wever, many BMPs are best assessed on a site

- specific basis or may prove to be “cost

- prohibitive” in certain circumstances. Thus, instead of mandating the use of a specific BMP (or series of BMPs) that may be ineffectual or otherwise problematic, EPA should devel op guidance for implementing the BMPs set forth in the C&D ELG rulemaking and then rely upon the individual permittee to assess and analyze the appropriate BMPs and their implementation to meet the standards set forth in the C&D ELG.

For example, at the appropriate time after the C&D ELG is completed (during the next CGP renewal process, not the current process subject to these comments), EPA should adopt a final CGP that includes only that which is required by the C&D ELG with regard to slopes (“minimize the disturbance of steep slopes” vs. the proposal’s “avoid earth

- disturbing activities on steep slopes (i.e., slopes of 15% or greater”) and then require the permittee to justify in his or her stormwater management plan the appropriate steps tha t will be taken to achieve that end. EPA is not an expert in the geology or topography of the nation and should not expect to set natio nal standards that depend on a keen understanding of individual site characteristics. Instead, EPA should propose a separate guid an ce concurrent with the C&D ELG rulemaking that sets forth more precise implementation strategies and options that reflect the need for sitespecific flexibility. Under no circumstance should EPA attempt to provide a one

- size

- fits

- all implementation strategy as proposed
in the CGP.

[FN 33] 74 Federal Register 63,018 (December 1, 2009).

Response See Response 3.5.



# Comment ID 0096

- A1.001.018

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1 Likewise, NAHB is concerned with the number of new practices that must be considered or implemented that are not dictated by the final C&D ELG and are unrelated to the control of stormwater discharges. For example, requirements to minimize stream crossin gs, minimize dust, a nd mandates regarding stabilization requirements in sensitive areas and critical habitat are clear stretches of EPA’s authority and should be considered beyond the scope of this rulemaking.

Overall, NAHB suggests that EPA carefully reconsider a number of provisions within the proposed CGP, including the strict list of BMPs and the new, non

- ELG related mandates. While we believe many of these should be eliminated, some of the prescriptive provisions, if retained, should be limited to larger construction si tes. This approach would recognize the fact that larger sites typically pose a higher risk of pollutant discharge while smaller projects and individual lots within subdivisions are less likely to h ave significant erosion potential. Likewise, this approach would recognize there is limited flexibility for smaller parcels to redesign or accommodate certain BMPs, such as the proposed steep slope and buffer requirements, and would reduce the costs associated wit h the additional steps because they would be impose d on fewer entities. Finally, applying the additional BMPs and other requirements onlyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

223 to larger projects would also provide relief to small businesses, as directed by the Administration [FN 34]. Finally, such an approach is
consistent with the C&D ELG and earlier versions of the CGP, which dictated additional measures for larger sites only, but did not compromise environmental protection. [FN 34] 76 Federal Register 3828 (January 21, 2011)

Response See Response 2.1.1. With regard to the concern about new practices that are not dictated by the final C&D ELG and unrelated to the control of stormwater discharges, EPA notes that it has eliminated the requirement to minimize stream crossings. EPA maintain s that the requirements to minimize dust and to stabiliz e areas discharging to sensitive waters relate to the minimization of pollutants from stormwater discharges.



# Comment ID 0098

- A1.001.008

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 2.1 In addition, we question use of subjective words such as "minimize," "avoid" and "limit" in the body of this Part. Such terms are more suitable to guidance than to an enforceable document because they do not clearly identify what is required of a permit holder . We
understand that the Agency is trying to reduce its reliance on such subjective terminology in this permit and we applaud that effort. We also understand, however, that the new ELG employs such words in several key sections. To the extent that the use of these ki nds of subject ive terms is not mandated by the ELG we urge EPA to further purge the final permit of such value

- laden terminology.

Response See Response 2.1.2



# Comment ID 0105

- A2.001.005

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 2.1 [ Non

- numeric effluent limitations (Part 2.1.1). New provisions of the Draft CGP establish narrative requirements for covered activities, including requirements for site planning (including avoidance of impacts to sensitive areas), erosion and sediment controls, and pollution control measures. Many of these provisions are clearer and more specific than in prior CGPs or in the C&D Rule itself. We agree with EPA that these provisions, to the extent they es tablish clear and enforceable requirements, are superior to the more generalized requirements typical of prior permits, in that they are better organized to follow the construction process, clar ify permittee obligations, and enable effective enforcement by EPA, states, and citizens under Clean Water Act authorities. Importantly, EPA appears to recognize that bright

- line requirements are usually more effective at promoting compliance and should be utilized wherever possible, especially in general permits like the CGP.

Response EPA appreciates the comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

224 

# Comment ID 0109

- A2.001.002

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 2.1 The Permit should require best management practices that reflect the stateof - the art for construction activities, including active stormwater treatment to remove sediment. We support the proposed requirements that operators implement protective measures on steep slopes, avoid sensitive areas and stream crossings, estab lish a 50

- foot buffer zone set back, and install truck wheel wash stations.

Response We appreciate the comment. EPA notes that the Agency does not feel it is appropriate to specify implementation of specific stormwater controls for all sites, because many controls are best determined on a site

- specific basis. Specificaly, active treatment is not a necessary control for all sites, and EPA believes permittees should be able to determine if such controls are needed on the ir sites.



# Comment ID 0129

- A2.001.00 2

Author Name: Lauenstein P. Organization: Issue Category: 2.1 Vegetative cover should be required as a control measure. Without explicit requirements to retain vegetative cover, denuded landscapes like the one shown in these photos [See Docket ID 0129

- A2 for photos] are all too common at construction and development sites. This inevitably results in loss of topsoil and pollution of nearby waters.

Response See Response 2.1.3.



# Comment ID 0139

- A2.001.004

Author Name: Aho Andrew Organization: Geosynthetic Materials Association (GMA) Issue Category: 2.1 GMA believes the proposed regulations should include performance values for erosion and sediment control technologies. The current draft has insufficient performance requirements in the specifications.

The draft lacks a clear understanding of what the turbidity measurement requirements are. GMA believes the performance measur e should be based on turbidity levels rather than just C

- factors and 50 foot buffer equivalents.

Response See Response 2.1.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

225 

# Comment ID 0154

- A1.001.002

Author Name: Loehr Aaron Organization: Pace Construction Issue Category: 2.1 Remove the overly

- prescriptive erosion and sediment control requirements not specific to the December 2009 "Effluent Limitations Guidelines" for the "Construction and Development Industry" (C&D ELG rule) and issue guidance

Response See Response 3.5.



# Comment ID 0167

- A1.001.002

Author Name: Alberto Feliciano Jose Organization: Puerto Rico Homebuilder Assn Issue Category: 2.1
In the case of Puerto Ri co, a tropical island of irregular topography, with a central mountainous region, the need to retain this flexibility is particularly necessary in relation to turbidity.

Contrary to conditions in the continental United States, surface water bodies in Puerto Rico are, with exceptions, mostly small streams orcreeks with flows defined by the rainy season extending generally from April to November. Concerning the amount of turbidit y, generally determined by the number and size of particles in the water, small streams have significant natural variability of turbidity, which can go as high as hundreds or even thousands of NTU as runoff from banks and culverts cloud the streams. This variabili ty significantly increases in areas which, like Puerto Rico, combine bo th high precipitation and mountainous geography.

Aware of the presence of natural background levels of certain contaminants, the Puerto Rico Environmental Quality Board recen tly approved (March 31, 2010) significant revisions to the Island's water quality standards, including a new Rule 1305.2, establishing mechanisms to address the existence of natural background concentrations which exceed one or more of the water quality standa rds that apply to a specific water body classification. EPA's prescrip tive proposals are also in conflict with this acknowledgement of site specific circumstances.

The PRHBA has similar concerns for the establishment of fixed buffer zones, when other options, which take into consideration soil types, vegetation and topogra phy, amongst other factors, less intrusive upon property rights, will attain the same reductions in sediment loads. In addition, the proposed 15% threshold, taking into consideration the Island's topography, is unrealistically limitin g.

Response
EPA note s that the turbidity limit is not included in the final permit. See Response 3.1. For the comment about flexibility regarding buffer zones, see Response 2.1.1 and 2.3.



# 2.1.1 AVOID SENSITIVE AREAS
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

226 

# 2.1.1.1 MARK OFF ANY SENSITIVE AREAS

Comment ID 0017

- A1.001.003
Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.1.1 1) 2.1.1.1 ‐ Requires that a permittee must delineate, and clearly mark off sensitive areas, including buffer areas, steep slopes that will
be left undisturbed, and stream crossings. This is an excessive and onerous requirement for linear projects which often cover se veral
miles.

Response See Response 2.2.1.



# C omment ID 0025

- A1.001.002

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.1.1 Flagging should be utilized for either exclusionary purposes or to designate certain areas, but not for both.

Response See Response 2.1.1.



# Comment ID 0025

- A1.001.010

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.1.1 It is common to have contractors flag or demarcate sensitive areas such as those listed in this section. Flagging, therefore, denotes avoidance. It seems strange then, to flag points where a water of the US will be crossed. It is more consistent to flag the a rea where a water of the US may not be crossed.

Response See Response 2.1.1.



# Comment ID 0056

- A2.001.003

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.1.1.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

227 Delineating and maintaining a flagged perimeter around resources areas presents a challenge fo r restoration projects. In almost all cases work is being done within rivers and wetlands since most restoration projects must first remediate historical impacts to resource areas before implementing habitat restoration and modifications to improve functio nality. The intent of the stormwater permit requirement is to prevent accidental intrusion into resource areas during conventional construction project. For aquatic rest oration work the opposite intent exists. For these reasons, the DER requests that the p ermit exempt pro

- active restoration project from this requirement.

Response See Response 2.1.1.



# Comment ID 0087

- A1.001.015

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.1.1 Section 2.1.1 requires operators to "delineate, and clearly mark off, with flags, tape, or other similar marking device," any sensitive areas, including buffers, steep slopes, jurisdictional water crossings, protected habitat, species, and structures. For some projects, it may not be poss ible, or feasible, to mark off all of these areas before initiating construction. This is especially true for long linear projects that are constructed in phases. Instead of requiring field marking, EPA should allow operators to identify sensitive areas on their construction documents. Doing so will enable the operators, and their contractors, to adjust their access and operation al plans to
avoid sensitive areas.

Response See Response 2.1.1.



# Comment ID 0091

- A2.001.017

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.1.1.1 17. Part 2.1.1: The indicated marking may not be feasible or effective at some construction sites. On and active runway, the use of flags or tape may be prohibited or restricted. There should be an option to install alternative area controls. This could include fencing or protective barriers around the identified sites to prevent damage. Language allowing equivalent protective measures should be included with marking requirements which appear in a number of places in the permit. In areas with access restrictions or alternative vehicle management procedures, the marking requirement should be waived. An example of a vehicle control procedure would be t o escort all vehicles on and off the worksite

.

Response See Response 2.1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

228 

# Comment ID 0115

- A2.001.003

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.1.1
2.1.1.1 Mark off sensitive areas. For cross

- country utility projects, such as electric transmission line projects w here activities are conducted across several miles of right

- ofways (ROW), often in phases, the delineation and marking off of the items listed in 2.1.1.1 can become an extensive and costly exercise, and in some cases, may be duplicative of compliance with other laws and regulations. For example, wetlands are typically already flagged, in compliance with the requirements of the state wetlands protection act laws and the federal Clean Water Act. The use of multiple flags in the field may cause confusion for f ield crews, annulling the current benefit of flags to alert crews to the presence of wetland resource areas.

In other cases, entire portions of a ROW will fall within a buffer zone to wetlands, across rivers and streams, along steep s lopes, and
within federally

- listed critical habitat [FN 1]. Avoidance of these areas is impossible, as maintenance and development activities are required within an established ROW approved as part of the Federal Energy Regulatory Commission filings or by state energy si tin g boards. The ROWs run cross country, over and through multiple sensitive areas.

Where feasible, access to work areas is conducted via off

- ROW easements to avoid access

- related impacts to sensitive areas. On a

case

- by

- case basis, National Grid already ma rks off sensitive areas for some projects and will continue to do so. National Grid is concerned that the general language mandating such marking (i.e. a "cook book" approach) across the entire linear project is excessive and unnecessary. National Grid recommends either an exception for linear projects in compliance with CWA 404 provisions or an acknowledgement that sensitive areas are to be marked off on a case by case basis with locations included in the Stormwater P ollution Prevention Plan (SWPPP), based on field conditions and monitored in accordance with the SWPPP.

The proposed CGP requests that all flagging be removed upon completion of construction activities. While this request may be appropriate in some instances, linear projects may have miles and miles of wetland flagging along a ROW. These flags are very rarely, if ever removed. National Grid is not in support of the requirement to remove all flagging, except for those portions of the project that have localized flagging to assist contractors identify work areas and unique sensitive areas.

With respect to flagging of rare species habitats that fall along ROWs, National Grid is concerned that Massachusetts Natural Heritage & Endangered Species Program is cautious about calling attention called to the species in question. The CGP should mention that coordination with the appropriate state agency should be conducted prior to flagging areas of threatened or rare species. On occasion, National Grid has flagged areas of rare species on a site, but it has been identified as a NO WORK zone.

[FN 1] In general National Grid questions the need to mark off federally

- listed critical habitat areas as these areas are often broad and cover large geographic areas (e.g. Bald Eagle Habitat). It is not possible to mark off these types of areas on a project site. National Grid recommends that clarification of this requirement be provided (e.g. insert where feasible or if requested by the U.S. Fish an d Wildlife Service).

Response See Response 2.1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

229 

# Comment ID 0130

- A2.001.007

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.1.1.1 6. FLAGGING. The proposed permit requires flagging or marking of buffer areas, steep slopes, water crossings, discharge locat ions,
ESA ha bitat, historical properties, fueling and maintenance areas, vehicle and equipment wash areas, staging and storage areas, and concrete and material wash out areas. The visual clutter of the flagging will not only be potentially confusing, but possibly dilu te the intended effect which is to highlight or designate sensitive areas. We recommend the requirement be more general and flexible and allow the applicant to decide the method of delineation of sensitive areas. Areas may be flagged, signed, shown on plan sheets, specified, or other methods to retain and protect.

Response See Response 2.1.1.



# Comment ID 0131

- A1.001.029

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.1.1.1 The Proposed CGP requires the permittee to physically mark off, flag, tape or use a similar device to delineate certain areas. The referenced Parts include flagging requirements for buffer areas, steep slopes (15%), crossings of waters of the US, historica l properties, endangered species related areas, wheel wash down areas, fueling and maintenance areas, equipment or vehicle washing areas, staging and storage areas, building materials storage areas, equipment storage areas, vehicle storage areas, washout areas for paint, concrete
and o ther materials, sampling/discharge locations, no disturbance areas including setbacks, buffers, and steep slopes.

Requiring a permittee to physically mark off and maintain flagging in all of these areas on a construction site during the entire course
of construction is an unnecessary burden that will not further the goal of minimizing the discharges of pollutants.

It is prudent to mark off sensitive areas such as historical places and endangered species areas, as well as very steep slope s, but those tasks and requirements are usually conditions issued by the agency regulating that activity on a site

- by

- site basis. Crossing waters of the U.S. usually is regulated by a separate permit and the requirements for crossing those waters are usually contained in the respective permits conditions of approval. Flagging for these items should be removed from the Proposed CGP and EPA should allow the appropriate regional regulatory agencies to establish the conditions and requirements of approval for work in areas with endangered species, historical places and crossings of waters of the U.S.

The fact sheet and proposed permit do not make a case that flagging is necessary and the C & D rule does not include such a requirement. Flagging for the balance of the items is not needed and will pose an unnecessary cost and compliance burden on the construction industry. What is the purpose and benefit of imposing such an arduous task upon the construction industry?

Flagged delineation specifically of all slopes greater th an 15% (6:1 slope) is not practical at most sites, potentially costly, and unnecessary to achieve the intended purpose. Furthermore, the clear identification on and use of an effective SWPPP plan can adequately provide the necessary information and fulfill the intended purpose; to make site personnel aware of areas that presentRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

230 elevated erosion risk as a result of slope steepness. Many construction sites have large quantities of area that exceed 15% a nd often these areas may not be easily demarcated as they can be interspersed with less steep areas. Furthermore, slope steepness is only one of many factors (slope shape, length, etc...) affecting erosion on slopes. Identification of areas susceptible to increased erosio n and potentially in need of aggressive stabilization is best judged by the engineer of record in developing a well designed SWPPP. It may be appropriate, practical, and protective of the environment to classify "steep slopes" as areas with slopes greater than or equ al to 25% (4:1 slope) and flag o nly in areas that are assessable safely and can be maintained. Ideally the engineer should specifically identify high erosion areas that may require flagging as part of SWPPP development.

Construction sites by nature are subject to the elements and the f lagging materials will require constant maintenance. They will wear out, be subject to damage from normal construction operations and traffic and need replacement throughout the course of const ruction, perhaps on a daily basis. Flagging materials will be b lown over by high winds and degraded by seasonal hot and cold weather. Vandalism is a problem on construction sites. From the experiences of several members who conduct land development and home building operations, wood stakes and ribbon are constantly be ing vandalized by children and "off

- roaders" during off hours and weekends. If chain link fencing or steel posts and "snow fence" are used in place of wood stakes and ribbon, the costs would be significant and maintenance would still be a factor.

A worka ble alternative to the flagging requirement would be to show the locations of the various items on the SWPPP site plan. This would identify where these areas are located and create a permanent record to document compliance with the permit. It would be a
si mple matter for the permittee to change the locations of these items as construction progresses. It would be the permittee's responsibility to implement the appropriate BMPs per the permit and SWPPP in the specified areas of concern.

Response See Response 2.1.1. For the comment on "steep slopes", see Response 2.2.2.



# Comment ID 0133

- A2.001.009

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.1.1 This proposed permit condition would require specified sensitive areas to be delineated and clearly marked, including areas of federally listed critical habitat for endangered and threatened species and historic properties. MDT believes these specific areas should be regulated by the agencies with jurisdiction , and that these areas are not appropriate as Clean Water Act permit conditions. If these conditions must remain, MDT suggests limiting them to only those areas that will not be disturbed.

Response See Response 2.1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

231 

# 2.1.1.2 AVOID STEEP SLOPES

Comment ID 0038

- A1.001.008
Author Name: Minervini W. Organization: Issue Category: 2.1.1.2 This comment pertains to the definition of "steep slope." In the April 25, 2011 Federal Register notice for the draft CGP, US EPA
explained (79 Fed. Reg. 22887):

"When EPA was writing the C&D rule's final non

- numeric effluent limits listed above, it intended to provide discretion to permitting authorities to determine how best to implement these provisions with respect to requiring controls and measures appropriate f or the

c onditions in their permitted areas. For example, in the preamble to the C&D rule, EPA states ‘* * * in the erosion and sedime nt control section * * * EPA simply required that permittees ‘minimize the disturbance of steep slopes' leaving it up to the per mit ting authority to determine the specific requirements applicable to owners or operators of C&D sites to minimize disturbance of steep slopes in order to minimize the discharge of pollutants from the site.' See 74 FR 63016. As the permitting authority respo nsible for issuing stormwater permits for construction activities in four States, Indian Country lands, Federal facilities, Washington, DC, and U.S. territories/protectorates, EPA believes that it is important in this draft permit to include requirements t hat more specifically define what is necessary to implement each of the C&D rule's non

- numeric limits. Accordingly, in translating the C&D rule requirements into the draft CGP, EPA added specificity to many of the C&D rule provisions that it believed call for further definition, such as the requirements to ‘Provide and maintain natural buffers', ‘Minimize steep slopes', and ‘‘Minimize soil compaction'', among othe rs. In EPA's view, adding specificity to the C&D rule

- based requirements in the CGP will assist permittees in understanding the Agency's view of what is required to comply with the permit." [emphasis added]

In regard to steep slopes, Part VII.1.1 of USEPA's Proposed Construction General Permit (CGP) - Fact Sheet further explained: "Purpose: Part 2.1.1.2 implements the C&D rule requirement to ‘minimize the disturbance of steep slopes' at 40 CFR 450.21(a)(4).
EPA added specificity to what is to be considered a ‘steep slope' under the permit by defining steep slopes as those that are 1 5 percent

or greater. EPA used 15 percent to define steep slopes based on the Agency's past use of this slope, as well as the prevalence o f slopes close to 15 percent being used by the states to define steep slopes..."

Accordingly, the draft CGP defines steep slopes as those that are 15 percent or greater throughout locations such as New Hampshire, Massachusetts, New Mexico, Idaho, Puerto Rico, the District of Columbia, Pacific Island territories, and Indian Country lands in many States including Alabama, Alaska, Florid a, Minnesota, Nebraska, New York, Oklahoma, South Dakota, and Washington. Collectively, these locations include areas with a tremendous range of climate, topography, soil, vegetation, and land use. The question th en is, if defining steep slopes as those that are 15 percent or greater is appropriate for these diverse areas, what rational basis could State permitting authorities have for defining steep slopes differently in their NPDES CGPs? Will USEPA now consider amending 40 CF R § 450.21(a)(4) to define ste ep slopes as those that are 15 percent or greater?Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

232 Response EPA notes that it has made the definition for "steep slopes" more flexible in the final CGP to account for state, tribal, local, or industry

- specific steep slope definitions or specifications. See Response 2.2.2.EPA also notes that state permitting authorities are not required to define steep slopes the same as EPA has defined in the CGP. States permitting authorities are only required to im plement the C&D rule requirements, and if they choose t o define steep slopes, they may define it according to what is appropriate for their

state.



# Comment ID 0049

- A1.001.001

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.1.2 Slopes that are 15% or larger is a norm in many locations. This is not a realistic requirement for mountainous areas of the United States.

Response See Response 2.2.2.



# Comment ID 0060

- A1.001.002

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.1.2
2. Section 2.1.1.2 - This section requires the owner, during the site planning phase of a project, to avoid earth disturbing activities on steep slopes (i.e. slopes of 15% or more), unless infeasible or inconsistent with the require ments of the project. Please define "unless infeasible or inconsistent with the requirements of the project". This language is not clear and will be subject to different interpretations. In addition, since this requirement is under the "Site Planning" requ irements, does EPA expect the owner of a proposed construction project to restrict the size of their development to meet this requirement?

It is unclear from the definition for "Steep Slopes" in Appendix A as to the method for calculating slope. For inst ance, over what length is the slope calculated (i.e. 100 ft, 50 ft, 25 ft, etc.)? Is there a minimum width and length of steep slope that would trigger this requirement? Does this requirement apply to any piece of ground with a slope of 15% or greater? For instance, does the requirement apply to a small embankment or rolling terrain? What was the basis for the steep slope criteria being set at 15%? EPA must pr ovide a more detailed description for "steep slope" so that the requirement is implemented on a con sistent basis.

Response See Response 2.2.2.EPA notes that it has provided information about what it means to "minimize" the disturbance to steep slop es in the fact sheet. EPA also provides a description of the basis for EPA's definition of steep slope in the fact sheet. EPA notes that it no longer includes this requirement under the "Site Planning" requirements. Accordingly, EPA does not expect the owner of a prop osed construction project to restrict the size of their development to meet this requirement.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

233 

# Comment ID 0067

- A1.001.015

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.1.1.2 The draft CGP contains a provision discouraging disturbances on slopes exceeding 15% (8.5 degrees). One of the objectives on linear projects constructed on servitudes is to minimize changes to pre

- existing contours; therefore, vehicle trails and structure locations may frequently be located on slopes exceeding 15% grade to preserve the approximate original contour. Areas where construc tion occurs on slopes exceeding 15% grade require either diversion of stormwater around the slope and/or installation of specialized erosion control measures and immediate stabilization of the slope when construction is completed or will be temporarily sus pended for seven days. As a point of reference, a 15% slope is the maximum grade recommended for a logging truck haul road. Given the very narrow corri dors required for utility line ROWs, diversion of site run

- on and installation of specialized erosion con trols may not be possible due to space constraints. Entergy requests that EPA clarify that this provision is a recommendation only, which can be countermanded by ot her factors such as preserving original contours or restrictions created by the narrowness of linear projects.

Response See Response 2.2.2.



# Comment ID 0075

- A2.001.003

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.1.2 The contractor is expected to avoid "steep slopes" defined as 15% or greater (6:1, H:V). In mountainous regions in Wyoming, rock slopes commonly exceed 1:1, H:V (e.g., 100% slope) in native repose. WYDOT design standards on shoulder fills are at 6:1 and steeper (AASHTO Design Guidance). Accordance to this requirement, all W YDOT highways would need to comply with Part 2.1.4.2 including: linear diversions, specialized erosion and sediment controls, all fertilizing, seeding, watering and mulching items completed
within 3

- work days of permanent/temporary ceasing of earthwork wit h the vast majority or areas in arid or semi

- arid climates.

Response See Response 2.2.2.



# Comment ID 0080

- A2.001.016

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.1.2
4. Minimize disturbance of steel slopes - Minimizing steep slopes is always a good idea where it is applicable and conditions allow.

Response EPA appreicates the comment. See Response 2.2.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

234 

# Comment ID 0087

- A1.001.036

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.1.2 The CGP requires the permittee to "[a]void earth disturbing activities on steep slopes (i.e., slopes of 15% or greater), unle ss infeasible or inconsistent with the requirements of the pro ject." Section 2.1.1.2. Due to the nature of linear utility projects, such activities will often be necessary because these projects are designed to avoid or minimize changes to pre

- existing contours and often extend through steep, natural terrains. UWAG believes that the other controls and practices required for activities on steep slopes are sufficient to protect down

- slope waterbodies or sensitive areas.

Response See Response 2.2.2 and 17.



# Comment ID 0110

- A1.001.002

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.1.1.2 Typically, in the construction/erosion control world, a "steep" slope is one that is equal to or greater than 33% (3 horizontal: 1 vertical). A 15% slope is only a 6.67 H:1V slope which is not cons idered to be steep in construction/erosion applications.

Therefore, if you want to avoid slopes greater than 15%, then don't call them steep slopes. Or if you want to avoid what ar e typical steep slopes, then choose something closer to 33%.

Consider breaking slopes into:
Mild: < 15%
Moderate: > 15% and < 30% Steep: > 30 % and < 60 %
Severe: > 60%

Response See Response 2.2.2.



# Comment ID 0128

- A2.001.008

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 2.1.1.2 EPA should adopt in a final CGP only that which is required by the C&D ELG with regard to slopes; "minimize the disturbance o f steep slopes" and then require the permittee to justify in its stormwater management plan the appropriate steps it will t ake to achieve that end. EPA should be proposing separate guidance concurrent with the C&D ELG rulemaking that sets forth more preciseRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

235 implementation strategies that reflect the need for site

- specific flexibility. Under no circumstance should EPA be attemp ting to provide what appears to be essentially a one

- size

- fits

- all implementation strategy as proposed in the Proposed CGP.

Response See Response 2.2.2 and 3.5.



# Comment ID 0133

- A2.001.010

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.1.2 MDT acknowledges that the new Effluent Limitation Guidelines require the disturbance of steep slopes to be minimized. However
, MDT does not believe that slopes of 15% or greater should be considered "steep". Unl ike building·construction and subdivision development, linear transportation projects present unique challenges. The disturbance of steep slopes is often required in o rder to provide necessary access to transportation networks, as well as balance the earthwork needed to construct a project. Under the proposed threshold, greater right

- of

- way acquisition would likely be required, resulting in displacement of homes and businesses, farmland conversion, increased project costs, etc. Montana's topography is such that avoiding the disturbance of slopes 15 % or greater would be infeasible in many cases. As such, a substantial amount of time and money would be spent demonstrating infeasibility in those instances. Generally, MDT projects will involve disturbance to slopes greater than 15%. MDT's road design standards developed to comply with the Federal Highway Administration's requirements for protection of public safety, typically specify ditch and fill slopes ranging from 6: 1 (16.7%) to 1.5: 1 (66.7%). Steeper slop es are considered when necessary to avoid and minimize impacts to sensitive resources, such as wetlands, historic properties, endangered species habitat, right·of.way acquisition, etc. In terms of MDT design, slopes o f 15% are considered gentle slopes allowing complete rccoverability for errant vehicles. In following our design standards, which were developed with public safety in mind, MDT would have to provide an extraordinary amount of documentation to demonstrate that the distur bance to steep slopes is infeasible, as well as implement additional (sometimes unwarranted) control measures on the vast majority of projects. It has been MDT's experience that slope steepness is only onc variable influencing the likelihood for erosion. Othe r influences, such as soil types, distance traveled, etc. need to be considered as one metric is not appropriate. As a result, MDT does not believe a specific slope should be specified. If one must be specified, MDT recommends substantially increaSing the proposed 15%
threshold , as well as allowing additional considerations for linear tramportation projects.

Response See Response 2.2.2 and 17.



# 2.1.1.3 MINIMIZE STREAM CROSSINGS

Comment ID 0062

- A1.001.007
Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.1.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

236 Brevard County Comment: Who decides what the "minimum necessary" is? Minimizing stream crossings may greatly increase costs and time of construction for tight sites by limiting haul truck access.

Response
See 2.2 .3.



# Comment ID 0075

- A2.001.004

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.1.3 The contractor is expected to minimize stream crossings which is very difficult on linear, narrow highway corridors crossing numerous drainages and structural design/construction elements at each crossing.

Response See Response 2.2.3.



# Comment ID 0107

- A2.001.007

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 2.1.1.3 Additional protections for st ream crossing are needed. While it is crucial to require permittees to limit stream crossing as EPA has done in section 2.1.1.3, additional protection such as requiring the wheel washing steps outlined in section 2.1.3.7 (c) prio r to driving through the st ream and gravel areas on both sides of the stream crossing (with language that informs permittees that placement of gravel in a water of US requires 404 permit coverage) is needed.

Response EPA appreciates the comment. However, after review of the comment s, EPA has removed the requirement to minimize stream crossings. EPA believes that because stream crossings are addressed by the CWA section 404 program, the requirement is outside the scope of the CGP.



# 2.1.2 PROTECTION OF SURFACE WATERS: NATURAL BUFFERS AND EQUIVALENT SEDIMENT CONTROLS

Comment ID 0017

- A1.001.004

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.2 2) 2.1.2 ‐ Requires a 50

‐ foot buffer or equivalent controls adjacent to waters of the U.S. to minimize sediment discharge. The buffer guidance in Appendix M provides a way to estimate the percent reduction in sediment discharge assuming a 50 foot buffer is pr esentRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

237 based upon computer modeling. Fundamentally, if the agency is relying on modeling to estimate the reduction in discharge through vegetation, then the agency should also be providing information on the equivalency of Best Management Practices (BMPs) that will achieve the required sediment discharge reduction.
Response See Response 2.3.9.



# Comment ID 0025

- A1.001.003

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.2
The 50

- foot buffer requirement may be difficult to attain for a DOT who has limited rights of way and where a project uses all but a small portion ofthat right of way. In addition, desert southwest vegetation is sparse and does not tend to provide the same l evel of
"treatment" for sediment as it does in the eastern United States. As the EPA has done in other areas of the permit, ADOT urges some site specific considerations with regards to the buffer requirement.

Response See Response 2.3.6 and 2.3.7.



# Comment ID 0030

- A2.001.008

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.2 Section 2.1.2, page 11 WWE has two primary concerns with this language. The first is that this buffer requirement may not be scientifically justified for all "waters of the U.S." Currently, "waters of the U.S." can include small tributaries that have only ephemeral flow and minor connections to downgradient waters. Implementing the buffer setback rules around these types of features would place additional permittin g burdens on the applicant while possibly providing only minimal downstr eam water quality benefits. The second concern is regarding the difficulty in defining which features at a site constitute "waters of the U.S." Following the U.S. Supreme Court cases Ra panos v. United States and Carabell v. United States, EPA and the U.S. Army Corp of Engineers (COE) have provided memorandums and guidance that attempt to clarify which hydrologic features will be considered "waters of the U.S." Despite these attempts, co nfirmation of which features on a site constitute "waters of the U.S." typically requires a consultant to identify potential "waters of the U.S." and the COE to make a jurisdictional determination as to which features are, in fact, "waters of the U.S." Implementation of the buffer requirement as currently written would require the applicant to identify and obtain confirmation for "waters of the U.S." within 50 feet of all projects, placing additional financial and timing burdens on the applicant.

As an alternative to the currently proposed buffer requirement, we propose Ethat PA consider limiting buffer requirements to "waters " which are indicated on the USGS topographic maps. These are streams that have perennial or seasonal flow (generally those fea tures that flow at least seasonally and have groundwater contribution).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

238 Re sponse See Response 2.3.4.



# Comment ID 0038

- A1.001.005

Author Name: Minervini W. Organization: Issue Category: 2.1.2 USEPA has not justified its determination, via the draft CGP definition of "buffer," that the term "surface waters" in 40 CFR § 450.21(a)(6) is limited to "waters of the United States" as defined at 40 CFR § 122.2. Would delegated States be able to appl y 40 CFR § 450.21(a)(6) more broadly to watercourses that are tributary to "waters of the United States," but that are not themselves "waters of the United States"? Such watercourses are sometimes a major means of channeling pollutants from construction activity to "waters of the
United States."

Response See Response 2.3.4.EPA clarifies that the C&D rule does not limit the waters to which a state permitting authority may apply the buffer requirements. EPA notes, however, that the C&D rule requirement was not intended to apply to stormwater control featur es on sites.



# Comment ID 0038

- A1.001.009

Author Name: Minervini W. Organization: Issue Category: 2.1.2 Part 2.1.2 uses such terms as “undisturbed natural vegetation,” “undisturbed naturally vegetated buffer,” and “naturally vege tated buffer.” The Appendix A definition of “Buffer” uses the term “natural vegetation.”

In s uch terms, is the “natural” vegetation limited to vegetation that is primarily “native vegetation” as defined in Appendix A, or could “natural” vegetation also consist mainly or wholly of invasive or non

- native plant species (which have stabilized many pre viously disturbed riparian areas)? For example, if a riparian area was disturbed long ago for agricultural, timber or mineral removal , or urban development purposes, but is now thickly vegetated (via planting or ecological succession) with non

- native grass es, shrubs, or trees, is that current vegetation “natural vegetation”?

Two more examples: In a residential or commercial area, is a streamside lawn of perennial non

- native grass “natural vegetation”? In an agricultural area, is a streamside pasture of perennial non

- native grass “natural vegetation”?

Also, if a few trees are harvested now and then from a streamside wooded area, can that area still be considered “undisturbed” natural vegetation?

Response See Response 2.3.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

239 

# Comment ID 0045

- A1.001.001

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 2.1.2
2.1.2 - This section proposes the requirement for minimum 50' undisturbed, natural buffers, or equivalent sediment controls (in tenns of erosion and sediment pollutant l oad reduction) if the fonner are infeasible, if a project is adjacent to waters of the United States. The same are required under Section 2.1.4.2 under steep slope situations. We agre:e with this approach as a necessary best practi ce, with
the extensive in fonnation available as to the pollution

- ameliorating effects of good buffers.[FN 4]

[FN 4] Maryland Department of Natural Resources (Straughan Environmental Services, Inc.), Riparian Buffer Effectiveness Liter ature Review, Annapolis, MD: January 2003; US EPA, Riparian Buffer Width, Vegetative Cover, and Nitrogen Removal Effectiveness: A Review of Current Science and Regulations, EPA/600/R

- 05/118/0ctober 2005.

Response EPA appreciates the comment.



# Comment ID 0046

- A1.001.003

Author Name: Hemmerlein Mar k Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.2 Natural buffers are great BMP for improving the quality of discharge from a site. However, EPA has made the assumption that w ater will flow from the site through the 50 ft buffer and into the waterbody. If the topography does not allow water into the receiving body, there is no need for a buffer. If a Best Management Practice (BMP) is installed that captures all the water and diverts it to a new location, the buffer is not needed. In addition, siting buffers in a development plan is something that would have to happen during the design phase of the project and is outside the control of the contractor (i.e. it is not a temporary erosion and sedimentatio n control measure) . The CGP as it stands now focuses on "Construction". However, this requirement needs to happen before construction begins and perhaps should be a requirement of another permit such as the MS4 that focus on site development and local site design ap proval.

Response See Response 2.3.5 and 2.3.1.



# Comment ID 0047

- A2.001.004

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.2 Section 2.1.2, page 11 Implementing the buffer setback rules around these types of features would place add itional permitting burdens on the applicant and not really provide any water quality benefit. Buffer setbacks should be implemented on streams that have perennial or seasona l flows.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

240 Response See Response 2.3.4.



# Comment ID 0047

- A2.001.005

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.2 Section 2.1.2, page 11

Furthermore, the 50

- foot buffer requirement may not be feasible for all types of project particularly linear projects due to Right

- of

Way constraints. While Xcel Energy utilizes vegetative buffers on our projects whenever possible, we cannot use vegetative buffers as a BMP if it is outside of our Right

- of

- Way.

Response See Response 2.3.6.



# Comment ID 0047

- A2.001.006

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.2 Section 2.1.2 page 11

The requirement to stabilize within 3 working days of initiating stabilization may not be practicable or feasible depending o n weather, time of year, etc.

Response See Response 2.3.8.



# Comment ID 0049

- A1.001.002

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.2 Using buffer strips in the western US is not the norm. For example, identifying use of a buffer strip in the arid environment of Arizona will be very difficult to achieve since many of the waterways are dry arroyo's that do not contain water except for flood flow conditions.

Response See Response 2.3.7.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

241 

# Comment ID 0049

- A1.001.003

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.2 If buffer strips are to be effective, they require significant amounts of maintenance. Also, establishing adequate vegetation in a semi

arid environment for a buffer strip may take up to two growing seasons. Thus, requiring buffer strips is not a practical method for
sediment control.

Response Response 2.3.3.



# Comment ID 0049

- A1.001.004

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.2 A major flaw exists with advocating use of buffer stri ps in that they have a very limited use before they become ineffective. Since "sheet flow" conditions are necessary, concentrated runoff can render these BMPs nearly worthless. Insisting on use of buffer strips might work for humid and tropic regions of th e United States, but are not a realistic BMP in arid and semi

- arid climates. While use of buffer strips should be one BMP considered by any designer and regulatory agency, EPA should not be mandating use of buffer s trips especially if more effective BMPs are available.

Response See Response 2.3.3, 2.3.1, and 2.3.7.



# Comment ID 0051

- A2.001.006

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 2.1.2 Also in Part 2.1.2, buffer quality should be considered in the provided buffer requirements. These requirements should be altered to allow the permitting authority to consider the quality of the buffer, in addition to its width, before approving it as a meas ure of sediment control. Providing a uniform buffer standard is an important aspect of the Construction General Permit's task of ensuring

proper sediment control, either through a wide natural buffer or substitute measure. However, a designated width of buffer does not adequately determine the poll utant removal potential for the buffer. The quality of the buffer, including but not limited to, the vegetation type, vegetation coverage, gradient and soil type, affects the pollutant removal potential and thus should be cons idered when determining the ad equacy of a buffer.

Response See Response 2.3.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

242 

# Comment ID 0051

- A2.001.007

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 2.1.2 As documented in the EPA Fact Sheet regarding this permit, EPA recognizes that determining a standard buffer width for adequate pollutant removal is challenging, and that the pollutant removal performance of 50

- foot buffers will vary from site to site. We propose that qualifications should be written into the permit t o account for this uncertainty in buffer performance. An on

- site evaluation of buffer quality by permitting authorities should be required in instances where a construction site discharges into any waters with Total Maximum Daily Loads (TMDL), or impairmen ts for substances related to discharge from construction sites. This should also apply to waters that are natural heritage areas or contain habitat for endangered or threatened species. In these evaluations, authori ties should be granted the ability to require additional sediment controls, natural vegetation or artificial substitutes as listed in Appendix M, prior to approving a permit. Furthermore, town conservation commissions or local conservation advisories should have the ability to co ntest
the efficac y and quality of the buffer at any local site, with the guarantee that the permitting authority will respond to their comment s and evaluate the site's buffer quality in the manner outlined above. This will allow for a specific evaluation of buffer poll utan t- removal potential on a site

- by

- site basis that will promote optimal sediment and discharge control into waters that need additional protection.

Response See Response 2.3.3.



# Comment ID 0060

- A1.001.003

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.2
3. Section 2.1.2 - This section requires an owner to minimize sediment discharges to any waters of the U.S. located on or immediately adjacent to their site by maintaining a natural buffer or by using equivalent sediment controls. Please define "or immediately adjacent to". This language is not clear and will be subject to different interpretations.

In addition, will the final "Guidance on Identifying Waters Protected by the Clean Water Act" document that is being prepared by the EPA and the US Army Corps of Engineers have any impact on this requirement? It is our understanding that this document is cur rently going through a public review and comment process with comments due by July 31, 2011.

Response See Response 2.3.4. EPA notes that the guidance regarding waters of the U.S., once finalized, will provide assistance to perm ittees in determining what waters are required to be protected by buffers.



# Comment ID 0062

- A1.001.008

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

243 Brevard County Comment: Equivalent treatment prior to leaving site? 50' buffer on all sides of square 1 ac site leaves only 2 /3 ac. The buffer requirement disproportionately impacts small sites.

Response See Response 2.3.10.



# Comment ID 0065

- A1.001.002

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.2 As drafted, the scope of the CGP irrationally extends well beyond construction activities and demands compliance with project design requirements, which are entirely beyond the control and expertise of the construction sector. One example of this fundamental problem is the requirement of a 50

- foot buf fer zone. If a project was not designed with a 50

- foot buffer zone, the construction company simply cannot meet that term of the CGP. This irrationally and unnecessarily exposes the construction company to noncompliance liabi lities. EPA's authority to regulate sector activities under any NPDES general or individual permit is legally circumscribed by the activities engaged in by the sector or individual source being regulated. EPA lacks authority to impose through the CGP permit, requirem ents
that do not relate to construction.

Response See Response 2.3.1.



# Comment ID 0068

- A1.001.015

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1.2 EPA's proposed 50

- foot buffer (or equivalent) mandate in Part 2.1.2 i s another example of regulatory over

- reach. In the C&D ELG, EPA eliminated many of the specific vegetated buffer requirements because the Agency could not justify its initially prescriptive approach, ultimately requiring site operators to "provide and main tain natural buffers around surface waters..." to "increase sediment removal." See 40 CFR § 450.21(a)(6). Now, EPA has proposed two pages of prescriptive permit language, 17

- pages of Fact Sheet explanation
and an additional 16

- page permit "appendix," to mand ate how sites must implement that requirement. EPA also appears to ignore in the Proposed CGP the important language in the C&D ELG proposal that providing and maintaining a natural buffer is not requir ed
when it is infeasible.

Response See Response 2.3.1



# Comment ID 0071

- A3.001.001

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

244 •Part 2.1.2 Protection of Surface Waters: Natural Buffers and Equivalent Sediment Controls. This part is too restrictive and/or does not offer adequate alternatives. Linear transportation projects are frequently located immediately next to waters of the U.S. in areas with limited Right of Way (ROW) and/or geography. An example would be a mountain highway with a drop off to a river, which allows no opportunity for a buffer and limits the sediment and erosion control options. A second example would be a roadway located nex t to a dry gulch, with a ROW that extends only a foot or two beyond the edge of the road. F requently, in situations such as these, administrative BMPs offer the best alternative to the buffer. CDOT encourages that administrative controls, such as sweepin g, working only during the dry season, an increase in inspection frequency and so forth are added to or supplement the alternatives.

Response See Response 2.3.6.



# Comment ID 0072

- A2.001.002

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.1.2 MoDOT understands and agrees with the importance of maintaining natural vegetative stream buffers where practical; however, linear transportation projects involve the construction of bridge or culvert crossings to carry traffic over waters of the u.s. The construction process typically requires, at a minimum, clearing to the stream edge, and therefore the buffer requirement is impractical in these
situations

Response See Response 2.3.6.



# Comment ID 0075

- A2.001.005

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.2 Compliance with maintaining 50

- foot native vegetated buffers adjacent to US Waters, toe stakes (e.g., disturbance boundaries) and no construction activities allowed within designated buffer strips would have unintended consequences on steep highway fill slopes leading to increased erosion potential and enhanced sediment delivery to riparian zones, especially mass wasting (i.e., mud s lides). Many WYDOT rural secondary corridors have a mere 66

- 80 feet wide right

- of

- ways with 24

- feet of t hat devoted to two travel lanes.

Response See Response 2.3.6.



# Comment ID 0075

- A2.001.015

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

245 Similarly, the 50

- foot "no construction activity" buffer would restrict gravity flow and polymer treatment train positioning between point of discharge and land

- side of the buffer edge (i.e., narrow linear projects).

Response See Response 2.3.6.



# Comment ID 0076

- A1.001.003

Author Name: Steadman Marc Organizat ion: Target Corporation Issue Category: 2.1.2 1. Target requests that the Environmental Protection Agency (EPA) identify the significance of 50 foot buffer (100 feet of bu ffer around a surface water) distance and why the value was selected. Does this estim ated reduction align with the Construction & Development rule (C & 0 rule)? Target requests additional guidance on all integrated performance standards that were utilized in addition to RUSLE 2.0 in determining buffer performance.

2. Target requests that the EPA provide further explanation as to why a universal 50 foot buffer is desired. Would a larger buffer be required for a larger drainage area or a reduced buffer for areas that do not receive runoff? Target suggests that this could be included
as a bu ffer option to universal buffer width and could provide most protection where practical.

Response See Response 2.3.2, 2.3.9, and 2.3.5.



# Comment ID 0077

- A1.001.003

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 2.1.2 The buffer requirement is based on Waters of the United States, but the definition is very broad and subject to interpretatio n. In order to prevent confusion on the part of designers and reviewers, maps of waters to be protected should be developed and the buffer requirement should be based on the maps.

Response See Response 2.3.4.



# Comment ID 0091

- A2.001.001

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.1.2 I. Fact Sheet Item 2. Part 2.1.2, 2.1.2.1 and Appendix M: The term "naturally vegetated" is somewhat confusing. Could a buffer area be seeded with a native plant mix one year in advance of the proposed construction to qualify as a naturally vegetated buffer? I f a bufferRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

246 area was graded 5, 10, or even 20 years in the past and vegetation was established through natural processes which include the establishment of invasive species or weeds, would this area qualify as a naturally vegetated buffer. Though invasive species are not desirable, the plant type in the buffer is probably not critical to the final water quality improvements.

Response See Response 2.3.3.



# Comment ID 0093

- A2.001.006

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.2
Part 2.1.2 of the Draft, where it mandates a 50

- foot buffer (or equivalent), is another problem. From the C&D ELG, EPA omitted many of the specific requirements for vegetated buffers because the agency could not justify its initially prescriptive approach. Instead, EPA simply required site operators to "provide and maintain natural buffers around surface waters ..." to "increase sediment removal." See
40 CFR § 450.21(a)(6). Now, EPA proposes two pages of prescriptive permit language, a 17

- page explanation or "fact sheet," and an
additional 16

- page permit "appendix" to mandate in excruciating detail exactly how site operators must implement the buffer requirement. After a dozen years of studying technology controls to support the C&D ELG rulemaking, during which EPA conclude d that a flexible approach is appropriate, EPA is now proposing - without reasoned explanation - to take an approach even more prescriptive than the originally proposed C&D ELG. EPA should require precisely and only what it kept in the C&D ELG. If

necessar y, it can then issue non

- mandatory guidance that may assist site operators to more knowledgably implement that buffer requirement.

Response See Response 2.3.1.



# Comment ID 0093

- A2.001.034

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.2 As proposed, AGC is concerned that the 50

- foot buffer requirement will be particularly difficult to meet on linear highway projects where DOTs have limited rights

- of

- way and where most projects use all but a small portion of that space. Also, the proposed buffer requirements will be difficult to implement where linear projects (roadways) abut wetlands, which is a common occurrence in c oastal states. There are times that work must take place right up to the rig ht

- of

- way line which is also beside the wetlands area.

Response See Response 2.3.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

247 

# Comment ID 0094

- A1.001.002

Author Name: Oppenheimer Jonathan Organization: Idaho Conservation League Issue Category: 2.1.2 We strongly support the inclusion of a naturally vegetated buffer to control sediment from construction sites. We encourage you to consider expanded buffers in designated critical habitat for listed Endangered and Threatened species, on sensitive landtypes and on steep slopes. You should consid er the effectiveness of a 50

- foot vegetated buffer compared with the buffers established by the Forest Service and Dept. of Interior through the PACFISH and INFISH Strategies for protection of Riparian Habitat Conservation Areas to protect and conserve lis ted salmonids.

Response See Response 2.3.3.



# Comment ID 0105

- A2.001.007

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 2.1.2 [ Natural riparian buffers with minimum width of 50 feet around waters of the U.S., or equivalent level of control (Part 2.1.2). The Draft CGP's proposed requirement for natural buffers of at least 50 feet between construction activities and waters of the U.S. is a common sense, practical provision that implements the C&D Rule a nd is analogous to the buffer zone requirements of wetland protection laws, including Massachusetts's Wetlands Protection Act, M.G.L .c. 131, § 40. The Draft CGP's natural buffer provision cannot be considered unduly restrictive; it provides for compliance alternatives that result in a level of control equivalent to the otherwise required buffer. CLF urges EPA to retain this requirement in the final permit.

Response EPA appreciates the comment.



# Comment ID 0107

- A2.001.005

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 2.1.2 Sensitive areas such as areas adjacent to waters of the US, stream crossings, steep slopes and critical habitat deserve added protection. Amigos Bravos supports the addition of buffer requirements and suggests adding language that requires permittees to identify in the SWMPP any already existing local or state stream buffer requirements. In addition, Amigos Bravos recommends adding a buffer requirement of 25 feet to areas adjacent to drainage features s uch as ditches, storm drains, and arroyos. An added benefit of the buffer requirement is the ability to better control the spread of noxious weeds. Disturbed areas, especially here in the arid southwest, are prone to serious noxious weed infestation and wh en these disturbed areas are adjacent to waterways or drainage features noxious species are more easily and quickly spread to downstream areas.

Response See Response 2.3.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

248 

# Comment ID 0117

- A1.001.003

Author Name: Robison Mary Organization: City of Syracu se, New York Issue Category: 2.1.2 The buffer requirement is based on Waters of the United States, but the definition is very broad and subject to interpretatio n. In order to prevent confusion on the part of designers and reviewers, maps of waters to be pr otected should be developed and the buffer requirement should be based on the maps.

Response See Response 2.3.4.



# Comment ID 0128

- A2.001.009

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 2.1.2 EPA's proposed 50

- foot buffer (or equivalent) mandate in Part 2.1.2 is another example of regulatory over

- reach. In the C&D ELG, EPA eliminated many of the specific vegetated buffer requirements because the Agency could not justify its initially prescrip tive approach, ultimately requiring site operators to "provide and maintain natural buffers around surface waters..." to "increase sediment
removal." See 40 CFR § 450.21(a)(6). Now, EPA has proposed two pages of prescriptive permit language, 17

- pages of Fact Sheet explanat ion and an additional 16

- page permit "appendix," to mandate how sites must implement that requirement. After a dozen years of studying technology controls to support the C&D ELG rulemaking during which concluded that a flexible approach is appropri ate, why is EPA now attempting to implement an approach even more prescriptive than the C&D ELG proposal by way of promulgating a new CGP permit? When the appropriate time arrives to implement a revised C&D ELG, EPA should require precisely what is
contained in th at regulation (as EPA states, "simply parroting" the C&D ELG), and use the extensive information (and more) in developing separate guidance that may assist site operators to more knowledgably implement such requirements without unnecess arily complicating t he Proposed CGP.

Response See Response 2.3.1.



# Comment ID 0133

- A2.001.011

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.2 MDT supports the proposed compliance alternatives for protection of surface waters. It is often infeasible in linear transportation projects to provide an undisturbed naturally vegetated buffer between the disturbed portion of the site and waters of the Uni ted States. Additionally, specified buffer widths alone fail to account for site·specific conditions that influence water quality. As such, compliance flexibility is necessary and warranted.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

249 Response See Response 2.3.6.



# Comment ID 0145

- A2.001.004

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.1.2 Natural Buffers are fundamentally important where development projects are adjacent to waters of the U.S. or their tributarie s. We strongly support including this requirement in the final CGP. The benefits of still wider buffers are described in pages 33

- 50 of the EPA's fact sheet for the CGP, but are not particularly encouraged in the CGP. Perhaps EPA can find a way to encourage adoptio n of yet wider buffers where feasible.
Here in the Southeast, we have recommend a wider buffer of 75 feet on eac h side of 1st and 2nd order streams and a 150 foot buffer on each side of 3rd order or larger streams. Where slopes are greater than 30% within the buffer, the buffer width should be extended to the military crest of the slope.

Our recommendation for buf fers wider than the 50 foot recommendation presented in this CGP proposal may in part be justified by our experiences with stream channel widening that accompanies altered hydrologic conditions of urbanizing watersheds. On the Caha ba River, we have seen wh ere an admittedly inadequate original buffer has been diminished dramatically by streambank slumping, leaving no buffer whatsoever (see photo below). [Please page 3 of original letter (Docket ID 0782

- 0145.]

This bank collapse removed the entire small existing buffer, leaving a mere 12 feet to the base of the adjacent building foundation. Thus, existing buffers can shrink significantly, resulting in the loss of all water quality protection benefits.

Response See Response 2.3.3.



# Comment ID 0153

- A1.001.004

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.2 1. Many sediment control BMPs can easily be designed and implemented to achieve sediment removal capabilities of a vegetated buffer as shown in the appendices of the draft EPA CGP.

2. This requirement assumes that a 5O ft. buffer is an acceptable standard for TSS removal from construction site runoff. Bar field (2004) conducted simulations using the widely used Grassfil model of Hayes et al. (1984) and showed that for Greenville County, SC, conditions during a 2

- yr. storm on a slope of 12% and a slope length of SO ft in the active construction area would inundate a SO ft. buffer strip downstream of the source and the discharge would contain sediment concentrations approaching 10,000 mgjliter (see figure below). The fact is that a vegetated filter strip (VFS) which is designed to effectively trap sediment must be regular ly mowed to keep dense vegetation, thus there would need to be a mainte nance requirement. Under these conditions, the amount of sediment storage before inundation is small and the filter quickly becomes ineffective. A VFS is not effective for reducing the high sediment TSS loadRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

250 from construction sites unless it has a very lon g flow path through the vegetation. These strips can be effective, however, for newly stabilized areas and for post construction.

[Please see page 4 of the original letter (Docket ID 0153

- A1.001) to view the graph of TSS concentration and Source Length a nd Filter Length.]

3. This is a back door way of requiring a % sediment removal on an annual basis. This is not supported in the Federal Registe r. EPA appears to base the % removal on an annual loading equivalent to that of a 50

- foot buffer strip. There does not seem to be a regard for
the volume limitation the 50

- ft. buffer will hold before failure. This is based on a RUSClE calculation not considering the effect of flow. Suggest the EPA analysis be redone and the % removal be set based on a design storm event that the buffer can attain without being cleaned and maintained. In addition, this requirement appears to not require any additional controls if you have a natu ral buffer in place. This idea will simply not work. There is no way DOTs or other linear type projects can comply.

Response See Response 2.3.3, 2.3.9, and 2.3.6. With respect to the comment that the requirement establishes a percentage of sediment r emoval on an annual basis, EPA clarifies that the requirement only applies to discharges to s urface waters within 50

- feet of the site. The requirement does not apply to other discharges from the site (i.e., discharges to an MS4 or discharges that are more than 50

- feet from a
surface water.



# Comment ID 0157

- A2.001.001

Author Name: McGoff Steve
Or ganization: Nevada DEP Issue Category: 2.1.2 NDEP feels this approach will work in areas of the country with good vegetative cover and consistent rainfall, but it won't w ork in other parts of the country where waters of the U.S. include dry washes or ephemeral streams. Buffers in those arid regions would usually consist of sparse vegetation intermingled with large areas of native soil that contain no vegetation. If that site in Nevada happens to be located adjacent to waters of the U.S., where is the econom ic and environmental benefit to installing additional BMPs to meet the equivalent buffer requirements? The 2

- year, 24

- hour storm event in Nevada produces much less than one inch of precipitation. It has been NDEP's experience that the small amount of discharge that might leave these sites would soak into the soil long before it would ever reach any waters of the U.S. It has been NDEP's policy that BMPs properly installed and maintained will minimize the amount of sediment and pollutants leaving a constructi on site. Nevada has stated numerous times to EPA that making a "one size fits all" guidance or regulation based upon climactic conditions on the East Coast, South or the Midwest does not w ork in arid regions. Nevada and the Southwest have a unique climate and topography. Nevada is willing to implement new stormwater permit requirements when they make sense for our region, but it appears that this proposed buffer requirement would require addition al costs for maintenance and modeling with no visible environm ental benefit.

Response See Response 2.3.7.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

251 

# Comment ID 0168

- A1.001.026

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2.1.2

-- In

- stream BMPs (Section 2.1.2, Page 11

- 12): Please consider defining and allowing additional BMPs such as temporary crossings, flow diversion, coffer

- dams with well

- pointing, silt curtains, and other measures as necessary to support in

- channel or shoreline work required for installation/maintenance of bridges, channel outfalls, utility crossings, and chann el bank stabilization (including riprap and grouted riprap). Silt fence, bio

- Iogs, mats and rock check dams may not meet this particular need. Also, grouted riprap is listed as a BMP for channel work; there can be serious adverse in

- stream impacts associat ed with installing this type of bank protection without some other BMP to protect the waterway.

Response See Response 2.3.5.



# 2.1.2.1 COMPLIANCE ALTERNATIVES [REQUEST FOR COMMENT]

Comment ID 0037

- A1.001.005
Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.2.1
This Part states that if compliance alternatives a or b are selected then "All discharges through the buffer must be non

‐ channelized or

non
‐ concentrated, and must first be treated by the site's sediment and erosion controls." In the first sentence under the bullet Discharges to the Buffer in Appendix M Buffer Guidance (page M

‐ 7), it states "Part 2.1.2.1 requires that any discharges to your buffer
area be non
‐ channelized or non

‐ concentrated." Due to these inconsistencies, EPA should clarify whether discharges through OR discharges to buffer areas must be non

‐ channelized or non

‐ concentrated.
If EPA's intent was to require that all discharges through the buffer must be non

‐ channelized or nonconcentr ated if compliance alternatives a or b are selected, the Southern Ute Growth Fund has the following comment. In the southwest, there are often n atural features (swales, rills or gullies) within the existing buffer areas for waters of the U.S. that channeli ze stormwater runoff already. Therefore, even if the flow leaving the construction site is diffuse, it will have a tendency to reconcentrate when the flow intercepts these features. This Part should be modified to include an exception to this requirement i f the buffer has channelized or concentrated flow through it prior to any construction activities.

Response See Response 2.3.3 and 2.3.5.



# Comment ID 0040

- A1.001.007

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.1.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

252 The 50

- foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not themselves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns wi thin the unique constraints of the particular linear project area. Often a utility line right of way (ROW) is parallel to a Water of the United States (WOUS) an d, since the line support structures can be staggered to span a WOUS, no wetland permit may be needed. Implementation of the buffer requirement could trigger the need to obtain significantly more wetlands permits because the structures may not be able to span both the WOUS and the buffer. Relief from the buffer requirement is needed for this type of situation. Under the new EPA/Corps interpretation of WOUS, 50

- foot buffer requirements would apply to intermittent and ephemeral drainages, which would be very problematic and practically unworkable.

Response See Response 2.3.6.



# Comment ID 0045

- A1.001.003

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 2.1.2.1 Finally, this section proposes the use of sediment percent removal efficiencies attributed to Best Management Practices (BMPs ), in
order to evaluate and choose substitutes for the implementation of a full

- scale buffer, if necessary. EPA and others have shown that the use of such efficiencies is often a "poor measure of BMP performance,[FN 5]" and that other methods of assessing effectiveness are better (e.g., how much stormwater runoff is prevented by volume; how much runoff that does occur is treated; and, of the runoff treated, what is the effluent quality by way of any of a number of pollutant parameters?).

[FN 5] Strecker, et aI., A Reassessment of the Expanded EPA/ASCE National BMP Database (2001); US EPA, Three Keys to BMP
Performance - Concentration, Volume and Total Load, http://cfpub1.epa.gov/npdes/stormwater/urbanbmp/bmptopi c.cfm (percent removal).

Response See Response 2.3.9.



# Comment ID 0054

- A2.001.004

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: 2.1.2.1 Issue: It is unclear what EPA's justification is for the imposition of the 50 foot buffer of natural vegetation. It is also unclear how the 50 foot buffer mandate supports the C+D guidelines in 40 CFR 450.21 (a)(6).

Firstly, if there is some data to support that 50 feet of natural vegetation provides 75% removal of solid s, as an example, then there would be a standard (in this case 75% solids removal) by which other controls or even augmentation of the existing topography would provide similar reductions and could be implemented.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

253 If EPA wishes to maintain the "natural b uffer" provision, it will be imperative to define "natural vegetation" and identify specific characteristics of the natural vegetation (e.g., a certain density, species, etc.). At some industrial facilities, vegetation may exist to
stabilize shorelines or stream banks, but may consist of weeds, invasive species, and sparse density. USS recommends that "natural vegetation" be defined in the final regulation.

Response See Response 2.3.2 and 2.3.3.



# Comment ID 0054

- A2.001.005

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: 2.1.2.1 Secondly, the C+D guidelines in 40 CFR 450.21 (a)(6) state, "Provide and maintain natural buffers around surface waters, ... unless
infeasible." There is no reference to a certain width of natural vegetation that must be maintained and it seems arbitrary that EPA would indicate this as a requirement. Further, if the site

- specific situation indicates the maintenance of a buffer is infeasible, then the 50 foot requirement would be moo t.

Recommended Change: USS recommends continued use of 450.21 (a)(6) as currently written for addressing natural buffers in the
CGP.

Response See Response 2.3.1.



# Comment ID 0055

- A1.001.003

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 2.1.2.1 Section 2.1.2.1.c. "If it is infeasible to provide an undisturbed naturally vegetated buffer of any size..." The statement "if it is infeasible" is left open to regulatory interpretation with varying opinions. We suggest that this language be removed or modified.

Response See Response 2.3.1.



# Comment ID 0060

- A1.001.004

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.2.1
4. Section 2.1.2.1.c - This section states "If it is infeasible to provide an undisturbed naturally vegetated buffer of any size between the disturbed portion of your site and the waters of the U.S....". The terminology "if it is infeasible" is subjective and open toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

254 interpretation. The genera l permit must define the criteria that an owner can use to say that "it is infeasible" for them to provide a
buffer.

Response See Response 2.3.1.



# Comment ID 0064

- A1.001.009

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.2.1 Section 2.1.2.1, page II - "The compliance alternative selected above must be maintained... All discharges through the buffer must be
channelized or non

- concentrated, and must first be treated by the site's sediment and erosion controls."

•This re quirement is overly burdensome. If an operator chooses to switch approaches and still meets COP requirements, the permit should not prohibit such a switch in best management practices.

Response See Response 2.3.3.



# Comment ID 0065

- A1.001.005

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.2.1 Section 2.1.2.1 requires an undisturbed naturally vegetated 50

- foot buffer, a smaller buffer, or where any buffer is infeasible, "sediment
and erosion controls achieve the equivalent sediment load reduction as an undisturbed naturally vegetated, 50

- foot buffer." The CGP establishes the limits for stormwater discharges at a construction project, making the "operator" with "control over construc tio n plans and specifications" (CGP 1.2) liable for any violations of those limits.

The 50

- foot buffer requirement is not a construction activity over which the operator has any control. Rather, it is a design feature of a project, and the operator may simply not be able to modify the plans and specifications to meet that design feature. The CGP should not impose terms that establish an unachievable compliance baseline.

Anticipating that the buffer zone requirement may be unachieveable, the CGP incudes com pliance alternatives. Although the permit term on its face is beyond the rational scope of this CGP, if the term is included, alternative means to comply are critical, because in most projects undertaken by CCWC members, the location and project footprint do not allow for a 50

- foot or even smaller buffer. Alternatives must be available to achieve compliance when a buffer of undisturbed natural vegetation cannot be installed. How ever, it is inappropriate for the permit to require alternative control measures to meet a baseline sediment load reduction based on a 50 - foot buffer, which does not account for slope and other critical features of the project area. In addition, the permit lacks preci sion as to what alternative controls will be sufficient for complia nce.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

255 Response See Response 2.3.1 and 2.3.9.



# Comment ID 0066

- A1.001.010

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.2.1 Discussion: Concerning the 50 foot buffer of undisturbed natural vegetation near Waters of the U.S., we find this requirement unreasonable and not practicable in many instances. In most cases it is almost impossible not to disturb some of the areas su rrounding and adjacent to surface waters. The alternatives listed need to be more realistic in terms of what is actually obtainable in the field by passive stormwater BMPs, when compared to the sediment load reduction offered by a 50 foot buffer of undisturbed natural vegetation.

Suggestion: This requirement for maintaining a 50 foot buffer of undisturbed natural vegetation or equivalent measures to equate to sediment load reduction is not practicable. In many instances, natural vegetation around waters of the U.S., is dissimilar an d changes according to climate regime. What one area may offer for sediment removal might not be at all similar to something in another geographic location.

Response See Response 2.3.6 and 2.3.9. EPA also notes that it modeled the sediment removal efficiency of 50

- foot buffers, accounting for different vegetation and soil types expected in the areas covered under the permit. EPA recognizes, however, that some site c onditions will not be recognized in the tables of sediment removal efficiency that EPA has provided, and therefore, EPA allows sites to either choose the vegetation and soil type that most closely matches their conditions, or peform a site

- specific calculation.



# Comment ID 0086

- A1.001.009

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Asso ciation, Inc. Issue Category: 2.1.2.1
The 50

- foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not themse lves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns within the unique constra ints of the particular linear project area. Often a utility transmission line right

- of

- way (ROW) is constructed parallel to a Water of the United States (WOUS) where line support structures can be staggered to span the WOUS, and no wetland permit may be needed. Implementation of the buffer requirement contained in the proposed COP could require significantly more wetlands permits beca use the transmission line structures may not be able to span both the WOUS and mee t the proposed buffer requirement. Tri

- State believes this is unnecessa!), and relief from the buffer requirement is needed for this type of situation. Under the new EPNCorps inte rpretation of WOUS, the 50

- foot buffer requirements would apply to intermitte nt and ephemeral drainages and will present impractical work scenarios that will do nothing to protect water quality.

Response See Response 2.3.6Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

256 

# Comment ID 0088

- A1.001.017

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.1.2.1 Among the unrealistic requirements are:

-- we don't consider that any selection from Appendix M would be applicable to eastern North Dakota & northwestern Minnesota. Ou r operating region is significantly different than the closest areas indicated. Our current state DOT recommended stabilization plans work the best in our operating region. Therefore, 2.1.2.1 b (a combination of vegetation and other supplemental controls) wou ld normally be the best option since an actual 50 foot vege tative buffer would not normally be feasible for our substation or line projects. 2.1.2.1 c should also remain as an alternative so that we may have more flexibility in achieving the required buffer width

Response See Response 2.3.6. In addition, EPA rec ognizes that some site conditions will not be recognized in the tables of sediment removal efficiency that EPA has provided, and therefore, EPA allows sites to either choose the vegetation and soil type that most clo sely matches their conditions, or peform a site

- specific calculation.



# Comment ID 0096

- A1.001.025

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.2.1 EPA is proposing to require natural buffers or equivalent sediment controls as compliance altern atives to meet the buffer requirements, purportedly to implement the C&D ELG. NAHB strongly disagrees with this approach and urges it removal. In the C&D ELG, EPA eliminated many of the specific vegetated buffer requirements because the Agency could not ju stify its initially prescriptive approach. In the end, EPA ultimately required site operators to “provide and maintain natural buffers around surface waters...” to “incre ase sediment removal.” [FN 46] Also in the C&D ELG rulemaking, EPA, in certain respects, opted for a more flexible approach, as demonstrated by certain non

- numeric requirements. It is uncertain why and it is quite concerning that EPA is now attempting to implement an approach that is even more prescriptive than the C&D ELG proposal through th e new CGP permit. Instead of mandating compliance with unnecessarily strict standards, EPA should address the implementation of the forthcoming C&D ELG requirements through separate guidance to assist site operators in complying with those requirements ins tead of unnecessarily complicating the proposed CGP. EPA must also revisit the proposed alternatives.

The alternative measures provided in lieu of constructing a 50 foot natural buffer, as explained in the proposed CGP are only
theoretical and not practical. There are many drawbacks that require further guidance. For example, one of NAHB’s concerns with the buffer requirement is the potential for the states to adopt similar provisions in their state permits. The EPA CGP will be used as a model for states when revising their state CGPs going forward and some of the provisions such as the buffer requirements or equivalent method will be difficult for states to develop. Tables 1 through 8 in Appendix M list very specific localizedveget ation and
sediment removal performance for the specific States and territories covered by the EPA CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

257 These tables, however, will not necessarily be applicable in other states that may adopt the EPA CGP, or applicable even in a ll regions within a single state. This will place an undue burden on the states that have their own CGP to develop similar estimated removal tables for the various regions and cover vegetation typical within their state. EPA should clarify that natural buffer sedime nt removal
values in other states or regions within other states will not necessarily be equivalent to these tables, and that they are derived only for the specific localities where the EPA CGP is currently in force.

Further, the majority of the sediment removal values presented in these tables are unrealistically high for many rain events. Only Table 1 for Idaho may approach a realistic estimate when the rain event is less than 1 inch in a 24 hour period. For most of these tables, the fine clay sediment is being predicted to be removed at over 80%, but this is a completely impractical estimate. Further, EPA appears not to have made any consideration as to the type of rain event intensity or duration in making these percentage removal pred ictions, even though these factors will have a signi ficant impact on removal efficiencies.

Even within the Tables in Appendix M, EPA has acknowledged that not every vegetation type, soil type, and slope condition is covered. For vegetation and soil type, EPA suggests that the selection that most closely m atches the site conditions be selected; a higher slope should be calculated using RUSLE2 or some other accepted model. EPA should consider that the “effective equivalent” sediment removal for most BMPs is not a single, immutable number, but is frequently g iven in theoretical ranges of effectiveness. It is clear that within the general guidelines presented here, there is a substantial amount of subj ective judgment required as to whether a given set of alternative BMPs will work, and there will not always be only one correct equivalent BMP setup for every situation. This actually is a good feature, as long as EPA and the various state agencies recognize this, and do not subject sites to enforcement when the buffer solution used at a site is defensible using go od engineering judgment.

Another issue is that several of the natural vegetative buffers in Tables 1

- 8 are shown to achieve extremely high removal (90

- 99%), whereas for other soils and other natural vegetative cover, the same size buffer is considerably less effective, with some only removing 60% or less of the sediment. NAHB’s concern is that with certain soil types, natural vegetation, locations, etc., there will be no feasible equivalent BMP that will be able to theoretically remove sediment to the lev el that is calculated in the tables. For example, even complete diversion of the water to a sediment pond with polymer might not achieve 95% removal. If this is the case, the EPA C GP provides no solution. The RUSLE2 values calculated in the table are also approximate estimates that have a significant margin for error, and may or may not be achievable in practice. Therefore, we suggest that, in situations where it is infeasible to impl ement a full
50 foot buffer of natural vegetation, and where the estimated sediment removal for that buffer from the appropriate table is greater than 80%, EPA allow the alternative BMP requirement for the site (in combination with any remaining buffer) to be compliance if it achieves the greater than 80% theoretical removal.

[FN 46] 40 CFR § 450.21(a)(6)

Response See Response 2.3.1and 2.3.9.



# Comment ID 0108

- A2.001.001

Author Name: Paul Roger Organization: Bernalillo County Public Works, New MexicoRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

258 Issue Category: 2.1.2.1 With regard to Subpart 2.1.2.1 (Buffer Compliance Alternatives) in the draft permit, the County of Bernalillo states that buffers have limited effectiveness in our arid area due to low cover percentages. Our preference is to only allow buffers with a supportin g RUSLE2 analysis and a minimum sediment remov al efficiency.

Response See Response 2.3.7.



# Comment ID 0112

- A2.001.001

Author Name: Karimi Hamid Organization: DC Dept of Environment Issue Category: 2.1.2.1 Section 2.1.2: Protection of surface waters: Natural buffers and equivalent sediment controls

With regards to compliance Alternative 2.1.2.1.c, EPA should make available a set of tables to show pounds or tons per acre o f sediment that a buffer saves or prevents from reaching a water body in relation to the percent of sediment removals similar t o Tables 1

- 8 shown on Pages M

- 10 through M

- 12 in Tables 1

- 8. Such a relationship would be very useful in comparing actual tonnage which can be better visualized rather than percentages.

Response EPA appreciates the suggestion. However, EPA notes that the amount of sediment removal in terms of pounds or tons that will be achieved by a buffer is very site specific, and depends on the amount of sediment entering the buffer. For example, if two si tes have buffers that achieve 50% sediment removal efficiences, but have different sediment loads to the buffer, there will be different amounts
of sediment removed from each site.



# Comment ID 0126

- A2.001.004

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.1.2.1
Construction of "stream stabilization" measures authorized under a CWA Section 404 permit should also be excluded from this requirement. Additionally, "trails" should be added to types of water crossings excluded from this requirement.

Many streams and associated buffers in our region are frequently narrower than 50' and/or at slopes greater than 9%, thereby making the Buffer Compliance Alternative not applicable. The 50' requirement seems too prescriptive without consideration of other i mportant
factors such as: 1 ) existing vegetation, 2) slope of the vegetated buffer 3) floodplain/floodway restrictions etc. Additionally, Tables 1 -8 may not be applicable given their limitations to slope and vegetative cover thus leaving the local regulator at a loss as to what

reas onable alternatives can replace the Buffer requirement.

Therefore, it is the CSC's request to change the 50

- foot buffer to a recommendation and left up to the local jurisdiction to implement based on site specific issues.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

259 Response See Response 2.3.5 and 2.3.2. In addition, EPA recognizes that some site conditions will not be recognized in the tables of sediment removal efficiency that EPA has provided, and therefore, EPA allows sites to either choose from the table the closest match t o their conditions, or peform a site

- specific calculation.



# Comment ID 0130

- A2.001.013

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.1.2.1 12. BUFFER ALTERNATIVES. Part 2.1.2.1 COMPLIANCE ALTERNATIVES. The requirement to maintain the selected alternative throughout the project duration is restrictive. As worded, you cannot apply different alternatives to different areas, or cha nge the alternative to accommodate project changes. We request more flexibility in this language.

Response See Response 2.3.3.



# Comment ID 0163

- A1.001.001

Author Name: Fronczak Robert Organization: Assoc. of American Railroads Issue Category: 2.1.2.1 One area where railroads would be particularly adversely affected is with respect to the 50 foot buffer requirement. Railroad rights

- of

- way (ROW) are generally 100 foot wide, with the track located near the center of the ROW. Therefore a 50 foot buffer is not possible in most railroad applications.

Response See Response 2.3.6.



# Comment ID 0168

- A1.0 01.003

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2.1.2.1 Buffers (Section 2.1.2, Page 11

- 12): There are multiple issues about the buffer zone rule: First, contractors bid plans developed by others who may not have included a buf fer zone.Second, long narrow sites for projects like bike trails may not accommodate a buffer zone. Third, determining whether the proposed BMP's meet the 98% effectiveness criteria. is going to be difficult and subject to professional interpretation. Four th, the proposed permit is not clear as to whether the buffer zone is permanent (post

- construction) or only temporary during construction. Finally, the buffer zone requirement is better addressed in EPA's current stormwater rule making
focused on post

- const ruction controls. An alternate approach for the CGP would be to include language to retain and protect natural buffers as indicated on the construction documents, or "as practicable".Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

260 Response See Response 2.3.1, 2.3.6, and 2.3.9. EPA also clarifies that the requirements in Part 2.1.2.1 only apply during the period of permit

coverage.



# 2.1.2.2 ADDITIONAL REQUIREMENTS FOR COMPLIANCE ALTERNATIVES

Comment ID 0017

- A1.001.005

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.2.2 3) 2.1.2.2

‐ Requires documentation of buffer width if it is less than 50 feet, along with the information used to rely upon the requirement to achieve the equivalent sediment load reduction as an undisturbed, naturally vegetated 50

‐ foot buffer. In order to document the percent sediment load reduction, the agency is proposing modeling using RULSE (Appendix H). This is a perfect example of where EPA should provide information on the equivalency of BMPs to reduce sediment discharge fro m a site. Requiring permittee's to model locations where less than a 50

‐ foot vegetative buffer is present is extremely burdensome and an excessive recordkeeping requirement, especially for linear projects where multiple soil and vegetation types are encoun tered. Having information on the equivalency of BMPs would significantly reduce the documentation burden to knowing what soil types are present within the construction area and what BMPs are appropriate to achieve the sediment reduction requirements. In ad dition, 2.1.3.2 requires the installation of physical stormwater controls on any portion of the site. This would include all buffer areas. Having equivale ncy information upfront in the design of stormwater controls will help ensure permittee's are meeting the proposed removal limitations.

Response See Response 2.3.9 and 2.3.6.



# Comment ID 0037

- A1.001.006

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.2.2 There should be an exception to the requirement to complete stabilization on disturbed areas within buffer areas within 3 workdays of initiating stabilization in the event that 1) a storm event occurred during the 3

‐ day deadline period which prevented stabilization activities from taking place or 2) soil conditions due to an earlier storm event are too wet for stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period precluding any further activitie s. If any of these events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable.

Response See Response 2.3.8.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

261 

# Comment ID 0040

- A1.001.008

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.1.2.2 The proposed deadline for completing initialization of stabilization is unrealistic. Three working days for sensitive areas a nd seven calendar days for non

- sensitive areas are too short for completion and do not take into considerat ion rain versus dry season. See
Section 2.1.2.2.b.; 2.1.4.2.ii; 4.2.2.2.b. A reasonable alternative could be "as soon as practicable, but no later than 30 days after the cessation of construction activity in that area unless weather conditions (rainy sessi on) make it impractical to initialize stabilization." EPA also should define "working days" and clarify the definition of "immediately" in reference to how soon you must stabilize an area. Id.

Response See Response 2.3.8 and 2.27.



# Comment ID 0045

- A1.001.002

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 2.1.2.2 2.1.2.2(b) - This section requires stabilization of exposed areas in a buffer where earthdisturbing activities have ceased either temporarily or perman ently (i.e. will not resume for a period exceeding seven days). [Note: the same requirement is found with respect to steep slopes in §2.1.4.2]. While better than what has been required in the past, seven days is actually the maximum period of time
within w hich open and exposed soils should be pennitted, without stabilization, on any site.

We have previously commented upon this matter with respect to the Construction ELGs that apply nationally, citing our direct experience in the Chesapeake Bay watershed o bserving projects where soils uncovered for seven or 10 or up to 14 days have overwhelmed sediment and erosion control practices when several days of substantial rain has occurred

-- a not uncommon experience within a one or two week period. (In that set o f comments, we recommended that stabilization begin within 72 hours of earth

disturbing activities' ceasing.) Given the ability to now deploy earth

- moving machinery quickly and cost

- efficiently in an almost "just

in

- time" manner, there is no excuse in 2011 to allow any longer period of open soils than seven days on any construction site. We strongly recommend that the 14

- day general stabilization deadline stated in 2.2.1 should no longer prevail on any part of a development site across the U.S. On the other hand, we still recommend, and think reasonable from an economic and efficiency perspective, a 72

- hour limit in any and all special protection areas such as buffers, steep slopes, and proximate to sensitive waters.

Response See Response 2.3.8. With regard to the comment on the 14

- day requirement to initiate stabilization, EPA clarifies that the provision requires that stabilization be initiated "immediately" whenever whenever earth

- disturbing activities have permanently or temporarily ceased on any p ortion of the site, consistent with the C&D rule requirement. In the final permit, permittees are required to complete stabilization within 14 days after it has been initiated. EPA believes that this clarification is consistent with the comment er's

recomme ndation.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

262 

# Comment ID 0056

- A2.001.005

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.1.2.2 Restorations afford a unique situation with regards to stabilization. I t has been the experience of DER that some restoration sites are best left to naturally revegetate. Other sites, especially when invasive species eradication is a part of the restoration objectives, require repeated denuding of the site to make inroads int o long

- term control.

As this examples illustrates, restoration may be hampered by immediate and generic revegetation efforts. The DER requests pro

- active restoration projects be exempt from the stabilization requirements contained in the draft permit.

Response See Response 2.3.8.



# Comment ID 0062

- A1.001.009

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.2.2 Brevard County Comment: Who's going to keep track? Does the 7 days apply to all areas or individual portions? So if I run the grader over the area once/wk no stabilization is necessary?

Response See Response 2.3.8.



# Comment ID 0062

- A1.001.010

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.2.2 ii. Within 3 work days of initiating stabilization, you are required to have completed: (1) For vegetative cover, all soil co nditioning, seeding, watering, mulching, and any other required activities related to the planting and establishment of vegetation; and/or Brevard County Comment: Not practical for large areas without sprinkler system. (2) For non

- vegetative cover, the installation or application of
all non

- vegetative measures.

Brevard County Comment: For example?

Respons e See Response 2.3.8.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

263 

# Comment ID 0064

- A1.001.010

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.2.2 Section 2.1.2.2.b.ii, page 12 - "Within 3 work days of initiating stabilization..."
•For large, linear projects, this may be overly burdensome. Perhaps remove "3 work days" and replace with "as quickly as feasible."

Response See Response 2.3.8 and 2.3.6.



# Comment ID 0065

- A1.001.006

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.2.2 Section 2.1.2.2(b)(ii) imposes stabilization requirements. The draft CGP requires completion of the following activities with in three work days of initiating stabilization: (a) for vegetative cover, all soil conditioning, seeding, w atering, mulching, and any other required activities related to the planting and establishment of vegetation and (b) for non

- vegetative cover, the installation or application of all

non

- vegetative measures. This requirement does not allow enough flexibilit y to accommodate unique or unplanned circumstances that might prevent the completion of these activities within three days. The proposed rule should be modified to allow exceptions to this requirement for unique or unplanned circumstances.

Response
See Re sponse 2.3.8.



# Comment ID 0066

- A1.001.011

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.2.2 Discussion: Stabilization historically has been initiated within 7 calendar days of work being temporarily or permanently stopped on certain portions of a project site, with final stabilization measures initiated within 14 days. The requirement for having this completed within 3 work days of initiating stabilization is not practicable, and in our op inion is untenable. Our projects are often in remote areas where materials are not always immediately available, and it may involve large areas that can't possibly be conditioned, seed ed, mulched, etc. within 3 days.

Suggestion: Leave the requirement the same as the existing permit.

Response See Response 2.3.8.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

264 

# Comment ID 0076

- A1.001.004

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.1.2.2 If buffer width is less than 50 feet on a portion of the buffer, will additional controls and reduced stabilization be required on the entire
buffer?

Response EPA has removed the requirement for faster stabilization for buffer disturbances. See Response 2.3.8. EPA has clarified in th e buffer appendix (Appendix G) that if a portion of the buffer is 50

- feet or greater, the requirement to treat discharges with additional controls does not apply for discharges to that portion.



# Comment ID 0098

- A1.001.009

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 2 .1.2.2 The two deadlines for the initiation of stabilization (where construction will not resume for 14 days as a general rule, but where construction will not resume for 7 days in certain specific circumstances) are confusing and will engender confusion i n the field. A uniform standard is far better and more likely to facilitate compliance than a "decision tree" structure that results in the imposition of different requirements on different parts of a site depending on such variable factors as location, slope and the characteristics of the receiving waters.

Response See Response 2.3.8.



# Comment ID 0100

- A2.001.006

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 2.1.2.2 Section 2.1.2.2 suggests stabilization requirements for sites where construction will not resume for a period of 7 or more days. Please describe in detail the conditions in which a site would require stabilization. Indiana receives several inches of rain in a g iven week.
Would thi s still apply or is the 7 or more day requirement a planned or known break in construction activity? This is not practical.

Response See Response 2.3.8.



# Comment ID 0130

- A2.001.017

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

265 Issue Category: 2.1.2.2 16. STABILIZATION REQUIREMENTS WITHIN BUFFER. Part 2.1.2.2.b.ii. 1 & 2. The 3 day stabilization requirement in the buffer zone may be infeasible for large linear projects. That said, since Part 2.1.2.1 does not allow for disturbance to the buffer, this requirement is confusing

Response See Response 2.3.8 and 2.3.6. EPA clarifies that, because compliance alternatives 2.1.2.1a.i and 2.1.2.1a.ii allow for distur bances within
50

- feet of the surface water, the intent of this provision was to require faster stabilization of these disturbances.



# Comment ID 0133

- A2.001.012

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.2.2 MDT does not believe it is reasonable to require more stringent timelinesfor stabilization in buffer areas. The new Effluent Limitation Guidelines already specify that soil stabilization measures must be initiated on disturbed areas where activities have tempor arily ceased and will not resume for a perio d exceeding 14 calendar days. A more stringent timeframe was not found to be economically achievable; as such the proposed technology based limit is unsupported. Also, the proposed compliance timeframes do not accou nt for seeding timing requirements.

Response See Response 2.3.8.



# Comment ID 0145

- A2.001.005

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.1.2.2
However, for the sake of flexibility, we would allow "buffer averaging" such that for 1st and 2nd order strea ms, the averaged buffer area for the subject property equals the surface area that would have resulted from a strict application of the buffer requir ements, and for 3rd order or higher streams a minimum width of 35 feet is always maintained. In addition, averaging may only be applied to a
maximum of 50% of the linear distance of the property's stream frontage on each side of the stream.

We also encourage the EPA to consider the use of "buffer averaging" as a way to potentially secure buffers that are, on average, wider than 50 feet, so long as some minimum width, somewhat less than 50 feet, is always maintained. This approach may bring more flexibility to this requirement. We acknowledge that 2.1.2.1 b. might provide that very flexibility if "a wider buffe r in some places" is interpreted to compensate for a naturally vegetated buffer that is somewhat less than 50 feet wide in some places.

Response See Response 2.3.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

266 

# 2.1.2.2Q BUFFER COMPLIANCE ALTERNATIVES

Comment ID 0007

- A1.001.001

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 2.1.2.2Q Comment: I believe additional flexibility is warranted in allowing alternatives to the buffer. For example, if working on a v ery steep site for which the steep terrain goes to the edge of the st ream, alternatives to a buffer could indeed work better, I think, during
construction than leaving the natural buffer. The requirements need flexibility to accommodate site

‐ specific situations.

Response EPA appreciates the comment. EPA believes the compl iance alternatives in the permit support this comment.



# Comment ID 0015

- A2.001.003

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.2.2Q Q2. Buffer compliance - Agree, appendix M seems to work.

Response EPA appreciates the comment.



# Comment ID 0067

- A1.001.016

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.1.2.2Q
A. The draft CGP establishes a 50

- foot vegetated buffer requirement when working adjacent to or crossing a jurisdictional WOUS. Often a utility line ROW is parallel to or spans a jurisdictional WOUS; however, since the line support structures can be sta ggered to span the WOUS, no wetland permit may be needed. Consequently, to satisfy the buffer requi rement and the recommendation in the CGP to minimize stream crossings will result in unnecessary backtracking on the ROW and would be unachievable on narrow ROWs paralleling or crossing numerous streams and wetlands. Entergy requests that EPA remove this requirement where the requirement would result in an unacceptable environmental impact

Response See Response 2.3.8 and 2.2.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

267 

# Comment ID 0070

- A1.001.004

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 2.1.2.2Q b. Natural Buffers or Equi valent - Alcoa agrees with having at least 3 alternatives for protection of surface waters. In addition, Alcoa believes it is critical to include the ‘infeasible" option to natural buffers. This could be an issue at existing manufacturing locations
tha t would need to utilize the CGP for any construction activities in locations with little to no space for natural buffers.

Response See Response 2.3.1.



# Comment ID 0074

- A2.001.005

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.1.2.2Q The DEQ recognizes the benefits of a natural buffer for sediment control during construction and water quality controls after completion of construction. Also sediment controls (such as silt fence, swale s, sediment basins, and others) are widely accepted and proved to be workable to control sediment at construction sites. EPA's CGP should allow operator/owners to use a natural buff er as one of the sediment controls for those construction sites that immedi ately discharge into any waters of the US. Allowing for a buffer alternative provides flexibility in permit implementation without compromising water quality. The proposed permit seems compl icated
and it is difficult to determine whether it is feasible to provide a buffer of less than 50 ft or design a treatment to provide equivalent sediment reduction as a 50 ft buffer (see Appendix M buffer guidance, compliance alternatives Part 2.1.2.1.b or 2.1.2.1.c).

Response EPA appreciates the comment. EPA recognize s that making the designing controls to meet the equivalent sediment reduction of a
50

- foot buffer may be difficultfor some sites. Although Appendix G may appear complex to some sites, EPA believes the specificit y in the guidance is necessary to assist permittees in meeting the compliance alternative requirements.



# Comment ID 0080

- A2.001.006

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.2.2Q Partner Response: The alternative given is the implementation of a sediment and erosion control measure that achieves equivalent
sediment load reduction as the 50

- foot buffer would achieve. This additional requirement may necessitate large sediment ponds or other measures that may not be feasibl e due to right

- of

- way constraints. This is the case particularly on Linear Transportation Projects located in urban areas where space simply is not available for structural BMPs.

Additionally, stream stabilization measures that involve construction pract ices in the stream are required to limit erosion and sediment loss in drainage ways due to urbanization in the watershed. The proposed CGP currently lists construction of water crossings,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

268 water

- dependant structures, and water access areas as exclusions to this requirement. Construction of stream stabilization measures authorized under a CWA Section 404 permit should also be excluded from this requirement. "Trails" are another example of infrastructure that should be added to the list of types of water cross ings excluded from this requirement.

Finally, the Partners question whether the EPA will undertake the challenging task of establishing definitive removal efficie ncies for
these structural BMPs that will offset the 50

- foot buffer? In the arid west it is very difficult and in some cases impossible to establish a vegetative buffer and structural BMPs may be the only viable option.

Response See Response 2.3.6, 2.3.5, and 2.3.9.



# Comment ID 0085

- A2.001.004

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.1.2.2Q The City disagrees with EPA's description of circumstances where the provision of a buffer is infeasible and recommends a mor e limited description. On page M

- 7 of Appendix M, EPA states:

EPA recognizes that there will be a number of situations in which it will be infeasible to provide and maintain a buffer of any width on a site. Some examples include, but are not limited to, the following: . . .

o Subdivided lots exist entirely within the buffer there by making the retention of vegetated areas infeasible; and
Except for redevelopment that occurs within an urban area where buffers are no longer part of the prevailing development sche me, EPA should not allow permittees to locate entire subdivided lots within the buffer. At a minimum, EPA should always require a combination of some buffer and additional BMPs in development not located in urbanized areas. To allow development to circumv ent the buffer requirement by merely subdividing individual lots withi n the buffer defeats the purpose of the buffer requirement.

Response See Response 2.3.3. EPA also clarifies that the example provided would still require the equivalent sediment reduction as the 50

- foot
buffer.



# Comment ID 0103

- A3.001.005

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.1.2.2Q In Part 2.1.2.1. Compliance Alternatives, EPA proposes requiring a 50

- foot buffer (or equivalent control) of undisturbed natural vegetation between the dis turbed portions of the construction site and waters of the U.S.

In light of data from the literature EPA describes in the factsheet, TCEQ recommends that the 50

- foot buffer requirement be replaced with a general requirement to provide a natural buffer to the extent it is feasible or appropriate, or replaced with a "recommendation"Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

269 for a 50 foot buffer. Studies show that buffer strip's pollutant removal efficiency varies greatly and depends on many factor s, such as soil type, slope, vegetative cover, and runoff characteristics. This is further supported by the fact that buffer strip width used by various cities and states, referred to in the fact sheet, varies anywhere from 10 to 300 feet depending on nature of slope and water quality in the receiving water body. TCEQ requests that flexibility be provided for operators and local authorities to establish specific buffer distance requirements based on regional conditions. TCEQ believes that this would be consistent with the effluent limitations guidelin es (ELG s) for construction and development activities, 40 CFR §450.21(a)(6), which require that controls be designed, installed, and ma intained to "provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sedime nt removal and maximize stormwater infiltration, unless infeasible;...."

Response See Response 2.3.1.



# Comment ID 0111

- A2.001.004

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.1.2.2Q Dow does not agree with the explicit requirement for a 50

- foot buffer or equivalent zone between the disturbed portions of the site and the waters of the U.S. However, Dow does support the inclusion of a 50

- foot buffer zone as a possible BMP option. This BMP option approach would encourage the permittee to consider alternative and perhaps more effective (including those measures outlined in Appendix M) approaches in lieu of the 50

- foot buffer zone, and implement the most effective BMP for their unique site characteristics.
Permittees should b e given alternatives should unique site geographical restrictions, practices or considerations prohibit a 50

- foot natural buffer (or equivalent) zone. For example, a new or on

- going remediation activity may include or result in work on the banks of
a river , thus not allowing a 50

- foot buffer zone. In this scenario, EPA should allow the permittee alternative compliance approaches to
the 50

- foot buffer zone.

Response See Response 2.3.2.



# Comment ID 0123

- A2.001.003

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.1.2.2Q Comment: CRWD generally supports the concept of undisturbed vegetated buffers for protection of water bodies. However, Compliance Alternative b.) reduces the post construction benefits of a buffer by reducing the 50 foot width without guidance on when it is acceptable to reduce the buffer width. Appendix M should include guidance on what site conditions may make a 50 foot bu ffer
infeasible.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

270 Response See Response 2.3.1. EPA clarifies that Appendix G and the fact sheet include guidance on when a buffer of any size may be infeasible.EPA also clarifies that operators are not required to demonstrate that it is infeasible to comply with compliance alternative
2.1.2.1a.ii.



# Comment ID 0124

- A2.0 01.005

Author Name: Eubanks Kevin Organization: Clark County Regional Flood Control District Issue Category: 2.1.2.2Q It should be obvious that conditions in the desert call for different requirements than those that might be used in wet areas . The language of the Draft Permit does not seem to recognize that plant life in deserts is sparse, not dense. For example, the dra ft permit would require developers to "implement sediment and erosion controls that achieve the equivalent sediment load reduction as an undisturbed naturally vegetated, 50

- foot buffer" (paragraph 2.1.2.1.c). But the natural vegetation in a 50

- foot strip of desert would do little or nothing to improve stormwater quality.

Response See Response 2.3.7.



# Comment ID 0145

- A2.001.006

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.1.2.2Q As for whether additional flexibility for small sites that intend to implement buffer alternatives is warranted, we point out impacts of less stringent buffer requirem ents for smaller lots would be cumulative. We do not agree that a smaller lot size justifies smaller buffers.

Response See Response 2.3.10.



# Comment ID 0170

- A2.001.004

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 2.1.2.2Q The requirements in Part 2.1.2 and Appendix M are burdensome and require a level of technical expertise that is inappropriate for this permit. Effective sediment controls are essential to minimizing the discharge of pollutants from a construction site however EPA has embraced an approach that is so complicated that it is unlikely that it can be instituted in the manner in which EPA intended . The use of mathematical models to determine compliance with the sediment control requirement s requires a skill set that few, if any, construction site operators possess. Furthermore, very few stormwater professionals have experience operating the mathematica l models that EPA references in the CGP. These models are not user friendly, intuitive computer programs; these are highly technical mathematical models which require a signjfjcant amount of time and training to become proficient in their use. The sediment r emovalRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

271 efficiency calculation requirements should be removed from the permit and replace d with a more user friendly option. One alternative approach would be to include in the permit a list of pre

- approved control measures or combinations of control measures which achieve known levels of sediment load reduction. This simple approach would essentially provide a "menu" of control measures from which the operator could choose to achieve the desired reduction in sediment load.

Response See Response 2.3.9 and 2.3.10



# Comment ID 0171

- A1.001.008

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 2.1.2.2Q
The 50

- foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not themselves more than 50 feet wide. Flexibility is needed to allo w permittees to address concerns within the unique constraints of the particular linear project area.

Response See Response 2.3.6.



# 2.1.2.3EXCEPTIONS

Comment ID 0017

- A1.001.006
Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.2.3 4) 2.1.2.3 ‐ Provides exemptions from the natural buffers and equivalent sediment controls portion of the rule. The exemptions are limited to sites with CWA 404 permits or areas where no natural buffer area exists due to prior distu rbances. Given the unique and complex conditions of linear projects, linear projects should be exempt from numerical discharge limitations (as found in App endix M) and subject to BMP requirements for erosion control.

Response See Response 2.3.6.



# Comment ID 0025

- A1.001.011

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.2.3 In addition to "construction" of water crossings, there should be exceptions for maintenance and repair of these struct ures.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

272 Response See Response 2.3.5



# Comment ID 0037

- A1.001.007

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.2.3 In Part 2.1.2.3.c, it states that one of the exceptions to complying with the requirement to either provide and maintain a 50 foot buffer of undisturbed natural vegetation or implement one of the other two alternatives is in the situation where no naturally veget ated buffer

area exists due to prior disturbances. In Appendix M (page M

‐ 8), EPA d iscusses situations where it will be infeasible to provide and
maintain a buffer of any width, provides some example situations, and then states that the operator will need to implement sediment
and erosion controls that achieve the equivalent sediment loa d reduction as an undisturbed naturally vegetated, 50

- foot buffer. EPA qualifies this requirement with the following statement: "Note: If pre

‐ existing development on the site has resulted in significant
disturbances within the 50

‐ foot buffer (for example, sites where all vegetation in the 50

‐ foot buffer area has been removed and replaced with impervious surfaces as a result of prior development), you are exempt from complying with the requirements in Part
2.1.2."

However, the last sentence in the second paragraph of the Fact Sheet (page 47) appears to be in contradiction to what is stated in Part 2.1.2.3.c or Appendix M discussed above. As stated in the Fact Sheet, "The Agency believes that the proposed buffer requireme nt, by providing an alternative for st ormwater controls to be used that reduce sediment loads by the same amount as if an undisturbed, naturally vegetated buffer of 50 feet was established, offers a solution for facilitating the development of site

‐ constrained sites without
a buffer but requir ing at the same time that the lost vegetative buffer functions be retained." As written, this statement seems to negate the exemption from the buffer requirement for sites where no buffer area existed prior to development. It is assumed that EPA was
referr ing to sites where it is infeasible to maintain a buffer of any width not sites that meet the exception requirement in Part 2 .1.2.3.c. To improve readability of this sentence and to remove confusion it is recommended that the last part of the sentence is changed as
follows ‘offers a solution for facilitating the development of site

‐ constrained sites where providing a buffer is infeasible but requiring
at the same time that the lost vegetative buffer functions be retained.' If the original sentence in the Fact Sheet should be interpreted otherwise, EPA should clarify what type of situations would result in an exemption from Part 2.1.2.

Response EPA appreciates the comment. EPA has modified the language in the permit, fact sheet, and buffer guidance regardin g which sites qualify for an "exception" and which sites qualify for the compliance alternative where a buffer of any size is infeasible. E PA notes that it has retained the exemption for sites where no natural buffer exists due to preexisting development d isturbances.



# Comment ID 0051

- A2.001.008

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 2.1.2.3 Lastly, in regards to buffer, we suggest that the exceptions to the required sediment controls (Part 2.1.2.3) be altered to protect waters that already are at risk for significant pollution problems. Exception (c) states that operators are not required to comply with bufferRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

273 requirements for construction projects that can be described as the development of a site where no naturally vegetated buffer area exists due to prior disturbances. New construction on a previously disturbed area has a high possibility of increasing the po lluted discharge and potential soil erosion to levels harmful to the adjacent wate r body. Due to the already fragile state of the buffer and the land adjacent to it, operators should be required to provide some method of sediment control to prevent the additional damage and pollution that might result from their construction activities. They should be encouraged to create a naturally vegetated buffer that could remain after construction has been completed, but an artificial substitute measure would also suffice.

Response See Response 2.3.5.



# Comment ID 0053

- A2.001.006

Author Name: Boe sch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.2.3 The Permit states: "Development of a site where no naturally vegetated buffer area exists due to prior disturbances." However , in the arid southwest many areas will not have a natur ally vegetated buffer area not due to prior disturbance, but because they have never existed naturally.

Consider revising sentence to read: "Development of a site where no naturally vegetated buffer area exists due to prior disturbances, or are naturally non

- existent."

Response See Response 2.3.5.



# Comment ID 0056

- A2.001.004

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.1.2.3 Certain restoration projects may appear to be inconsistent with the intent of the construction stormwater permit to protect waterways from degradation through direct redirection of runoff and preventative measures to keep soils and sediments from entering a r esource area. The best illustration of how a restoration plan counters the basic foundation of the construction stormwater permit involves dam removal. Dams on rivers create low energy impoundments. Most impoundments gradually accumulate sediments and this effectively
starves downstrea m reaches of the material needed to maintain a stable gradient, slope and channel morphology. Restoring a free flowing river by removing or breaching a dam can include a controlled release of the accumulated material to the sediment sta rved
downstream reac hes to help a river system finds its natural level. This is critical to attain long term channel stability in the river system. In these situations it would be counterproductive to the resource to prevent materials from being released downstream though

run off during rain events are usually not a component of a controlled release. The DER proposes that restoration projects be exe mpt from this requirement under the general permit, subject to compliance with the limitations and conditions on the work and the

m aterials release that would be imposed in the separate §404 permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

274 Response See Response 2.3.5.



# Comment ID 0056

- A2.001.006

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.1.2.3 The DER requests that pro

- active restoration and revitalization projects be added to this list of exemptions. Similar to the construction of water dependent structures and access areas [2.1.2.3(b)], restoration work must be done in and adjacent to water and wetland resources. Restoration projects are also approved under a CWA Part 404 permit.

Response See Response 2.3.5.



# Comm ent ID 0061

- A1.001.007

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.1.2.3 We very much appreciate the Agency's willingness to consider alternatives to the baseline 50 foot buffer of undisturbed veget ation between active construction and streams. In many cases LCPs are located well in excess of 50 feet from any water of the United States. However, where rights

- of

- way parallel creeks or where roadside ditches that LCPs parallel are considered jurisdictional waters [FN 10] that offset simply is not physically available. Moreover, given the extre me narrowness of the project sites for these projects, there is virtually no capability to deploy alternative measures to supplement an existing sub

- 50

- foot buffer or to replace the function of a buffer entirely by other means.
For these reasons we reques t that the Agency consider adding a subsection (d) to Part 2.1.2.1 that excuses all or a portion of any LCP
from the 50

- foot

- or equivalent requirement where the primary operator includes documentation in its SWPPP that implementation of that requirement is infeasible for some or all of its project site.
[FN 10] Particular examples of such parallel creeks and roadside ditches have been determined to be jurisdictional waters by the U.S. Court of Appeals for the Fourth Circuit, and some likely will be under EPA and the U.S. Corps of Engineers' Draft Guidance on Identifying Waters Protected by the Clean Water Act.

Response See Response 2.3.6.



# Comment ID 0065

- A1.001.007

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.2.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

275 Section 2.1.2.3 of the draft CGP provides several exceptions from the requirement to comply with the effluent limitations tha t are applicable to all discharges from construction sites. CCWC supports EPA's inclusion of an exception f or water crossings; however, the scope of the exception for water crossings needs to be clarified. Section 2.1.2.3 states that the effluent limitations do not apply to "the following types of construction projects." It is unclear whether the effluent limit ations do not apply just to the portion of the project where the water crossing is located or to the entire roadway project.

Response See Response 2.3.5.



# Comment ID 0071

- A3.001.002

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.2.3 Part 2.1.2 Protection of Surface Waters: Natural Buffers and Equivalent Sediment Controls. Appendix M notes an exemption wh en the buffer zone has been developed with impervious surface. CDOT agrees with this exemption and sees the need for additional exemptions for smaller linear sites with restrictive ROW (definition of small could be less than certain acreage or based on project or ROW width). Additionally, exemptions should be considered for projects w here the buffer occurs in a naturally impervious area, such as a granite outcropping. This exemption is similar to the current exemption for developed impervious buffer.

Response See Response 2.3.6 and 2.3.5.



# Comment ID 0071

- A3.001.003

Author Name: Wil lard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.2.3 •Part 2.1.2.3 Exceptions. This Part should be modified to indicate that exemptions from this requirement should still requi re sediment
and erosion controls.

Res ponse See Response 2.3.5. EPA believes that it is clear that the exceptions do not exempt the sites from all other effluent limit r equirements.



# Comment ID 0072

- A2.001.003

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.1.2.3 MoDOT commends the EPA for retaining Part 2.1.2.3 - Exceptions, which allows exception to the buffer rule for roadway/utility crossings, and stream access authorized by a Clean Water Act (CWA) Section 404 permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

276 Response EPA appre ciates the comment.



# Comment ID 0076

- A1.001.005

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.1.2.3 4. Please highlight the exemption for redevelopment or previously impacted buffers into the permit rather than only identifying it in Appendix M as a "note" on page M8. Target believes this is an important Best Management Practices (BMP) option and had diffic ulty indentifying it.

5. Target agrees with the EPA's exceptions of the 50 ft. buffer. Target will have many sites where natural existing vegetation is not present. However, Target would like clarification on what constitutes "natural vegetation".

Response EPA has provided greater clarity in the permit regarding buffers that have preexisting development impacts. See also Response 2.3.5
and and 2.3.3.



# Comment ID 0087

- A1.001.016

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.2.3 Section 2.1.2 provides that "if any waters of the U.S. are located on or immediately adjacent to your site," you must "provide and
maintain a 50

- foot buffer of undisturbed natural vegetation between the disturbed portions of your site and the waters of the U.S." or equivalent sediment controls. We support EPA's decision to provide exceptio ns to this requirement, but we are concerned that the exceptions do not go far enough.

For example, EPA has included an exception for the "[c]onstruction of water crossings authorized under a CWA Part 404 permit (where required) for water lines, sewer li nes, utility lines, and roadways." Section 2.1.2.3.a. This exception should be helpful in linear utility projects involving water crossings. However, some of those projects also run parallel to jurisdictional waters. Given the size of the utility rights

- of

- way and the different safety, reliability, and operational factors that influence their location, it may not be feasible to provide and maintain a 50

- foot buffer, or equivalent controls, within a particular right

- of

- way. This is particularly true if this requirement will apply to intermittent and ephemeral waters in the southwest U.S. Moreover, since the industry practice is to maintain natural grade and topography to the extent possible, while disturbing as little soil as possible, natural or engineered b uffers within a particular right

- of

- way are not necessary, as a general matter, to protect neighboring surface waters.

Response See Response 2.3.5 and 2.3.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

277 

# Comment ID 0090

- A1.001.011

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.2.3 AGA strongly urges EPA to exempt linear utility projects from any such riparian buffer requirement. Riparian buffer requireme nts might be appropriate for the construction of buildings and homes, but they are totally inappropriate and infeasible for linear utility construction. Linear utility lines are designed to move natural gas across streams. They must cross streams, in order to deli ver the natural gas to customers. They typically are installed within road rights -of- way (ROW) that cross streams. It is not possible to impose a riparian buffer requirement on linear gas utility projects. [FN 6] [FN6] 76 Fed. Reg. at 22888; Proposed CGP at 11

- 12 and Appendix
M at M

- 1.

Response See Response 2.3.6.



# Comment ID 0093 -A 2.001.036

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.2.3 AGC recommends that EPA expand subsection (a) of this part to include the maintenance and repair of water crossings authorize d
under a CWA section 404 permit (where required) for water lines, sewer lines, utility lines, and roadways.

Response See Response 2.3.5.



# Comment ID 0107

- A2.001.008

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 2.1.2.3
The exception outlined in section 2.1.2.3 (c), which allows permittees to not follow the buffer requirements if the site is already disturbed, is not needed and will result in increased water quality impacts. This exception will merely lead to more disturba nce close to waters of the US in areas where that disturbance will have more of impact because there isn't any vegetative cover to slow do wn and filter runoff. This exception should be removed.

Response See Response 2.3.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

278 

# Comment ID 0115

- A2.001.005

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.2.3 2.1.2.3 Exceptions. National Grid supports the exception for construction of water crossings authorized under a CWA Part 404 permit for utility lines. National Grid requests a similar except ion for Part 2.1.1.2 and 2.1.4.2 as well (See notes above).

Response See Response 2.3.5 and 2.2.2.



# Comment ID 0158

- A1.001.009

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 2.1.2.3
The 50

- foot buff er requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not themselves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns within the unique constraint s of the parti cular linear project area. Often a utility line right of way (ROW) is parallel to a Water of the United States (WOUS) and, si nce the line support structures can be staggered to span a WOUS, no wetland permit may be needed. Implementation of the buffer requ irement could trigger the need to obtain significantly more wetland permits because the structures may not be able to span both the W OUS and the buffer. Relief from the buffer requirement is needed for this type of situation. Under the new EPA/Corps interpretation of WOUS,
50

- foot buffer requirements would apply to intermittent and ephemeral drainages, which would be very problematic and practically
unworkable.

Response See Response 2.3.6.



# 2.1.2.4 STATE AND LOCAL REQUIREMENTS (BUFFERS)
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 2.1.3 REQUIREMENTS APPLICABLE TO ALL CONSTRUCTION SITES

Comment ID 0017

- A1.001.009

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.3 7) Section 2.1.3. ‐ This section is written with the expectation that the project site will have space for the design of topsoil storage

areas, stormwater retention basins, vehicle washing areas, fueling areas, and entrance/exit tracking pads that extend a minimum of 50
feet from the entrance/exit point. Linear projects have limited right

‐ of

‐ way corridors, which make the installation of all of theseRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

279 proposed controls infeasible. Also, linear utility projects are temporary impacts. Often, no new impervious s urfaces are added. A stormwater retention pond should not be required for temporary impacts. Linear projects should be exempted from these requirements.

Response See Response 17.



# Comment ID 0060

- A1.001.005

Author Name: Gasper David Organization: NYS De partment of Environmental Conservation Issue Category: 2.1.3
5. Section 2.1.3 - The heading for this section indicates that the requirements apply to all construction sites. Given the variability in construction projects (i.e. size, soil type, slope, dista nce to surface waters, duration of construction/soil disturbance etc.) and the numerous erosion and sediment control practices available to a designer, EPA should consider developing a national erosion an d
sediment control technical standard that includes all erosion and sediment controls available and then reference this technical standard in the general permit. EPA should not limit a project owner or their designer to just the erosion and sediment controls listed in the draft general permit. In addition, not every erosion and sediment control identified in the draft general permit may be required or applicable at every construction project. The proposed permit language seems to require an owner to use all the practices included in the draft permit for every project. The choice of which practices to use on a particular construction site should be determined by the "qualified person" (i.e. a person knowledgeable in the principles and practices of erosion and sediment control) developing the SWPPP. I f EPA
deve loped a national technical standard, they would be able to update the technical standard as technology changes and not have t o wait until the general permit was renewed. Please refer to the New York State Standards and Specifications for Erosion and Se dime nt Control, dated August 2005, for a sample erosion and sediment control technical standard (see http://www.dec.ny.gov/chemical/29066.html).

Response EPA notes that the requirements in this section do not limit the erosion and sediment controls that an operator may implement under the permit. The final permit specifies "General Requirements Applicable to All Construction Sites" and "Erosion and Sediment Control Requirements Applicable to All Sites." The provisions under this section are those that all operators must implement at a minimum to
be in compliance with the effluent limits in the permit. EPA notes that the practices in these sectionsimplement the non

- numeric C&D rule effluent limitations, which apply to all sites and must be included in the permit. EPA also believes that the requirements in these sections are practicable for all sites, and that flexibility is provided for many of the requirements.



# 2.1.3.1 GENERAL DESIGN REQUIREMENTS/REQUIRED DESIGN FACTORS [REQUEST FOR COMMENT]

Comment ID 0015

- A2.001.026

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.3.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

280 2.1.3.1. The design criteria should also account for runon flows, i.e . waters needing conveyance across the property from adjacent sites. This issue is partially discussed in section 2.1.4.1 but should also be added here.

Response See Response 2.5.



# Comment ID 0030

- A2.001.010

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.3.1 Section 2.1.3, page 13 If a design criteria is established, a 2

- year, 24

- hour event seems appropriate. However it opens the door that, if a site experiences a storm event greater than a 2

- year, 24

- hour event, then BMP failure can reasonably be expected to occur. BMPs in series or a BMP treatment train are preferred (i.e., use more of a toolbox approach and less of a modeling approach). If a design storm stand ard is implemented, we suggest that EPA p rovide guidance on how to design silt fence or wattles for the 2

- year, 24

- hour event. Based on our experience, we believe standards should be more flexible and consider project duration, timing relative to wet/dry seasons an d other factors. Also, a limit s hould be placed on the project duration and/or size, below which this standard would not necessarily apply.

Response See Response 2.9.



# Comment ID 0049

- A1.001.006

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.1 Flood waters will flow under, between, around and (if one is lucky) over the top of these commonly used barriers. As a result , very little removal of sediment out of runoff waters will occur. Only an effective SCS will capture 2

- year, 24

- hour storm runoff and should be part of a S&EC plan.

Response See Response 2.9.



# Comment ID 0049

- A1.001.007

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.1 Few (if any) of the typical barrier BMPs found on construction sites have been field tested to assess their effectiveness to remove sediment during flood flow conditions. Requiring a 2

- year, 24

- hour standard to anything but a professionally designed SCS is meaningless!Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

281 Response See Response 2.9.



# Comment ID 0049

- A1.001.008

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.1 Finally, the emphasis of discharging stormwater onto vegetative areas is not a realistic while construction activities occur. Using level spreaders is a good idea

---- but only after final stabilization conditions exist. Applying the concept when grading and construction activities are occurring is not realistic.

Response See Response 2.7.



# Comment ID 0053

- A2.001.007

Author Name: Boesch Kevin Organi zation: Logan Simpson Design, Inc. Issue Category: 2.1.3.1 The Permit states; "Use level spreaders..." Level spreaders are rarely, if ever, installed correctly/effectively. Usually, true level is never achieved and rills/gullies form on one end of the spread er. This BMP is ineffective and costly. Please seek input from industry.

Response See Response 2.7.



# Comment ID 0066

- A1.001.012

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.1
Discussion: The description for item (b) implies, but does not directly state, that it only addresses temporary stormwater controls. In addition, since the wording requires control of peak flow and total volume, it also implies that pavement is to be included i n the
distu rbed area. If it is meant to include runoff from pavement during construction, for example, if 1/4 of the 10 acres is to be p aved, then the required volume of storage changes to 33,000 cubic feet (0.76 acre

- ft).

There are several things that must be take n into consideration in regard to item (b): 1) "to minimize erosion"

-- If the downstream
channel is non

- erodible, such as limestone, or is lined, erosion would not be a problem. A requirement such as this which doesn't allow
the control to fit the need woul d lead to a needless expenditure of federal funds. 2) "to control both peak flowrates"

-- Peak flowrate is time dependent. Less vegetation = faster velocity = runoff reaches outfall faster = higher peak. We are not aware of a method to calculate how long (in minutes) it takes velocity dissipation devices (check dams, etc) to slow down runoff. 3) "and total stormwater volumes" Less vegetation/more pavement = higher C value (rational method) = more volume. Typical detention works by spreadingRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

282 out the release so the peak remains the same, but there is still more total volume. Reducing volume back to undisturbed would require infiltration or evaporation. Ten acres of disturbed soil would require roughly 12,000 cubic feet (0.28 acre

- ft) of storage for long enough
d uration for it to evaporate or infiItrate.

Figure [Please see page 8 of the original letter (Docket ID 0066

- A1.001)].

Suggestion: There are instances due to physical site conditions where erosion may naturally not take place regardless of if m easures are implemented on site or not. EPA should acknowledge that there are places where the background physical characteristics do not erode (no devices needed) The methodology for determining storm water release rates through differing BMPs, to verify that we can actually control peak flow rates, is not clear and should be explained on how EPA expects this to be calculated. Total stormwater volu me is to be controlled; excess volumes can only be controlled through evaporation or infiltration. There are regions w here neither of these may be feasible. Inherently when a project is completed, stormwater volumes in many instances are necessarily increased. If the i ntent is to rely on either of these factors to reduce volume, please explain how this would be achieved o therwise?

Response EPA has provided clarity to this requirement in the final permit, and describes that it only applies to stormwater that will be channelized. See Response 2.6. EPA also notes that if downstream channel and streambank erosion are not a co ncern, then the requirement would already be achieved. EPA confirms that the requirement applies only to BMPs during the period of permit

coverage.



# Comment ID 0068

- A1.001.017

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (F SWA) Issue Category: 2.1.3.1 Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing construction stormwater controls. However, stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not appropriate "parameters" for regulation under the NPDES permit program. While retention/detention ponds and other control devices must be sized to han dle an appropriate volume to become effective at removing pollutants, EPA cannot otherwise merely regu late flowrate or total volume of stormwater that otherwise meets appropriate technology

- based or water quality

- based pollutant

- related effluent limitations.

Response See Response 2.6.



# Comment ID 0068

- A1.001.018

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1.3.1 Part 2.1.3.1(d) requires that any allowable non

- stormwater be directed into sediment controls that are or will be installed at a construction site. This is an unworkable and inappr opriate standard and should be removed from the CGP. For example, how will this standard be applied to discharges from emergency fire

- fighting activities? Further, the standard does not make sense as applied toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

283 discharges such as uncontaminated, non

- turbid discharges of groundwater or spring water. Doing so will only decrease the volume of the pond for stormwater and reduce its overall effectiveness.

Response See Response 2.8.



# Comment ID 0080

- A2.001.014

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.3.1 1. Control stormwater volume & velocity - This requirement will make plan development and implementation more burdensome by requiring extensive stormwater calculations to support decision making under the permit.

2. Control stormwater discharges including both peak flow rates and total stormwater volume - Again, this requirement will require extensive stormwater calculation sand make plan development and implementation more burdensome.

Response See Response 2.6.



# Comment ID 0080

- A2.001.017

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.3.1 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 r unoff, and
soil characteristic - This is the overall goa l of erosion and sediment control.

6. Direct stormwater to vegetated areas - Minimizing directly connected impervious areas (MDCIA) is a prudent approach were applicable and in line with the COA's low impact development (LID) goals.

Response EPA appre ciates the comments.



# Comment ID 0087

- A1.001.018

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.3.1 Furthermore, Section 2.1.3.1.d of the proposed CGP requires routing of allowed non

- stormwater to sediment controls prior to discharge. However, this section should specifically exempt water beneficially reused for dust control or irrigation. This ty pe ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

284 exemption would help to harmonize Section 2.1.3.1.d with Section 2.1.3.4.c, which calls for "minimiz[ation of] the generation of dust...through the application of water or other dust suppression techniques." We note that beneficial reuse is itself a stormw ater best management practice that has the effect of reducing erosion and sedimentation.

Response See Respon se 2.8.



# Comment ID 0090

- A1.001.012

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.3.1 In addition, AGA notes that the Draft Permit's focus on dissolved pollutants requires full system controls that make little sense for a linear project. Unlike traditional projects, there is no long

- term, sustained flow to "one source" where catch

- and

- control technology can be employed.

Response See Response 2.3.6.



# Comment ID 0090

- A1.001.013

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.3.1 In linear projects, sediment is the only pollutant typically discharged, and even this discharge in stormwater is minimized b ecause (i) project disturbances involve excavating only a narrow ditch in a narrow band of surface, and (ii) projects apply Best Management Practices (BMPs) to minimize this discharge. Most linear construction projects receive a stormwater Phase II permit for const ruction affecting 1

- 5 acres. Still others fall within the Phase I rule for construction projects affecting more than 5 acres, because the gas lines will provide new natural gas service to housing developments (and thus may be deemed to be part of a larger plan of developme nt). However, the gas utility line p ortion of these projects, for the most part, typically involve only a small trenching area and are back

filled or "buttoned up" at the end of the day. These circumstances substantially limit sediment discharge events.

In part 2.1.3 of the Draft Permit, EPA has issued a variety of design factors for stormwater erosion and sediment controls to minimize discharge of pollutants from earth

- disturbing activities to reduce sediment load equal to that achieved by 50 feet of natural vegetation, including stabiliz ation and re

- establishment of surrounding natural buffer areas.. These requirements are inapplicable to linear utility
construction - AGA requests that EPA clarify and confirm that this is the case. The proposed requirements would be asking linear project managers to reestablish already stable vegetative areas, creating more earth disturbance and potential erosion than the projec ts themselves entail. Preexisting best practices are a sufficient alternative to proposed buffer compliance measures

- pipeline const ruction operators discharge wastewater so that sediment settles out into a preexisting vegetative area and is never vulnerable to direct discharge into surface waters. These best practices are consistent with discharge requirements EPA proposes in the Draf t Permit under 2.1.4.6 (a)(iii) to "utilize vegetated areas of the site to infiltrate wastewater from dewatering activities" associated with trenche s and shallow
excavations.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

285 Response EPA clarifies that the design requirements apply to all construction sites, but that the requirement to design controls to control peak flowrates and total stormwater volume only applies to stormwater flows that are channelized. For flexibility provided to line ar projects, see Response 17. See also Response 2.6.



# Comment ID 0093

- A2.001.037

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.1 Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing construction stormwater controls

. However, stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not appropriate "paramet ers" for regulation under the NPDES permit program. While retention/detention ponds and other control devices must be sized to handle an appropriate volume to become effective at removing pollutants, EPA cannot otherwise merely regulate flowrate or total volume of stormwater that otherwise meets appropriate technology

- based or water quality

- based pollutant

- related effluent limitatio ns.

Response See Response 2.6.



# Comment ID 0093

- A2.001.039

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.1 The Draft would require the "use of level spreaders." AGC members report that level spreaders are rarely installed correctly or effectively. Contractors have found that "true level" is never achieved in rills/gullies and this BMP is ineffective and cost ly.

Response See Response 2.7.



# Comment ID 0097

- A1.001.002

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 2.1.3.1 3. The 2 year, 24 hour storm is he appropriate size for design

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

286 

# Comment ID 0128

- A2.001.010

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 2.1.3.1 Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing construction stormwater controls. However, stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not appropriate "parameters" for regulation under the NPDES permit program. While retention/detention ponds and other control devices must be sized to han dle an appropriate volume to become effective at removing pollutants, EPA cannot otherwise merely regulate flowrate or total volume of stormwater that otherwise meets appropriate technology

- based or water quality

- based pollutant

- related effluent limitations.
Response See Response 2.6.



# Comment ID 0137

- A2.001.004

Author Name: Ballentine Tom Organizati on: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.3.1 The permit requires the control of peak flow rate and total stormwater volume, which we believe is to 2 year storm event alth ough it is not specifically mentioned in the regulations. The regulation is absent of a specific goal to be met such as reduce discharge to the runoff amount from a wooded site, meadows or pasture, cropland, the existing condition at the time of disturbance, etc. Since the goal is not identified, it will be difficult to make a determination of an impact to achieving the goal. In addition, in Maryland, there are effectively 3 types of devices that can release water. The first is silt fence or other perimeter filtering devices which hav e no mecha nism to control a release rate that can be measured. In addition the requirement implies storage behind the silt fence which would cause failure, increasing sediment leaving the site. Second, sediment traps that use a stone weir on flat sites; it is not po ssible control the release rate unless there is a secondary pipe to use as a control structure. This will not happen in flat sites because there is insufficient fall to a discharge point unless the embankment was raised. The concern would be the increased failure rate of earthen embankments that are raised higher with little or no increase in proper construction methods. Thirdly, for sediment traps wit h pipe outfalls or sediment basins, it would be possible to provide a control structure of sorts to provide quantity control. Since many of the devices would not easily be able to provide a measured control rate equal to some storm event, it would be next to impossible to state a specific release rate has been met.

In our experience, applicants are not permitted to pump water directly to a sediment control. Constant use of the sediment control will make it less likely to provide the necessary volume to control a storm event and therefore increase the sediment discharge. This is due to the time necessary to allow sediment to settle out and slowly discharge clearer water through a dewatering device as it does depend
on lack of flow and time to allow the sediment to settle.

Response See Response 2.6.



# Comment ID 0153

- A1.001.006

Author Name: Wortkoetter JudithRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

287 Organization: Greenville County, South Carolina Issue Category: 2.1.3.1 The requirement to control storm water volume is outside the scope of the Federal Register requirements. We suggest EPA refer to

non

- erosive discharges to minimize downstream erosion.

Response See Response 2.6.



# Comment ID 0153

- A1.001.007

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.1 EPA should modify this requirement. Allowable non

- storm water discharge that is sediment free should be discharged to receiving waters or to vegetated areas not to the sediment control device. This will absorb capacity and not improve the quality of dis charge.

Response See Response 2.8.



# Comment ID 0159

- A1.001.021

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.3.1 Could an explanation of routing of non stormwater to sediment controls be provided. We are assuming from your comment that th e intent is to pump water thru the sediment device. Generally, we are not allowed to pump water into directed to a sediment control. Constant use of the sediment control will make it less likely to provide the necessary volume to control a storm event and th erefore increase the sediment discharge. This is due to the time necessary to allow sediment to settle out and slowly discharge clearer water thru a dewatering device as it does depend on lack of flow and time to allow the sediment to settle.

Response See Response 2.8.



# Comment ID 0172

- A1.001.001

Author Name: Enssle Colin Organization: GE Water & Process Technologies Issue Category: 2.1.3.1 Section 2.1.3.1. Requirements for Designing. Installing, and Maintaining Stormwater Controls. Requirements Applicable to All Construction Sites, General Design Requirements, states "if fine silts, clay or colloidal soils are present, then the use of enhanced sediment controls such as sand filtration and/or polymers or flocculonts may be necessary." We suggest that a definition be g iven for
fine si lt, clay, or colloidal solids. Clearly defining at what levels each soil type would require use of enhanced treatment will pr ovideRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

288 the industry with more direct guidance. For instance, will enhanced treatment be required only when fine silts, clay or colloidal soils are present and the to

- be

- defined turbidity limits ore reached, or at all times? This should be clarified.

Response See Response 2.5.



# 2.1.3.1Q 2

- YR, 24

- HR DESIGN STORM STANDARD

Comment ID 0007

- A1.001.002

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 2.1.3.1Q

Comment: The 2

‐ year, 24

‐ hour design storm requirement proposed works well due to the probability of exceedance being low because of the restricted time frame for most construction sites. The greatest weakness I observed with the previous CGP was the lack of intensity considerations. Those appear to have been addressed in the proposed CGP.

Response See Response 2.9.



# Comment ID 0015

- A2.001.004

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.3.1Q Q3. 2

- year, 24 hour storm sizing - Disagree, it seems overly large. 2

- year, 24 hour storm events are more traditionally used for post

- development flows. While we understand the EPA desire to keep the similar storm size for facility sizing and monitoring compliance, the proposed sizing would create overly large facilities. A 10 year design storm is more traditionally found in e rosion guidance documents and seems more appropriate for initial sizing regu lation. Also with a specific 24 hour time frame, EPA should dictate when the 24 hours occurs, mid

- night to mid

- night or from start of work day to start of work day.

Response See Response 2.9.



# Comment ID 0021

- A1.001.014

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.1.3.1Q 3. In CGP Section 2.1.3 the EPA is requesting comments on the 2

‐ year, 24

‐ hour storm design standard for stormwater controls. This
type of design is not easily produced from a site operator and permit holder which is usually the owner or general contractor. ThisRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

289 design standard would have to be subcontracted out to an engineering firm thus increasing construction cost substantially. Design would have to be constantly changing as the site layout changes, impervious area changes, BMP configuration changes, etc.
Stormwater controls and the SWPPP Site Plan are not designed just one time; it changes daily in some cases. So this could mean an engineering firm would possibly have to be involved throughout the lifecycle of a project constantly re

‐ designing the site to meet this design standard.

Response See Response 2.9.



# Comment ID 0037

- A1.001.008

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.3.1Q Adopting a minimum design storm standard would be beneficial for the design of some stormwater controls such as a sediment basin, level spreader, or drainage \ diversion channel. A 2

‐ year, 24

‐ hour storm would be an appropriate minimum design storm standard to use for these typ es of controls. However, there is not a lot of readily available information on designing other types of stormwater controls such as sediment barriers, inlet protection, water bars, or check dams to a design storm standard or based on the criteria in Part 2.1.2.1 (i.e., the amount, frequency, intensity, and duration of precipitation, the nature of resulting stormwater runoff, and soil c haracteristics, including the range of soil particle sizes expected to be present on the site). Typically, these types of stormwater controls are designed based on a maximum drainage area for the control. Therefore, many operators will need additional information or tools that th ey can use in order to show that they have selected/designed their stormwater controls based on the permit's design criteria (either the current requirement in the proposed permit or the proposed requirement to design of stormwater controls for the local 2

‐ year, 24

‐ hour storm).
It is recommended that EPA provide guidance on designing controls to meet the proposed design factors or provide sources where this
information is available.

Response See Response 2.9.



# Comment ID 0045

- A1.001.004

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 2.1.3.1Q
2.1.3 - This section discusses general design requirements, but no standard is yet set. It requests comment upon the standard used in previous permits, i.e. designing and managing for the two year, 24

- hour storm. We believe that a standard is important, and that this one is ap propriate for these regulations.

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

290 

# Comment ID 0047

- A2.001.007

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.3.1Q Section 2.1.3, page 13

If a design storm standard is implemented, we suggest that EPA provide guidance on how to design BMPs for the 2

- year, 24

- hour event. Standards should be more flexible and consider project duration, timing relative to wet/dry seasons and other factors. Also, EPA should consider a limit be placed on the project durati on and/or size, below which this standard would not necessarily apply. Xcel Energy has many projects that are completed in a matter of weeks, sometimes days depending on the project. BMPs should always be used, however it is not always necessary for a proj ect to spend additional costs designing and implementing BMPs for a 2

- year, 24
hour storm.

Response See Response 2.9.



# Comment ID 0054

- A2.001.006

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: 2.1.3.1Q Issue: The typical storm design considerations identified have been 10

- , 25

- , 50

- , and 100

- year storm events. In assessing whether there should be a set storm design, EPA should consider the frequency of occurrence relative to these, and other, storm desig n years. In practice, design for 100

- year, 50 - year, and even 25

- year events have not been feasible because of the necessary size and capability of
storm water controls.

Recommended Change: USS recommends that EPA include a frequency evaluation of each 10

- , 25

- , 50

- , and 1 OO

- year storm events for design determinations.

Response See Response 2.9.



# Comment ID 0061

- A1.001.008

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.1.3.1Q
In its request for comments associated with Part 2.1.3.1, the Agency seeks input on inclusion of a 2 year/24 hour storm event as the design standard to be used for the purpose of sizing stormwater controls. We agree that inclusion of a design standard is app ropri ate for traditional construction, including the traditional projects that the EHSCP's members are engaged in either independently or when they lay utility lines within another developer's traditional footprint development. However, a design standard of thi s sort does not appear to be feasible for LCPs. That design standard would often require installing a stormwater retention pond at end of a roadside sw ale whereRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

291 it would otherwise discharge into a stream, to collect sediment and reduce velocity at the outf all. As noted above, the LCP operator's easement typically would give it no right to install such a pond or basin, which furthermore might sometimes require a width greater
than that of the easement itself.

Even if the LCP operator had the legal and practical ability to install such a basin, it would be disproportionate for the Agency to require that. That same swale would otherwise be carrying the same amount of stormwater from the same drainage area, whether or not the LCP was installed there. It would seem anomalous for the happenstance of an LCP being placed in or near, with its minimal if any incremental effect on sediment loading, to trigger such a construction requirement.

We therefore request that, if a design requirement of the sort described in the Draft Permit is adopted, there be an exclusion for LCPs where the primary operator includes documentation in its SWPPP that implementation of the design standard is infeasible for s ome or all of its project site.

Response See Response 2.9

.



# Comment ID 0062

- A1.001.011

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.3.1Q Brevard County Comment: You can't expect smaller developers and property owners to follow this. Appendix I: Wonderful opportunity to cook the books.

Response See Response 2.9.



# Comment ID 0062

- A1.001.012

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.3.1Q Brevard County Comment: NWS is revising and digitizing the rainfall statistics. Including the charts and tables in this document means the document will be out of date and based on erroneous data within the year.

Response See Response 2.9.



# Comment ID 0064

- A1.001.011

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

292 Section 2.1.3, page 13 - Full "Request for Comment" paragraph
•These requirements seem feasible and would allow for more science

- derived designs.

Response See Response 2.9.



# Comment ID 0065

- A1.001.008

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.3.1Q Section 2.1.3 requires the consideration of several factors when designing stormwater controls. EPA requested comment on
establis hing a 2

- year, 24

- hour design storm standard for stormwater controls. Contractors can find the closest weather station on the NOAA website and gather the historical data. Note that in some cases weather stations within 5 miles do not exist, specifical ly fo r remote projects.

Response See Response 2.9. EPA notes that the numeric limit is not in the final 2012 CGP, and therefore permittees are not required to monitor
the occurrence of a 2

- year, 24

- hour storm event to qualify for the 2

- year, 24

- hour storm even t exception. However, EPA does require operators that are complying with the bi

- weekly inspection frequency to record rainfall events. EPA allows operators to use a rain gauge at their site, or storm event information from a weather station representative of their site's location.



# Comment ID 0067

- A1.001.022

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.1.3.1Q A. Regarding sizing the stormwater BMPs to a 2 year, 24

- hour storm event should detention of stormwater runoff be required in order to add flocculants, EPA should note that for areas where the 2 year, 24

- hour event corresponds to a 6 inch rain or more (much of Entergy's service area), detention capacity would be approximately 163,350 gallons per acre of watershed assuming saturated soil conditions. For a linear electric utility line construction project, spanning numerous watersheds, that runoff storage capaci ty would be impossible to accomplish within normal ROW boundaries. This requirement would also very l ikely result in an unnecessary over

engineering of the siltation/erosion controls measures with an associated inflation in installation costs. Entergy requests t hat EPA remove this provision as impracticable in application to linear ROW

- type projects.

Re sponse See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

293 

# Comment ID 0070

- A1.001.005

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 2.1.3.1Q c. Fixed design storm size - Alcoa is not sure that utilizing a fixed design storm size, such as the proposed 2 year, 24 hour storm event, should be specified in the CGP. It is difficult to choose one storm size that would be effective in every location or in ev ery area of the country for every situation. Alcoa does recognize the advantages that a fixed design storm size has for the design of controls, but is not sure that advantage outweighs potential compliance concerns with a fixed design storm.

Response See Response 2.9.



# Comment ID 0071

- A3.001.026

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.3.1Q •Part 2.1.2. Protection of Surface Waters: Natural Buffers. CDOT is strongly supportive of a design storm standard for stormw ater controls, such as the 2

- year, 24 hr. storm. CDOT feels this will create an achi evable standard, whereas, currently there is ambiguity in regards to determining the effectiveness of BMPs.

Response See Response 2.9.



# Comment ID 0072

- A2.001.004

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.1.3.1Q MoDOT is not in favor of implementing a design storm standard for all sediment control devices due to the fact that site conditions and variables can differ greatly from project site to project site across the state. It would take a tremendous amount of time, effort and additional cost to run hydraulic analysis for the 2

- year, 24

- hour event for each sediment control device, or system of devices. For certain sediment control devices, such as a sediment basin, the 2 - year, 24

- hour sto ml event would be more reasonable to design for; however, for applications, such as ditch checks this standard would be impractical because of the many variables (e.g., slope, area, soil
type, compaction, storm intensity, runo[fve!ocity, etc.) that would h ave to be accounted for at each device.

Response See Response 2.9.



# Comment ID 0074

- A2.001.006

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

294 Issue Category: 2.1.3.1Q The DEQ would prefer to retain flexibility within our stormwater controls. Having the 2

- year, 24

- hour storm as a minimum standard is acceptable as long as provisions are made for variances for exceptional circumstances.

Response See Response 2.9.



# Comment ID 0076

- A1.001.006

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.1.3.1Q Target supports the EPA in including the 2yr

- 24hour design storm standard for sediment basins as referenced in the 2003, 2008 and C&D Rule. This inclusion provides a consi stent design standard and the ability to consistently determine compliance for permitted projects for design professionals, inspectors and regulators. We are hopeful the EPA will include the proposed revision as no ted in your request for comment.

Response See Response 2.9.



# Comment ID 0080

- A2.001.007

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.3.1Q Partner Response: The 2

- year, 24

- hour design storm criteria and associated BMP design is not something easily calculated by staff working for a "traditional" CGP holder or construction site operator. These organizations would likely need to procure the se rvices of a storm drainage engineer or other qualified professional. The service s of the qualified professional would need to be retained throughout the duration of the project as the site will likely change over time until its completion. The Partners recommend that the EP A add language stating that this criterion is applicable only to temporary stormwater control during construction. Municipalities in the arid

west require permanent water quality BMPs that are designed for a larger storm than the 2- year, 24

- hour event.

Response See Response 2.9.



# Comment ID 0085

- A2.001.005

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.1.3.1Q Rockville agrees that the 2

- year/24 hr. storm is currently the standard design for jurisdictions implementing sediment control. Rockville encourages EPA to investi gate the efficacy of this standard, particularly in light of climate change. EPA should also includeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

295 language referencing the source of IDF curve numbers and requiring that operators design controls to the most current number provided. From an anecdotal pe rspective, the 2 year storm seems to occur every eight to ten months in Rockville.

Response See Response 2.9.



# Comment ID 0091

- A2.001.002

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.1.3.1Q
2. Fact Sheet Item 3. Part 2.1.3.1.a: The 2

- year 24

- hour design storm is appropriate for the design of storm water controls. In Washington State, models have been developed to calculate design storms for specificsites based on historic rainfall data. Wi ll models and other alternatives be acceptable for the calculation of rainfall design storms?

Response See Response 2.9.



# Comment ID 0093

- A2.001.038

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.1Q
EPA has asked for comment on whether or not it should require a 2

- year, 24

- hour design storm standard for stormwater controls, which would need to be met unless it was infeasible to achieve at the particular site. EPA has proposed a 2

- year, 24

- hour design storm
standard for stormwater controls. Many state CGPs currently require ponds to be sized to contain (and allow reasonable settling time for) a 2

- year, 24 - hour rain event if practical. AGC stresses the importance of the feasibility clause. Many sites do not have the area for such a large pond. And for some sites, especially roads or other linear projects, there is no room to install ponds at all.

Recognizing that a 2

- year, 24

- hour storm varies greatly from state to state and location to location, AGC questions whether it would be more appropriate for EPA to select a quantity of rainfall (in inches) as a guideline. For example, some AGC members suggested a guideline of two inches in 24 hours.

In the alternative, AGC finds that a 1

- year, 24

- hour storm event would be a more reasonable standard. The 1

- year, 24

- hour storm event accounts for the majority (upwards of 90%) of the precipitation annually. Adopting a 2

- year, 24

- hour standard would achieve only a minor incremental increase in TSS reduction at a significant increase in cost. Many state and local governments have adopted the 1

- year, 24

- hour storm event as the standard over the 2

- year, 24

- hour event based on the minimal increase in benefit in proportion to the
increased cost.

Setting the volume based standard suc h as the 1

- year, 24

- hour storm event would be reasonably applicable to volume based BMPs such as detention ponds. However, beyond ponds, it is not clear what other BMPs exist where the size would be considered adeq uate
for a 2- year, 24

- hour rain event. Siz ing and placement of many, if not most BMPs other than ponds are not based on any particularRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

296 volume of rainfall. For example, silt fences, rolled fabric, soil enhancers, etc. are primarily sized and located on exposed slopes, with their size based on the topography and length of the immediate slope behind them. Any reference to specific sizes being equal to a given rain event would contain so many caveats and/or exceptions so as to make the point useless. Similarly, a volume

- based standard would not apply t o flow based BMPs such as check dams which are impacted by water velocity and peak flow.

Response See Response 2.9.



# Comment ID 0096

- A1.001.026

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.1Q
EPA is proposing a 2

- year, 24

- hour design storm standard for stormwater controls. Many state CGPs do require that, if feasible, a pond should be sized so as to contain and allow reasonable settling time for a 2

- year, 24

- hour rain event. However, the feasibility c lause is very important. Many sites do not have the area for such a large pond, and for some sites, especially for roads or other linear projects, they cannot accomodate any ponds at all.

However, beyond ponds, it is not clear what other BMPs exist where the size would be considered adequate for a 2

- year, 24

- hour rain event. Sizing and placement of many, if not most BMPs other than ponds are not based on any particular volume of rainfall. Fo r example, silt fences, rolled fabric, soil enhancers, etc. are p rimarily sized and located on exposed slopes, with their size based on the topography and length of the immediate slope behind them. Any reference to specific sizes being equal to a given rain event w ould contain so many caveats and exceptions so as to mak e the requirements useless.

Passive Treatment Systems (PTS) such as PAM

- infused fiber check dams or PAM logs upstream from ponds do require a rather

narrow range of flow for optimum performance. However, their size also depends on the location of the dit ch in which they are installed and the upstream watershed. Significant trial and error is often required to appropriately size a passive
treatment system at a particular site. Also, “designing” a passive treatment system strictly for a 2

- year, 24

- hour rain event may not be optimum for normal sized rain events, because smaller rain events may cause the flow through or over the polymer feed point t o be too slow for adequate polymer mixing and flocculation. Does EPA have any other specific BMPs in mind that would be amenable to a
2- year, 24

- hour size specification?

In Part 2.1.3.a.iii EPA states “Account for the following factors in designing your stormwater controls... The soil characteristics at the site.” Sediment controls must be designed with consideratio n of the range of soil particle sizes expected to be present on the site. If fine silts, clay or colloidal soils are present, then the use of enhanced sediment controls such as sand filtration and/or polymer s or flocculants may be necessary. Even EPA recog nizes that a design standard is not always the best criteria in developing a stormwater control. EPA must clearly define which BMPs must meet this standard and how compliance will be measured. NAHB suggests the 2

- year, 24

- hour criteria be limited to ponds only.

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

297 

# Comment ID 0097

- A1.001.003

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 2.1.3.1Q 4. Construction of temporary sediment control ponds and other facilities are often constructed with materials developed from site work activities and cannot be constructed prior to construction start.

Response See Response 2.10.



# Comment ID 0100

- A2.001.007

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana
Issue Cate gory: 2.1.3.1Q Section 2.1.3 describes USEPA's consideration of proposing 2

- year, 24

- hour design storm standard for stormwater controls. The City
believes the 2

- year, 24

- hour design storm is not always the most appropriate size storm for the design of stormwater controls. The City does not always use the National Standard.

Response See Response 2.9.



# Comment ID 0102

- A2.001.001

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2.1.3.1Q 1. Regarding the 2

- year, 24

- hour design requirement for stormwater controls - what is the definition of "stormwater controls" in this context? Is this design requirement valid for all features or basins only? If for all, this seems to be a larger design storm event than is
normall y used (up to four times as much - see the 3600 cubic foot per acre requirement in many states for sediment trap sizing - that is equivalent to 1/2" of runoff when allowing for the wet storage in the trap). Also, the example cited in the 2008 CGP for this design requirement is for sediment basins, which are used less often and in few numbers when compared to smaller devices (i.e., sedi ment traps, check dams, etc.). If the proposed design storm is intended for all features, this may be an overly

- conservative approach. A more reasonable approach may be to use a design storm that matches the proposed or expected duration of the project or section of project. For instance, if an area is being disturbed for 2 years, than it is reasonable to expect that a 2

- year s torm event would occur within that time frame. However, it is not statistically reasonable to design for a 2

- year storm if a site, or portion of a site, will be disturbed for only 6 months. In an effort to provide for affordable and reasonable E&SC designs , the duration should determine the design storm

event.

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

298 

# Comment ID 0103

- A3.001.006

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.1.3.1Q
In Part 2.1.3.a. General design requirements, EPA proposes that operators design controls to account for three factors: the amount, frequency, intensity and duration of precipitation; the nature of runoff; and the soil characteristic at the site. EPA sugges ts further proposing a 2

- year, 24

- hour design storm water standard for storm water controls, which would need to be met unless it was infeasible to achieve at the particular site. EPA states that including this standard will assist the permittees in design and selection of contro ls, and argues that it is it already used as design criteria for sedimentation basins required for construction sites greater than 10 acres.

TCEQ requests that the EPA's CGP not include a specific storm event to design for, and instead recommends that the general permit be consistent with EPA's recently promulgated effluent limitations guidelines (ELGs) for construction and development activities, at 40 CFR Sections (§§)450.21(a)(1) and (2) which require that controls be maintained to "(1) Control storm water volume and velocity within the site to minimize soil erosion;" and "(2) Control stormwater discharges, including both peak flowrates and total st ormwater volume, to minimize erosion at outlets and to minimize downstream channel and streambank erosion ;...."

Response See Response 2.9.



# Comment ID 0105

- A2.001.006

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 2.1.3.1Q [ Necessity of a sizing requirement for control measures (Part 2.1.3.1). CLF agrees with EPA's suggestion that sizing for all structural control measures and best management practices ("BMPs") be specified in the CGP, and urges EPA to include this requirement in the final permit

-- at minimum, BMPs should be sized for the 2

- year, 24 hour storm. Such a uniform minimum standard would give site operators the clear directive needed to build adequately sized control measures into their budget and standard operating proc edures. In turn, this would provide a more level ‘playing field' among site operators. A sizing requirement would also promote enforceability of the permit and provide predictability of impacts for those who use and enjoy downstream receiving waters. CLF strongly recomm ends that EPA enlarge the minimum sizing requirement in the fi nal permit to account for climate change, which has increased and will continue to increase the frequency and intensity of storm events in many regions including the Northeast United States.[FN 2]

[FN 2] See Union of Concerned Scientists Northeast Climate Impacts Assessment Synthesis Team, Confronting Climate Change in t he Northeast: Science, Impacts, and Solutions, 8

- 10 (2007) (finding that during the 1980s and 1990s, the Northeast experienced a ri se in heavy

- precipitation events and predicting further increases), available at http://www.northeastclimateimpacts.org/pdf/ confronting

climate

- change

- in

- the -u-s- northeast.pdf.

Response
See R esponse 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

299 

# Comment ID 0108

- A2.001.002

Author Name: Paul Roger Organization: Bernalillo County Public Works, New Mexico Issue Category: 2.1.3.1Q With regard to Subpart 2.1.3 (Design Storm Standard) of the draft permit, the County of Bernalillo agrees with the proposed 2yr

- 24hr design storm standard.

Response See Response 2.9.



# Comment ID 0110

- A1.001.003

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.1.3.1Q As a practicing professional Hydraulic Engineer, I strongly believe that the 2

- yr, 24 hour storm event is inadequate and not conservative for design purposes and if the permittees are not responsible for conditions greater than this, that the receivi ng waters will be severely polluted with sediment when th e larger events do occur. Many cities and counties across the country use design storms that are much greater, such as the 10, 25 or even the 100 yr events.

Response See Response 2.9.



# Comment ID 0110

- A1.001.021

Author Name: Robeson Michael Organizati on: Profile Products LLC Issue Category: 2.1.3.1Q As a practicing professional Hydraulic Engineer, I strongly believe that the 2

- yr, 24 hour storm event is inadequate and not conservative for design purposes and if the permittees are not responsible for conditions greater than this, that the receiving waters will be severely polluted with sediment when the larger events do occur. Many cities and counties across the country use design storms that are much greater, such as the 10, 25 or even the 100 yr ev ents.

Response See Response 2.9.



# Comment ID 0115

- A2.001.006

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.3.1Q 2.1.3.1 Required Design Factors. National Grid has significant concerns regarding the proposal to establish a design storm standard for stormwater controls. At present the language requires stormwater controls to control both peak flow rates and total stormwate r volumeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

300 for a construction site, without comparison of pre

- development versus postdevelopment runoff rate or volume. A 2 year, 24

- hour design storm is, as described in Appendix I, equivalent to a storm event with over 3 inches of rain in the northeast. On a li near project the need to control storm events of this magnitude within a ROW would require the const ruction of basins and diversion structures, as well as perimeter controls. It is National Grid's position that in addition to proper design and monitoring of sedimentation and erosion controls, completion of construction in a timely and efficient manner and initiation of final stabilization is an equally important component to stormwater management. Because linear projects are constructed in phases which move along/within a ROW, as opposed to being focused on one parcel of land for a several month period, c onstructing significant stormwater control structures is not feasible. Construction of basins and diversion structures would require more earth disturbance than that required for many ut ility projects and would significantly increase the design and construction costs, as well as the length of time to complete the project. In addition, as National Grid holds easements for much of its cross

- country ROWs in Massachusetts; the construction of such controls would require coordination and approval (which may not be forthcoming) by the underlying property owner thereby increasing project
costs and timeframes.
Response See Response 2.9.



# Comment ID 0121

- A2.001.002

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 2.1.3.1Q At present the draft language at section 2.1.3.1 requires stormwater controls to control both peak flow rates and total storm water volume for a construction site, without comparison of pre

- development versus post

- developme nt runoff rate or volume. A 2 year, 24

- hour design storm, as described in Appendix I, is equivalent to a storm event with over 3 inches of rain in the northeast. On a linear project the need to control storm events of this magnitude within a ROW would requ ire the construction of basins and diversion structures, as well as perimeter controls. It is noted that, in addition to proper design and monitoring of sedimentation and erosion controls, completion of construction in a timely and efficient manner and initiation of final stabilization is an equally important component to stormwater management. Because linear projects are constructed in phases which move along/within a ROW, as opposed to being focused on one parcel of land for a several month period, constr ucting significant stormwater control structures is not feasible. Construction of basins and diversion structures to control a 2 year, 24

- hour storm could significantly increase the design and construction costs, as well as the length of time to complete the project.

Response See Response 2.9.



# Comment ID 0123

- A2.001.004

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.1.3.1Q
Comment: EPA should include the 2

- year 24

- hour design storm within the requirements for the reasons identified within the Request for Comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

301 Response See Response 2.9.



# Comment ID 0126

- A2.001.005

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.1.3.1Q The CSC supports a design storm standard for sediment basins as long as regionally appropriate standards are used. The CSC does not support applying a design storm standard to all temporary BMP's and believe BMP's should be implemented on other, effective performance standards.

Response See Response 2.9.



# Comment ID 0130

- A2.001.014

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.1.3.1Q 13. DESIGN, INSTALL, MAINTAIN CONTROLS. Part 2.1.3. We support the 2

- year, 24 hour design storm standard for stormwater
controls.

Response See Response 2.9.



# Comment ID 0133

- A2.001.013

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.3.1Q MDT supports the inclusion of a design storm standardfor stormwater controls, including criteria that addresses snow melt. Specifying a certain design stonn standard would greatly simplify design and would increase uniformity and application of storm water co ntrols.
The 2·year, 24·hour stonn event seems reasonable given its use in the Effluent Limitation Guidelines.

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

302 

# Comment ID 0145

- A2.001.007

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.1.3.1Q EPA should adopt a design storm standard as a part of this permit. Such a requirement would provide stormwater engineers a standard to which their design efforts may be directed. This would help eliminate the variability in stormwater management goals adopt ed by the diverse community of developers a nd would likely elevate and improve the stormwater management goals at some sites to an achievable, relatively consistent level.

In many urbanizing watersheds, the sediment delivery rate into the stream is higher than the stream's capacity or competence to keep
that sediment moving on downstream. Thus, more sediment accumulates in the stream channel than is typically removed in a given year. This is partly due to the relative infrequency of "channel

- forming flows" compared to the frequency of flows that a ctually deliver sediment into the stream. For example, nearly every rain event that generates stormwater in the Cahaba River watershed result s in delivery of significant sediment loads into the mainstem channel. Once that sediment is delivered to the mains tem, however, the flow velocity is not typically high enough to keep that sediment suspended. Rain events large enough to create flow that is fast e nough to resuspend that sediment and move it downstream happen only once every or every other year. Moreover , those 1.5

- year events probably will not last long enough to move as much sediment downstream as is regularly being delivered into the stream. The 1 .5

- year flood event is a well

- known phenomenon amongst hydrologist and has been designated the "effective d ischarge" or "effective flow" of
that stream.

Based on the previous paragraph, effectively treating stormwater (volume and delivery rate) up to the 2 - year, 24

- hour standards would appear to be a reasonable first step toward matching an acceptable sediment delivery rate with a river's competence to actually move that sediment downstream. However, the 2

- year, 24

- hour design storm standard does not offer much of a "margin for error" in this respect. We recommend the design storm standard be the 5

- year, 24 -h our storm.

This is a difficult topic and we recognize it is fraught with technical issues and economic considerations. However, in our w atershed we have noticed that projects that "over

- designed" the stormwater controls compared to the "typical" level of care taken, have had a much lower (but not non

- existent) failure rate. The widely used standard designs have consistently failed here. For many years, the standard stormwater management standards, even when met, have failed to keep our river from experien cing excessive sedimentation. It is well past time to raise the bar for stormwater management standards.

Response See Response 2.9.



# Comment ID 0148

- A1.001.002

Author Name: Esparza J. Organization: USACE

- Sacremento Issue Category: 2.1.3.1Q
2. Part 2.1.2.1.a. A set or minimum design storm standard appears appropriate.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

303 Response See Response 2.9.



# Comment ID 0153

- A1.001.005

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.1Q 1. The use of a design storm has a long history. Users are familiar with the concept and data bases are available for models. It would be difficult to develop a good system for using continuous. simulation model for each location. For the present time, the design storm is a good approach.

2. We know that a combination of a performance standard (i.e., % removal of sediment) for a specific design storm event can be a successful control strategy. For example, South Carolina's Storm Water Management and Sediment Reduction Act of 1991 (48

- 14

- 10 and following), and pursuant Regulation 72

- 300, require an 80% TSS removal efficiency of sediment during a design storm of 10

- year 24

- hour as defined by NCRS. This has proved very effective since 1991 as there are very few waterbodies now listed on the 303d list in South Carolina as impaired for sediment or turbidity. Many sediment control BMPs can be designed using a variety of techni ques to meet the 80% TSS removal requirement. See the South Carolina Design Aids for examples of how this is done. We encourage EPA to consider this approach and eliminate the buffer analogy. We encourage EPA to set a % TSS removal requirement for a lO

- year, 24

- hour design storm event for all sediment control devices. This will also encourage the use of sou rce controls. We also encourage EPA to consider an alternative fallback requirement to meet a settable solid standard much like the 0.5 mill used by Office of Su rface Mining (OSM).This combination allows much flexibility in design of systems to prevent sed iment discharge.

Response See Response 2.9.



# Comment ID 0155

- A1.001.003

Author Name: Legnatto Paul Organization: Onondaga County, NY Issue Category: 2.1.3.1Q EPA is considered proposing a 2

- year, 24

- hour design storm standard for stormwater controls, wh ich would need to be met unless it was infeasible to achieve at the particular site. We agree that the inclusion of such a standard would have the benefit of as sisting construction operators in the design and selection of controls by introducing a definiti ve standard by which to assess compliance.

Response See Response 2.9.



# Comment ID 0159

- A1.001.003

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.3.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

304 b. Control stormwater discharges. This is a request to control the peak flow rate and total stormwater volume, which we believe is to 2 year storm event although it is not specifically mentioned in the regulations. The regulation is absent of a specific goal to be met such as reduce discharge to the runoff amount from a wooded site, meadows or pasture, cropland, the existing condition at the time of disturbance, etc. Since the goal is not identified, it will be difficult to make a determination of an impact from achieving the goal. In addition, in Ma ryland, there are effectively 3 types of devices that can release water. The first is silt fence or other perimeter filtering devices which have no mechanism to control a release rate that can be measured. In addition you are implying the use of stora ge be hind the silt fence which is not a good idea as it could case failure, hence creating what you are trying to prevent which is sediment leaving the site. Sediment traps that use a stone weir can be problematic as well. For flatter sites with a stone weir, i t is not possible control the release rate unless there is a secondary pipe to use as a control structure. This will not happen in flat sites because there is insufficient fall to a discharge point unless the embankment was to be raised. The concern would be the increased failure rate of earthen embankments that are raised higher with little or no increase in proper construction methods. Additionally, sediment traps with pipe outfalls or sediment basins; it would be possible to provide a control structure of sorts to provide quantity control.

Since many of the devices would not easily be able to provide a measured control rate equal to some storm event, it would be next to impossible to state a specific release rate has been met.

Response See Response 2.6.



# 2.1.3.2 INSTALL STORMWATER CONTROLS BEFORE CONSTRUCTION STARTS [REQUEST FOR COMMENT]

Comment ID 0017

- A1.001.007

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.3.2 5) 2.1.3.2

‐ Requires the installation of stormwater controls along all down slope areas of disturbance prior to construction starts in any portion of the site. This section should be clarified to specify that physical controls are only needed on down slope areas where a 50
foot vegetative buffer is not present.

Response Refer to Response 2.10.



# Comment ID 0025

- A1.001.013

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.3.2 For DOTs, it may be difficult to install perimeter controls on slopes if the slope extends out beyond the right

- of

- way (that we own/control). In these cases, we can only place controls at the limits of our property.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

305 Response Refer to Response 2.11.



# Comment ID 0038

- A1.001.012

Author Name: Minervini W. Organization: Issue Category: 2.1.3.2 The requirement in this provision should also not apply to earth

- disturbing activities that are necessary to install and make operational the stormwater controls in question.

Response Refer to Response 2.10.



# Comment ID 0049

- A1.001.005

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.2 EPA must be very careful in requiring a 2

- year, 24 - hour design standard for storm water controls since such a standard is realistically applicable only to Sediment Containment Systems (SCS) such as sediment ponds.

Applying such a standard for the many small barriers found on a construction site (e.g., silt fence barriers, fiber rolls, in let barriers, etc.) is not realistic. Few, if any, typical barrier BMPs found on construction sites will be effective in removing sediment when flood flow (caused by 2

- year, 24

- hour runoff) conditions exist.

Response Refer to Response 2.6 and Response 2.9.



# Comment ID 0049

- A1.001.010

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.2 Is EPA advocating the use of barriers at the discharge end of a storm drain pipe? Installing silt fence barriers at the discharge end of a pipe ensures failure and should alway s be avoided.

Response
Refer to Part 2.1.2.2 of the 2012 CGP and section VII.1.1 of the 2012 CGP Fact Sheet.



# Comment ID 0049

- A1.001.011

Author Name: Fifield JeraldRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

306 Organization: HydroDynamics Incorporated Issue Category: 2.1.3.2 Installing sediment controls in accordance with "sound engineering practices" has no meaning to the contractor. Since sediment and erosion control is NOT an engineering discipline, a better statement would be to "select" sediment and erosion control practi ces based upon sound science and engineering.

Refer to Part 2.1.1 of the 2012 CGP and section VII.1.1 of the 2012 CGP Fact Sheet.



# Comment ID 0056

- A2.001.007

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.1.3.2 Installing stormwater controls before construction is a necessary step for most conventional construction projects but, again, restoration is a unique situation. In some instances the work to restore ecological function and a sustainable system requires fit

- in

- the

- field work. This could result in stormwater controls interfering with this sensitive work. Restoration activity is focused within the res ource area so installing temporary stormwater controls may lead to an increase i n disturbance to the resource areas in order to fit both the active working area and stormwater control structures. The DER requires all sponsored designs incorporate the best resource area pro tections feasible for each site and restoration objectives. This effort is furthered by other agencies' review of the project under their pertinent regulations. The DER requests the requirement to install stormwater controls be waived for restoration work

Response Refer to Response 2.3.5. Refer also to Response 2.10

.



# Comment ID 0061

- A1.001.009

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.1.3.2 As written, the Draft Permit would require controls downslope of all disturbances. Downslope perimeter controls are not feasible for all areas of disturbance on LCPs. Disturbance will consist of several miles of trench, each linear foot of which will be acti vely subject to trenching activity for only a short time period. Installation and subsequent removal of perimeter controls of the kind listed in this Part will create more land disturbance and sediment loss than would preservation of undisturbed adjacent areas. Moreover, in projects that run parallel to roadways, perimeter BMP installations would need to be placed in roadside ditches, which could adversely impact carefully engineered roadway drainage and also likely would violate access agreements with state and local departments of transportation. For these reasons, LCPs should not be subject to the requi rements of this Part.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0062

- A1.001.013

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management OfficeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

307 Issue Category: 2.1.3.2 Install perimeter controls. You must install stormwater controls along all down slope areas of disturbance at your site, including areas to be used for stockpiling soils removed during construction, and along those side slope boundaries that will receive stormwa ter flow
fro m disturbed areas of your construction site. All down slope sediment controls should be installed on the level contour of the site, in the flattest area possible, at a distance down slope from the toe of the slope, and with the ends of the control placed u p slope from the
rest of the control.
Brevard County Comment: Add if the entire site slopes?

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0066

- A1.001.014

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.2 Discussion: Most down slope boundaries on linear projects are at water body crossings. The requirement to install "All down s lope sediment controls...at a distance down slope from the toe of the slope..." would locate such controls too close to or within those water bodies. Side slope sediment controls present problems in the case of linear projects. The width of the disturbed earth, over which runoff flows before laterally leaving the site, may be very narrow and easily controlled with a relatively narrow buffer. Controls like silt fence may not be necessary at all, and tend to funnel water towards the main downslope boundaries. This frequently cause s erosion and undercutting of the silt fence, and can cause no n- compliance with the permit.

Suggestion: Add language in the permit that allows some flexibility on this item for linear transportation projects.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0067

- A1.001.024

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.1.3.2 The CGP also contains a suggestion that down

- slope siltation/erosion controls be installed on the "flattest area possible at some distance from the toe of the slope." This would b e extremely difficult to achieve within the boundaries of ROWs on linear projects given the topographic relief in parts of Entergy's service area. Entergy requests that EPA remove this provision as impractic able in application to linear ROW

- type projects.

Response Refer to Response 2.10. Refer also to Response 2.11.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

308 

# Comment ID 0076

- A1.001.007

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.1.3.2
Target ascertains that the installation of all stormwater controls before construction begins is not practical. The provisions of this permit encourage phasing of projects, which by nature would phase construction BMP installation during the project. Target be lieves that this expectation fails to address phasing of BMPs that may be encountered in urban redevelopment projects such as demolition. Large buildings that are demolished and rebuilt may have paved surfaces that require a different phasing of BMPs. Target sugg ests that
the intent of this proposed requirement should be add ressed by requiring a stormwater BMP phasing discussion or clearly delineated plan in the Stormwater Pollution Prevention Plan (SWPPP) document.

Response Refer to Response 2.10.



# Comment ID 0087

- A1.001.020

Author Name: Smith Brooks Organization: Utilit y Water Act Group (UWAG) Issue Category: 2.1.3.2 Moreover, the CGP requires installation of controls around storm drain inlets. Section 2.1.3.2.b. This is a good practice, bu t one that needs to be qualified or waived in situations where the controls may create unsafe conditions (e.g., flooding around the inlets). To avoid such situations, alternative controls, such as up

- gradient chevrons, should be allowed.

Response Refer to Response 2.12.



# Comment ID 0087

- A1.001.038

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.3.2 The CGP requires down

- slope siltation/erosion controls to be installed on the flattest area possible at some distance from the toe of the slope. Section 2.1.3.2.b. These controls would be extremely difficult to achieve within the boundaries of rights

- of

- way for linear projects given the topographic relief in parts of certain service areas, due to the distances that may be involved, lack of legal access to these areas, and the need to obtai n property owner approvals.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0088

- A1.001.008

Author Name: Graves JohnRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

309 Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.1.3.2 Among the unrealistic requirements are:

-- the obligation to install all BMPs before initiating construction, including the 50

- foot buffer requirement

Response Refer to Response 2.10.



# Comment ID 0096

- A1.001.028

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.2 Finally, EPA does not have authority to require landowners to install stormwater controls before commencing earth disturbance s, because the CWA framework focuses NPDES regulatory authority entirely on actual discharges of pollutants to navigable waters. Congress defined “discharge of a pollutant” to mean the addition of pollutants to waters from a point source. [FN 47] Dischar ges are prohibited unless they are authorized under an NPDES permit or otherwise allowed under the Act.[FN 4 8] Nothing in the CWA authorizes EPA to require operators to take affirmative steps before any actual discharge occurs and certainly not before con struction activities begin.[FN 49] If a construction site operator (or any other potential discharger) genera tes a point source discharge without an NPDES permit, the discharger is subject to an array of enforcement measures for the discharge.

Rather, under the CWA framework, persons who lack NPDES permit coverage (and who are not statutorily excluded from the permitting program) simply do not have authorization to discharge and will face severe penalties (up to $37,500 per day, per violation) if they do so.

If a construction site operator (or any other potential discharger) generates a point source discharge without an NPDES permit, the discharger is subject to an array of enforcement measures for the discharge. Rather, under the CWA framework, persons who lac k NPDES permit coverage (and who are not statutorily excluded from the permitting program) simply do n ot have authorization to discharge and will face severe penalties (up to $37,500 per day, per violation) if they do so. [FN 50] Congress established this enforcement framework to discourage and punish any unauthorized discharge, but it did not affirmativel y require any potential (or even likely) discharger to take affirmative steps before initiating construction activities. Thus, “the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges – not potential discharges, and ce rtainly not point sources themselves.”[FN 51] Absent such discharges

– even if future discharges are possible – EPA has no authority to impose NPDES obligations, to impose conditions on construction activities, or to impose conditions on pre

- construction ac tivities [FN 52] In other words, the CWA “does not prohibit construction of a new source without a permit,” just as it does not penalize the failure to install controls before beginning earth disturbing activities.[FN 53] In fact, the installation of controls on a construction site would likely require earth disturbing activities, so this requirement is counter

- intuitive.

[FN 47] “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.” 3 3 U.S.C. § 1362(12)(A). [FN 48] See 33 U.S.C. § 1311(a) (“[e]xcept as in compliance with this section and [other] sections . . . of this title, the discharge of any pollutant by any person shall be unlawful.”).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

310 [FN 49] Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005) (“unless there is a ‘discharge of a pollutant,’ there is no violation of the Act, and point sources are, accordingly, neither statutorily obligated to comply with EPA regulations for point source discharges, nor are they statutorily ob ligated to seek or obtain an NPDES permit.”). [FN 50] See 33 U.S.C. § 1319. [FN 51] Waterkeeper Alliance, 399 F.3d at 504 (emphasis in original); National Pork Producers Council v. EPA, 635 F.3d 738, 750 (5th Cir. 2011) (“the scope of the EPA’s authority u nder the CWA is strictly limited to the discharge of pollutants into navigable waters.”).
[FN 52] See NRDC v. EPA, 822 F.2d 104, 128 n.24 (D.C. Cir. 1987) (“The Clean Water Act regulates the discharge of pollutants, not
the construction of sources. The Act does not prohibit construction of a new source without a permit;
. . . [t]he Act only prohibits new sources from discharging pollutants without a permit, or in violation of existing NSPS sta ndards.”); NRDC v. EPA, 859 F.2d 156, 169

- 170 (D.C. Cir. 1988) (“ EPA can properly take only those actions authorized by the CWA – allowing, prohibiting, or conditioning the pollutant discharge. . . . And, contrary to EPA’s assumption, the CWA does not emp ower the agency to regulate point sources themselves; rather, EPA’ s jurisdiction under the operative statute is limited to regulating the discharge of pollutants. Thus, just as EPA lacks authority to ban construction of new sources pending permit issuance, so the agency is powerless to impose permit conditions unrelated to the discharge itself.”) (emphases added).

Response Refer to Response 2.10. Refer also to Response 2.10.2.



# Comment ID 0098

- A1.001.010

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 2.1.3.2 The Agency should consider clarifying the language that allows "initial site clearing" without installation of primary stormwater controls. This clearing should be limited to that necessary to establish entry, exit and access for the purpose of installing other BMPs.
The ex emption should not be so broadly stated as to be capable of being interpreted to include exposing the entire acreage of a sit e.

Response Refer to Response 2.10.3.



# Comment ID 0111

- A2.001.005

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.1.3.2 Dow believes that this requirement should be clarified to include a provision to allow earth disturbing activities if it is s pecifically required to implement the stormwater control. For example, a permittee may need to exca vate a pit for primary sediment control.

Response Refer to Response 2.10.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

311 

# 2.1.3.2Q INFEASIBLE TO INSTALL CONTROLS BEFORE DISTURBANCE

Comment ID 0015

- A2.001.005

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.3.2Q Q4. Stormwater controls in place first - Agree, it is reasonable in most cases. Also consider inlet protection controls for installation prior

Response Refer to Response 2.10. Refer also to Response 2.12.



# Comment ID 0021

- A1.001.015

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.1.3.2Q 4. CGP Section 2.1.3.2 requests comment on the requirement to make operational all stormwater controls before earth disturbin g activities. It is of my opinion that additional verbiage should be incorporated stating that "all stormwater controls should be installed before earth disturbing activities and before the next anticipated storm event." This would give operators more flexibility t o stage the construction process and perhaps begin land disturbing activities in concurrence with perimeter BMP installation if no storm events are anticipated. There also needs to be a more objective definition of "initial site clearing". This can be interpreted in many f ashions and

nume rous types of construction activities can be considered initial site clearing. The industry's definition of this term may not be consistent with the EPA's intent. A more objective definition would make this requirement more easily enforceable.

Response Refer to Response 2.10.



# Comment ID 0022

- A1.001.001

Author Name: Huxtable David Organization: Danch, Harner, & Associates, Inc. Issue Category: 2.1.3.2Q Regarding section 4. ii. "Installation of Sediment Controls Prior to Construction - Operators must install and make operational all sediment controls prior to conducting earth disturbance operations." many temporary BMP's are not capable of being installed prior to whatever earth disturbance operation is contemplated; therefore this often copied paragra ph should be changed to indicate that sediment controls shall be installed before earth disturbances in any given area of the work may proceed, and where infeasibl e to install in advance, those sediment controls shall be installed as soon as practicable in any given area, such as inlet protection, straw wattles, outlet filter risers, temporary and permanent sediment basins. Earthwork and drainage work shall proceed from downstream to upstream with construction of sediment and erosion controls taking precede nce over any mass grading operations.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

312 Response Refer to Response 2.10.



# Comment ID 0025

- A1.001.012

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.3.2Q Response to EPA's request for comment: Please add clarification that this is for the portion of the project that is being disturbed. It may not be feasible to install and make operational all stormwater controls On a 15

- mile long roadway project. Some stormwater controls will be placed simultan eously with the construction. DOTs typically phase larger construction projects and there is little benefit installing

Response Refer to Response 2.10.



# Comment ID 0030

- A2.001.011

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.3.2Q Section 2.1.3.2, page 14 In most cases, construction activities are conducted in phases to limit and control the amount of surface disturbance. Approp riate BMPs are initially included in the initial design and site development plans, but should be installed on an as

- needed basis, prior to earth disturbance activities. Some examples are provided below.

For example, sediment basins, sediment traps and drainage swales all require earth disturbance and would be installed after initial perimeter BMPs. A second example is linear construction, in which BMPs are designed to move with construction. Linear constru ction
sites that start on one street but are not scheduled to occur on the next street until later don't have BMPs installe d on the inactive street. If BMPs are installed too early, there is a risk of requiring BMP maintenance prior to any upgradient disturbance occurring (because of traffic hazards, slow flows through municipal inlets due to heavy precipitation, unattended BM Ps, etc.).

We suggest clarification to language to address BMP installation requirements for individual phases of construction, rather that all at once prior to commencing initial earth

- disturbance activities.

Response Refer to Response 2.10.



# Commen t ID 0037

- A1.001.009

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.3.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

313 It is not always feasible or possible to install all stormwater controls before commencing earth disturbances. Stormwater con trols are often selected based on the phase of construction. It would be more practicable to require the stormwater controls to be installed based on the phase of the project. Situations where it is infeasible or impractical to install all stormwater controls prior to earth disturbances include the following:

[ Stormwater controls used to protect storm sewer inlets cannot be installed until the storm sewer pipe is installed. [ The location and type of down slope controls as well the down slope control area will change during the construction of a subdivision. As storm sewers are installed, the storm sewer inlets become part of the down slope control area. If there is an y disturbance or stockpile soil located up stream of the inlet, sediment control barriers will need to be installed. [ Check dams cannot be installed until the drainage channel, ditch, or swale is constructed. [ Outlet protection cannot be installed until the culvert or ditch is installed. [ Temporary slope drains are frequently installed during the grading phase once slopes and grades have been established. [ Surface roughening cannot be implemented prior to earth disturbances. [ Sediment control barriers installed along the contour at intervals along the length of a slope to reduce slope length ca nnot be installed until the slope has been graded.

Response Refer to Response 2.10.



# Comment ID 0046

- A1.001.004

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.3.2Q The Department appreciates placing an upper limit on the amount of precipitation / runoff for which design standards are sufficient.

Response Refer to Response 2.9.



# Comment ID 0046

- A1.001.005

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.3.2Q In general, this is a good practice. However, in heavy highway construction, the installation of the BMPs may require earthwo rk. Sedimentation ponds that are created in fills, access to install silt fence, te mporary causeways to drive sheeting and driving piles all require earthwork to make the BMP functional. In addition, access along limited width Rights of Ways can be a challenge and p rojects with multiple traffic control phases sometimes limit what can be feasibly accomplished.

Response Refer to Response 2.9. Refer also to Response 2.11.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

314 

# Comment ID 0047

- A2.001.008

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.3.2Q Section 2.1.3.2, page 14

Construction activities are often conducted in phases to limit the amount of disturbance. Appropriate BMPs are included in the design (initial, interim and final) and site development plans, but should be installed on an as

- needed basis, prior to earth disturbing activities. Some examples are provided below.

Water quality structures, such as sediment basins/ponds/traps and drainage swales all require earth disturbance and would be installed after perimeter BMPs are installed.

Linear construction sites often design the project to move the BMPs with construction. Xcel Energy projects are encouraged to work a section of the line, stabilize, than move on to the next section. This approach keeps the area of disturbance minimized and e liminates BMPs installed on inactive areas and thus subject to potential damage and maintenance requirements.

Xcel Energy recommends the permit language address BMP installation requirements for individual phases of construction, rathe r than requiring all BMPs installed prior to commencing initial earth -d isturbing activities.

Response Refer to Response 2.10.



# Comment ID 0049

- A1.001.009

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.2Q Installing stormwater controls before construction starts

This may be great in theory, but will be limited to barriers (e.g., silt fence) where sheet flows occur. Only after grading activities be gin will construction of an SCS occur, which is the most effective method to remove sediment from runoff.

Response Refer to Respo nse 2.10.



# Comment ID 0053

- A2.001.008

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.3.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

315 The Permit states: "Prior to commencing earth

- disturbing activities in any portion of your site, you must first install and make operational all stormwater controls required in this Part and described in your SWPPP."

This clause is unachievable. Interim BMPs cannot be installed in areas that have not been graded to design or partially grade d. In these examples below, BMPs would not be considered related to initial site clearing.

Examples:
• Check dams in V

- ditches that have not been excavated. • Cut/Fill Transition rock armor in transitions that do not exist yet. • Sediment Basins cannot be installed where vegetation has not been cleared

Response Refer to Response 2.10.



# Comment ID 0054

- A2.001.007

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: 2.1.3.2Q Issue: As acknowledged in the C+D guidelines, "Site planning, sequencing of landdisturbing activities and phasing of construction activities are important management practices [74 FR 63012]." Further, disturbing small portions of a larger construction sit e can also reduce the potential impacts of denuding the entire construction area. Neither of these concepts supported by EPA aligns with mandates on permitees to install all storm water controls prior to beginning construction. In some cases, the specific storm water control may not be feasible or adequate for the cor responding phase of construction.

Recommended Change: USS recommends that EPA revise the requirement for permittees to identify the appropriate controls for ea ch construction phase as part of the Storm Water Pollution Prevention Plan (SWPPP) and allow for the implementation of these controls prior to initiating the activities of each phase.

Response Refer to Response 2.10.



# Comment ID 0061

- A1.001.010

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.1.3.2Q LCPs often require several months to complete. Installation of all storm water controls listed in the SWPPP is not feasible o r warranted for projects where disturbance will not occur at a specific location along the project site un til some distant time in the future. Installation and maintenance of all BMPs prior to the commencement of construction in such cases would not only add cost with out any environmental benefit, the installation, inspection and maintenance of BMPs in otherwi se undisturbed areas would result in increased environmental impact.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

316 For these reasons we suggest that the Agency exclude LCPs from this requirement, because it would be both infeasible and environmentally counterproductive as applied to those projects.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0065

- A1.001.009

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.3.2Q Section 2.1.3.2 states that prior to installing earth

- disturbing activities in any portion of a site, all stormwater controls must be installed and operational. The draft CGP additionally clarifies that "this requirement does not apply to earth disturbances related to initial site clearing and establish ing entry, exit, and access to the site." CCWC supports the inclusion of this exception for earth disturbances because installing initial stormwater controls will include earth

- disturbing activities while the initial best management practices (BMPs) are in stalled (e.g., track

- out at entrances, exits, birms).



# Comment ID 0066

- A1.001.013

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.2Q Discussion: In response to the comment: "EPA requests comment on whether there are other situations where it would be infeasible or impractical to install and make operational all stormwater controls before commencing earth disturbances. If so, please describe these situations." In the case of linear construction, whic h may progress through time along the length of the project, installing sediment controls in areas that have not been disturbed (and may not be disturbed for some period of time) would unnecessarily increas e disturbance in otherwise undisturbed areas. At other times, certain portions of a site may be under very intensive and active construction, working to achieve final grades, which then could have their perimeter controls installed when completed.

Suggestion: Allow flexibility in the timing of sediment control installation so that it may be customized to fit project

- specific
circumstances.

Response Refer to Response 2.10.



# Comment ID 0067

- A1.001.023

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.1.3.2Q
B. The CGP requires installation of all erosion control measures in advance of initiation of construction. While perimeter controls are typically installed in advance of construction, some of the controls, notably dry crossings of stream beds to minimize tracki ng, re quire significant excavation to install.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

317 Response Refer to Response 2.10.



# Comment ID 0069

- A1.001.002

Author Name: Cramer M. Organization: Issue Category: 2.1.3.2Q 2. Part 2.1.3.2.a. of the draft EPA CGP requires operators to install and make operationa l all stormwater controls described in the SWPPP before commencing earth disturbances. Linear road projects require continuous phasing that necessitates installation an d modification of erosion and sediment controls contiguous with construction progress. O utfalls and flow directions can change daily; therefore, installing "all" BMPs prior to the start of construction is impractical. Installation of controls prior to the time of their functional necessity only leads to additional maintenance and inspection costs. Only those stormwater controls that are needed and will be functional for the current phase of a project should be installed and operational.



# Comment ID 0072

- A2.001.005

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.1.3.2Q When practicable, MoDOT practice is to install all peripheral or border best management practices (BMPs) prior to general sit e clearing. MoDOT commends the EPA for acknowledging the fact that in many instances (e.g., forested areas , steep terrain, etc.) it is impractical to install perimeter controls before initial site clearing and the establishment of site access. However, there a re also other instances where installing "all stormwater controls" prior to commencing other earth

- dis turbing activities is impractical. For example, highway projects often involve significant cuts and fills in order to reach the desired roadbed grade. As such, project phasi ng is crucial
to assure the best use of time and resources. It is difficult to deve lop adequate "phased" project plans ahead of time that will cover every erosion and sediment control scenario that may arise during this period of transition. Most designed erosion and sedime nt control plans show those devices that will be installed once final grade is achieved. As such, many times it is left up to the discretion of trained engineers and inspectors to install and remove controls as deemed necessary in the interim. These SWPPP changes occur during active grading, based on best judgment and a re then handdrawn into site plans.

MoDOT is concerned with the all inclusive language currently written in this Part. The following language gives more flexibil ity to the construction team while at the same time assuring there is no discharge of pollutants from the construction site. MoDOT's suggested language for this Part would be: Prior to commencing earth

- disturbing activities in any portion of your site, you must first install and make operational the necessary stormwater controls required in this Part and described in your SWPPP to assure there is no discharge of sediment or other pollutants fom the construction site.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0074

- A2.001.007

Author Name: Thompson StevenRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

318 Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.1.3.2Q The proposed language should include provisions for circumstances when stormwater controls for each stage of construction can not be completed before that specific stage is started, i.e. on sites with certain types of geological limitations and on certain linear projects.

Response Refer to Response 2.10.



# Comment ID 0080

- A2.001.008

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.3.2Q Partner Response: The language specifies that ALL stormwater controls be installed before commencing earth disturbance activi ties. The Partners question the word ALL and suggests alternative language such as "all stormwater controls should be installed before earth disturbing activites or prior to a “significant” precipitation event.” The SWPPP would further address this issue if phasing were to incorporated into the scheduling of the construction project. Also, i t is unclear whether EPA requires all stormwater controls be operational for the entire site "prior to commencing earth

- disturbing activities in any portion of the site" or whether controls must be installed and operational for only the disturbed portion o f the site. Perhaps the EPA could better define terms such as earth disturbance, initial site clearing, etc. Clearly defining these terms for Municipalities and CGP holders will greatly assist the regulated community in implementing the Permit and help in understanding EPA's intent.

Response Refer to Response 2.10.



# Comment ID 0085

- A2.001.006

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.1.3.2Q The requirement for installation of all controls prior to construction is reasonable. However, this section should reference the emergency related construction exceptions contained in 1.3.2. Furthermore, the emergency related exceptions should be clarifi ed to include emergency construction related to the failure of aging inf rastructure.

Response
Refer to Part 1.2.1 of the 2012 CGP.



# Comment ID 0087

- A1.001.019

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.3.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

319 Additionally, the CGP requires installation of all erosion control measures before construction starts. Section 2.1.3.2. This may be appropriate for traditional site development, where clearing and grading activities occur at the same time throughout all or most of the site. However, it is not appropriate for linear utili ty projects, especially those that are constructed in phases over different periods of time. We urge EPA to revise this section to allow land disturbance activities on portions of the total construction site, as long as the
stormwater controls for the area being disturbed are installed and operational (i.e., the implementation of the SWPPP, including BMPs, is conducted prior to the soil disturbing activities in the area of the actual soil disturbance). EPA should also clarify that controls are only needed on down slope areas where a 50

- foot vegetative buffer is not present.

Response Refer to Response 2.10. Refer to Part 2.1.2.1 on buffer requirements and Part 2.1.2.2 on perimeter controls.



# Comment ID 0087

- A1.001.043

Author Name: Smith Brooks Organization : Utility Water Act Group (UWAG) Issue Category: 2.1.3.2Q Where construction sites will first be cleared or graded prior to their use for other activities (e.g., laydown area, maintenance, storage), it will not be possible to install the BMPs associated with those subsequent activities prior to the earth disturbing activities. For instance, pollution prevention BMPs for the maintenance area cannot be installed until the site is cleared and leveled for th e maintenance area. Similarly, the permit should allow incremental removal from the project's permitted area those areas where earth disturbing activities have been completed and stabilization is achieved.

Response Refer to Response 2.10.



# Comment ID 0090

- A1.001.014

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.3.2Q Second, EPA states in the Notice that permittees must ―design, install, and maintain ‖ these controls and have them operational prior to commencing earth

- disturbing activity. [FN 7] It is unfeasible to install and make operational all stormwater controls before commencing earth disturbance. Depending on the project, some linear projects may be backfilled the same day that the work is begun. Further, due to limited space at the work site, soils may be si mply trucked out of the work location and erosion controls could not realistically be installed until the actual work begins (e.g. silt fences around the bore pits or soil piles). The operating procedures are a stark contrast to the large

- scale, open excavation that characterizes initial earth disturbance from commercial or residential construction activity. AGA asks EPA to clarify that the proposed requirement that controls be installed and made operational before commencing earth disturbance does not appl y to linear projects, on the grounds that this requirement is impractical, unnecessary and infeasible for linear projects. [FN 7] 76 Fed. Reg. at 22886.

Response Refer to Response 2.10. Refer also to Response 2.11.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

320 

# Comment ID 0091

- A2.001.003

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.1.3.2Q 3. Fact Sheet Item 4. Part 2.1.3.2.a: Stormwater control features should be installed at the site in advance of upstream soil disturbing activities. Larger constructions sites may include multiple phases for earthwork. Installing all stormwater controls prior to construction may not be feasible. Control structures such as swales and perimeter dykes may be constructed with native soils removed from the
construction a rea. Natural barriers such as hay may become degraded before the upstream earthwork begins. Recommend that the SWPPP include milestones for establishment of storm water controls prior to various phases of earthwork.

Response Refer to Response 2.10.



# Co mment ID 0093

- A2.001.040

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.2Q The Draft states that prior to starting earth disturbing activities in any portion of the site, stormwater controls would be required. EPA has requested comment on whether there are situations in which it would be infeasible or impracticable to make operators inst all all stormwater controls before commencing earth disturbances.

AGC finds that it would be infeasible, impractical and pollution producing to install all controls prior to the start of any work. It is a common circumstance, particularly on larger sites, for only a portion of the site to be constructed (or disturbed) at one time; other portions of the site may remain undisturbed for many months. For example, oftentimes during a road construction project, lanes (or other project features) on the one side of the roadway will have no disturbed earth for more than a year while the other side of the roadway is being modified. Installation of controls on the side of the roadway with no activity will serve no purpose and will increase the cost of construction through the installation of controls that will only need to be replaced prior to the actual start of work in th at portion of the site. Installation of the controls before they are needed and then needing to replace them prior to actual con struction will generate unnecessary waste (pollution). On a very large, phased

- development site, the same situation could occur.

While most often the SWPPP will specify all BMPs throughout all phases, BMP installation is predicated on the work to be comp leted within each phase. Furthering the example used above, a roadway project has numerous phases including clearing and rough g rading followed by rough drainage, which is refined as the roadway is built to include pavement, curb inlets, etc. It would be impossible to install curb inlet protection at the rough grading stage, because the inlets would not exist. It would be impossible to install all ditch checks at the clearing stage, because the planned ditches would not exist. In addition, there are many areas during the const ruction season where it is next to impossible to get the perimeter control BMPs installed prior to any const ruction. These areas may be in flood plains, areas with brush and small trees, areas on bridge construction sites, slopes, etc. For these reasons, it is not feasi ble to install "all" storm water controls prior to commencing earth disturbing activities.

A GC requests that EPA clarify that the requirements under this Part are for the portion of the project that is being disturbed only. AGC also asks that EPA modify the term "all" with "all applicable."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

321 EPA must acknowledge that most construction projects are phased, with BMP selection and installation corresponding to each phase. AGC requests that EPA allow contractors to install controls as they are needed so that they can continue to limit the amount of area cleared at one time. Such phasing helps maintai n natural vegetation, which is the best control. A requirement to install all controls prior to start of construction would cause the contractor to "hop around" the site installing controls before they are needed. Cont ractors would also have to inspect and maintain those controls. These may exist in areas where the contractor has no active work for quite some time. We see this as an item that will greatly increase the cost of construction without a definable environmental benef it.

Response
Refer to Response 2.10.



# Comment ID 0096

- A1.001.027

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.2Q EPA states that prior to starting earth disturbing activities in any portion of the site, stormwater controls are required. This language is very restrictive and cannot be met under many scenarios. Below are a few examples that illustrate the problems with this prov ision.

First, many stormwater basins require the importation of material to construct their walls. The efficient way, in terms of cost, land disturbance, and reducing energy use and air pollution, is to clear the area around the temporary basin and use the material from the surrounding area. In many cases, disturbance and construction must start before stormwater controls can be installed. But if EPA’s language is too restrictive, it will lead to even more problems because if the area cannot be cleared without a basin in place, the material has to be imported. Then, the material adjacent to the basin (that could have been used in the basin construction) has to be exported to keep the job balanced. EPA must ensure that the proposed language allows for the minimal clearing necessary to ob tain suitable soil needed to build required stormwater devices.

Similarly, in some cases, construction must occur before stormwater controls are installed and some stormwater controls do no t work until grading is partially completed. In these instances, building stormwater controls early on the construction process is a waste of time, costs more, and sometimes cannot be physically constructed. For example, if a developer is constructing a road that crosses a stream, the main controls initially will be silt fences followed by diversion ditches. Prior to building the road elevation up (i.e. placing the fill), a silt fence is all that is needed as an erosion device. But the plans would show diversion ditches so that water coming off the new slopes could be diverted to the new lowest elevation where a basin would be construc ted. A diversion ditch cannot be built prior to road construction process. EPA’s provision should clarify those scenarios where a stormwater control will not need to be impl emented prior to construction. At a minimum, it must recognize that sometimes installing controls before construction starts is infeasible and provide for these occurrences.

Response Refer to Response 2.10.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

322 

# Comment ID 0115

- A2.001.008

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.3.2Q
2.1.3.2 General Inst allation Requirements. National Grid recommends acknowledgement of phased projects in this part of the proposed CGP. Typically, for cross country distribution/transmission projects, erosion, sediment and stormwater controls are installed only in
areas wher e construction is active. For example, while earth disturbing activities (e.g. excavation for pole replacements, drilling for foundations, or grading for access and work envelopes) may be underway on the northern portion of a utility corridor, similar acti vities may not be occurring for months in the southern section. As crews move from structure to structure, controls are installed be fore ground disturbance takes place but after mowing and clearing (not grubbing), access road upgrades, and swamp mat instal lations are complete (unless road upgrades include significant grading). All controls are then monitored and maintained through all phase s of
construction.

Therefore, National Grid suggests that installation of stormwater controls prior to earthdisturbing activities on ANY portion of the "site" (ROW) is not feasible or practicable for linear projects of significant length.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0117

- A1.001.009

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 2.1.3.2Q The installation of all stormwater controls before commencing earth disturbances may not be achieved if the disturbance is cr eation of a stormwater control (i.e. detention/retention basin co nstruction). There also may be sites that have a phased approach where it would

not

Response Refer to Response 2.10.



# Comment ID 0123

- A2.001.005

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.1.3.2Q Comment: CRWD supports the proposed permit language.

Response EPA thanks the commenter for the support.



# Comment ID 0131

- A1.001.004

Author Name: Gear KenRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

323 Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.1.3.2Q This requirement essentially allows the engineer to specify which controls are appropriate for the commencement of earth disturbance, so in the typical case, this approach is feasible. However, there are some situations where due to field conditions, the loca tion, scale

an d scope, and minimal risk for a discharge ,that it may be appropriate or environmentally beneficial to concurrently commence earth disturbance and install controls rather than installing controls first. In some cases, installation of perimeter controls is infeasible prior to minor earth disturbance. This can be the case in locations that are in extremely rough terrain, in very rocky soils (or no so il), or are very densely wooded such that proper and effective installation of perimeter controls is extremely challenging without some minor grading. It can also be difficult to discern the difference between earth disturbance and storm water control installation (e .g., in a pond construction project, wetland restoration, etc...) Accordingly, LBA requests that the p ermit provide for situations in which installing
controls before commencement of construction is allowed.

Response Refer to Response 2.10.



# Comment ID 0133

- A2.001.014

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT)
Issu e Category: 2.1.3.2Q The proposed pennit condition requires the installation of all stormwater controls before commencing earth·disturbing activities in any portion of the site. This requirement is overly burdensome and is not feasible in many instances. Linear transportation projects are dynamic and require flexibility. Erosion and sediment controls that are necessary at the beginning of a project change as c onstruction progresses and final stabilization commences. Additionally, linear transportation pr ojects are often constructed in phases, and in fact, phased construction is explicitly encouraged in the new Effiuent Limitation Guidelines. It does not seem reasonable to require the placement of storm water controls for portions of the site that are not and will not be disturbed for some time. This proposed condition places an undue burden on the regulated community, without any benefit to water quality. As such, MDT requests that additiona l

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0137

- A2.001.005

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.3.2Q Installation of all stormwater controls before construction starts is impractical under many circumstances. Phasing of a project may make installation of all devises impossible. Installation of devices may require significant grading. Also, projects utilizin g Environmental Site Design may not have "controls" as contemplated by the permit and may require detailed grading to control flows.

Response Refer to Response 2.10.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

324 

# Comment ID 0145

- A2.001.008

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.1.3.2Q We urge the EPA to be very cautious in codifying when it is allowable for developers to begin earthdisturbing activities prior to installation of operational stormwater controls. Exceptions that allow earthdisturbing activities prior to installation shoul d be very
limited.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0170

- A2.001.005

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 2.1.3.2Q EPA's requirement to install and make operational all stormwater controls before commencing earth disturbances does not adequately address the unique nature of linear construction projects. Because linear construction projects are typically undertaken usin g a phased approach, this requirement will result in the installation of control measures in areas of a project where no earth disturbing activities will take place for a significant period of time. This will subject an operator to unnecessary maintenance and inspection cos ts with no benefit to the environment. A more effective approach would be to allow t he operator to install control measures in areas of disturbance immediately before they are disturbed. We respectfully suggest the following language be used in Part 2.1.3.2(a): "You must intall and make operational any stormwater controls required in this Part and described in your SWPPP before upgradient land is disturbed." This approach will allow operators the flexibility needed to effectively manage their stormwater controls while m aintaining an equivalent level of environmental protection.

Response Refer to Response 2.10. Refer also to Response 2.11.



# Comment ID 0077

- A1.001.009

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 2.1.3.2Q The installation of all stormwater controls before commencing earth disturbances may not be achieved if the disturbance is creation of a stormwater control (i.e. detention/retention basin construction). There also may be sites that have a phased approach where it would not make sense to install a permanent stormwater control until the trib utary area is constructed

Response Refer to Response 2.10.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

325 

# 2.1.3.3 MAINTENANCE REQUIREMENTS

Comment ID 0049

- A1.001.012

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.3 What is meant by "effective operating condition?" For example, does this mean it is operating in a manner that effectively removes sediment from runoff waters? If so, how much is to be removed and over what time period? Perhaps this means the BMP is allowi ng water to discharge in a c orrect manner

---- as determined by whom?

Response See Response 2.13.



# Comment ID 0049

- A1.001.013

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.3
Few individuals on a construction site can assess the effectiveness of any BMP to remove sediment from runoff waters. It would be helpful if the EPA could provide some guidelines for the inspector and contractor on this topic.

Response EPA plans to develop guidance.



# Comment ID 0053

- A2.001.009

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.3.3
a. Keep stormwater controls in effective operating condition. The Permit states: "You must ensure that all stormwater control s remain in effective operating conditio n and are protected from activities that reduce their effectiveness."

This clause is too vague. It is improbable to protect all BMPs from damage.

Response See Response 2.13.



# Comment ID 0062

- A1.001.014

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management OfficeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

326 Issue Category: 2.1.3.3 Remove accumulated sediment. Remove sediment before it has accumulated to a height of 1⁄2 of any exposed silt fence fabric or 1⁄2 of the height of any filter berm.

Brevard County Comment: 1⁄2 height is too high, pressure will cause fabric failure below this height.

Response See Response 2.13.



# Comment ID 0091

- A2.001.018

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.1.3.3 18. PART 2.1.3.3: The language in the text implies that the sediment from the storm water controls is different from other fill materials removed from the site. If there is no contamination, the contractor should be free to manage the soil as fill material on or offsite.The permit is s pecifically directing how the material may be managed. Since specific management actions are defined, tracking may be required to demonstrate this material was managed in accordance with the permit. One use that is not listed is to transfer th e material to a third party for use. On sites with excess fill the material could be added to the fill transferred offsite. Reuse and beneficial use of any excess construction material should be encouraged before disposal.

Response See Response 2.13. EPA notes that the 2012 CGP does not include the proposed provision on managing sediment that is removed from
stormwater controls.



# Comment ID 0093

- A2.001.041

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.3 The Draft states: "You must ensure that all stormwater controls remain in effective operating condition and are protected fro m activities that reduce their effectiveness." AGC maintains that this clause is too vague. It is not possible to protect all BMPs from damage, which is why this permit includes corrective action provisions. AGC requests that EPA define the meaning of this stat ement.

Response See Response 2.13.



# Comment ID 0102

- A2.001.002

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2.1.3.3
2. Section 2.1.3.3 - Maintenance requirements, subsection b - Remove accumulated sedimentRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

327 a. Where does the 1/2 of exposed silt fence requirement come from? Many manufacturers state the proper height o f removal is at 1/3 of exposed height. This height depends upon the materials used, and whether the silt fencing is backed with chain link fencing ( "super silt fencing"). Please specify the context of this requirement. .

Response See Response 2.13.



# Comment ID 0115

- A2.001.009

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.3.3 2.1.3.3 Maintenance requirements. National Grid supports the language in this part. It is useful to have a discrete measure f or maintenance.

Response EPA appreciates the support.



# 2.1.3.4 GOOD HOUSEKEEPING REQUIREMENTS

Comment ID 0017

- A1.001.010

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.3.4 8) 2.1.3.4

‐ Indicates sediment tracked onto streets and other paved areas must be cleaned up by the end of the same workday. However, 2.1.3.7 indicates vehicle tires must be washed and "No visible signs of soil tracking from vehicles should be present on public or private roadways exiting the site". The two conditions contradict each other. In addition, requiring vehicles to be washed at exit points creates a significant problem for linear projects already working within a narrow access corridor. Requiring vehi cle washing would result in tracking pad s to become inundated with sediment and increase the likely hood of the release of oil and grease from vehicles into the wash water. Good housekeeping practices, such as cleaning of paved areas each workday (or more frequently i f required) are effective me thods for controlling sediment tracking.

Response See Response 2.14.



# Comment ID 0025

- A1.001.014

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

328 Issue Category: 2.1.3.4 For a DOT project, many of the resulting soil stockpiles are so large as to be completely infeasible to cover or contain them. Additionally it makes more sense to have one large pile to control versus many small ones. It also may not be reasonable to p rovide final stabilization to these stockpiles if their product is to be reincorporated into the project later. As a common practice for ADOT, we require the use of parameter controls around any stockpiles.

Response See Response 2.17.



# Comment ID 0030

- A2.001.012

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.3.4 Section 2.1.3.4, page 15 What about flexibility for short duration piles in arid and semi

- arid regions? (For example, linear utility projects that have small piles that exist for only one week and have protection around the toe of the pile). The proposed requirement might apply to stockpiles that exist for a longer period. We recommend providing language to exempt short

- duration, small piles.

Response See Response 2.17.



# Comment ID 0047

- A2.001.009

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.3.4 Section 2.1.3.4, page 15

Xcel Energy recommends providing language in the permit for short duration piles and when working in arid and semi

- arid regions? (For example, linear utility projects that have small piles that exist for a matter of days have protection around the toe of the pile). This proposed language should only apply to larger projects that will have stockpiles for a longer duration

Response See Response 2.17.



# Comment ID 0064

- A1.001.012

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.4 Section 2.1.3.4.a.i, page 15 - "Where track

- out of sediment occurs at your site onto streets...you must sweep, shovel, or vacuum these
surfaces to remove track

- out material or other sediment deposits."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

329 •Is this section suggesting that sweeping, shoveling, or vacuuming can be done in lieu of stabilized construction entrances?

Response See Response 2.14.



# Comment ID 0065

- A1.001.010

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.3.4 Section 2.1.3.4(b)(iii) requires projects control of discharges from sediment or soil piles, by "providing cover or other app ropriate temporary or permanent stabilization to avoid direct contact with precipitation or to prevent sediment discharge." Providing cover for major infrastructure and other similar projects open to the elements is infeasible. As an alternative, CCWC recommends t hat EPA modify the requirement to require the installation of proper BMPs, followed by evaluation of the effectiveness of those BMPs prior to assessing whether coverage is necessary.

Response See Response 2.17.



# Comment ID 0065

- A1.001.011

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.3.4 Section 2.1.3.4(b)(v) requires containing and securely protecting sediment and soil piles from wind unless they are actively being used. This requirement is vague . In order to be able to comply with this requirement, further clarification is necessary regarding the sufficiency of "to the extent possible" and what it means for sediment and soil piles to be "actively" used. CCWC recommends the installation of proper BMPs associated with these piles, followed by evaluation of the effectiveness of those BMPs prior to securely protecting the piles if they are not actively being used

Response See Response 2.17.



# Comment ID 0065

- A1.001.012

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.3.4 Section 2.1.3.4(c) requires minimizing the generation of dust. This requirement is unreasonably vague. No specific criteria a re provided to give regulated entities assurance they are in compliance with the requirement. Therefore, even if regulated entities apply water and use other dust suppression techniques, the adequacy of those measures will be subjectively assessed by an inspector

.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

330 Response See Response 2.15.



# Comment ID 0066

- A1.001.015

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.4 Discussion: This requirement is problematic when the storm water conveyance channel or inlet is an integral part of the const ruction project itself. It's impossible to prevent sediment from being deposited in or near a ditch when the purpose of the activity is to build the ditch in the first place. Additionally, when building roads it is often necessary to use the ditch as part of the system of storm water
controls - to route water, to site ditch checks, to site sediment basins and traps, etc. It's impossible to keep sediment out of the dit ch when the ditch is part of the system designed to remove sediment from runoff.

Suggestion: I t appears impracticable to ask on one hand for someone to do water sampling during a storm event, and on the other ask us to clean out the sediment at the same time. Allow for flexibility in time to repair and maintain BMPs.

Response See Response 2.21.



# Comment ID 0066

- A1.001.016

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.4 Discussion: Inlet protection is very ineffective and poses a huge safety risk. The types of curb inlet controls that can be installed at drop inlets adjacent to active traffic at the very minimum slow water and in some cases block it (excavating a pit in front o f it isn't an option because that's where the road and traffic is, or potentially could enter the area accidentall y). This means that runoff backs up into active traffic lanes during storm events, which presents safety and liability issues.

Suggestion: Revise this section's language to take the safety of the travelling public into consideration. It is safer and mo re effective to take precautions to minimize the amount of sediment that can enter the runoff before it gets to the inlet, or in some cases e ven to establish controls at the discharge point of the storm sewer.

Response See Response 2.12.



# Comment ID 0068

- A1.001.021

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1.3.4 This Part also attempts to regulate "dust" leaving construction sites as well as other materials via wind dispersion. To the extent that stormwater collects dust as sediment, appropriate controls can be implemented to control dust

- generating activities or treating theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

331 dust

- laden stormwater. To the extent that EPA is proposing to use the NPDES permit program to regulate airborne dust cl ouds that may leave a construction site aloft, FSWA does not believe that airborne dust clouds are subject to permitting under the NPDE S program. That program only regulates pollutants associated with certain construction operations that are discharged fro m a property via stormwater through a point source to a water of the U.S. General dust dispersion that settles off site is not subject to such permitting.

Response See Response 2.15.



# Comment ID 0093

- A2.001.042

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.4 This part would require contractors, at the end of each workday, to sweep, shovel or vacuum the streets, sidewalks, and other paved
areas around the construction site to remove track -o ut material or other sediment deposits. In addition, it would require contractors to immediately start to remove sediment that has been deposited in or near any stormwater conveyance channel or storm drain inle t and complete the removal by the close of the next full work day. AGC is concerned about these new requirements - that are not part of the
2008 CGP - would indirectly require daily site inspections, which AGC believes is XXXX (see AGC's Comments below...)

Response See Response 2.14.



# Comment ID 0093

- A2.001.043

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.4 According to this part of the Draft, "For any stockpiled or land clearing debris composed, in whole or in part, of sediment o r soil, you must ... [p]rovide cover or other appropriate temporary or permanent stabilization to avoid direct contact with precipitation or to prevent sediment discharge ... [and to] the extent possible, contain and securely protect from wind unless actively be ing used ... ." On a highway project, many of the resulting soil stockpiles are so large that it would not be possible to cover or contain them. From a business operations standpoint, it makes more sense to have one large pile to control versus many small on es. It also may not be feasible to provide final stabilization to these stockpiles if their product is to be re

- incorporated into the project at a later date. AGC recommends that EPA delete these provisions and instead require perimeter controls around any stockpiles.

Response See Response 2.17.



# Comment ID 0093

- A2.001.044

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

332 Issue Category: 2.1.3.4 The Draft also attempts to regulate "dust" leaving construction sites. To the extent that stormwater collects dust as sediment, appropriate controls can be implemented to control dust

- generating activities or treating the dust

- laden stormwater. To the extent that EPA is proposing to use the NPDES permit program to regulate a irborne dust clouds that may leave a construction site aloft, AGC does not believe that airborne dust clouds are subject to permitting under the NPDES program. That program only regulates pol lutants associated with certain construction operations that are discharged from a property via stormwater through a point source to a water of the U.S. General dust dispersion that settles off site is not subject to such permitting.

Response See Response 2.15.



# Comment ID 0096

- A1.001.029

Author Name: Asmus Susan Org anization: National Association of Homebuilders Issue Category: 2.1.3.4 EPA is proposing to require dust suppression to avoid discharging sediment into waters of the U.S. through wind erosion. The CWA, however, does not give EPA authority to regulate airborne particles; that is within the purview of the Clean Air Act (CAA). [ FN 54] Furthermore, the CAA only provides the Agency the authority regulate fugitive dust, which it has done effectively through its national ambient air quality standard (NAAQS) for particulate matter (2.5 – 10 microns in diameter). The statutory provisions for the NAAQS program to regulate fugitive dust and other criteria pollutants are qui te extensive, but nowhere authorize EPA to use another statute or regulations to control an air pollutant. Moreover, the dust suppression requirement will only complicate matters for builders working
within CAA

- identified “non

- attainment areas.” [FN 55] In these cases, builders are already required to have a clean air permit and requirements for dust suppression that may conflict with the proposed requirements of the CGP. For example, in Maricopa County, Arizona, the Dust Permits allow water to be used as a “crusting” temporary stabilization agent, but the Arizona Department of Environmental Quality states in its permit Fact Sheet that that it does not recognize temporary stabilization of areas by the use of water crusting. In addition, areas that are in attainment for particulate matter are required to have an air quality implementation plan that
“contain emissions limitations and measures” for the “prevention of significant deterioration.” [FN 56]. In other words, dust is already addressed through several p rovisions of the CAA and state implementing programs. The authority to regulate air pollutants comes specifically from the CAA and not the CWA. To avoid confusion and needless duplication, NAHB recommends that the CGP not contain any language about dust su ppression because the CAA already does so and EPA’s Office of Water does not have the expertise or the authority to regulate air pollutants.

[FN 54] 42 U.S.C. 7401 et seq. [FN 55] 42 U.S.C. §7407(d).
[FN 56] 42 U.S.C. §7471.

Response See Response 2.15.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

333 

# Comment ID 0098

- A1.001.011

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 2.1.3.4 We recommend that the Agency reconsider the requirement to manage removed sediment by spreading it over exposed areas or utilizing it a s fill. Removed/eroded earth typically loses the cohesive properties inherent in native soil. As a result, sediments may be unacceptable as fill and more erosive than other, more appropriate cover materials.

Response EPA notes that the 2012 CGP does not include the proposed provision to which the commenter refers.



# Comment ID 0128

- A2.001.011

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 2.1.3.4 Part 2.1.3 also proposes mandatory street cleaning and wheel wash requirements to control "track out." In doing so, it creates an unreasonable standard of "no visible signs" of sediment being present on impervious surfaces. However, the December 2009 C&D ELG rejected proposed provisions associated with mandatory wheel wa shing and "same

- day" street cleaning because appropriate implementation of such provisions must be based on the particular "site's configuration." 74 Fed. Reg. at 63,018. EPA should develop more flexible and reasonable control practices to address any trac k- out concerns.

This Part also attempts to regulate "dust" leaving construction sites. To the extent that stormwater collects dust as sedimen t, appropriate controls can be implemented to control dust

- generating activities or treating the dust

- laden storm water. To the extent that EPA is proposing to use the NPDES permit program to regulate airborne dust clouds that may leave a construction site aloft, F SWA does not believe that airborne dust clouds are subject to permitting under the NPDES program. That pr ogram only regulates pollutants associated with certain construction operations that are discharged from a property via stormwater through a point source to a water of the U.S. General dust dispersion that settles off site is not subject to such permitting

.

Response See Response 2.14.



# Comment ID 0133

- A2.001.015

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.3.4 The proposed permit condition requires the removal of track

- out sediment by the end of the same workday in which the track

- out is discovered. Again, this condition fails to account for the unique challenges presented for linear transportation projects. Disturbed areas must be kept open for the traveling public even when construction is not a ctively occurring. This can result in track

- out sediment into areas outside of the project limits. The proposed timeframes also do not account for times when active construction is no lon ger occurring such as winter shut down. It would be impracticable for our maintenance forces to implement these req uirements once active construction is over and stabilization measures have been implemented. Additionally, no consideration is provided for ruralRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

334 areas where dirt roads are common. MDT requests that more reasonable time frames be provided and that exceptions be included for sites that have been temporarily or p ermanently stabilized and/or must remain open to public travel.

Response See Response 2.14.



# Comment ID 0133

- A2.001.016

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.3.4 The proposed permit condition requires cover or other stabilization measures to be provided for all soil piles. This conditio n fails to address times when the piles are being actively handled. MDT recommends incorporating additional flexibility into this condition, including time frames for implementation.

Response See Response 2.17.



# Comment ID 0153

- A1.001.008

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.4 This statement should specify "off

- site" or from areas that do not directly discharge to a sediment control structure.

Response See Response 2.14.



# 2.1.3.5 USE OF NATIVE TOPSOIL

Comment ID 0015

- A2.001.027

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.3.5 2.1.3.5 Add additional guidance about turning or seeding stockpiles to assure they stay aerobic.

Response See Response 2.18.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

335 

# C omment ID 0017

- A1.001.011

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.3.5 9) 2.1.3.5

‐ The guideline for limiting soil mounds to no more than 4' appears to be a random number without any basis and should be
removed.

Response See Response 2.18.



# Comment ID 0018

- A2.001.001

Author Name: Pollock Dr. Organization: Ocean County Soil Conservation District (OCSCD) Issue Category: 2.1.3.5 # 2.1.3.5 Use of native topsoil. topsoil. - OCSCD applauds the specification for utilizing native topsoil and especially the statement "to maximize the native topsoil's continued function, when stockpiling native topsoil, you should mound "no higher than 4 feet fo r less
than 1 year, and preferably less than 6 months." OCSCD would p refer to have this recommendation further specified. Maintaining a
soil's "function" requires consideration of the all three soil quality (or health) parameters: chemical, biological and physical.

OCSCD agrees that this approach is the most practical when the soil is suitable for vegetation growth. OCSCD in partnership with NRCS conducted a study which is attached. "Impact of Soil Disturbance During Construction on Bulk Density and Infiltration in Ocean County, New Jersey" This study was conducted of u ndisturbed and disturbed urban soils in Ocean County, New Jersey, to investigate the impact on soil infiltration rates due to modification and compaction during construction operations, to exami ne if the effects are significant enough to alter the Hydrolog ic Soil Group (HSG) classification or Runoff Curve Number, and to provide additional guidance in the use of TR

- 55 for the design of structural stormwater management practices. It illustrates the impact that typical construction practices have on the abilit y of soil to function.

USDA Natural Resources Conservation Service (NRCS) in NJ regarding the use of the current New Jersey Soil Survey data on the web at the following URL:
http://www.nj.nrcs.usda.gov/technical/soils/#soilsurveyproducts. This Soil Survey information shall be utilized by Soil Conservation Districts, the NJDA State Soil Conser vation Committee (SSCC) as well as engineers, planners and others to ascertain the intrinsic characteristics, capabilities and limitations of soils. These factors impact engineering design.

A2501 Requires State Soil Conservation Committee to adopt standa rds concerning soil restoration measures. * New Jersey rule amend/soil restoration signed by Governor on January 5, 2011. This new rule requires that soils be returned to functioning up on completion of construction activities.

"Soil restoration measures" means those measures taken to ensure, to the maximum extent possible, cost

- effective restoration of the optimal physical, chemical, and biological functions for specific soil types and the intended land use.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

336 Response See Response 2.18.



# Comment ID 0025

- A1.001.015

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.3.5 DOTs typically stockpile topsoil to reuse it at the end of a project to expedite vegetative grown on the disturbed areas. To inclu de a limitation of "not longer than 1 year" is problematic since some roadway projects may last longer than a year. In Arizona, th e DOT has an agreement with the Bureau of Land Management and Forest Service that soil stockpiles will not be taller than 5 feet (Guidelines for Highways on Bureau of Land Management and US Forest Service Land).

Response See Response 2.18.



# Comment ID 0030

- A2.001.013

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.3.5
Section 2.1.3.5, page 15 EPA should recommend covering topsoil piles. Other criteria should be based on stability of the pile and not on height. Higher piles allow for smaller footprints and may allow for higher soil moisture content than shorter piles that are spread out. It is difficult to interpret whether EPA guidelines and recommendations are actually requirements. This may be a section of the permit that need s language referring "to the extent feasible."

Response See Response 2.17. See also Response 2.18.



# Comment ID 0046

- A1.001.006

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.3.5 What does EPA consider "Weed Growth"? The Department encourages growing grass on its topsoil piles. Having a nice thick vegetative growth on a humus pile is very effective at controlling erosion, retaining nutrients and increasing organic matter in the soil. This requirement appears to drift into invasive plant control and is not water quality based.

Response
S ee Response 2.18.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

337 

# Comment ID 0060

- A1.001.006

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.3.5
6. Section 2.1.3.5 - This section requires the owner to stockpile and reuse native topsoil for establishing vegetation, unless infeasible. This requirement seems overly restrictive. Instead, EPA should specify the type of material to be used to establish vegetatio n and let the owner determine where they will get material that meets this specificatio n. In addition, the language "unless infeasible" is subjective and should be deleted. This language makes it difficult for a regulator to ensure that an owner is complying with a permit requirement.

Response See Response 2.18.



# Comment ID 0062

- A1.001.015

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.3.5 2.1.3.5 Use of native topsoil. Where disturbance to native topsoil will occur at your site, unless infeasible, you should sto ckpile and reuse it in areas that will be stabilized with vegetation if applicable. To maximize the native topsoil's continued function, when stockpiling native topsoil, you should mound the soil and cover to prevent soil erosion and weed growth. As a guideline, soil should be mounded no higher than 4 feet high for less than 1 year, and preferably for less than 6 months.

Brevard County Comment: Mounding less than 4' is impractical on most sites. Enforcement will require multiple handlings of so il. Reuse encourages invasive and other non desirable vegetation to sprout thus requiring the application on much more herbicides.

Response See Response 2.18.



# Comment ID 0064

- A1.001.013

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.5
Secti on 2.1.3.5, page 15 - Full "Use of native topsoil" paragraph

•Consider stating that stockpiling topsoil for extended periods can cause topsoil to become inert and, therefore, reduce like lihood of achieving final stabilization through

re

- vegetation.

Response See Response 2.18.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

338 

# Comment ID 0066

- A1.001.017

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.5 Discussion: The guidance in the draft permit states that soil should be mounded no higher than 4 feet and for less than 1 year, preferably for less than 6 months. It is unclear whether or not this is a permit requirement or just a guideline. Because of restricted and oftentimes limited ROWs, state DOTs may need to store soil higher than 4 feet. Due to long and varying project durations this material may be stockpiled on site for more than 1 year. The recommendation for mounding topsoil no higher than 4 feet for less than a year to protect the microbial activity in the soil which would be destroy ed within large stockpiles is understood. However, the recommendation for covering the stockpiles to control erosion and prevent weeds would also result in killing microbial activi ty. The impact is that you are destroying the nutrient and microbial value o f topsoil and making it useless. Plant growth on the stockpiles is a good method for erosion control.

Suggestion: Consider modifying this section's requirement to cover topsoil stockpiles, as this may result in reduced or total lack of microbes in the soil when it is ultimately replaced on a project site where vegetative cover may be the final BMP. This section also needs clarification; it is our opinion that this should not be a requirement, but more generally a best management practice g uideline (i.e. preferred alternative).

Response See Response 2.18.



# Comment ID 0076

- A1.001.008

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.1.3.5 1. Target requests that the EPA explain the intent of the soil stockpile limits of 4 feet high and the 1 year storage timeline. If the EPA's desired outcome is erosion control performance, are there alternate BMPs that would allow larger stockpiles to be stabilized longer than I year?

2. Targets requests that the EPA consider adding a de finition of stockpiles to the permit.

Response See Response 2.18.



# Comment ID 0093

- A2.001.045

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.5Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

339 The Draft states: "As a guideline, soil should be mounded no higher than 4 feet high for less than 1 year, and preferably for less than 6 months." This timetable is problematic because many construction projects, especially large infrastructure projects such as h ighways, last for more than a year. At the conclusion of the project, it is common practice to reuse topsoil stockpiles to expedite vegetative growth on disturbed areas.

Response See Response 2.18.



# Comment ID 0153

- A1.001.009

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.5 EPA should require a soil test for reuse purposes and fertilize and lime applications prior to removal from the storage pile.

Response See Response 2.18.



# 2.1.3.6 MINIMIZE SOIL COMPACTION

Comment ID 0015

- A2.001.028

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.3.6 2.1.3.6 Also add areas of permanent stormwater management to the areas where compaction should be avoided.

Response See Response 2.19.



# Comment ID 0018

- A2.001.002

Author Name: Pollock Dr. Organization: Ocean County Soil Conservation District (OCSCD) Issue Category: 2.1.3.6 #2.13.6 Minimize Soil Compaction in areas where vegetative stabilization will occur at your site:

a. Restrict Vehicle/equipment use or

b. Use soil conditioning techniquesRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

340 Response See Response 2.19.



# Comment ID 0062

- A1.001.016

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.3.6
Brevard County Comment: Soil conditioning encourages erosion during heavy rainfall events. Also raises construction costs in areas
where additional work will occur at a later date.

Response See Response 2.19.



# Comment ID 0066

- A1.001.018

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.6 Discussion: We agree that renovation of compacted soil to support vegetation growth is recommended. However, discing, deep

ripping, and sub

- soiling is impractical and d angerous on sloped areas of 3:1 or greater (steeper). Placing equipment on 3:1 or steeper slopes destroys the integrity of the slope and is very dangerous to equipment operators. In many instances, these 3:1 or grea ter slopes are necessary due to ROW considerations and drainage.

Suggestion: Do not require the minimization of soil compaction by these methods on slopes of 3:1 or greater.

Response See Response 2.19.



# Comment ID 0076

- A1.001.009

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.1.3.6
2.1.3.6

- Soil Compaction: Is infiltration the desired outcome of this requirement? For sites that have known soil contamination, is infiltration still a priority for the EPA? Target is concerned that this requireme nt seems site specific and does not utilize best design practices for all sites to ensure environmental priorities are realized.

Response See Response 2.19.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

341 

# Comment ID 0080

- A2.001.018

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.3.6 7. Minimize soil compaction and preserve topsoil - Both of these practices are supported by the COA in an effort to minimize stormwater runoff as it promotes infiltration techniques which is a key component of LID implementation strategizes for the fully developed site.

Response See Response 2.19.



# Comment ID 0110

- A1.001.004

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.1.3.6 On steep slopes, equal to or g reater than 30%, a minimum level of compaction will be required (suggest greater than 85%) to ensure that the slope will be geotechnically stable. Other geotechnical considerations should also be reviewed by the designer.

Response See Response 2.19.



# 2.1.3.7 STABILIZE CONSTRUCTION ENTRANCE AND EXIT POINTS [REQUEST FOR COMMENT]

Comment ID 0028

- A1.001.001

Author Name: Jones P. Organization: Issue Category: 2.1.3.7 Essentially, with or without a construction wheel wash (not feasible in freezing tempe ratures), it would be impossible to "Eliminate"
track

- out with "no visible signs of soil tracking from vehicles". Even the most meticulous sites will have evidence of some trackin g, even in dry summer weather.

Proper stabilized exits, wheel washes, and daily sweeping will not totally eliminate track

- out; there will still remain "visible signs of soil tracking".

This phrase will essentially place every construction site in non compliance at all times. The verbiage utilized in the 2008 CGP "track
out sho uld be minimized to the maximum extent practicable" should be retained.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

342 Response See Response 2.20.



# Comment ID 0030

- A2.001.015

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.3.7 Section 2.1.3.7 b, page 16 Wheel wash outs are only effective for limited projects for most construction sites. In many cases, they tend to cause more o f a problem. Water is also not always available, particularly in arid, rural locations such as oil and gas developments, rural utility projects, and roadway projects. Many projects may not need wheel washouts or traditional rock VTCs that extend for a minimum of 50 feet (see comment 9). Many areas do use mechanical sweeping to address sediment track out and this is not addressed in the CGP. Also, "eliminate" is an absolute term that is nearly impossible to truly comply with; "minimize" is a more reasonable term in terms of achieving compliance.

Response See Response 2.20.



# Comment ID 0037

- A1.001.011

Author Name: Valdez Bruce Org anization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.3.7 It is requested that EPA clarify whether the requirement to wash vehicle tires or provide a similarly effective way of preven ting track

out (Part 2.1.3.7b) is in addition to the requirement to stabilize all entrance and exit points.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0038

- A1.001.013

Author Name: Minervini W. Organization: Issue Category: 2.1.3.7 Change "course aggregate" to "coarse aggregate."

Response See Response 2.20.



# Comment ID 0046

- A1.001.007

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

343 Issue Category: 2.1.3.7 These BMPs are effective and should be required. However, it is not attainable: to require "no sediment is discharged during storm
events".

2.1.3.7.b. Eliminate track

- out from vehicles.

Track

- out cannot be eliminated but it can be controlled. It is not prudent to require wheel washing in New Hampshire. It is cold in the winter and wheel washing is not feasible. It would be very problematic if it were required. Stabilized construction entrances and e:xits, and sweeping are generally very effective at controlling track

- out. EPA should also consider contacting equipment manu facture to determine the effect on construction vehicles, especially braking systems.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0047

- A2.001.011

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.3.7 Section 2.1.3.7b, page 16

Projects will never be able to completely "eliminate" track

- out. The more appropriate term would be to "minimize" this type of pollutant source. Requiring wheel wash outs is not an effective BMP and in some cases will cause othe r problems especially with controlling the wastewater and disposal methods. Some types of construction projects just do not have the space for such a BM P (see comment 8 above). In addition, water is also not always available at the site which would then re quire trucking it in and storing it onsite. The more appropriate BMP, which is not addressed in the CGP, would be to use mechanical sweeping to address sediment track

out.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0053

- A2.001.011

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.3.7
b. Eliminate track

- out from vehicles. Some effort should be made to define the difference between "Trackout" and "Staining". Trackout has been defined as materials that adhere to and agglomerate on the surfaces of paved areas accessible to the public. Staining on the other hand is fine material, or even a dried liquid that remains in the cracks/crevices of pavements accessible to the public that

cannot be swept up or remediated. Typically, violations are not assessed for staining.

Response See Response 2.20. Refer also to Response 2.14.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

344 

# Comment ID 0062

- A1.001.018

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.3.7 c. Wheel washdown requirements. If you wash vehicle tires before exiting the site: i. Identify and designate wheel washdown areas to be used at your site, and clearly flag off such areas or mark them with signs;
ii. Conduct wheel washdown outside of any buffers established consistent with Part 2.1.2; iii. Refrain from the use of soaps and solvents; and iv. Direct wash water into a sediment trap or alternative control that provides equivalent or better treatment prior to disch arge.

Brevard County Comment: 1) And if water is not available? 2) What of high water tables where infiltration is not feasible? 3) Small operator penalty. 4) Restricted access sites will limit feasibility.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0064

- A1.001.015

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.7 Section 2.1.3.7.b, page 16 - Full "Eliminate track

- out from vehicles" paragraph

•This section is potentially redundant with 2.1.3.4. Consider deleting this paragraph.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0064

- A1.001.016

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.7 Section 2.1.3.7.b, page 16 - Full "Eliminate track

- out from vehicles" paragraph

•The use of "Eliminate" is a very definite word regarding track out. A change to "minimize track out to MPE" will be more ach ievable.

Response See Response 2.20. Refer also to Response 2.14.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

345 

# Comment ID 00 65

- A1.001.013

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.3.7 Section 2.1.3.7(a) requires that all construction entrance and exit points be stabilized for a minimum of 50 feet from the en try or exit. It will not be possible to comply with this strict 50 - foot requirement in all instances. Some sites lack adequate space to stabilize the
entrance and/or exit a minimum of 50 feet.

CCWC recommends that EPA modify Section 2.1.3.7(a) to allow alternative BMPs if space is limited followed by evaluation of the effectiveness of those BMPs. For example, possible alternatives where space is limited include establishing a suitable exit p oint for wheel wash downs in order to prevent tracking sediment offsite . Another alternative might be designating vehicles for onsite use only and not permitting any other vehicles on the jobsite.

Response See Response 2.20.



# Comment ID 0066

- A1.001.020

Author Name: Saenz Amadeo Organization: Texas Department of Transporta tion (TxDOT) Issue Category: 2.1.3.7 Discussion: Because of limited ROW and safety concerns, when active traffic must be maintained through the construction proje ct, it may be unreasonable not to have some material tracking on public roads within the project limits (the material has not left to project limits). It is not practicable to suggest that no off site tracking occur during storm events. Previously the requirement was to minimize
off

- site tracking to the maximum extent practicable.

Suggestion : Suggest revising this section to allow SWPPP to address this issue by implementing proper BMPs for the project (e.g. daily sweeping).

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0068

- A1.001.019

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1.3.7 Part 2.1.3 also proposes mandatory street cleaning and wheel wash requirements to control "track out." In doing so, it create s an unreasonable standard of "no visible signs" of sediment being present on impervious surfaces. However, the December 2009 C&D ELG rejected proposed provisions associated with mandatory wheel washing and "same

- day" street cleaning because appropriate implementation of such provisions must be based on the particular "site's configuration." 74 Fed. Reg. at 63,018. EPA should developRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

346 more flexible and reasonable control practices to address any track

- out concerns. In fact, the2008 CGP language (see Part 3.1(B)) provides such flexibility and should be used in lieu of the overly

- prescriptive language in the Proposed CGP.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0068

- A1.001.020

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1. 3.7 Part 2.1.3 imposes stringent entrance and exit point requirements that require stabilization for a minimum of 50 feet as well as a standard that "no" soil can be left exposed and "no" sediment can be discharged during storm events. The basis for the 50

- foot limit is unclear andtherefore appears to create an arbitrary standard. The combination of the arbitrary 50

- foot limit as well as the unreasonable standards that "no" soil can be left exposed and "no" sediment can be discharged creates an difficult an d unreasonable requirement. The 2008 CGP language should be used in lieu of the Proposed CGP provision.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0071

- A3.001.004

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.3.7 •Part 2.1.3.7 Entrance and Exit Points. (b) Eliminate track

- out from Vehicles and Part 2.1.3. Good housekeeping requirements. (a) Remove deposited sediment. Part 2.1.3.7(b) contradicts Part 2.1.3.4 (a), which requires sweeping at the end of the day in instances of track out, whereas Part 2.1.3.7(b) requires the elimination of track out. Elimination is not feasible. Even the suggested wheel wash could leave staining due to dust or water residue. Altering the language from "eliminate" to "minimize, control, or curtail" is a reasonable alternative. Additionally, changing "no visible signs of tracking" to "no visible signs of tracking accumulations" provide a
feasible alternative.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0071

- A3.001.005

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.3.7 Implementing a wheel wash on a site restricted by ROW or geography could be difficult to impossible, as the wheel wash requires a sediment trap. In addition, the wheel wash will cause a backup in traffic, which cannot be accounted for on a restricted site . A wheel wash might be merited on one site and not another. Tracking on sandy soils migh t be accomplished on one site with a 20 ft. trackingRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

347 pad, but on a site with clays, even a 50 ft. might not be adequate. Add language that states "vehicle washout is required on sites where tracking cannot be controlled with other methods".

Response
See Response 2.20. Refer also to Response 2.14.



# Comment ID 0071

- A3.001.014

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.3.7 •Part 2.1.3.7 (b) Eliminate Track

- out from Vehicles contradicts Part 2.1.3.4 (a) Remove deposited sediment, which requires sweeping at the end of the day in instances of track out, whereas this Part requires the elimination of track out.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0071

- A3.001.015

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.3.7 •Part 2.1.3.7 (b) Eliminate track out from vehicles. This Part requires that vehicles wash tires before exiting the site or p rovide a similarly effective way of removing sediment from wheels and preventing track out and lists rumble strips and aggregate as examples. Does this mean that a tracking pad alone is enough?

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0075 -A2. 001.009

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.3.7 A better definition of "All construction entrance and exit points" is needed for linear projects.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0077

- A1.001.001

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 2.1.3.7Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

348 The permit proposes to require construction entrances to be fifty feet long, and to require tire washing. Neither of these is practical for residential home construction. The Blue Book allows for a thirty foot length for residential sites. Tire washing is not practical for most small sites. The requirement to eliminate track

‐ out should be simply that no significant signs of so il tracking shall be present on roadways.

Response See Response 2.20.



# Comment ID 0087

- A1.001.021

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.3.7 Finally, the CGP includes wheel washdown requirements at Section 2.1.3.7.c, which are far too detailed for a general permit and should be addressed, if at all, in a permittee's SWPPP.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0088

- A1.001.019

Author Name: Graves John Organization: Mi nnkota Power Cooperative, Inc. Issue Category: 2.1.3.7 Among the unrealistic requirements are:

-- In this region, Class V gravel mix is most often used at an 8 to 12 inch thickness. This works much better and is more availa ble than
crushed rock or coarse aggregate. This is also most often recommended by geotechnical engineers. We would use a geo

- fabric if the geotechnical investigation recommends it

Response See Response 2.20.



# Comment ID 0091

- A2.001.004

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.1.3.7 4. Fact Sheet Item 5. Part 2.1.3.7.a: The statement "No visible signs of soil tracking from vehicles should be present on public or private roadways exiting the site" is not practical. If BMPs are in place and small amounts of sediment are still tracking out of the site, it seems reasonable to implement an additional daily BMP to sweep or remove sediments tracking out. Request a change to above statement to allow minimal amounts of track out with a requirem ent to sweep tracked sediments at the end of each work day.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

349 Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0093

- A2.001.004

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.7 Other provisions of the Draft are similarly overreaching. Part 2.1.3 of the Draft would mandate street cleaning and wheel was h requirements to control "track out." In doing so, it would create an unreasonable requirement for "no visible signs" of s ediment being present on impervious surfaces. In December of 2009, when it took what it thought would be final action on the C&D ELG, EPA rejected such mandates for wheel washing and "same

- day" street cleaning, because the appropriate implementation of suc h provisions must be based on the particular "site's configuration." See 74 Fed. Reg. at 63,018. EPA should continue to take this more fle xible and reasonable approach to the control practices necessary to address any track

- out concerns.

Response
See Response 2.20. Refer also to Response 2.14.



# Comment ID 0093

- A2.001.047

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.7 AGC also finds the provision prohibiting sediment discharge from a construction exit to be unreasonable. Construction exits by their function remove mud from vehicle wheels. This mud accumulates within the construction exit aggregate. During a single storm e vent mud can accumulate to the point where it discharges as storm water runoff passes through the aggregate. In addition, EPA in Subsection B states that "No visible sign of tracking from vehicles should be present on public or private roadways exiting t he site."
The term "No visible" is too restrictive and unreasonable . Even the most rigorous methods of mud removal such as wheel washing will leave traces of silt on a roadway. It is impossible to completely remove all traces that construction vehicles are exiting a site. EPA should remove this provision.

Finally, it is common for construction sites to have separate (one

- way) construction entrance and exit points. Limited or no stormwater management value is gained from stabilizing, or installing a construction exit, at a designated one

- way construction entrance point.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0093

- A2.001.048

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.7Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

350 The Draft states: "No visible signs of soil tracking from vehicles should be present on public or private roadways exiting the site." This is impossible even when exiting from fields which have no construction on them. The phrase "exiting the site" must be removed. In addition, EPA should allow for the fact that often some fine materials may remain in the cracks/crevices of pavement; it may be visible to the public, but it cannot be swept up or remediated easily.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0096

- A1.001.030

Author Na me: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.7
The 50

- foot minimum length for stabilizing the construction entrance is not possible for small construction sites, such as single lots within a larger subdivision. Such sites can also be found in urban areas or where a locality may seek to increase the density of housing, in which case this requirement cannot be met. A clause should be added to the language of the 50

- ft stabilization requirement that specifically exe mpts single lots from this requirement and also recognizes that small sites may be limited by size of the permitted building site, thus may have limited opportunities to install stabilized construction entrances at the site. Perhaps includin g language
such as “as feasible” or “where practical” would provide sufficient flexibility.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0096

- A1.001.031

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.7 Part 2.3.1 proposes mandatory street cleaning and wheel wash requirements to control “track out.” In doing so, it creates an unreasonable standard of “no visible signs” of sediment being present on impervious surfaces. However, the final C&D ELG r ejected proposed provisions associated with mandatory wheel washing and “same

- day” street cleaning because appropriate implementation of such provisions must be based on the particular “site’s configuration.” [FN 57] EPA should develop more flexible and re asonable control practices to address any track

- out concerns.

[FN 57] 74 Federal Register 63,018 (2009).

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0117

- A1.001.001

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 2.1.3.7Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

351 The permit proposes to require construction entrances to be fifty feet long, and to require tire washing. Neither of these is practical for residential home construction. The Blue Book allows for a thirty foot length for residential sites. Tire washing is not practical for most small sites. The requirement to eliminate track

‐ out should be simply that no significant signs of soil tracking shall be present on roadways.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0121

- A2.001.016

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 2.1.3.7 Section 2.1.3.7.b indicates that the permittee must eliminate track

- out (sediments). Although there are a number of measures that can
reduce track

- out, it is not possible to completely eliminate it under all conditions. For example, during cold weather conditions, wheel washing is not practicable. Furthennore, like all mitigat ion measures, the other methods described in the pennit, rumble strips and aggregate stone, are effective at minimizing track out rather than completely eliminating it. Therefore, the pennit should be revised to require minimizing (not eliminating) track -o ut.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0127

- A2.001.004

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 2.1.3.7
Section 2.1.3.7.a

Proposed Language

Stabilize construction entrance and exit points. You must stabilize all construction entrance and exit points for a minimum of 50 feet from the point of entry/exit so that no soil is left exposed and no sediment is discharged during storm events. Examples of s tabilization techniques include use of a 6

‐ inch thick pad of crushed rock, course aggregate, or stone (greater than 1.5 inches) with an underlying
filter fabric.

Concern

Areas that have a directional one

‐ way entrance should not be required to have stabilized entrances, only stabilized exits. This is an unnecessary cost and maintenance burden.
Suggested Correction
Specify exit points only requiring stabilization.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

352 Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0131

- A1.001.006

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.1.3.7 Part 2.1.3.7 (a) states "You must stabilize all construction entrance and exit points for a minimum of 50 feet from the point of entry/exit so that no soil is left exposed and no sediment is discharged during storm events." Requiring that no sediment is discharged during storm events is a discharge prohibition that is unrealistic (i.e., minor trackout and subsequent clean

- up with no further downstream transpo rt on roadway surfaces occurs at almost every site) and conflicts with C & D rule 450.21 (a) (5) which requires the minimization of sediment discharges from the site. Part 2.1.3.7 (b) is titled "Eliminate track out from vehicles". Sediment is not listed

as a discharge prohibition in the C & D rule. Further, sediment is not included in part 2.3.2 of the Proposed CGP titled "prohib ited discharges" nor is it included in Appendix "A," definitions of prohibited discharges. LBA respectfully submits that that Part 2.1.3.7 (a & b) should be reworded to "minimize the discharge of sediment" rather than "eliminate" or "prevent" the discharge of sedimen t.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0139

- A2.001.001

Author Name: Aho Andrew Organization: Geosynthetic Materials Association (GMA) Issue Category: 2.1.3.7 GMA recommend the entrance and exit points be stabilized at a minimum of 50 feet. GMA also recommends additional language b e added to 2.1.3.7 Entrance and exit points, subsect ion a., delete the term "filter fabric" and replace it with "geotextile and/or geogrid."

Response See Response 2.20.



# Comment ID 0146

- A1.001.001

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 2.1.3.7 2.1.3.7b: Requires eliminating track out, providing a wheel wash, and "No visible signs of soil tracking from vehicles should be present on public or private roadways exiting the site."

Eliminating track out is possible. However, wheel washes are not feasible in areas where public water is not readily available, and often create a bigger mess to work with at the entrance/exit of the site. A well

- constructed construction entrance and daily street cleaning (not just sweeping - sometimes bobcats or s hovels are needed) should be substituted.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

353 Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0153

- A1.001.011

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.7
The wheel/wash is outside of the scope and should not be required.

Response See Response 2.20.



# Comment ID 0159

- A1.001.006

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.3.7 We are extremely concerned about the permit language, "that no soil is left exposed and no sediment is discharged during storm events..." The no sediment discharge language would require permitees to establish and maintain conditions that may not exist w hen
the site is in its natural state. Thi s language appears to exceed water quality standards and exceed performance criteria elsewhere in this permit. EPA should show cause for this level of regulation

Response See Response 2.20. Refer also to Response 2.14.



# 2.1.3.7Q STABILIZING ENTRANCE AND EXIT POINTS FOR A MINIMUM OF 50 FEET

Comment ID 0015

- A2.001.006

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.3.7Q Q5. 50' stabilized entrance - Agree. Need to add additional guidance for paved surface access points

- are they considered stabilized? They likely need additional bumper pad or other controls to shake off loose materials from tires.

Response See Response 2.20.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

354 

# Comment ID 0021

- A1.001.016

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.1.3.7Q 5. CGP Section 2.1.3.7 proposed a new requirement for the stabilization of entrance / exit points for a minimum of 50 feet. T here are situations where is infeasible. For example, sometimes there are small satelli te areas of a construction site separate from the main site where a contractor constructs a small building. This small separate site can often times has limited access and limited mater ial laydown
where a 50 foot stabilized entrance in not feasible. Since these sites are small, so is the traffic and potential for sediment transport considering the limited workers in the area and the small amount of disturbed area. I agree with the 50 foot minimum for the main
entrances/exits and most situations but it is of my opinion that additional verbiage be incorporated to relieve the operator of these requirements where 50 foot is not able to be achieved. We could document the reasons for not being able to meet the requireme nt in
our SWPPP.

Response See Response 2.20

.



# Comment ID 0028

- A1.001.002

Author Name: Jones P. Organization: Issue Category: 2.1.3.7Q Additionally, EPA has requested comments on the feasibility of the requirement to stabilize entrance and exit points for a mi nimum of 50 ft. This requirement is not always practicable, and sometimes not needed. A good example is a single building lot where the structure and or construction activities will incorporate most of the construction area. The requirement of a stabilized exit would not be feasible due to useable area constraints, and may even result in a safety hazard. Minimum standards, in these cases could include daily sweeping, limiting access to the site by vehicles, etc.

I believe most areas over 1 acre could include a stabilized entrance/exit, howe ver, there should remain latitude for the SWPPP designer to make the determination based on specific site requirements.

Response See Response 2.20.



# Comment ID 0030

- A2.001.014

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.3.7Q Section 2.1.3.7, Page 16 There is a great deal of variation regarding the types of sites that are covered under this CGP. Most standard details for tr aditional
VTCs with rock have a minimum 50

- foot length. However, there are small projects that may be part of a larger plan of development (or linear projects) where traditional VTCs will cause more disturbance than benefits. These projects often use TRMs or propr ietary products such as mud mats. Mud mats come in 15

- foot sections and are used when there is limited vehicle access into vegetated areas,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

355 such as pole removals or a bore pit for the installation for an underground utility. Also, not all sites need a stabilized co nstruction entrance (for example, a well pad off a dirt road or other rural sites accessed by dirt road). Construction sites are highly variable in nature and may not be large subdivisions in urban or suburban areas where requiring a 50

- foot construction entrance is appropriate.

Response See Response 2.20. Refer als o to Response 2.14.



# Comment ID 0037

- A1.001.010

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.3.7Q A 50 foot stabilized construction entrance/exit is not practicable on many small single family home lots particularly if building setback is less than 50 feet from the street and construction access to the lot is principally via the future driveway. For example, it is not uncommon to have a 20 or 25 foot setback in subdivisions in our area. For these typ es of projects, the minimum stabilized construction entrance/exit length should be based on the setback or distance between the building and the street used for ingress and egre ss by construction traffic. It is recommended that EPA modify this Part to acco unt for this type of situation.

Response See Response 2.20.



# Comment ID 0047

- A2.001.010

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.1.3.7Q Section 2.1.3.7, page 16

Construction sites are very different and may not necessarily be large developments where requiring a 50

- foot construction entrance is appropriate. For example, small projects that may be part of a larger plan of development where traditional rock vehicle trac king control pads will cause more disturbance than benefits. Or linear projects, such as pole removals or a bore pit for the installation for an underground utility, that have limited space for vehicle access and a typical rock vehicle tracking control pad. Xcel Energy has often
used other alternative BMPs in these types of situations such as regular sweeping, turf reinforcement mats or proprietary products such
as mud mats.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0053

- A2.001.010

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.3.7QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

356 a. Stabilize construction entrance and exit points. The Permit does not address the width of the stabilized construction entr ance points. Additionally, construction entrance/exit points may not be able to realize the full 50 foot length from the point of entry/exit. Alternatively, permittees are able to stabilize the entry/exit point to the full extent of property that they own or have a t emporary construction easement. Maricopa County Air quality Departme nt Rule 310 states this scenario. "Minimum dimensions must be 30 feet wide by 3 inches deep and 50 feet long, or the length of the longest haul truck, whicheve r is greater. If an unpaved surface exit does not have adequate width to install a 30

- foot wide gravel pad, then the width of the gravel pad must cover the full width of the unpaved surface exit and such shorter width must be adequate to prevent trackout."

Similar language could be drafted in the EPA CGP.

Response See Response 2.20.



# Comment ID 0055

- A1.001.004

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 2.1.3.7Q ODOT does not recommend specifying a minimum distance for stabilization on either side of the point of entrance/exit. The requirement also states "no sediment is discharged during storm events." The 50

- feet requirement for stabilization does not ensure compliance. A contractor may better meet this requirement with less stabilized distance, but the incorporation of other metho ds. The

spec ified distance does not provide for flexibility in meeting this requirement and may actually promote sediment discharge in ce rtain
instances.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0061

- A1.001.011

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.1.3.7Q In LCPs, construction equipment proceeds along the narrow right

- of

- way and there is neither a reason nor a feasible method to create stabilized entry or exit points. Doing so typically would be infeasible, because development of such points would require disturbance extending beyond the narrow right

- of

- way that legally constrains where work can be done.

Even if land were available, development of stabilized entry/exit locations would result in the disturbance of a greater area than is required to perform the work, doing so would be counterproductive for environmental protection. That is because equipment use d in LCPs does not repeatedly arrive at or depart fr om the work site through the same entry and exit points, and the on

- road transport vehicles typically do not come in contact with the disturbed portion of the site. Physically creating a formal construction e ntrance/exit at a point that will be used by veh icles only once or a few times therefore would disturb more area and create more run

- off risk than it would prevent.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

357 To address this circumstance, we suggest that a proviso be added to Part 2.1.3.7. a stating that, for LCPs, stabilization nee d only occur where there exists an entry or exit point that is used repeatedly during the course of construction.

Response See Response 2.20.



# Comment ID 0062

- A1.001.017

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office
Is sue Category: 2.1.3.7Q Request for Comment: EPA requests comment on the feasibility of the requirement to stabilize entrance and exit points for a m inimum of 50 feet. If this distance is not practicable at sites, explain why and what would you suggest as a minimum threshold for stabilizing
these areas and for what size sites.

Brevard County Comment: Narrow site access pts across/ beside waters of US will render 50' minimum problematic. Many sites (majority in Brevard County) have access near waters of the US. Small scale crossings of minor ditch systems combined with 50 buffer requirement will result in contradictory requirements at some sites.

Response See Response 2.20.



# Comment ID 0064

- A1.001.014

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.7Q Section 2.1.3.7 .a, page 16 - Full "Stabilize construction entrance and exit points" paragraph

•DOT projects and pipeline projects often have tight right

- of

- way that can make meeting this requirement difficult. Not specifying a distance while highlighting requirements of 2.1.3.4 could be a good compromise.

Response See Response 2.20.



# Comment ID 0066

- A1.001.019

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.7Q Discussion: Because of restricted/limited ROW, it may be impossible to have 50 feet reserved for these entrance/exit construc tion points. Additionally, the width of the construction may actually be less than 50 feet.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

358 Suggestion: Language should be added to the permit that allows some flexibility on this item based on project dimensions and ROW
constraints.

Response See Response 2.20.



# Comment ID 0067

- A1.001.017

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.1.3.7Q B. The draft CGP requires a 50

- foot minimum length for construction entrance/exit points to allow for removal of dirt and mud from construction equipment to minimize off

- site tracking. Meeting this requirement will not always be compatible with ROW wi dth and orientation. Entergy requests that EPA remove this requirement for linear ROW projects.

Response See Response 2.20.



# Comment ID 0069

- A1.001.003

Author Name: Cramer M. Organization: Issue Category: 2.1.3.7Q
3. Part 2.1.3.7.a. of the draft EPA CGP requires operators to stabilize all construction entrance and exit points for a minimum of 50 feet so that no soil is left exposed and no sediment is discharged during storm events. Linear construction projects typically do not have a singular entrance and exit point over the life of the project and a temporary entrance/exit location may not have sufficient space for a 50 foot structure that can achieve these requirements. EPA should consider differentiating between permanent and temporary
entrance/exit lo cations, or provide some flexibility in this length depending on the site layout.

Response See Response 2.20.



# Comment ID 0071

- A3.001.027

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.3.7Q
•Part 2.1.3.7 (a) Stabilize construction entrance and exit points. A 50 ft. pad is not always feasible. Linear transportation proje cts are limited by ROW, utilities and geography. Sometimes there is simply not 50 ft. available for a tracking pad, for example hi ghway medians. Additionally this limited space also poses safety issues, such as when installation interferes with providing a clea r shoulder for vehicles to pull off the highway. In such cases CDOT frequently needs to alter the design and add additional B MPs, such as sweeping. A benchmark for alternate technologies similar to the 50 foot buffer benchmark might be a feasible alternative. There are constantly new technologies or innovative site techniques that might be as effective or more effective than a t racking pad. A way toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

359 evaluate these methods (rumble strips, bamboo mats, etc.) would allow greater flexibility and compliance. Additionally, admin istrative controls such as more frequent sweeping (end of day, throughout the day, as determined by site cond itions, etc.) and restricting access to essential vehicles. Administrative controls such these, use in combination with a modified tracking pad provide a reasonab le alternative. These practices are essential when ROW is restrictive on a linear project. A 5 0 ft. pad might be practical on larger sites, but often the restriction is due to width versus total acreage.

Response See Response 2.20.



# Comment ID 0072

- A2.001.006

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.1.3.7Q The establishment of stabilized entrance and exit points is much more practical when dealing with one or two points of entry per job site, such as when constructing a large box store or small subdivision. However, the linear nature of highway projects, often traversing several miles within a given corridor, leads to many access points along the project alignment. MoDOT has found that installi ng and maintaining stabilized construction entrances (our contractors primarily utilize rock/aggregate entrances) at each of these points can be extremely costly and problematic. Problems arise when the continual passage of equipment causes the interstices of the compac ted
rock to fill with sediment and the control device is rendered ineffective. The contractor must then either clean or replace the rock. This is a recurrent process that has become a point of contention on many jobs. The cost of installing a wheel wash station at eac h entrance/exit would be much more cost prohibitive. As often as s tabi lized entrances/exits become ineffective, most contractors find it necessary to maintain clean pavement by supplemental pavement scraping and sweeping.

Additionally, though a 50

- foot stabilized construction entrance may be desirable, requiring a 50

- foot minimum stabilized entrance may be impractical on many highway jobs where right

- of

- way is limited and active grading for new or additional lanes may be just a few feet away from existing lanes.

In this scenario, where cuts or fills are in proximity to existing roadways, it would not be possible to install the required 50 feet when grading is taking place 10 to 20 feet away from existing lanes. Suggested language for this Part would be: Where practical an dfeasible, you must stabilize all construction entrance and exit points for a suggested distance of 50 feet Fom the entry/exit so (hat no soil is left exposed and no sediment is discharged during storm events. When necessary, supplemental pavement scraping and/or sweeping may be necesswy at entry/exit points to maintain clean pavement on public or private roadways. (Also, it seems reasonable that if vehicle
track

- out is located upgrade of an effective sediment capture device, then the sediment capturing BMP should be a recognized practi ce for dealing wi th track

- out.)

In line with the above statement, and also under this Part, MoDOT would like there to be language that would protect permit h olders from being held liable for non

- construction vehicle track

- out resulting from day to day activities of local patrons in proximity to the construction site. In past regulatory action, MoDOT has been cited for track

- out associated with situations like rural mailbox turnouts, agricultural field entrances, rural county road entrances and private driveway entrances t hat line highway corridors and are often found within the project limits of construction jobs. Though many times these types of entrances do introduce sediment and/or grave l onto our paved roadways, these materials are not the result of construction vehicle track

- out, and therefore should be exempt.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

360 A suggested note for this Part would be: Note: Permittees are only responsible for track

- out materials that originate from
construction

- related ingress and egress from construction sites, and shall not be held accollntable for non

- construction related track

- ollt associated with mailbox turnouts, agricultural field entrances, rllral county road entrances, private driveway entrances, etc

.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0074

- A2.001.008

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.1.3.7Q Having a minimum of 50 ft is acceptable as long as there are variances given for exceptional circumstances.

Response See Response 2.20.



# Comment ID 0080

- A2.001.009

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.3.7Q Partner Response: The minimum 50

- foot requirement seems to be practicable for the majority of construction sites. However, on small urban infill development and redevelopment (retrofit) sites with restricted access and limited plan area available, meeting t his requirement is not always possible. In these cases language stating why the 50

- foot criteria cannot be achieved could be clearly documented in the SWPPP. It is suggested that in these cases this approach would be acceptable to the EPA. This language shou ld be added to the proposed CGP. It is recommended that the EPA also add langu age that states that in addition to the 50

- feet minimum criteria that all vehicles entering and exiting the construction site must use or drive over the BMP when gaining access or leaving the site. Our experience has been that the Vehicle Tracking Control (VTC) BMP is not always utilized as the only points of access and

egress.

Response See Response 2.20.



# Comment ID 0085

- A2.001.007

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.1.3.7Q This requirement is reasonable. In the following Part 2.1.4.1.b, EPA should clarify whether visible soil tracking from vehicles constitutes a violation of the CGP. The current language only mandates washing or similar sediment removal techniques, it doe s not set an enforceable standard for performance, ie. no sediment may be tracked off site.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

361 Response See Response 2.20. Refer also to Response 2.14. Refer also to Part 2.1.2.3 of the 2012 CGP.



# Comment ID 0087

- A1.001.039

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.1.3.7Q The requirement in Section 2.1.3.7.a to stabilize entrance and exit points for a minimum of 50 feet is excessive and particul arly unworkable for linear projects, as it will rarely be compatible with right

- of

- way wi dth and orientation. For example, entrance and exit points often cannot be stabilized for a minimum of 50 feet for linear projects because the area available for tracking contro l is constrained by conditions where the access points for dirt roads meet the paved roads. Also, often there are not main or permanent construction entrances associated with a linear utility construction area. Access points are usually provided by landowners, and there may be several that are infrequently used along the length of th e right

- of

- way. Some landowners' properties are residential or agricultural, and the owners understandably will not allow for a 50

- foot rocked area in their fields or lawns. Wheel wash areas are equally impractical in these situations. Use of tracking controls such as rattle plates, where necessary, and/or daily (i.e., on days with construction activities) removal of any sediment tracked onto paved surfaces is more feasible. Because many entry/exit points for linear projects are spread out over the length o f the line and do not have a high frequency of traffic like that found on traditional projects, there should be no minimum threshold for stabilization of these areas on linear projects.

Response See Response 2.20.



# Comment ID 0088

- A1.001.018

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.1.3.7Q Among the unrealistic requirements are:

-- a 50 foot access drive is feasible on only a few of our substation projects and practically none of our line projects

Response See Response 2.20.



# Comment ID 0090

- A1.001.016

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.3.7Q EPA has stated in the Notice that its entry and exit stabilization requirements from Part 2.1.3.7of the Draft Permit reflect a concern that operators should remove sediment deposits that are tracked out of the site or accumulated near sediment controls, to protect on

- site controls and prevent discharge to surface waters.[FN 8] EPA requested com ment on its proposal to require stabilization of all suchRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

362 points for a minimum of 50 feet into the operation area. For the following reasons, AGA urges EPA to exclude linear projects from this requirement.

Pipe installation projects often take place along a public ROW or in utility easements where the purported "entry" and "exit" points from the ROW are merely pipeline installation work space facilitating on

- road and off

- road activity, staging areas for storage, accommodations for projects in curved areas , or drop off points along the project site. (See Exhibits). EPA should not treat these points of ingress and egress as "entrance and exit points" in the scope of this rule. AGA urges EPA to clearly exempt linear project s from Part 2.1.3.7: "where a pipeli ne construction project operates parallel to and within 50 feet of a public ROW or a private utility easement on private landowners' access roads, the points of ingress and egress between the public road or easement and the adjacent operating area
does not constitute an "entry" or "exit" for the purposes of this subsection." While this subsection concerns sediment deposit and tracking concerns, linear pipeline projects already employ best practices to minimize ground disturbance and maintain clear, unsoiled roadways. Examples include the use of timber mats and street sweepers. Thus, AGA asks EPA to narrowly define "entry and exit" points for the purpose of stabilization activity to exclude working points of ingress and egress in pipeline linear projects.

[ FN 8] 76 Fed. Reg. at 22888; Proposed CGP, at, ¶ 2.1.3.7. at 23.

Response See Response 2.20.



# Comment ID 0093

- A2.001.046

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.7Q EPA has requested comment on the feasibility of the requirement to stabilize entrance and exit points for a minimum of 50 feet.

The current wording of this part is unacceptable to AGC. The language should read 50 feet in length to eliminate confusion. T he current wording would require stabilization of all points (presumably in all directions) 50 feet from the point of exit or entrance. On a home site this is the whole front yard.

Length is only one factor which must be balanced with others including available space for safe ingress and egress to the construction area. EPA should allow the site operator flexibility to stabilize the proper width distance as necessary for anticipated traf fic. In addition, EPA must also recognize that a 50

- foot limit is not practical at all sites. AGC recommends that EPA provide an exemption for space constrained projects such as highway projects where work area space may not allow a 50

- foot construction exit (e.g., within medians of roadways) or projects in highly developed areas such as cen tral cities.

Response See Response 2.20.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

363 

# Comment ID 0097

- A1.001.004

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 2.1.3.7Q 5. Wrong section noted - 2.1.3.7; agree with 50 feet.

Response See Response 2.20.



# Comment ID 0097

- A1.001.005

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 2.1.3.7Q 6. Wrong section noted - 2.1.4.5; guidelines are acceptable

Response See Response 2.20.



# Comment ID 0103

- A3.001.007

Author Name: Vickery Mark Organizat ion: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.1.3.7Q In Part 2.1.3.7.a Stabilized construction entrance and exit points, EPA requires permittees to stabilize all construction ent rance and exit points for a minimum of 50 feet from the point of entry/exit so that no soil is left exposed and no sediment is discharged during storm

events.

TCEQ believes the distance of 50 feet is arbitrary and may not be feasible, practical or necessary for many sites. TCEQ belie ves the specific dista nce should be left at the discretion of the permittee, and recommends this requirement follow 40 CFR §450.21(a)(6), which requires the controls be designed, installed, and maintained to "provide and maintain natural buffers around surface wa ters,
direct st ormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration, unless infeasible;....".

Response See Response 2.20.



# Comment ID 0111

- A2.001.006

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.1.3.7Q Dow does not agree with the requirement to stabilize all construction entrance and exit points for a minimum 50 feet from the point of entry/exit so that no soil is left exposed and no sediment is discharged during storm events. Dow is concerned t hat some siteRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

364 geographies may prohibit a 50 foot length. Dow encourages EPA to consider a more flexible approach and allow the permittee to implement an "equivalent" BMP control in lieu of the 50 foot entrance/exit stabilization requirement.

Response
See Response 2.20.



# Comment ID 0115

- A2.001.010

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.3.7Q 2.1.3.7.a Entrance and Exit Points. While National Grid concurs that a 50 foot access point is worthwhile on many development sites with a main access point that is used repeatedly and over a long duration during the course of construction, the requirement for a 50 foot access point may not be necessary on utility maintenance projects. Linear projects typically do not have only 1 or 2 main access points. As work progresses along a ROW, access follows the work activities with access points from different cross streets an d easements. Access may be required for several trips over a few days before another access is used further down the R OW. Using multiple access points is often used to avoiding crossing wetlands along the ROW between structures. Many utility corridors c ontain existing, established access roads along the entire length of the ROW. Many of these roads are hard packed dirt, gravel or grassed. These access points do not necessarily need to be stabilized as presented in the draft CGP. In those instances where they do need upgrade work, National Grid concurs that a length of 50 feet is appropriate.

Additionally, short term utility maintenance work conducted during dry periods may not need the construction of a 50 foot access point because work is conducted with minimal ground disturbance and without multiple crossings. Installing a stabilized access poin t may
result in more soil disturbance than the actual activity.

Finally, in those instances where access is granted across private property to reach a part of the ROW while avoiding sensitive areas, this work may be localized to only a part of the ROW (e.g. access for one pole replacement). The landowner granting access may not approve of the stabilization measures proposed in the CGP.

National Grid recommends that, for utility maintenance projects and smaller construction projects, this requirement be necess ary only
where field conditions warrant. Further, National Grid recommends that the project

- specific SWPPP specify the locations for entrance/exit point stabilization and the method of stabilization.

Response See Response 2.20.



# Comment ID 0123

- A2.001.006

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.1.3.7Q Comment: CRWD supports the proposed permit language.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

365 Response EPA thanks the commenter for the support.



# Comment ID 0126

- A2.001.006

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.1.3.7Q Where feasible, the requirement of 50 foot length of stabilized construction access points is reasonable. However, this amount of space is not always available. The CSC believes an alternat ive to the standard should be to eliminate tracking when the 50 foot length is not
available.

Response See Response 2.20.



# Comment ID 0130

- A2.001.015

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.1.3.7Q 14. ENTRANCE AND EXITS. Part 2.1.3.7. Linear projects have restricted widths and it may be difficult to meet the 50 foot requirement. We believe the current permit requirements to prevent track out are adequate and easily visually monitored for compliance.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0131

- A1.001.005

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.1.3.7Q LBA supports the requirement for stabilizing entrance and exit points for a minimum of 50 feet pursuant to Part 2.1.3.7 (a). There is however, language contained in part 2.1.3.7 that should be revised to properly reflect the practical realities at constructio n sites and
intent of the rule.

Response See Response 2.20.



# Comment ID 0133

- A2.001.017

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.3.7QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

366 The proposed permit condition requires all construction entrance and exit points to be stabilized for a minimum of 50 feet from the point of entry/ex it so that no soil is left exposed. As discussed above, this requirement fails to account for the unique ch allenges presented for linear transportation projects. No consideration is provided for rural areas where dirt roads are common, the many access points that must be maintained within project limits, or the necessity to keep disturbed areas open for the traveling pUblic. All of these factors present challenges in implementing such a condition. Additionally, it is not clea r to MDT which entrances and exits are subject to this requirement. As such, MDT recommends defining "construction" entrances/exits, as well as providing greater flexibilit y for
linear constraints.

Response See Response 2.20.



# Comment ID 0137

- A2.001.00 6

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.3.7Q
50 foot stabilization is achievable in some cases but it should be made clear that small sites such as commercial / retail pad sites and urban locations are not subject to 50 foot stabilization. We are extremely concerned about the permit language, "that no soil is left exposed and no sediment is discharged during storm events..." The no sediment discharge language would requir e permitees to establish and maintain conditions that may not exist when the site is in its natural state. This language appears to exceed w ater quality standards and exceed performance criteria elsewhere in this permit. EPA should show cause for this leve l of regulation.

Response See Response 2.20.



# Comment ID 0145

- A2.001.009

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.1.3.7Q EPA should require that entrance and exits be stabilized for at least 50 feet. The comparatively heavy impacts entrances and exits experience make them especially significant potential sources of sediment discharge. Any exceptions to the 50 foot minimum sh ould be very rarely allowed.

Response See Response 2.20.



# Comment ID 0153

- A1.001.010

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.7QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

367 1. This statement should say a "minimum of 50

- feet where applicable but in no case less than lO

- feet". It should also say "non

- woven fi lter fabric" to not confuse with fabric such as silt fence material. 2. The requirement for a 50

- foot stable entrance/exit is a minimum. This is not specified in the Federal Register and does not belong in this Permit. As guidance, you can make a recommend ation. However, most tractor/trailer rigs will need more space to eliminate tracking.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0159

- A1.001.005

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.3.7Q 50 foot stabilization is achievable in some cases but it should be made clear that small sites such as commercial / retail pa d sites and urban locations are not subject to 50 foot stabilization.

Response See Response 2.20.



# Com ment ID 0168

- A1.001.025

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2.1.3.7Q

-- Site Entrance and Exit Stabilization (Section 2.1.3, Page 16): The recommendation for providing a minimum of 50 feet entrance /exit
stabilization is excessive for the urban environment, and would be prohibitive on small or narrow sites. A minimum of 25

- feet should be adequate for most sites, with the caveat that the entrance/egress protection may need to be extended if there is evidence of off

- site

tra cking.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0170

- A2.001.006

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 2.1.3.7Q The 50' minimum requirement for stabilized construction entrances and exits is not feasible for many small projects and linear projects. Small construction sites (i.e., less than 5 acres), quite often do not have the available space to provide a 50' stabilized c onstruction access point. This requirement becomes even more difficult to satisfy as the project is constructed and less space is available on site. Linear projects often occur in very narrow rights of way where sufficient space is not available to meet the 50' minimum. Also, a linear project may have man y points of access which would result in an excessive amount of disturbance to install and remove the stabilized construction access points. EPA should consider a less prescriptive approach to the prevention of track

- out. This approach shouldRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

368 include a requirement to use a stabilized construction access point, where feasible, along with a performance standard which would prohibit visible signs of track

- out from the construction site.

Response See Response 2.20. Refer also to Response 2.14.



# 2.1.3.8 COMPLIANCE WITH SAFE DRINKING WATER ACT

Comment ID 0046

- A1.001.008

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.3.8 This is not a construction BMP. The requirement needs to go elsewhere in the permit or eliminated.

Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# Comment ID 0064

- A1.001.017

Author Name: Dees Richard Organization: City of Meridian
Issue C ategory: 2.1.3.8 Section 2.1.3.8, pages 16

- 17 - Full "Compliance with Safe Drinking Water Act underground injection control requirements for certain
subsurface stormwater controls" section

•Many states maintain jurisdiction over groundwater pollution as it does not fall under the jurisdiction of NPDES. This requirement may conflict or cause unnecessary additional coordination if a state maintains jurisdiction over a groundwater pollution prev ention

program.

Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# Comment ID 0068

- A1.001.022

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1.3.8 Part 2.1.3 also proposes to adopt through reference certain Safe Drinking Water Act requirements to underground injection control laws and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA includes them in the Prop osed CGP. To avoid creating additional and unnecessary liability under the NPDES program for requirements found in the SDWA and toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

369 simplify the Proposed CGP, FSWA recommends that EPA avoid such unnecessary cross

- referencing. Appropriately regulated sites are subject to these requirements whether or not they also must obtain NPDES stormwater permits. If additional "guidance" is necessary, EPA references a 2008 memorandum that clarifies such issues, and the Agency can use that memorandum in future CGP compliance assistance guidance. See Proposed CGP Fact Sheet at 55.

Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# Comment ID 0093

- A2.001.049

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.8 The Draft also proposes to adopt through reference certain Safe Drinking Water Act (SDWA) requirements relating to undergroun d injection control laws and regulations. Construction sites are subject to SDWA requirements regardl ess of whether EPA includes them in the Draft. To avoid creating additional and unnecessary liability under the NPDES program for requirements found in the SD WA and to simplify the Draft, AGC recommends that EPA avoid such unnecessary cross

- referencing. Ap propriately regulated sites are subject to these requirements whether or not they also must obtain NPDES stormwater permits. If additional "guidance" is nece ssary, EPA references a 2008 memorandum that clarifies such issues, and the agency can use that mem orandum in the future CGP as compliance assistance guidance. See proposed CGP Fact Sheet at 55.

Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# Comment ID 0115

- A2.001.011

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.3.8 2.1.3.8 Compliance with Safe Drinking Water Act underground injection control requirements. National Grid recommends an exception for linear projects that are in compliance with state regulations regarding dewatering

Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# Comment ID 0121

- A2.001.018

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 2.1.3.8 2.1.3.8 Compliance with Safe Drinking Water Act underground injection control requirements. It is recommended that an excepti on for projects that are in compliance with state regulations regarding dewatering.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

370 Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# Comment ID 0128

- A2.001.012

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerc e Issue Category: 2.1.3.8 Part 2.1 also proposes to adopt through reference certain Safe Drinking Water Act requirements to underground injection contr ol laws and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA in cludes them in the Proposed CGP. To avoid creating additional and unnecessary liability under the NPDES program for requirements found in the SDWA and to simp lify the Proposed CGP, FSWA recommends that EPA avoid such unnecessary cross

- referencing. Appropri ately regulated sites are subject to these requirements whether or not they also must obtain NPDES stormwater permits. If additional "guidance" is necessary, E PA references a 2008 memorandum that clarifies such issues, and the Agency can use that memorandum in future CGP compliance assistance guidance. See Proposed CGP Fact Sheet at 55.

Response EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14.



# 2.1.4 REQUIREMENTS APPLICABLE TO SPECIFIC STORMWATER CONTROLS

Comment ID 0066

- A1.001.021

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.4 Discussion: The draft requirements of this section are not reasonable and will greatly increase construction costs.

Suggestion: Suggest that EPA consider drafting rules on this issue specifically for linear DOT projects.

Response Refer to Response 2.1 and Response 2.11.



# 2.1.4.1 CONSTRUCTED STORMWATER CONVEYANCE CHANNELS

Comment ID 0025

- A1.001.016

Aut hor Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

371 Issue Category: 2.1.4.1 For a DOT that is constructing a road project, it may not be feasible to complete stabilization of a stormwater conveyance wi thin the
timeframes identified. Stormwater conveyances channels typically parallel the roads - often on both sides and in the median. For any given project, this condition would appear to require that we "armor" tens of miles of channel. This will be incredibly expen sive and of
limited benefit.

Response Refer to Response 2.21.



# Comment ID 0037

- A1.001.012

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.4.1 Are the requirements in this Part only applicable to channels that carry stormwater runoff that runs onto the site or within the site that has not come in contact with exposed soils? Or, does it apply to all channels that are constructed within the project area? T he Southern
Ute Growth Fund believes that the stabilization requirements in Part 2.1.4.1.b are not practicable for stormwater conveyance channels that convey stormwater runoff from disturbed areas within the project area. See the comments for Part 2.1.4.1.b. below.

Response Refer to Response 2.21.



# Comment ID 0037

- A1.001.013

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.4.1 Part 2.1.4.1.b. states that stabilization of stormwater conveyance channels that divert concentrated flow of stormwater runni ng onto the

s ite and within the site to avoid contact with soils exposed during construction must be completed before the first predicted storm event or within 7 days, whichever is sooner. It is not clear when this stabilization must be initiated. It is assumed that it should be initiated as soon as the channel construction is completed. EPA should clarify when the stabilization activities must be initiated.

Response Refer to Response 2.21.



# Comment ID 0037

- A1.001.014

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.4.1 It is not always practicable to stabilize all stormwater conveyance channels as soon as they are constructed, specifically co nveyance channels or drainage swales used to manage stormwater runoff that originates within the project area. These types of channels are frequently roughed in during the initial phase of the project. An appropriate sediment removal control measure (e.g., sedimen t trap,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

372 sediment basin, rock filter berm, etc.) is installed to remov e sediment in the runoff prior to discharge offsite. Areas discharging to and/or adjacent to these channels may be actively under construction for a significant period of time after the channel is in stalled. For some projects, it is not practicable to inst all sediment barriers along the length of the channel to prevent sediment discharges from the disturbed areas into the channel. Thus, sediment deposition in the channel is likely during the construction phase.

In addition, the channel itself may be disturbed due to the installation of utilities across the channel or by construction activities within the immediate vicinity of the channel. Finally, the channel may need to be regraded during final grading activities. Therefor e, any stabilization that was imp lemented will need to be replaced. It should be left up to the operator to determine whether or not vegetative or nonvegetative stabilization of the conveyance channel as required by this Part is appropriate for their project. The Southern Ute
Growth Fund recommends that the stabilization requirements in Part 2.1.4.1b should not be applicable for conveyance channels that will carry stormwater runoff from disturbed areas and this Part should be revised accordingly.

Response Refer to Response 2.21.



# Comment ID 0046

- A1.001.009

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.4.1 "predicted storm event" This term can be very problematic. Our state regulators require prestorm event inspection for "predicted storms of greater than 0.5" of rain". It has taken years to sort this out because of questions such as:

What weather forecaster do you use? Forecasts cannot be retrieved post event. The forecast changes every 6 hours thus the amount of forecasted rain changes. What about mix precipitation events, how much is liquid, ice or snow? Unless you are ready to specify these issues, you may want to change this requirement.

Response Refer to Response 2.21.



# Comment ID 0049

- A1.001.014

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.1 For clarification, EPA needs to indicate that use of dry mulch, hydraulic mulch, tackifiers, and so forth are suitable for em bankment protection as long as they ar e not used where concentrated flows occur.

Response Refer to Response 2.21.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

373 

# Comment ID 0062

- A1.001.019

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.4.1 Stabilize stormwater conveyance channels. Complete stabilization of stormwater conveyance channels before the first predicted storm event, or within 7 days, whichever is sooner. Examples of vegetative and non

- vegetative stabilization techniques include channel liners, rolled erosion cont rol products (e.g., erosion control blankets and turf reinforcement mats), riprap, geotextiles, or other armoring materials that are suitable for use in areas with concentrated or channelized flow. You are prohibited from applying mulch, hydromulch, tackif ier, or similar erosion prevention practices that are not suitable for use in areas with concentrated or channelized flow in stormwater conveyance channels.
Brevard County Comment: Small site penalty. Summer time in Florida means daily Tstorms and you can't stabilize in 1 day.

Response Refer to Response 2.21.



# Comment ID 0066

- A1.001.022

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.4.1 Discussion: Completing stabilization of channels prior to the establishment of permanent vegetation is infeasible. The use of vegetative
and non

- vegetative stabilization techniques before the first predicted storm is expensive and not practical.

Suggestion: It not cost effective to utilize channel liners as a tempo rary erosion control device in roadside ditches, only for them to be replaced later. Sediment control devices such as silt fences, rock check dams, and sediment control logs could be used to pro tect the channel until final construction of the conveyance is completed. Once final grades are achieved, channel liners or turf reinforcement mats can then be installed and permanent vegetation established as designated on the site plans.

Response Refer to Response 2.21.



# Comment ID 0093

- A2.001.050

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.4.1 The Draft would require "[c]omplete stabilization of stormwater conveyance channels before the first predicted storm event, o r within seven (7) days, whiche ver is sooner ... [using] ... armoring materials that are suitable for use in areas with concentrated or channelized flow." On a highway project, it may not be feasible to complete stabilization of a stormwater conveyance channel within the
timeframes identifi ed. Stormwater conveyance channels typically parallel roadways - often on both sides and in the median. For any given project, EPA's proposed provision would require highway contractors to "armor" tens of miles of channel. This would be incredibly expensiv e and of limited benefit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

374 Response Refer to Response 2.21.



# Comment ID 0111

- A2.001.007

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.1.4.1 Dow supports the requirement for designing stormwater channels which minimize disturbed areas and to reduce erosion. However, Dow is concerned with the requirement that stormwater conveyance channels must be stabilized before the first predicted storm event or within seven days, whichever is sooner. The verbiage "first predicted sto rm event" is ambiguous and should be removed, as this
could be dependent upon the particular news source. Dow is also concerned that the seven days requirement will place undue hardship on the permittee due to unpredictable seasonal influences, weather effects, and site specific characteristics. An alternative approach would be for the permittee to develop (and implement) a critical path timeline for stabilization of stormwater conveyance cha nnels.

Response Refer to Response 2.21.



# Comment ID 0139

- A2.001.002

Author Name: Aho Andrew Organization: Geosynthetic Materials Association (GMA) Issue Category: 2.1.4.1 Complete stabilization of stormwater conveyance channels before the first predicted storm event, or within 7 days, whichever is sooner. Examples of vegetative and non

- vegetative stabilization techniques include channel liners, rolled erosion control products (e.g., erosion control blankets and turf reinforcement mats), riprap, geotextiles, geogrids, geomembranes, geocells, geocomposites, synthetic

tu rf or other armoring materials that are suitable for use in areas with concentrated or channelized flow. ...

Response Refer to Response 2.21.



# Comment ID 0146

- A1.001.002

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 2.1.4.1 2.1.4b: Requires stabilization of stormwater conveyance channels. It is not practical and a waste of money to stabilize a cha nnel that carries turbid water to a sediment trap because it would quickly be covered in mud, and it accomplishes far less than correctly spaced
check dams in the channel.

Response Refer to Response 2.21.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

375 

# Comment ID 0153

- A1.001.012

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.4.1
This section references a 7

- day stabilization requirement. All of these requirements are much too prescriptive for inclusion in the general permit. As suggested previously, set the performance standard for design and the storm event to be used will provide boundary

con ditions for the BMPs yielding these sections most in the permit.

Response Refer to Response 2.21.



# 2.1.4.2 STEEP SLOPE CONTROLS

Comment ID 0017

- A1.001.008

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.4.2 6) 2.1.4.2

‐ Indicates site stabilization must begin within 7 calendar days of the permanent or temporary completion of earth disturbing activities, and that all stabilization must be completed within 3 working days of initiation of stabilization. The onset of site stabilization within 7 calendar days of the permanent or temporary completion of earth disturbing activities should be clarified "if site c onditions allow", and completion of stabilization activities "as soon as possible and as site conditions a llow".

Response Refer to Response 2.2.2.



# Comment ID 0017

- A1.001.012

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.4.2 10) 2.1.4.2

‐ The designation of a 15% slope as being "steep" and requiring additional controls without recognizing site specific conditions is too restrictive. Site specific information, such as land contours, the area down slope (i.e., if it is an activ ely cultivated field) should be considered before requiring the use of specialized contr ols.

Response Refer to Response 2.2.2.



# Comment ID 0025

- A1.001.017

Author Name: Terlizzi WendyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

376 Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.4.2 The requirement for final (vs. temporary) stabilization when work has ceased on a particular slope, will cause great

- added expense to DOT projects in the form of multiple mobilizations of seeding subcontractors. It may not be feasible to stabilize a partial s lope as identified in this condition. Please consider adding language to allow the contractor to maintain temporary stabilization until the end of the project, and then the seeding contractor can seed the entire project area at once. The fact of the matter is that this re quirement will only lead to contractors never "fmis hing" with a slope. They will continue to push dirt around on it until the end of the project in order to avoid fmal stabilization. I would much prefer that the contractor initiate temporary stabilization techniques with extra documentation/insjlections re quired in the SWPPP.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0025

- A1.001.018

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2 .1.4.2 For a large slope, three days may not be sufficient time to complete these activities. Please consider retaining the current requirement or 14 days.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0049

- A1.001.015

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.2 Why is 15% considered to be steep? In Colorado, 15% is approaching something flat! If EPA is going to address steepness, confine steepness to 30% and higher.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0053

- A2.001.002

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.2 When working steep slopes (i.e., slopes of 15% or greater) the Permit directs to design requirements in Part 2.1.4.2 of the p ermit starting on page 17. Part 2.1.4.2.c stabilization requirements are required.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

377 In Part 2.1.4.2.c the Permit states that installation or application of all non

- vegetative measures be complete within 3 working days of stabilization initiation for the greater than 15% slope areas.

Typical linear transportation projects span great lengths and have a majority of 3:1 slopes (33%) over the length of the project. In the arid southwest, initiation of vegetative cover or even non

- vegetative cover within 3 working days is unrealistic and/or unachievable. Consider including provisions for linear transportatio n projects.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0053

- A2.001.003

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.2

• Conflict exists between the first sentence and second sentence of this paragraph. In the first sentence it states "You must immediately initiate stabilization in any exposed steep slope areas where earth

- disturbing activities have permanently or temporarily ceased ...

" I n the second sentence it states "Any area of your construction site". This sentence is not specific to "steep slope areas", y et the entire clause of Part 2.1.4.2 is specifically addressed to steep slope areas. Additionally, many projects are worked in phas es and may have separate areas of varying stabilization.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0053

- A2.001.004

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.2 • Consider removing ", and final grade has been reached." Stabilization is required whether final grade is achieved or not in areas where the ground has been disturbed. Permittees could argue this particular language as part of the entire definition, inclusive of the sum used to define the benchmark, and would therefore exclude/excuse stabilization in these areas because final grade has not been
reached.

Response Refer to Response 2.2.2. See also response s in section 2 of this document on stabilization.



# Comment ID 0053

- A2.001.005

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

378 • Consider including language pertaining to weather, such as: "Where stabilization by the 3rd day is precluded by snow cover or frozen ground conditions, stabilization measures shall be initiated as soon as practicable."

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 006 0- A1.001.007

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.4.2
7. Section 2.1.4.2 - See comment ID 0060

- A1.001.002 on Section 2.1.1.2 and the General comment above.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0064

- A1.001.018

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.4.2 Section 2.1.4.2.c.i, page 18 - "You must immediately initiate stabiliza tion in any exposed steep slope areas where earth

- disturbing activities have permanently or temporarily ceased, and will not resume for a period exceeding 7 calendar days."

•Why did EPA reduce the timeframe for initiating stabilization on an exposed slope from 14 to 7 days? Suggest increasing time period back to 14 days.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0066

- A1.001.009

Author Name: Saenz Amadeo Organization: Texas Depa rtment of Transportation (TxDOT) Issue Category: 2.1.4.2 Discussion: As written, this draft permit does not take into consideration the practical requirements of linear transportatio n projects. The major components of linear construction projects often involve excavation and embankment work. On large projects this may involve vast quantities of materials; to expect that excavation to take place and be stabilized within a three day period is not practicable. (e.g. steep slopes are often excavated to get mate rials for other areas to be filled on the same project site

- movement from material positive areas to material negative areas) Safety, cost, public benefit, construction time constraints are not being considered.

In the requirements of 2.1.4.2 Steep Slope Controls - It is stated that you should avoid disturbance to steep slopes of 15 percent or greater and to either divert the flows around the slopes or use specialized controls such as BMPs. This will increase the cos t of theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

379 project when in most cases this is not necessary. In many cases, TxDOT ROWs are very limited and will not provide enough space to implement these special requirements.

When a slope is determined for a project, it is already given special consideration through use of existing internal standard specifications and general roadway design principles.

Suggestion: Suggest changing this to a general requirement to "minimize disturbance to steep slopes," to allow for project

- appropriate measures, rather than requiring specifics that may not b e possible in all instances. Allow this to be addressed in the SWPPP, and give the opportunity for should be at least 14 days as in the last general permit. During construction activities 7 days without soil disturbance is v ery uncommon and restrictive. I f a sloped area is left undisturbed for 14 days, it is likely that it will remain so for a longer period and need final stabilization, which may take longer on sloped areas. As mentioned previously, it will also be impossible to complete s tabilization
acti vities within 3 days in some instances.

Suggestion: Increase the timeframes, and/or create a performance

- based standard (e.g. stabilize on a timeframe such that there are no preventable off

- site discharges of sediment).

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0075

- A2.001.010

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.2 See "Steep" comments under Part 2.1.1. [See com ment ID 0075

- A2.001.003]

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0075

- A2.001.011

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.2 Suggest that the timeframe be extended to 14 days of temporary stoppage of earthwork activities or permanent completion instead of 7 days.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

380 

# Comment ID 0075

- A2.001.012

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.2 Suggest that the timeframe be extended to 7 work days instead of 3 work days.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0077

- A1.001.002

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 2.1.4.2 The steep slope requirement should be modified to include a length. It is very co mmon to have short lengths of steep slopes present on a site, either to get back to adjacent grade at property lines or to construct landscape berms. Since soil loss is determined by both length and slope, it would make sense to eliminate special requireme nts for short steep slopes.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0093

- A2.001.032

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.4.2 The Draft defines "steep slopes" as slopes of 15% or greater. In areas with steep slopes, EPA would require avoidance unless infeasible, in which case EPA would require the use of specialized controls.

While the language provides some flexibility, AGC remains concerned about how this proposed requirement would be applied on the ground. Typical linear transportation projects span great lengths and AGC highway contractors report they commonly have a 3:1 slope (33%) over the majority of the project. AGC suggests that EPA require specialized controls only for very steep slopes - i.e., outside of what is typical on a highway project. Of course, the operator would have the option of using these specialized controls on ty pical highway proj ects if effective and conditions make these controls practical.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0093

- A2.001.051

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.4.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

381 The Draft provides that if it is not feasible to avoid disturbing steep slopes, the operator must immediately initiate stabil ization on any exposed steep slope areas where earth

- disturbing activities ha ve permanently or temporarily ceased, and will not resume for a period exceeding seven (7) calendar days. For the purposes of this permit, earth

- disturbing activities have temporarily ceased when clearing, grading, and excavation within any area of a const ruction site will not resume for a period of seven (7) or more days, and earth

disturbing activities have permanently ceased when clearing and excavation within any area of a construction site has been co mpleted, and final grade has been reached.

AGC wants to point out that a conflict exists between the first and second sentences of the paragraph above. In the first sentenc e, EPA refers to "any exposed steep slope areas." But in the second sentence, EPA refers to "any area of your construction site." A GC also recommends that EPA remove the phrase "... and final grade has been reached." Stabilization appears to be required whether or n ot final grade is achieved in areas where ground has been disturbed.

This Part goes on to require contractors to completely install all vegetative and non

- vegetative cover "[w]ithin 3 work days of initiating stabilization." This final (as opposed to temporary) stabilization requirement will add huge expense to highway projects beca use seeding subcontractors would nee d to be brought to the jobsite multiple times. For a large slope, three days may not be sufficient time to complete these activities. Moreover, it may not be feasible to stabilize a partial slope as EPA assumes by this provision.

For the reasons outlined above, AGC recommends that EPA retain the 2008 CGP requirement or 14

- day deadline for achieving final stabilization. In addition, EPA should consider including language pertaining to weather, such as: "Where stabilization by th e [insert date] is not possi ble due to snow cover or frozen ground conditions, stabilization measure shall be initiated as soon as practicable." In the alternative, EPA should consider adding permit language that would allow the contractor to maintain temporary stabilizati on until
th e end of the project - at which time the seeding contractor would come in and seed the entire area at one time.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0096

- A1.001.024

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.2 EPA defines steep slopes as slopes of 15% or greater. In areas with steep slopes, EPA’s proposal requires avoidance unless in feasible, in which case specialized controls must be in place. NAHB is concerned with EPA’s definition of steep slope. EPA’s requirement for stabilization of slopes >15%

-- (Part 2.1.4.2.b)

-- are often not practical and are better applied to very steep slopes of 25% or more. Slopes are not regarded as exceptionally steep in most stormwater management manuals until they are greater than 25%. For example, roadways commonly try to keep the slope under 25% if possible in cuts and fills. However, slopes of 15% are frequently disturbed for

ge neral grading purposes. Most of the sediment controls listed in Section 2.1.4.2.b [FN 45] are intended for slopes much steeper than 15%. We suggest two improvements to these requirements, which can be utilized separately or in combination. First, EPA shoul d increase the lower percent slope from 15%; we suggest 25%. Twenty

- five percent is practical and consistent with standard practice for roadways. Second, we suggest that Parts 2.1.4.2.a

- 2.1.4.2.c only become active for slopes of >25%. Of course, the opera tor would have the option of using these controls on slopes <25% if effective and conditions make these controls practical.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

382 While the language appears to provide sufficient flexibility, we are concerned about how this requirement will be applied on the ground. We are also concerned about EPA’s increasing regulatory overreach in inappropriately trying to direct land use and di ctate

outcomes.

[FN 45] Sediment controls include such as temporary and permanent seeding with soil binders, erosion control blan kets, surface roughening, reducing continuous slope length with terracing or diversions, gradient terraces, interceptor

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0107

- A2.001.006

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 2.1.4.2 In New Mexico there are a number of regional specific factors that increase runoff including sparse vegetation and steep topo graphy (Gautam et al, 2010). Desert soils can often consist of the silty low permeable vesicular A (Av) horizon (Ritter et al. 2002) which can lead to low infiltration rates resulting in more runoff and erosion potential than areas with more humid soil and associated layers of organic litter. Thus, paying att ention to the topography and sensitive areas of a site is all the more critical in the desert southwest. Avoiding disturbance on steep slopes is especially important to prevent erosion. Amigos Bravos supports the proposed requirem ent to avoid disturbance on slopes 15% or greater and recommends adding language to section 2.1.4.2 that explicitly requires limiting unavoidable disturbance on sleep slopes to the smallest area possible.

Response Refer to Response 2.2.2. See also responses in section 2 of this d ocument on stabilization.



# Comment ID 0115

- A2.001.004

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.4.2 2.1.1.2 Avoid Steep Slopes. This part makes reference to Part 2.1.4.2. As described further under comments to part 2.1.4.2 below, utility projects may not be able to avoid areas of steep slope within ROWs. National Grid supports the use of specialized con trols, however, National Grid has concerns about the requirements of 2.1.4.2 a. and c.

With respect to 2.1.4.2 a., because linear utility ROWs tend to be narrow without legal access to off ROW properties, it is not always possible to divert flows around steep slope disturbances. Where feasible or practicable, stormwater can be diverted, however, in many
instances this could result in increased flow to adjacent properties. In these circumstances, the use of specialized controls is critical to maintaining a stable and safe work environment. Careful monitoring is also employed under such situations.

With respect to 2.1.4.2 c., cross country transmission/distribution construction is performed in a manner that allows necessary activities to be completed along certain sections of the ROW, while other portions may remain inactive. Depending on the nature of the w ork,

crews m ay change location day to day or week to week. As a result, there may be periods where work within one segment may ceaseRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

383 for a period of 7 or more days. In these instances, temporary stabilization measures are applied and monitoring is conducted. However, it is not feasible or practical to apply permanent stabilization measures when work will continue.

National Grid recommends an exemption from the stabilization requirements set forth in 2.1.1.2 for linear utility projects th at have obtained Clean Water Act approvals.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0115

- A2.001.012

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.4.2 2.1.4.2 Steep Slope Controls. As in our comments above regarding part 2.1.1.2, the CGP needs to allow for site specific flexibility. Linear utility projects cannot comply with these requirements in all instances. National Grid recommends that compliance with this part be conducted on a case

- by

- case basis reflective of actual site conditions and project activities. The SWPPP should specify the exact locations where compliance can or cannot occur and should specify which specialized control will apply in each instance

.

National Grid recommends an exemption from the stabilization requirements set forth in 2.1.4.2.c for linear utility projects that have obtained Clean Water Act approvals.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0117

- A1.001.002

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 2.1.4.2 The steep slope requirement should be modified to include a length. It is very common to have short lengths of steep slopes p resent on a site, either to get back to adjacent grade at property lines or to construct landscape berms. Since soil loss is determined by both length and slope, it would make sense to eliminate special requirements for short steep slopes.

Response Refer to Respo nse 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0127

- A2.001.003

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 2.1.4.2
Section 2.1.4.2.c.iRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

384 Proposed Language

Stabilization requirements. For all disturbances to steep slopes, you must comply with the following stabilization requiremen ts, which replace the corresponding requirements in Part 2.2.1: i. You must immediately initiate stabilization in any exposed steep slope areas
where earth

‐ disturbing activities have permanently or temporarily ceased, and will not resume for a period exceeding 7 calendar days. For the purposes of this permit, earth

‐ disturbing activities have temporarily ceased when clearing, grading, and excavation within any area of your construction site will not resume for a period of 7 or more days, and earth

‐ disturbing activities have permanently ceased when clearing and excavation within any area of your construction site has been completed, and final grade has been reached.

Concern Compliance could be difficult to achieve and potentially damaging to the site. There are no exceptions for weather delays, we t site conditions, frozen ground, arid conditions, other construction delays, etc.

Sugges ted Correction Revise requirement to require immediate stabilization as soon as site conditions permits.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0137

- A2.001.007

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.4.2 This section strongly suggests avoidance of disturbance to all steep slopes at 15% or greater. This will dramatically affect areas in
West ern Maryland as most slopes are greater than 15%. This will also affect many other areas in the country including places like San Francisco or Pittsburgh that have steep slopes. This will effectively minimize the ability to develop a project, road, etc.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.



# Comment ID 0159

- A1.001.004

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.4.2
This section strongly suggests avoidance of disturbance to all steep slopes at 15% or greater. This will dramatically affect areas in Western Maryland as most slopes are greater than 15%. This will also affect many other areas in the country including places like San
F rancisco or Pittsburgh that have steep slopes. This will effectively minimize the ability to develop a project, road, etc.

Response Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

385 

# 2.1.4.3 STORM DRAIN INLET PROTECTION

Comment ID 0049

- A1.001.016

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.3 Barriers place in front of storm sewer inlets on a grade (e.g., street curb inlets, road median area drains) will divert runoff and causes downstream flooding and sedimentation. Placing barriers around an inlet opening should only occur when the structures are in a "sump" condition. However, when overflow conditions occur at these barriers, little sedimentation will take pla ce and a majority of the sediment in runoff waters will enter the storm sewer system

Response Refer to Response 2.12.



# Comment ID 0053

- A2.001.012

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.3
The Permit States: "For any storm drain inlets that are located on your site or that receive stormwater discharges from your site, and f or which you have access, you must comply with the following ..."

Municipalities' jurisdiction may prevent addressing BMPs a city h as established, yet are still within your project area/access. The simple fact you have access, does not provide permission to address the property of a separate party(s). Consider changing th e word "access" to "jurisdiction", "authority", or "easements".

Response Refer to Response 2.12.



# Comment ID 0093

- A2.001.052

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.4.3 The Draft states: "For any storm drain inlets that are located on your site or that receive stormwater discharges from your site, and for which you have access, you must comply with the following ... ." Municipalities' jurisdiction may prevent addressing a BMP that a city has established, yet are still within a contractor's project area/access. The simple fact that a contractor has access, does not provide permission to address the property of a separate party(ies). AGC suggests that EPA consider changing the word "access" to "jurisdiction," "authority," or "easements."

Response
Refer to Response 2.12.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

386 

# Comment ID 0096

- A1.001.032

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.3 In Part 2.1.4.3A, the Draft CGP states: “For any storm drain inlets that are located on your site or that rec eive stormwater discharges from your site, and for which you have access, you must comply with the following ....” Municipalities’ jurisdiction may preven t addressing BMPs a city has established, yet are still within your project area/access. The simple fact you have access, does not provide permission to address the property of a separate party(s). EPA should consider changing the word “access” to “jurisdiction”, “authority”, or “easements.” The prescriptive language of this section does not take into accoun t storm drain inlets that do not discharge offsitebefore additional treatment. It appears that inlet protection must be provided for all inlets even if it drains to a sediment trap or basin. There are a number of issues with this requirement on most sites. EPA should consider specific site limitations, and remove the word ‘any’ from this section

Response Refer to Response 2.12.



# Comment ID 0133

- A2.001.018

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.4.3 When constructing storm drainage systems, it is common practice to use manholes as catch basins during construction and then to clean them out before placing into service. To allow greater operational flexibility, the proposed inlet protection meas ures should be
restricted to "in

- service" inlets only.

Response Refer to Response 2.12.



# Comment ID 0137

- A2.001.008

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.4.3
it appears that inlet protection must be provided for all inlets even if drain to a sediment trap or basin. There are a number o f issues with this requirement on most sites for inlet protection in closed section roadways when implemented for all inlets. Open section roadways have a larger margin for handling the flows. This does not mean that if the inlet protection is the only treatment p ractice that it should be eliminated, only the ones that drain to another treatment Concerns are as follows.

a. Contracto rs use the inlet protection as a form of ramp which then allows the truck to drive over a storm drain inlet top and breaking the top.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

387 b. Most of the water will flow past the inlet until it reaches the low point and then flow overland to a trap or basin. This could cause erosion in the overflow path.

c. When it is somewhat effective. The sediment is spread over the roadway and then gets tracked around the site. This is a bi g housekeeping issue. It is even worse when there are residents of the neighborhoo d who need to drive on the roads and track the sediment onto their lots and possibly into their house.

Response Refer to Response 2.12.



# Comment ID 0146

- A1.001.003

Author Name: Matthews Jean Storm drain inlet protection on roads will create a hazardous back up of water that can result in flooding and cause vehicles to hydroplane. We worked in a subdivision in which a car hydroplaned in a large puddle created by storm drain protection and the n hit an occupied home. Injury to persons and property resulted . Storm drain inlets will back up water if they are working properly; it's the way that they trap sediment. Maintenance (cleaning) would be required after every rain event, and will be very expensive. I consi der storm drain protection one of the tools in our toolbox, and sometimes, it's not the best choice. I would eliminate this as a construction permit requirement and shift the burden of keeping storm drain systems clean to the municipalities to require evidence of a clean st orm drain system before it i s accepted and the bonds released. The contractors should be delivering a clean system to the municipalities, anyway.

Response Refer to Response 2.12.



# Comment ID 0159

- A1.001.020

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.4.3 In Section 2.1.4.3A Inlet Protection Measures. it appears that inlet protection must be provided for all inlets even if they drain to a sediment trap or basin. There are a number of issues with this requirement on most s ites for inlet protection in closed section roadways when implemented for all inlets. Open section roadways have a larger margin for handling the flows. This does not mean that i f the inlet protection is the only treatment practice that it should be elimin ated, only the ones that drain to another treatment Concerns are as
follows.

a. Contractors use the inlet protection as a form of ramp which then allows the truck to drive over a storm drain inlet top s o as not to break the top.

b. Most of the water will flow past the inlet until it reaches the low point and then flow overland to a trap or basin. This could cause erosion in the overflow path.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

388 c. When it is somewhat effective. The sediment is spread over the roadway and then gets tracked around the s ite. This is a big housekeeping issue. It is even worse when there are residents of the neighborhood who need to drive on the roads and track th e sediment onto their lots and possibly into their house.

Response Refer to Response 2.12.



# 2.1.4.4 SEDIMENT BASIN AND IMPOUNDMENTS

Comment ID 0060

- A1.001.008

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.4.4
8. Section 2.1.4.4 - It is unclear from the language in this section as to what criteria are used to size a sediment basin/impoundment. This section must be updated accordingly.

Response Refer to Response 2.9.



# Comment ID 0062

- A1.001.020

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.4.4 Maintenance requirements. Remove accumulated sediment before it reaches 1⁄2of the capacity of the sediment basin. Brevard Count y Comment: How will 1⁄2 full be determined?

Response Refer to Response 2.13. Refer also to Part 2.1.2.2 of the 2012 CGP.



# Comment ID 0066

- A1.001.024

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.4.4 Discussion: The structures being implied are known as skimmers. They tend to be maintenance intensive because they clog, and the hoses get caught up so that the skimmers are not able to function properly. To keep these operational would require more freq uent inspection and maintenance, and thus increase project costs.

Suggestion: Provide flexibility and make this an alternative BMP, due to their high maintenance costs and frequency of clogging.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

389 Response EPA thanks the commenter and notes that the 2012 CGP does not require the use of sediment basins.



# Comment ID 0075

- A2.001.013

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.4 Field experience in other states show these skimmers may be vandal prone and have potential plugging issues with litter. Rura l, temporary detention ponds normally designed with rock weirs for lower maintenance and high runoff allowance (an emergency spillway) may be more effective.

Response EPA thanks the commenter and notes that the 2012 CGP does not require the use of skimmers.



# Comment ID 0078

- A1.001.001

Author Name: F ifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.4 EPA must require (when feasible) operators to install one or more SCSs at the beginning of grading activities that meet at le ast the following criteria:

• Each structure must successfully treat at least a volume of runoff anticipated from the contributing bare ground watershed due to a
2- year, 24

- hour storm event (V2, 24).

• Each structure must be able to capture at least 20 microns and larger TSS particles.

• Discharge waters of the V2,24 for each structure must have NTU turbidity readings that are no greater than 5% to15% (see comments on Section 3.2) above historic conditions.

• Each structure must safely discharge at least 5

- year, 24

- hour flood flows via a professio nally designed overflow system.

• Designers must assess and report on the effectiveness of their structures to remove sediments and reduce turbidity when ove rflow
conditions occur.

• Designers and regulatory agencies must be accountable for the use of polymers in runoff waters entering and discharging from each structure that happens for during grading, during construction and after construction activities.

Response EPA thanks the commenter and notes that the 2012 CGP does not require the use of sedim ent basins. See Part 2.1.4.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

390 

# Comment ID 0153

- A1.001.013

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.4.4 This statement justifies excluding temporary sediment traps from top water withdrawal require ments.



# 2.1.4.5 CHEMICAL TREATMENT [REQUEST FOR COMMENT]

Comment ID 0030

- A2.001.003

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.1.4.5 A third concern involves the proposed use of flocculants for treatment of stormwater runoff, which contradicts the current CGP for Stormwater Discharges Associated with Construction Activities.

Response Refer to Response 2.22.



# Comment ID 0049

- A1.001.018

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.5 If standing water is not evident, I do not know of any reason as to why polymers cannot be used in areas where a 4

- feet or less water
table exists.

Response Refer to Response 2.22.



# Comment ID 0049

- A1.001.019

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.5 Cationic chitosan must be treated as a cationic polymer. If the EPA prohibits the discharge of cationic polymers, then the discharge of
cationic chitosan cannot occur!

Response Refer to Response 2.22.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

391 

# Comment ID 0062

- A1.001.021

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.4.5 Storage requirements. Store all treatment chemicals in leak

- proof containers that are kept under storm

- resistant cover or surrounded by secondary containment structures designed to eliminate potential discharge of stormwater from this area. Brevard County Comme nt: If the materials are suitable for treating runoff then why is contai nment needed?

Response Refer to Response 2.22.



# Comment ID 0062

- A1.001.022

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.4.5 i. Do not apply within areas established under Part 2.1.2; Brevard County Comment: Buffer areas!

ii. Do not apply in areas with a shallow water table (i.e., 4 feet or less); Brevard County Comment: Most of FL

iii. Limit any use of sediment containing polyacrylamide, chitosan, and other biopolymers as fill material on

- site to not closer than 100 feet from waters of the U.S.; Brevard County Comment: Why? Use of these materials are allowed in waters of the US. Don't limit use when necessary. ?

Route stormwater treated with polymers, flocculants, or other treatment chemicals through sediment trapping, filtering, and/or settling device(s) to ensure adequate removal of sediment flocculent; Brevard County Comment: Why specificity? Water should be treated to remove sediments anyway.

Response Refer to Response 2.22.



# Comment ID 0071

- A3.001.016

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.4.5 •Part 2.1.4.5 Chemical treatment (a) Storage requirements. This section discusses the proper storage of Chemical Treatment, such as flocculants. It is unclear what an appropriate secondary containment would be for flocculants. Does the secondary containment need to be lined to prevent groundwater contamination? Bermed? Or would silt fence or sediment control log be adequate?Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

392 Response Refer to Response 2.22.



# Comment ID 0071

- A3.001.017

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.4.5 •Part 2.1.4.5 Chemical treatment (c) Use restrictions. ii. Per haps change "Do not apply in areas with a shallow water table (i.e., 4 feet or less)" to "Do not apply in areas with a shallow water table (i.e., within 4 feet of water table)". The current language co uld imply, for example, that if you had a 10' water tab le you could dig a sediment basin to within 3' and add flocculent.

Response Refer to Response 2.22.



# Comment ID 0071

- A3.001.018

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.4.5
•Part 2.1.4.5 Chemical Treatment (c). Use restrictions.vi. This Part states that you cannot discharge cationic polymers. Unlike sediment, polymers are not visible in water, therefore you cannot visibly assess whether they are present. What is your measu re of
success?

Response Refer to Response 2.22.



# Comment ID 0093

- A2.001.053

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.4.5 AGC anticipates that polymers, flocculants, or other treatment chemicals to enhance sediment removal will be required on construction sites that must comply with any numeric turbidity limit. Given the wide array and variations among chemical products on the market, it is not practicable for EPA to issue broad permit restrictions on the use of chemical treatments. Restrictions should be limited to the manufacturer's specifications for application. The manufacturers should get EPA approval and then EPA can have an approved li st with guidelines for their use. This is particularly rele vant to chitosan, which is made from the shells of crustaceans, is one of the most abundant biodegradable materials in the world, and is marketed in many forms as a natural plant growth enhancer and a human h ealth supplement.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

393 Response Refer to Response 2.22.



# Comment ID 0096

- A1.001.033

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.5 The proposed CGP includes restrictions on the use of polymers, flocculants, and other treatment chemicals. Some of the p roposed polymer use restrictions are common sense, such as the storage requirements, managing the chemicals so that they are not spil led, following the precautions in the MSDS, and insuring that chemically treated sediment is routed through some sort of tr ap or basin before discharge, which presumably would be necessary to also remove the turbidity. However, there are some provisions that a re not clear or appear contradictory to other requirements of the CGP and C&D ELG. Further, given the lack of sufficient data and the relative newness of using chemicals, polymers and ATS systems to trap sediment from storm water discharges and prevent it fro m entering waterways, we remain concerned about the required use of any chemical treatment.

First, the “do not apply (polymers) within areas established under Part 2.1.2 (vegetative buffers within 50 feet of a water of the United States)” stated in 2.1.4.5.c.i is unclear. Because there are alternative provisions in Part 2.2.1 that allow for less than a 50 foot vege tative buffer, it is not clear whether polymers can be used in these alternative setback areas. These would likely be situations whe re site constraints force active construction to occur closer to the stream, and in such situations, the polymer treatment may also be forced closer to the stream, which would have to be the low point drainage for at least a portion of the site. Furthermore, the use of polymer may not be optional; it may be required to meet the C&D ELG turbidity limit or a TMDL. EPA should clar ify this section to either allow chemical treatment on a site specific basis or provide exemptions if a site will otherwise be required to use chemicals to meet a specific requirement.

Response Refer to Response 2.22.



# Comment ID 0096

- A1.001.034

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.5 Second, Part 2.1.4.5.c.ii states that no polymer may be applied in areas with a shallow water table (defined as four feet or less). This provision is far too restrictive, to the point of making construction impossible for many tracts of land. Compliance with this restriction may completely prohibit polymer use in most coastal areas and in many other areas of the USA. Furthermore, the water table in most

areas is variable depending on the season and how much rain has been received in the area and can very easily be within 4 feet of t he surface at times. In light of the new C&D ELG (depending on the final numeric effluent limit), the use of polymer in most are as may not be optional, since a numeric turbidity limit must be met unless that turbidity limit is set sufficiently high that polyme rs are not necessary even under adverse conditions (e.g., high intensity rain, high clay content in soil, etc.) or an exemptio n from the turbidity
limit has been allowed in the situation.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

394 Response Refer to Response 2.22.



# Comment ID 0096

- A1.001.035

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.5 Third, Part 2.1.4.5.c.iv limits any use of sediment containing polyacrylamide, chitosan, or other biopolymers as on

- site fill material to not closer than 100 feet from waters of the US. This rule seems to imply that even sediment basins within 100 feet of a water of the US
where t he polymer was used to settle sediment cannot be filled in (if the basins were temporary) without first excavating out all th e sediment that settled there. This, as written, is totally impractical. Again, the settling basins or ponds very often must be loc ated near drainage areas, and many will necessarily be within 100 feet of a water body given the Agency’s broad interpretation of this term. Likewise, because the sediment in question has likely existed within 100 feet of the water of the US for a long per iod of time already, it is unclear what is gained through the prohibition. Either this absolute prohibition needs to be removed or EPA must create an exception that allows temporary sediment basins, traps, or ponds to be filled in place, even if they are w ithin 100 feet of a water of the
US.

Response Refer to Response 2.22.



# Comment ID 0096

- A1.001.036

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.5 Fourth, Part 2.1.4.5.c.vi states that cationic polymers (except chitosan) may not be discharged except in compliance with state and local requirements that are designed to protect water quality from such discharges. The use of polymers for the purpose of se diment control is heavily regulated and all of the states prohibit the use of polymers that have toxic components that may adversely impact their water ways. In the proposed C&D ELG, EPA recognizes the risks, as it quotes California’s draft permit fact sheet, which states:

“These systems can be very effective in reducing the sediment in storm water runoff, but the systems that use additives/polymers to enhance sedimentation also pose a potential risk to water quality (e.g., operational failure, equipment failure, additive/ po lymer release, etc.). We are concerned about the potential acute and chronic impacts that the polymers and other chemical additives may have on fish and aquatic organisms if released in sufficient quantities or concentrations. In addition to anecdotal evidence of polymer re leases causing aquatic toxicity in California, the literature supports this concern. For example, cationic polymers have been shown to bind with the negatively charged gills of fish, resulting in mechanical suffocation. Due to potential toxicity impacts, which may be caused by the release of additives/polymers into receiving waters, residual polymer monitoring and toxicity requirements have been established in this General Permit for discharges from construction sites that utilize an ATS in order to protect rece iving water quality and beneficial uses.” [FN 58]Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

395 If a progressive state like California has reservations about the use of polymers, EPA should take heed and remove any requirements for its use. Further, if other states are to allow the use of polymers, they will likely have to develop new laws or regulations governing their use. Forcing such a process on the states, particularly in the absence of reliable data, would place an unnecessary and significant strain on most, if not all, of the state permitting authorities, many of whom have raised resource constraints associated with many existing demands on their permitting programs.

Further, the true passive systems examined by EPA in the C&D ELG (which presumably formed the basis of the rule by relying on passive treatment technology using polymer induced settling) all used polyacrylamide, not chitosan. This might be due to the current unavailability of chitosan in block or log form, which is a popular passive method of administering PAM, or some other, unk nown reason. But because polyacrylamide flocculation chemicals can be formulated in cationic, nonionic, or anionic forms, it is not clear which one(s) the Agency is referring to. For example, the McLaughlin 2009 study [FN 59] used fiber check dams with PAM (FCD/PAM) on two sections of a North Carolina highway construction project. McLaughlin states that only the anionic form was used for erosion control, but does not state which PAM formulation he used in the FCD/PAM passive treatment to reduce turbidity in the runoff. Given these uncertainties, EPA should be more explicit as to which polymers may be used and discharged in passive turbidity removal systems.

[FN 58] 73 Federal Register 72,573 (November 28, 2008). [FN 59] Passive Treatment To Meet the EPA Turbidity Limit, TMDL 2010 Watershed Management to Improve Water Quality Proceedings, 2009, McLaughlin 2009.

Response Refer to Response 2.22.



# Comment ID 0096

- A1.001.037

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.5 Finally, NAHB still believes the use of chemicals to treat stormwater discharges is suspect. Studies have found that polymers and cationic polymers, including chitosan, are “quite toxic to aquatic organisms and should never be used in an open environment or allowed to discharge to the environment without complete reaction to the intended target.” [FN 60] Similarly, EPA found, “This polymer [chitosan] is listed as Resource Conservation and Recovery Act (RCRA) as hazardous due to the acidity (at a pH of about 4).” [FN 61] Further, EPA lacks sufficient data regarding: (1) the use of chemicals, including the long

- term effects of the chemicals on the soil (which could be significant given the vast array of construction sites where it may b e used, if required); (2) expected polymer dosages and how these are impacted by the site

- specific features, such as the turbidity of the water to be treated, the surface charge of particles to be removed, water temperature, pH, and the presence of constituents that consume or otherwise affect polymer effectiveness that impact optimum dosages; [FN 62] and (3) sediment disposal issues raised by the hazardous waste disposal requirements of RCRA. The concern over the lack of sufficient information on the use o f chemicals to treat storm water runoff also is evident in states’ reactions to its use. Tellingly, there are currently only four states (MI, WI, WA, CA) that require the us e of polymers to address sediment in stormwater runoff, but, even then, polymer use is typically limited to certain types of sites. The conflicting information and high degree of uncertainty regarding the toxicity of both the polymer itself and the waste products it contri butes toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

396 (including infused sediment sludge) must prompt EPA to co nduct further review and research on the use of all polymers as a stormwater mitigation option prior to allowing or prescribing its use.

[FN 60] Polymer Enhanced Best Management Practices for Erosion, Sedimentation and Stormwater, S.R. Iwinski, 2008,

acce ssed at http://www.remtech2008.com/watertech/2008/pdf/Paper23.pdf. [FN 61] Development Document For Proposed Effluent Guidelines and Standards for the Construction & Development Category, November 21, 2008, Table 7

- 28. Chitosan Acetate Study results, p. 7

- 94. [FN 62] City of Tacoma, WA, Surface Water Management Manual, September 22, 2008, Appendix B, accessed at

ww w.cityoftacoma.org/File.ashx?cid=10908.

Response Refer to Response 2.22.



# Comment ID 0109

- A2.001.004

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 2.1.4.5 The Permit should require treatment and pollution prevention measures to prevent chemicals from being carried off

- site in runoff. The permit should emphasize natural erosion management practices (such as vegetative cover) rather than chemically

- based methods.

Response Refer to Response 2.22.



# Comment ID 0111

- A2.001.008

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.1.4.5 Dow believes that the requirement to provide cover and containment for all onsite storage of treatment chemicals is burdensome and duplicat ive with reasonable BMPs. This requirement should be addressed by the permittee during development and implementation of
the SWPPP and related BMPs.

Response Refer to Response 2.22.



# Comment ID 0126

- A2.001.007

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.1.4.5 EPA should recognize that some states will not allow chemical treatment or additives.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

397 Response Refer to Response 2.22.



# Comment ID 0131

- A1.001.008

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.1.4.5 Although the use of chemical treatments should be unnecessary on most sites when properly designed passive control strategies have been implemented, the use of passive chemical treatment represents a potentially viable and safe alternative in a limited number of situations where conventional treatment alone is challenging or inadequate. LBA recommends that flexibility in the applicatio n and appropriateness of chemical treatment be broadly allowed, but not mandated, and that the means and methods for their proper application are the responsibility of the design engineer in developing an appropriate SWPPP for a site based on site specifi c and receiving water requirements.

Response Refer to Response 2.22.



# Comment ID 0137

- A2.001.009

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.4.5 This treatment is alternately described as "natural & biodegradable" and "potentially toxic to fish and other aquatic life". The best observation I read was that using a chemical (even a naturally occurring one) in a water treatment plant is far different than in a construction site. The former has a relatively constant flow rate and the
chemical is introduced accordingly, by highly trained personnel. At the construction site, the water flow is highly variable, and even if the operator is sufficiently trained, there is a temptation to use more than necessary since the object is to keep the turbid it y below permitted release values. Strategies generically originating from potable water treatment are inherently risky as the goal is to make the water so clean as to be devoid of any life which can be counterproductive to maintaining the integrity of natu rally occurring receiving waters. Clear swimming pools are not hospitable habitats.
If not enough earns you a citation for too much turbidity, and too much earns you one for toxicity/fish kills, this approach may bemore problematic than problem solving. Th e prototypical applications are oriented to small drainage areas, precisely the ones that are not expected to need it. Large drainage areas, where the permit requirements may include advanced treatment, are susceptible to l arger unintended releases.

This underscores the need to rethink using flocculants in constructions sites at all. To the extent that there are toxicity concer ns, the

so
‐ called cure could be worse than the original problem.

Response Refer to Response 2.22.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

398 

# Comment ID 0141

- A2.001.007

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: 2.1.4.5 4. Authorization of Active Treatment: Region X does not recognize active treatment such as the use of polymers as a means of CGP compliance. Idaho does not recognize active treatment as a tool to improve water quality by reducing offsite sediment discharges. Other states do utilize the use of chemical treatment to improve water quality in offsite discharges. It would be beneficial if the CGP
could authorize the use of chemical treatment on a national basis.

Response Refer to Response 2.22.



# Comment ID 0153

- A1.001.014

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.4.5 1. The requirement should include detailed acute toxicity testing requirements for the chemicals beyond what is included in MSDS. The results of these toxicity tests should conclude the toxic (acute and chronic) level of the specific chemical typically gi ven in ppm.
These results c an then be used to require that the application of the chemicals do not reach the toxic levels from the toxicity testing results. The end result would be a maximum dosage rate for all chemicals, whether it is chitosan, anionic, neutral, or a net positive ( cationic) product. 2. This section is inadequate based on the prescriptive nature of the previous sections. The EPA has no idea how to administe r chemicals in a passive treatment system. The actual application dosage procedures are complicated.

Response Refer to Response 2.22.



# Comment ID 0159

- A1.001.017

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.4.5 This treatment is alternately described as "natural & biodegradable" and "potentially toxic to fish and other aquatic life". The best observation we read was that using a chemical (even a naturally occurring one) in a water treatment plant is far different th an in a construction site. The former has a relatively constant flow rate and the chemical i s introduced accordingly, by highly trained personnel. At the construction site, the water flow is highly variable, and even if the operator is sufficiently trained, the re is a temptation to use more than necessary since the object is to keep the turbidity below permitted release values. Strategies generically originating from potable water treatment are inherently risky as the goal is to make the water so clean as to be devoid of an y life which can be counterproductive to maintaining the integrity of natur ally occurring receiving waters. Clear swimming pools are not hospitable
habitats.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

399 If not enough earns you a citation for too much turbidity, and too much earns you one for toxicity/fish kills, this approach may be more problematic than problem solving. The prototypical applications are oriented to small drainage areas, precisely the ones that are not expected to need it. Large drainage areas, where the permit requirements may include advanced treatment, are susceptible to l arger unintended releases.

Th is underscores the need to rethink using flocculants in constructions sites at all. To the extent that there are toxicity concerns, the

so

- called cure could be worse than the original problem.

Response Refer to Response 2.22.



# Comment ID 0168

- A1.001.017

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2.1.4.5

-- Chemical Treatment for Sediment Removal (Section 2.1.4, Page 19): The potential for using chemical treatment to address site sediment discharges is deeply troubling, and provides a significant cause for concern. This may be a case of "the

- old

- Iady

- who

swallowed

- the

- fly", where one pollutant is abated through the use of another, resulting in the use of more and more chemicals onsite, and more and more related regulatory requirements. Our experience has been that given time and adequate design, passive measures are generally effective in achieving background concentrations of turbidity and suspended sediment, and chemical treatment ma y not be necessary or desira ble. If an applicant elects chemical treatment to reduce sediment transport, then the minimum permit requirements as proposed should be sufficient.

Response Refer to Response 2.22.



# Comment ID 0401.001.001

Author Name: Unknown Unknown Organization: Colorado Department of Public Health and Environment - Colorado Issue Category: 2.1.4.5 Part 2.1.4.5 of the Permit includes limitations for discharge for which chemical treatment has been used. The Division requires all chemicals used in the treatment proc ess be identified on the permit application or through permit modification for our construction sector general permits (i.e., stormwater, dewatering, remediation, and hydrostatic discharges). The Uivision has not authoriz ed discharges with chemical treatment under our stormwater construction general permit to date. Under our other general permits, the Division will evaluate the reasonable potential for pollutants associated with chemical treatment to be in the discharge, and includes numeric effluent limitations where such potential exists. The Division recommends that the EPA evaluate if the limitations in Part 2. 1.4.5 will be effective at preventing discharges that are in exceedance of stream standards due to pollutant additions result ing from
chemical tr eatment. Specifically, for storm event driven discharges, where holding times and other variables may change dramatically, has the EPA evaluated the potential for the discharges to contain contaminants at concentrations that result in exceedance of streamRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

400 standards due to the addition of flocculants? Has the impacts on beneficial uses from flocculants and associated pollutants i n the discharge been evaluated? Are additional limitations and monitoring necessary to address dissolved pollutants and potential c hanges in pH associated with all chemicals that may be covered in this authorization?

Response Refer to Response 2.22.



# 2.1.4.5Q RESTRICTIONS ON POLYMERS, FLOCCULANTS OR OTHER

Comment ID 0007

- A1.001.003

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 2.1.4.5Q
Comment: I believe the allowable chemical treatment alternatives should be limited to those that are able to show zero or ver y low toxicity to fish and other aquatic life rather than requiring residual testing. Once the horse is out of the barn, it is too late to close the gate! Accidents will happen, and if a toxic agent is used on site, there is a high probability that we will experience fish kills and other adverse affects. Chemicals can do a great job in helping prec ipitate fine soils but if we are using toxic chemicals to assist in that effort, the risk to the environment would be less if we just capture the sediment that we can through strictly mechanical means and l et the rest

go.

Response Refer to Response 2.22.



# Comment ID 0015

- A2.001.007

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.4.5Q Q6. Chitosan testing - Agree for sensitive tier 2 and 3 waters. Residual standard should be manufacturer driven and specific to each product.

Response Refer to Response 2.22.



# Comment ID 0034

- A1.001.005

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 2.1.4.5Q Proposed Requirement/Section Addressed: CGP Section 2.1.4.5, Chemical treatment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

401 Comment: Do not limit chitosan residuals in discharge water to levels that would limit their effectiveness.

Discussion: This section as currently written provides reasonable flexibility to employ appropriate sediment treatment techno logy. If residual testing is required and limited to the point of inadequate performance, some technologies would no longer be availab le. Depending on the extent, it could place the dischargers in a position of requiring treatment but having few, if any, viable o p tions.

Recommendation: Recommend that the permit maintain adequate flexibility to employ appropriate treatment.

Response Refer to Response 2.22.



# Comment ID 0046

- A1.001.010

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.4.5Q The restriction is unwarranted and would practically eliminate the use of PAM or other polymers as a soil stabilizer. PAM and other polymers attach readily and irreversibly to soil particles. The PAM would ha rdly penetrate 4 inches into the soil and would never reach
to a 4

- foot water table. Like the condition below, it may be more practical to require a 100' buffer from Waters of the US or requir e capture of runoff in sedimentation basins. PAM will not penetrate vertically through the soil column.

Response Refer to Response 2.22.



# Comment ID 0055

- A1.001.005

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 2.1.4.5Q Technology for polymers and flocculants is changing rapidly. Testing of products prior to use on construction sites should be implemented by the manufacturer prior to use as an approved chemical. Continued commissioning of the products should also be the responsibility of the manufacturer. Requirin g testing to be included in the project budget, could result in a reduction of a chemical's use, whether beneficial or not.

Response Refer to Response 2.22.



# Comment ID 0062

- A1.001.023

Author Name: McClure BachRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

402 Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.4.5Q Brevard County Comment: Max dosage too high for most applications. So default max dosages are always wrong.

Response Refer to Response 2.22.



# Comment ID 0064

- A1.001.019

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.4.5Q
Section 2.1.4.5.a

- c, page 19 - Full "Chemical treatment" section

•Attempting to dictate a specific dosing or maximum dosing given uniqueness of each project and application would be difficul t. Suggest that operator should be required to follow manufacturer recommendations and that the permit not specify any specific or maximum dosage.

Response Refer to Response 2.22.



# Comment ID 0064

- A1.001.020

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.4.5Q Section 2.1.4.5, page 19 - Full "Request for Comment" paragraph

•The presence of chitosan residuals does not necessarily indicate overdosing. In addition, during EPA presentations on Constr uction & Development Ef fluent Guidelines during a March 2010 webcast, EPA staff noted that the acute toxicity level of anionic PAM for daphnia and rainbow trout is orders of magnitude higher than the effective dose. This suggests that significant overdosing re sulting in signific ant residual would be required to have negative impacts on receiving water bodies. By requiring 2.1.4.5.b, this should limit dosing to only required amounts as recommended by manufacturer information.

Response Refer to Response 2.22.



# Comment ID 0066 -A 1.001.025

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.4.5QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

403 Discussion: Requiring the use of flocculants and chemical treatments (e.g. chitosan, polyacrylamide) to enhance sediment remo val
would have a large impact on construction costs. The use of these chemicals could potentially require applicants to clean up the wa ter after these chemicals were used, where the chemicals used have now become a pollutant. Many of the items required by this sec ti on seem to be overly burdensome and will have a negative effect on construction projects and could double or triple the costs of individual construction projects.

Suggestion: If an ELG is established that requires the use of chemical treatments, then you should not consider the chemical utilized as a pollutant, if it is used in good faith and at recommended application levels. If EPA is uncertain of the safety of chemical treatments, then an ELG should not be established that requires their use.

Respons e Refer to Response 2.22.



# Comment ID 0071

- A3.001.028

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.4.5Q •Part 2.1.4.5. Chemical Treatment. CDOT is supportive of testing and establishing a maximum dosage in the permit.

Response Refer to Response 2.22.



# Comment ID 0074

- A2.001.009

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.1.4.5Q The DEQ does not recommend using chemicals for stormwater control. Therefore, it is not necessary to require residual testing and specify a maximum dosage rate. The DEQ encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal. If chemical treatment is used, the chemical pollutants shall not be allowed to discharge to the waters of the US. Residual testing may be an onerous requirement for owners/operators.

Response Refer to Response 2.22.



# Comment ID 0075

- A2.001.014

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.5QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

404 This would greatly restrict waste areas of polymer

- bound sediment on

- project, considering the typical narrow right

- of

- way on linear
construction areas.

Response Refer to Response 2.22.



# Comment ID 0075

- A2.001.016

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.5Q Requirements like this make it harder to apply liquid treatments in linear applications. When it i s used on haul roads, steep cut and fills and topsoil piles, it makes it hard to set up enough filtration devices. A maximum dosage rate should be included in the perm it.

Response Refer to Response 2.22.



# Comment ID 0080

- A2.001.010

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.1.4.5Q Partner Response: One such innovative technology is Chitosan

- Enhanced Sand Filtration (CESF). Derived from waste crab and shrimp shells, chitosan can coagulate colloidal sediment suspensions in water that can be subsequently sand filtered producing a clear filtrate that may be legally discharged directly to surface water. Unlike most water treatment agents, chitosan becomes bound to the s ediment particl es and is completely captured in the sand filter so that only clear, pure water is discharged. Chitosan contains no polyacryl amide, polyamine, aluminum, or toxic byproducts and is biodegradable. (From IECA web site). Would the state of New Mexico even allo w the use of chemical additives for this purpose? Based on the limited turbidity testing that has been conducted in the Albuque rque metropolitan area it is unclear if the purposed limits would be reached. The EPA must recognize that some states will not al low chemical treatment or additions for the purposes of surface water TSS removal. Requiring or recommending the use of chitosan or other bio

- polymer and further prescribing dosage rates seems inappropriate language to be included in the CGP.

Response
Re fer to Response 2.22.



# Comment ID 0085

- A2.001.008

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.1.4.5Q Rockville supports appropriate limitations on the use of chemical flocculants and encourages EPA to further investigate the risks and benefits of using these treatments.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

405 Response Refer to Response 2.22.



# Comment ID 0090

- A1.001.019

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.4.5Q EPA requested comments on the proposed requirement governing the use of chemicals for stormwater control, in Part 2.1.4.5 of the Draft Permit. AGA understands that some local permitting authorities believe that anionic polymers are important additions th at keep
sediment on

- site, and th at some local SWPPP permits require their inclusion. In general, chemical treatment is effective only if properly designed and maintained. Natural gas utilities have had limited experience using polymers. Their use typically requi res expertise to ensure bo th the proper use of the correct polymer and adequate mixing. As for EPA's proposal on requiring residual testing in connection with the use of chitosan, AGA supports the inclusion of a maximum dosage rate as an alternative to testing the residual.
For exa mple, in areas with fine silty clay, polymers may be the only option available to keep these soils from leaving the site duri ng dewatering or stormwater discharges.

Response Refer to Response 2.22.



# Comment ID 0096

- A1.001.069

Author Name: Asmus Susan
O rganization: National Association of Homebuilders Issue Category: 2.1.4.5Q EPA is proposing to require residual chitosan testing, presumably to ensure no adverse effects from its use. EPA, however, ha s not provided any justification for only selecting this particular chemical polymer for residual testing. Does the Agency now believe chitosan is much more toxic than any other polymer? If so, how would the Agency know this, as chitosan was not used in any of the true passive treatments examined by EPA when de veloping the C&D ELG. In short, the proposal for residual chitosan testing does not have any foundation and runs counter to EPA's justification in the C&D ELG that chitosan was a safe natural product. NAHB rai sed
several concerns with the use of chemicals during the development of the ELG including toxicity of such chemicals. EPA dismissed the comments regarding potential toxicity of chitosan and stated that passive treatment, by its nature, does not tightly control the polymer dosage, stating that the only documented case of possible toxicity or adverse effect was due to mismanagement and/or misuse of the polymer. The Agency justified the final ELG and its turbidity limit in part by stating:
"EPA has determined that when properly used, environmental impacts from polymers or flocculants should not occur through the use of passive treatment systems."

and
"Based on the information in the record EPA has determined that when polymers are properly applied the risks of toxicity to a quatic life or adverse effects to the receiving water are minimal." [FN 79]Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

406 Now, EPA may not only require monitoring for chitosan, but apparently the Agency is also considering draconian measures even from the mere detection of any chitosan, such as 24 hour notification, immediate corrective action, and measurement of chitosan every two hours (day and night?) until the discharge ends. This is an incredible response to a problem that was termed "minimal" in the preamble
to the final C&D ELG rule.

EPA received many comments on the proposed C&D ELG raising concerns that any passive treatment did not, of necessity, administer exact dosages of polymer (otherwise the systems would cease to be passive), and thus could potentially introduce too much pol ymer with adverse effects. The main examples of passive treatment examined by EPA were those used and studied by McLaughlin, which simply applied scoops of polymer (PAM, not chitosan) to fiber check dams as they were installed in runoff ditches and simply allowed
the rain events to cause water t o dissolve the polymer. PAM logs and PAM blocks were also used in other McLaughlin tests and papers. These systems clearly did not meter out exact dosages of polymer, and did not use chitosan. McLaughlin states in his papers that he does not believe that these systems posed any real hazard to the receiving streams, in essence agreeing with the EPA's opinion from the final C&D ELG [FN 80] NAHB opposes any mandatory monitoring for chitosan, or any other polymer used in passive
treatment. EPA was warned in com ments to the C&D ELG that this could be a problem with an ELG that relied on passive treatment to meet a mandatory turbidity limit, and this was dismissed out of hand by EPA. Now EPA is essentially repudiating what was determined in the ELG, and adding cos ts to that ELG that were not part of the consideration for that rule. EPA should either not require testing for chitosan or any other polymer, or remove the C&D ELG the numeric limit ( which is the reason why polymers such as chitosan must be used).

Fina lly, the requirements for immediate corrective actions during actual discharge from a passive system are not practical. Polym ers such as chitosan are likely in the form of logs or socks under flowing water, upstream from ponds or settling traps. Getting to them might be hazardous, depending on the rain event and volume. Furthermore, pulling out the logs would almost certainly result in a violation of the yet to be determined numeric turbidity limit and the SWPPP, and it is uncertain what could be used inste ad to guarantee no further detection of polymer. The end result could well be violations both for the discharge of chitosan (or oth er polymer) and also exceeding the turbidity limit.

NAHB remains strongly concerned about any permit requirement that essentially mandates the use of unstudied or questionable chemicals. It is clear that EPA lacks sufficient data on the use of various polymers for this purpose. EPA must refrain from enacting any permit requirement that relies on chemical treatment, at least until which time it has sufficient data to demonstrate both its benefits
and detriments.

[FN 79] 74 Federal Register 63,008 (December 1, 2009). [FN 80] Dr. Richard A. McLaughlin's Publications. http://www.soil.ncsu.edu/people/detail.php?who=36 Accessed July 11,
2011

Response Refer to Response 2.22



# Comment ID 0102

- A2.001.003

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2.1.4.5QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

407 a. c, i, what are the areas "established" in Section 2.1.2? All Waters of the U.S. or just impaired/sensitive?

Response Refer to Response 2.22.



# Comment ID 0102

- A2.001.004

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category : 2.1.4.5Q b. c, vi, Why is chitosan given special treatment/allowances by allowing this cationic material to be released when all other s may not be?

Response Refer to Response 2.22.



# Comment ID 0102

- A2.001.005

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2.1.4.5Q c. On shallow groundwater provision - c, ii, is this a seasonal groundwater table depth? It should be the expected groundwater table depth that matches the expected season/duration of the use of the treatment.

Response Refer to Response 2.22.



# Comment ID 0102

- A2.001.006

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2.1.4.5Q d. b, what is the treatment used is non

- proprietary?



# Comment ID 0110

- A1.001.018

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.1.4.5Q The use of PAMs applied directly to soil surfaces will likely lead to runoff that may be toxic to aquatic species.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

408 Response Refer to Response 2.22.



# Comment ID 0112

- A2.001.005

Author Name: Karimi Hamid Organization: DC Dept of Environment Issue Category: 2.1.4.5Q
Part 2.1.4.5 Chemical Treatment

Residual testing for polymers and dosage rates should be included in the Permit. EPA should include maximum dosage rates to prevent over application. Typically,construction workers or operators are not trained in the harmful effects of these substances on a quatic organism and over application may occur. The use of polymers, while providing a good sediment con trol system, must be monitored closely to reduce or eliminate the possible added pollution and environmental degradation it would cause if excess amounts ar e released into a receiving stream. It appears that EPA does not have enough data to determine what level of certain polymers (i.e. Chitosan) in the discharge can have an impact on plants and benthic organisms. Therefore, EPA should provide funding for the monitoring of the effects of polymers (i.e Chitosan) on aquatic organisms.

Response
Refer to Response 2.22.



# Comment ID 0131

- A1.001.025

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.1.4.5Q The use of passive and active treatment including the use of chitosan can in some cases be a highly effective tool for addressing turbidity at challenging sites. The allowance for chitosan to be used as a potential tool can be hindered through the potenti al over regulation of its use through excessive monitoring requirements. Practical design of treatment systems and passive deployment of chitosan based coagulants can be accomplished without the need for residual chitosan testing. The requirement for residual te sting potentially precludes chitosan's use in many simple passive treatment systems, the specific technologies that have been used in the past by EPA in helping to establish effluent limitation guidelines for turbidity reduction at construction sites.

In addition, the levels of acceptable chitosan residuals should be established specific to the receiving water. There are many receiving waters where it is likely that low level chitosan residuals would present little or no likely harm to the environment.

Rather than require testing on every site that employs chitosan (or other coagulants such as polyacryla mide), it would be much more

cost

- effective for EPA or the states to conduct more well thought out studies of potential passive applications and toxicity tests and then develop appropriate guidance on their use (e.g. establish appropriate application/dosage rates, etc.)

Response Refer to Response 2.22.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

409 

# Comment ID 0133

- A2.001.019

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.4.5Q With the incorporation of a turbidity limitation in this permit, MDT anticipates the need to provide chemical treatment for compliance purposes. At this time, chemical treatment has not been used in the state of Montana for construction storm water controls. M DT is concerned thaI the inclusion of residual testing and/or a m aximum dosage rale would be problematic to implement and would drive up costs, likely discouraging the use oj these innovative technologies. That said, MDT sees value in testing to ensure Montana ' s waterways are not damaged.

Response Refer to Response 2 .22.



# Comment ID 0137

- A2.001.010

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.1.4.5Q From an environmental perspective, the use of chemicals such as flocculants and polymers poses a risk to the environment and human health if used improperly. If chemicals are to be used for enhanced sediment removal, then an additional permit and residual testing should be required. Optionally, the operator could supply credentials such as tra ining in the use of these chemicals and give a reason
that the chemicals will be better suited for the treatment of the wastewater to warrant their use.

Response Refer to Response 2.22.



# Comment ID 0159

- A1.001.007

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.4.5Q From an environmental perspective, the use of chemicals such as flocculants and polymers poses a risk to the environment and human health if used improperly. If chemicals are to be used for enhanced sediment removal, then an additional permit and residual testing should be required. Optionally, the operator could supply credentials such as training in the use of these chemicals and give a reason that the chemicals will be better suit ed for the treatment of the wastewater to warrant their use.

Response Refer to Response 2.22.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

410 

# Comment ID 0172

- A1.001.002

Author Name: Enssle Colin Organization: GE Water & Process Technologies Issue Category: 2.1.4.5Q Section 2.1.4.5, Requirements Applicable to Specific Stormwoter Controls, Chemical Treatment, begins, "If you are using polymers, flocculants, or other treatment chemicals (e.g., chitoson, polyacrylamide (PAM)) to enhance sediment removal, you must..." It is appropriate to include the classes of chemistries that are proven methods for enhancing sediment removal. It is inappropriate, however, to specificlly mention any potential treatment chemistry in detail. Specifying a particular chemistry like chitosan could be read as
EPA's endorsem ent of that chemistry,and give it an unwarranted and unfair competitive advantage.

Response Refer to Response 2.22.



# Comment ID 0172

- A1.001.003

Author Name: Enssle Colin Organization: GE Water & Process Technologies Issue Category: 2.1.4.5Q
Section 2.1.4.5 (c) (iii) places a use restriction on chemical treatment, such that any use of sediment containing polyacrylamide, chitosan, and other bio

- polymers as fill material on

- site is limited "to not closer than 100 feet from waters of the U.S" The 100

- fee t requirement seems excessive, and is not tied to a specific mark - bank, high water mark, stream midpoint, etc. More clarity is necessary as to why this distance was chosen and how it is measured. If this is detailed in other sections of the Construction General Permit, there
should be a reference.

Response Refer to Response 2.22.



# 2.1.4.6 DEWATERING PRACTICES

Comment ID 0015

- A2.001.029

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.1.4.6 2.1.4.6 Add a clear statement that dewatering to bare soil areas is prohibited.

Response Refer to Response 2.23.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

411 

# Comment ID 0017

- A1.001.013

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.1.4.6 11) 2.1.4.6 ‐ The dewatering practices listed do not address the discharge of groundwater or stormwater to upland areas where natural vegetation can remove sediment. If the discharge occurs within the construction area, it should be acceptable to discharge to an upland area and allow the water to infiltrate without having to remove sediment first.

Response Refer to Response 2.23.



# Comment ID 0019

- A1.001.001

Author Name: Owens Kelly Organization: Bureau of Land Management (BLM) Issue Category: 2.1.4.6 1.Paragraph 2.1.4.6 Dewatering practices a.This comment is in reference to the sentence "Uncontaminated, non

- turbid dewatering wastewater, such as well point groundwater, can be discharged without being routed to a control..." Consideration needs to be g iven to
the situ ation of produced water from coal bed methane. In some instances, the surrounding soil may have a relatively high salt conten t. Often produced water from coal bed methane wells is so clean that when it is discharged onto the ground, it leaches salt from th e soil and increases the salt content in the water. This could pose a problem in the Colorado River Basin, where salt contents are a lready high.

Response Refer to Response 2.23.



# Comment ID 0034

- A1.001.006

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 2.1.4.6
Proposed Requirement/Section Addressed: CGP Section 2.1.4.6, Dewatering practices: prohibition of discharging groundwater o r accumulated stormwater that is removed from excavations, trenches, foundations, vaults, or other points of accumulation associated with a construction activity, unless such waters are first treated by an appropriate control for sediment.

Comment: The term "treated" may imply requirements beyond traditional structural sediment controls such as those included in a
Stormwater Pollution Prevention Plan.
Discussion: Many control measures may not fit the definition of "treatment.". Deleting the word "treated" reduces confusion r egarding types of control measures that are acceptable.

Recommendation: Recommend changing first sentence to "You are prohibited from discharging groundwater or accumulated stormwater...unless appropriate controls for sediment are applied."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

412 Response Refer to Response 2.23.



# Comment ID 0046

- A1.001.011

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.4.6 This section seems more complicated than it needs to be. It seems prudent to say that discharges need to comply with State Wa ter Quality Standards.

EPA needs to define "Non

- Turbid". If the turbidity ELG is invoked, this condition would supersede the EGL.
If there were oil in the water, one would need a Remedial General Permit (RGP). Let the RGP permit stand on its own and do no t mix
the conditions ofthe CGP and RGP.

Why did EPA change the terminology from Stormwater to Wastewater?
Condition vi and wi seem out of place. EPA should regulate the discharge and not attempt to control the Contractors mean and methods.

Response Refer to Response 2.23.



# Comment ID 0053

- A2.001.013

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.6 11. Page 19; Part 2.1.4.6 Dewatering practices: a. Discharge requirements. Consider adding language informing permittees that separate permits and/or monitoring conditions may be required to cover "dewatered" discharges to "waters" based on TMDL limits or designated drinking water intake stream reaches, such as Aquifer Protection Permits or Department of Water Resources notification.

Response
Refer t o Response 2.23.



# Comment ID 0090

- A1.001.020

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.1.4.6 Under Part 2.1.4.6 on Dewatering Practices, EPA should clarify that an appropriate sediment control for groundwater removal from shallow linear excavations is the traditional "sediment sock" method of covering the ends of discharge hoses to filter out se diment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

413 Also, uncontaminated, non

- turbid dewatering wastewater should be clarified to include all groundwater, not just "well

- point ground
water" as stated in the Draft Permit under 2.1.4.6.

Response Refer to Response 2.23.



# Comment ID 0093

- A2.001.054

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.4.6 AGC recommends that EPA consider adding language to inform permittees that separate permits and/or monitoring conditions may be required to cover "dewatered" discharges to "waters" based on TMDL limits or designated drinking water intake stream reach es, such as Aquifer Protection Permits or Department of Water Resources notification.

Response Refer to Response 2.23.



# 2.2 STABILIZATION REQUIREMENTS

Comment ID 0049

- A1.001.020

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2 While it is possible to "minimize" erosion, it may be impossible to "prevent" sediment discharge whenever runoff events occur . If "prevent" means total removal of sediment from runoff waters, then this is an unrealistic criterion that n obody can meet! However, it is feasible to "minimize" the discharge of sediment.

Response: EPA agrees with the commenter that the objective of typical stabilization measures is to minimize erosion. The final permit does not depart from this goal. EPA’s decision to not finalize the proposed C

- factor approach and associated stabilization criteria likely
addresses the commenter’s concerns.



# Comment ID 0056

- A2.001.008

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.2 Restoration projects often rely on natural processes to perform the final stabilization. A specific example is a dam removal to restore a free flowing stream where there is an impoundment. A crea ted channel accompanied by planting throughout the former impoundment area can actually be counterproductive. The river may not naturally follow a designed and excavated river channel despite bes t effortsRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

414 to intuit the preferred river channel. The newly restored freeflowing river will eventually find its own path through the former impoundment and this self

- selected course will be the most sustainable one. Aggressively stabilizing a restoration site may delay the river's ability to create its preferred and more stable channel. DER requests that EPA provide more flexibility in the permit to allow for
a natural

- processes approach for pro

- active restoration projects.

Response: Refer to Essay Response 2.26.4.



# Comment ID 0071

- A3.001.019

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2 •Part 2.2 Stabilization Requirements. In general this Part is unclear. Restructuring this section might be beneficial. For ex ample, breaking the sections down into Requirements for each type of Stabilization, Deadlines for establishing each type of Stabilization, Seeding Requirements, etc. might provide clarity.

Response: Refer to Essay Response 2.26.1.



# Comment ID 0080

- A2.001.015

Author Name: Verhage Kathy Organ ization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.2 3. Minimize the amount of soil exposed during construction - Phasing is always a good idea.

Response: EPA agrees with the commenter. See Part 2.1.1.1 of the final permit.



# Comment ID 0091

- A2.001.019

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.2 19. Part 2.2: The definitions in this section are not identical to the definitions for these terms in Appendix A. The Appendix should include the "for the purpose of this permit" definitions.

Response: EPA appreciates the comments. These discrepancies have been corrected. EPA has used the phrase “for the purposes of this permit” for many of the definitions in the final permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

415 

# Comment ID 0096

- A1.001.038

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.2 EPA has proposed a complex set of stabilization requirements that are detailed in Part 2.2. The stabilization require ments vary depending on the location of the construction activities, such as stabilization requirement for steep slopes, sensitive areas and arid regions. The language in the CGP is far more prescriptive than the language in the final ELG. Overall, EPA has removed the language from the ELG that allows for stabilization initiation ‘as soon as practicable’ and instead relies on prescriptive deadlines. This is very problematic, as many times it is unclear whether there will be further disturbance of the area within a specified timeframe due to perfectly legitimate and reasonable contingencies (i.e., weather, scheduling, etc.). EPA’s mandate on the stabilization requi rements is unreasonable, arbitrary, and capricious. EPA must provide flexibility in the stabilization requirement to allow permittees meet this requirement and stay in compliance.

Response: Refer to Essay Response 2.26.2.



# Comment ID 0107

- A2.001.011

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 2.2
One of the most effective mechanisms to control sediment runoff both during construction and post construction is to limit the amount of ground that is disturbed during the construction activity. Because New Mexico is so dry and it is difficult for vegetation to get established, i t important to maintain the natural and preferably native vegetation that already exists. Too often homebuilders and developers will blade an entire 3, 5, or 10 acre plot of land to put in one small house or trailer in a misguided belief that they should g et rid of the "brush" around the home. This brush is often native vegetation like sagebrush or rabbit bush that provides critica l erosion control functions. In addition, once the native vegetation is removed noxious weeds almost always take over. Amigos Br avos would like to see incentives for disturbing less area incorporated into the permit. Perhaps if a permittee can show that a minimum footprint was disturbed a more lenient stabilization deadline could be given. Regardless, there should be multiple incen tives for disturbing less area built into the structure of the permit. The lack of adequate incentives for minimizing the construction footprint is the biggest weakness of the draft permit.

Response: Refer to Essay Response 2.26.3.



# 2.2.1 DEADLINES FOR INITIATING AND COMPLETING STABILIZATION [REQUEST FOR COMMENT]

Comment ID 0015

- A2.001.030

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental ServicesRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

416 Issue Category: 2.2.1 2.2.1 Add additional requirements for stabilization of stockpiles. We suggest "stabilize all stockpiles within 7 days of cessation of materials adds to the pile."

Response: EPA appreciates the comment. The final permit adopts erosion and sediment control requirements for stockpiles. See Part 2.1 .2.4. Although the permit does not specify stabilization requirements for such stockpiles, the operator is subject to controls that the Agency believes are similarly effective.



# Comment ID 0046

- A1.001.012

Author Name: Hemmerlein Mark Organization: New Hampshir e Department of Transportation (NHDOT) Issue Category: 2.2.1 The Department supports this condition

Response: EPA notes the commenter’s support for this requirement.



# Comment ID 0087

- A1.001.022

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.2.1 EPA has proposed different deadlines for stabilization, depending on other practices implemented at a construction site. See e.g., Sections 2.1.2.2.b (stabilization for sites with buffers less than 50 feet in which distur bance occurs), 2.1.4.1.b (stabilization for stormwater conveyance channels), 2.1.4.2.c.ii (stabilization for disturbances to steep slopes), 2.2.1 (general stabilization requirements), 2.2.1.3 (stabilization for discharges/disturbances to sensitive areas), 2.2.1.4 (stabilization deadlines for arid/semi

- arid areas), and 4.2.2.2.b (stabilization for sites with discharges to impaired waters). UWAG is concerned that none of these deadlines is achievable or appropriate, given the range of different conditions tha t operators will encounter. Specific stabilization practices and timeframes vary widely around the country depending on geography, climate, and terrain. EPA needs to revise its stabilization deadlines to re flect this variation, and to provide relief to ope rators whose particular site conditions make stabilization within a narrowly prescribed period impracticable. We support EPA's proposal to do so for projects in arid and semi

- arid areas (Section 2.2.1.4), but we urge EPA to
extend this relief to other area s, as well. Specifically, we urge EPA to replace the proposed stabilization deadlines with a "as soon as practicable" standard or, alternatively, to provide longer time periods for completing initial stabilization for sites that m eet a certain acreage and/ or linear threshold.

Response: Refer to Essay Responses 2.28.1, 2.28.3, and 2.28.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

417 

# 2.2.1.1 DEADLINE TO INITIATE STABILIZATION

Comment ID 0030

- A2.001.016

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.2.1.1 Section 2.2, page 20 Immediate stabilization may be more appropriate for sites where earth

- disturbing activities have permanently ceased and are not anticipated to resume in the future than for sites where earth

- disturbing activities have temporarily ceas ed but in some instances may resume. Immediate stabilization of an area where construction activities have been temporarily ceased but are expected to res ume within a short period of time, could result in a redisturbance of a recently stabilized site and i s considered unnecessary in instances where additional BMPs are installed providing protection. Stabilization should be encouraged to occur quickly, but immediatel y seems impractical.

Additionally, there needs to be clarification on the language that "within in any area of your construction site" will trigger these stabilization requirements. If you have final grades on a small area of your site but you are scheduled to finish another are a two days later, is this requirement stating you must immediately s tabilize the smaller area and can't wait two days to stabilize both when there are additional sediment BMPs and the area has been surface roughened to reduce the potential of erosion?

We recommend stating that stabilization practices will be initiated as soon as feasible at sites where earthdisturbing activities have been either temporarily or permanently ceased.

Response: Refer to Essay Response 2.28.4.



# Comment ID 0037

- A1.001.016

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.1 portions of your site where earth

‐ disturbing activities have permanently ceased or temporarily ceased (and will not resume for a period exceeding 14 calendar days) if 1) soil conditions due to an earlier storm event are too wet for stabilization activities (e.g. preparing the soil for planting, seeding and mulching, etc.) or 2) the soil was frozen during this period precluding any further activities . If any of these events were to occur, EPA could require that stabilizati on activities should be initiated as soon as practicable.

Response: Refer to Essay Responses 2.28.2 and 2.28.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

418 

# Comment ID 0047

- A2.001.012

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.2.1.1 Section 2.2, page 20

Stabilization should be implemented as quickly as possible, but "immediately" is not always practical or feasible. Weather and site conditions quite often can impede "immediate" stabilization measures and in some instances can cause more damage (i.e. if th e ground is frozen, or too wet for equipment to access). That is why additional BMPs should be used such as surface roughening or peri meter
control.

Xcel Energy recommends stating that stabilization practices will be implemented as soon as possible/feasi ble at sites where earth disturbing activities have been either temporarily or permanently ceased.

Response: Refer to Essay Response 2.28.4.



# Comment ID 0062

- A1.001.024

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.1.1 Brevard County Comment: "Exposed portions": How big an area? 10% of site? 10 sq ft?

Response: Refer to Essay Response 2.32.



# Comment ID 0062

- A1.001.025

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.1.1 Brevard County Comment: Which "final" grade? Subbase, base, paved or sodded?

Response: Refer to Essay Response 2.29.



# Comment ID 0093

- A2.001.055

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

419 Issue Category: 2.2.1.1 In several parts of the Draft pertaining to the stabilization requirement, EPA states: "You must immediately initiate stabilization ... ." This language appears in every stabilization scenario in the CGP as written (section 2.1.2.2.b.i, 2.1.4.2.c.i, 2.2.1.1). It is completely impractical and infeasible, and more importantly technical compliance with such a standard is often not really practical. Any EPA inspector or any environmental wa tchdog group could claim that stabilization was not started "immediately," and this generally cannot be disproved, because technically, even a minor delay is not "immediate."

Response: Refer to Essay Responses 2.27 and 2.28.4.



# Comment ID 0096

- A1.001.042

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.2.1.1 In several sections of the proposed CGP pertaining to the stabilization requirement, EPA states “You must immediately initiat e stabilization...” This language appears in every stabilization scenario (Parts 2.1.2.2.b.i, 2.1.4.2.c.i, 2.2.1.1). It is completely infeasible, and more importantly, often technically impossible to comply with this standard. Any EPA inspector or any environmental watch dog

group could claim that any stabilization was not started “immediately,” and this generally cannot be disproved because technically, even a minor delay is not “immediate.” A Site Operator/Owner may not be aware that land disturbance is complete for the next
fourt een days (or shorter for some specialized situations) until someone verifies that the grading is correct. For example, stabil ization is often performed by a different work crew, which would need to be summoned after grading was complete, and may not commen ce work until the following day. Also, separate surveying crews need to check the graded/filled elevations to confirm that they are c orrect. If not correct more grading or filling might be required. This is a time consuming process and not conducive to imm ediate action.

Instead, the stabilization requirements should give a time frame within which the stabilization must be completed. For example, Part 2.2.1.2 states that even general stabilization must be complete within seven calendar days, and special sit uations have shorter time limits for completion of stabilization. With these deadlines for completion, it is clear that an operator cannot delay the initiation of stabilization for very long, even if that were the intent. NAHB suggests the language should read, “Stabilization should be initiated as soon as is practical after grading or disturbing activities have permanently ceased, or have temporarily ceased and it is ver ified that they will not resume within the next 14 days.” This, coupled with the requirements for stabilization to be complete, is a standard that can feasibly be met by an operator.

Response: Refer to Essay Responses 2.27, 2.28.4, and 2.29.



# Comment ID 0100

- A2.001.008

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 2.2.1.1 Section 2.2.1 describes USEPA's deadline for initiating and completing stabilization on construction sites that will not resu me activity for a period of 14 or more days, or for a period of 7 or more days if any of the conditions in Part 2.2.1.3a apply to the site, but suchRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

420 activities will resume in the future. The City believes the 7

- day suggested timeframe is not practical in the least. Fort Wayne experiences several days of rain, especially in the spring. There are often instances where there are only limited non

- rain days within a month's time. USEPA should take this into consideration and determine what the intent of cease activity means.

Response: Refer to Essay Response 2.28.2.



# Comment ID 0131

- A1.001.031

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.2.1.1 These Proposed CGP parts cited above require immediate stabilization of "any area of your construction site" when earth distu rbing activity is temporarily or permanently ceased. Earth disturbing activity is defined as clearing, grading, and excavation.

This is written such that work areas including front yards, back yards, side yards, drives and sidewalks, or streets, etc. that have been graded and are used for access to the active construction areas will need to be stabilized during active construction. This presents an impossible situation. It is suggested that working areas surrounding active construction activity are to be stabilized in acc ordance with the Proposed CGP once they are no longer needed to support the adjacent construction activity.

Response: Refer to Essay Responses 2.28.4 and 2.29.



# Comment ID 0153

- A1.001.015

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.2.1.1 1. This section includes the 14 day stabilization clause, but also introduces a 7 day clause for certain conditions. The EGL stated 14 days, so suggest staying consistent with that requirement. The 7 day stabilization requi rement may become a scheduling nightmare especially if the 7 days have exceeded, but . work is to be done on day 10 because of weather, or working days (weekend).

2. The 7

- day timeframe is probably not achievable for DOT projects. In some cases, weather may create a situation where work is ceased for 7 days invoking this requirement. A 14 day deadline is more reasonable.

Response: Refer to Essay Response 2.33.1 and 2.33.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

421 

# 2.2.1.2 DEADLINE TO COMPLETE STABILIZATION ACTIVITIES

Comment ID 0021

- A1.001.010

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.2.1.2 10. What if the stabilization deadline in 2.2.1.2 is not feasible? It may not be feasible to stabilize large areas in 7 days. On some projects the construction activities associated with stabilization can take weeks or even months.

Response: Refer to Essay Response 2.33.



# Comment ID 0021

- A1.001.017

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.2.1.2 6. CGP Section 2.2.1.2 states that within 7 calendar days of initiating stabilization on exposed portions of your site you are required to have completed vegetative cover or non

‐ vegetative cover. It is not feasible to complete stabilization activities within 7 days in most cases. This is a labor intensive scope of work that can often times take weeks or even months depending on the project's size. If it is the EPA's intent to categorize a site into smaller portions for this requirement than further verbiage needs to be incorporated s tating such. Often times, large a reas are final graded and become ready for stabilization all at once and it is not possible to complete these activities in 7 days.

Response: Refer to Essay Responses 2.32 and 2.33.



# Comment ID 0053

- A2.001.014

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.2.1.2
12. Page 21; Part 2.2.1. Deadlines for Initiating and Completing Stabilization. Consider including language: "Where stabilization by
the 7th day is precluded by snow cover or frozen ground conditions, stab ilization measures shall be initiated as soon as practicable."

Response: Refer to Essay Response 2.33.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

422 

# Comment ID 0064

- A1.001.021

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.2.1.2 Section 2.2.1.2, page 21 - "Within 7 calendar days of initiating stabilization..."
•Recommend keeping timeframes consistent throughout this section to avoid confusion.

Response: Refer to Essay Response 2.35.1.



# Comment ID 0076

- A1.001.011

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.2.1.2 Target asks for additional clarification be provided on the temporary and permanent stabilization timing to clarify if a site needs to be stabilized within 7 (Time to begin stabilization), 10 (+3 days to compete stabilization) or 14 days (calendar / business days).

Response: Refer to Essay Response 2.31.



# Comment ID 0093

- A2.001.056

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.2.1.2
AGC finds it unreasonable for EPA to require contractors to complete final stabilization seven (7) days after initiating stabilization on exposed portions of the job site (and three (3) days after initiating stabilization practices on slopes in excess of 15% and for pr ojects impacting sensitive areas or discharging to impaired waters). First, the industry standard for construction scheduling, parti cularly on large projects, is to schedule out work in one

- week increments. This means schedules are updated on a weekly basi s. The seven - and
three

- day standards would routinely place an operator in violation of the CGP if he completes work ahead of schedule because the stabilization deadline may elapse prior to the next schedule update or because the contractor may not have en ough response time fulfill the permit requirements. Similarly, if construction on an area is completed in the middle of the week, the stabilization dead line may expire over a weekend. Secondly, it is common for operators to use subcontractors for stabiliza tion. Stormwater contractors tend to be
small business. The seven

- day requirement would not provide enough time for a subcontractor to mobilize and complete the stabilization. This would force operators to eliminate the use of these subcontractors in favor of self

- performing this work which would place a disproportionally negatively impact on small and disadvantaged business. Third, when sod is required, at times there are limits on the receipt of sod (the fields are wet, transportation challenges, etc). Th ese items are not in the control of the contractor. Fourth, the language in the Draft is far more prescriptive than the language in the final C&D ELG. Overall, EPA has removed the language from
the C&D ELG that allows for stabilization initiation ‘as soon as practicable' and instead relies on prescriptive deadlines.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

423 AGC recommends that EPA consider an approach that would require contractors to start stabilization practices when constructio n is substantially complete and then make weekly progress until com pletion of the stabilization practices. EPA should also include language recognizing weather conditions like snow cover or frozen ground that would preclude stabilization practices from tak ing place on the jobsite.

Response: Refer to Essay Responses 2.33 and 2.35.



# Comment ID 0115

- A2.001.013

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.2.1.2 2.2.1 Deadlines for Initiating and Completing Stabilization. Similar to our comments on Part 2.1.1.2 c., linear utility proje cts cannot always comply with the timeframes for achieving compliance with the current language. Specifically in sensitive areas, becaus e of construction phasing associated with larger utility projects, activities along portions of the line may not be active for a p e riod that may exceed 7 days (2.2.1.3). These areas continue to be monitored and maintained in accordance with the SWPPP, and temporary stabilization measures are typically employed (including straw mulch and the installation of check dams and diversion swa les). Proper temporary (or permanent) stabilization is conducted as best meets the requirements of ROW conditions. Of concern, however, is the requirement to achieve vegetative or non

- vegetative stabilization for activities that have temporarily ceased for a period of 7 days or longer. Since work areas are re

- visited on multiple occasions due to construction sequencing (e.g. foundation drilling, followed by pole installation, followed by wire pulling) this requirement is not feasible.

Response:
Refer to E ssay Response 2.35.



# Comment ID 0158

- A1.001.010

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 2.2.1.2 The proposed deadline for completing initialization of stabilization is unrealistic. Three working days for sensitive areas and seven calendar days for non

- sensitive areas are too short for completion and do not consider limitations during wet and during dry seasons. See Section 2.1.2.2.b.; 2.1.4.2.ii; 4.2.2.2.b. A reasonable alternative could b e "as soon as practicable, but no later than 30 days after the cessation of construction activity in that area unless weather conditions (seasonal wet periods) make it impractical to initi alize stabilization." EPA also should define "working days" and clar ify the definition of "immediately" in reference to how soon one must
stabilize an area. Id.

Response: Refer to Essay Responses 2.27 and 2.35.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

424 

# 2.2.1.2Q PRACTICABILITY OF THE STABILIZATION TIMEFRAMES

Comment ID 0015

- A2.001.008

Author Name: Cox Kim Organiz ation: City of Portland, Burea of Environmental Services Issue Category: 2.2.1.2Q Q7. 7

- day stabilization - Agree. Immediate / end of day for disturbances within buffer areas.

Response: Refer to Essay Response 2.30.



# Comment ID 0037

- A1.001.017

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.2Q An exception should be provided to the requirement to complete stabilization on disturbed areas within 7 workdays of initiati ng stabilization in the even t that in the event that 1) a storm event occurred during the 7

‐ day deadline period which prevented stabilization activities from taking place, 2) soil conditions due to an earlier storm event are too wet for stabilization activities, (e.g . preparing the

s oil for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period precluding any further activities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0049

- A1.001.022

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.1.2Q Not all sites can be stabilized within 7 days. EPA must allow for flexibility that takes into account weather conditions (e.g., winter time), local conditions, growing seasons, etc.

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

425 

# Comment ID 0060

- A1.001.009

Author Name: Gasper David Organization: NYS Depar tment of Environmental Conservation Issue Category: 2.2.1.2Q
9. Section 2.2.1.2 - This section requires the owner to complete stabilization activities within 7 calendar days of initiating stabilization on exposed portions of the site, with no exceptions. While the 7 days may be sufficient on some sites, it may not be practical for every construction site. The time frame to complete stabilization can vary based on site conditions (i.e. size of the disturbance t o be stabilized, final topography/steep slope a reas, etc.) and by the weather conditions (i.e. several days of rain that prevents the construction equipment from accessing the site, high intensity rain event that results in erosion and requires additional lan d grading, etc.). EPA should modify this sec tion to provide an owner with additional time to complete stabilization activities if certain
criteria/conditions are met.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0062

- A1.001.026

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.1.2Q Brevard County Comment: Large area paving projects may require exposed base rock for extended periods to avoid damage to asph alt during building construction.

Response: EPA clarifies that the stabilization requirements in Part 2.2 are focused on exposed soil surfaces.



# Comment ID 0065

- A1.001.014

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.2.1.2Q Section 2.2.1 requires the contractor to initiate stabilization procedures after permanently ceasing earth

- disturbing activities, or when activities cease for more than 14 calendar days or for more than 7 days under certain circumstances. Stabilization must be co mpleted in
7 da ys.

These timelines should be revised to allow additional flexibility for unique or unusual circumstances, which can reasonably b e expected to occur. For example, it may not be possible to meet either the 14 - or 7

- day timeline if there are no workers ava ilable to complete the task because a union has gone on strike. Additionally, it may not be possible to initiate stabilization activities within 7 days on sensitive areas where BMPs need to be significantly re

- designed or modified, which would require engi neers to reassess the
circumstances and re

- design or modify the BMPs. The CGP should not require less than a 14

- day period for stabilization initiation or completion, which will ensure projects have a reasonable ability to comply.

Response: Refer to Es say Responses 2.28.2, 2.33, and 2.34.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

426 

# Comment ID 0066

- A1.001.026

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.2.1.2Q Comment: As previously discussed, many of our projects involve very large scale seeding operations, often in remote areas of the state. For this reason, we are concerned that 7 days to complete seeding operations is not sufficient.

Response: Refer to Essay Response 2.33.



# Comment ID 0069

- A1.001.004

Author Name: Cramer M. Organization: Issue Category: 2.2.1.2Q 4. Part 2.2.1.2. of the draft EPA CGP requires operators to complete stabilization activities within 14 days for all areas, 7 days for sensitive areas, steep slopes and stormwater conveyances, and for buffer areas within 3 days. For linear projects where the construction sequence is always in flux due to weather, soil condition, unexpected rock, and a host of other factors, a 3

- day stabilization requirement would be overly burdensome and often completely impractical. Conside ration of specifying more stringent requirements for certain potentially sensitive areas is more appropriate for the SWPPP design level where site conditions can be directly assessed and not arbitrarily required by a "one size fits all" permit requirement. The language of this section should be modified to recommend the reduced stabilization times for sensitive and buffer areas, but allow flexibility of this period to be based on consideration of site and project conditions that would be addressed in the SW PPP.

Response: Refer to Essay Response 2.35.



# Comment ID 0071

- A3.001.006

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.1.2Q •Part 2.2.1.2 Deadline to complete stabilization activities. 7 days to initiate stabilization is too restrictive in certain circumstances. Most specifically, when projects are very large, remote (limits availability of contractors and supplies), and/or when terrain or soil conditions

a re difficult. In these instances comp leting stabilization within 7 days is not be feasible. Allowing the engineer to determine and document extensions in the SWPPP is a reasonable alternative to the 7 day requirement.

Response: Refer to Essay Response 2.33.



# Comment ID 0071

- A3.001.029

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.1.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

427 •Part 2.2.1.2 Deadline to complete stabilization activities. CDOT is supportive of timelines, but not as requirements, as man y site specific conditions could impact this deadline. For example, breakdown of equipment in a mountain area where replacing the equipment may take a few days. See Comments on Proposed Requirements above for additional reasons. CDOT suggests that the
timelines be used as guidance or that exemptions be allowed and that compliance can still be achieved if the timeline is exceeded in unusual conditions or scenarios by documenting the reason and a new deadline in the SWPPP.

Response: Refer to Essay Response 2.33.



# Comment ID 0072

- A2.001.007

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.2.1.2Q
It is MoDOT's contention that an allowance for the 7

- day stabilization deadline should be granted if inclement weather should o ccur either before or during the 7

- day window, which would preclude the contractor from completing the work. The contractor would then have to assure stabilization is initiated once the weather clears and the site dries sufficiently. The reason for this allowance is because of the potential to create more erosive conditions from rutting or other equipment damage if the stabilization practices were applied during wet site conditions.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment I D 0074

- A2.001.010

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.2.1.2Q The stabilization timeframes are acceptable as long as there are variances given for exceptional circumstances.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0075

- A2.001.006

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.2.1.2Q The alternative "equivalent sediment load reduction" which allows for reduced 50

- foot buffers (Appendix M) appears beyond skills of a typical general contractor in manipulating USDA's RULSE, WEPP, SEDCAD or SEDIMOT erosion modeling. The contractor would be missing critical input data on particle size analysis on a 10 mile long linear project.

Response: Refer to Essay Response 2.46.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

428 

# Comment ID 0075

- A2.001.007

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.2.1.2Q Suggest that the timeframe be extended to 14 days of temporary stoppage of earthwork activities or permanent completion instead of 7 days.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0075

- A2.001.017

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.2.1.2Q On a larger construction project, 7 days to perform the final seeding, erosion control blanket, etc. may be a bit difficult to complete. WYDOT has specific windows for seeding, (spring planting - frost free ground un til June 15) (fall planting - September 1 until frost in ground). Construction completed outside these windows may not have seeding completed until conditions are appropriate.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0080

- A2.001.011

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.2.1.2Q Partner Response: Reducing the allowable period for site stabilization from 14 days to 7 days is problematic parti cularly in the arid west where there are months at a time when precipitation is unlikely to occur. Without rain stabilizing these disturbed areas in 7 days (or 14 days) simply does not make sense nor is it attainable through vegetative means.

The 7

- day d eadline would also add considerable cost to the overall C&D project. On construction projects where the contractor commences soil disturbing activities at several different locations within the site, additional time is needed to provide ade quate temporary stabilization. Special consideration must be given to earth disturbing activities in the arid west where the task of completi ng stabilization is labor intensive and often requires weeks or months to occur depending on project size, complexity, and the a mou nt of natural precipitation.

On linear transportation projects, to stabilize constructed stormwater channels in 7 days the contractor needs to stabilize t he roadside ditches while still working on the roadway, shoulder, pipe installation, or other activity adjacent to ditches. This requirement is
infeasible during construction since other work may be performed in the same area.

Additionally, if final stabilization (seeding) will be implemented at the end of a project; why require in the CGP that additional steps be taken to stabilize channels earlier at a time when construction is still in progress and BMPs are in place to mitigate the runoff from
these same disturbed areas?Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

429 Finally, in arid areas, if the site is being stabilized using a 70 percent vegetative cover criteria, erosion control measures (e.g., degradable rolled erosion

- control products) must be selected and installed with an appropriate seed base to provide erosion control for at least three years while awaiting cover. In arid areas, fi nal stabilization is anticipated to take the entire three year period, and may still
not result in a 70% vegetative cover. This scenario provides further evidence that the one size fits all approach to stormwater regulation including establishing prescript ive stabilization deadlines do not apply very well in Albuquerque and the arid west.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0085

- A2.001.009

Author Name: Charles Mark Organization: City of Rockville, Maryland
Issue Cat egory: 2.2.1.2Q The timeframes for installing stabilization appear reasonable. EPA should consider how it plans to assess compliance with the se time frames. Frequent inspections would be one way to assess compliance. However, this may not be feasible due to limited resources.

Response: Refer to Essay Response 2.30.



# Comment ID 0086

- A1.001.010

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 2.2.1.2Q The proposed deadline for initi alizing stabilization is unrealistic. Three working days for sens itive areas and seven calendar days for

non

- sensitive areas are too short for completion and do not take into consideration rain versus dry season c limatic conditions. See Section 2.1.2.2.b.; 2. 1. 4.2. ii; 4.2.2.2.b. A reasonable alternative could be "as soon as practicable, but no later than 30 days after the cessation of construction activity in that area unless weather conditions (rainy season) make it impractical to initialize st abilization."
EP A a lso should define "work ing days" and clarify the definition of " immediate ly" in reference to how soon you must stabil ize an

area.

Response: Refer to Essay Responses 2.27, 2.28.2, 2.33, and 2.34.



# Comment ID 0088

- A1.001.012

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.2.1.2Q Among the unrealistic requirements are:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

430 -- the proposed deadline for completing initialization of stabilization of three working days for sensitive areas and seven cale nd ar days
for non

- sensitive areas we conSider too short for completion. They also don't take into consideration wet versus dry periods. A reasonable alternative could be "as soon as practicable, but no later than 30 days after the cessation of construction a ctivity in that area unless weather conditions make it impractical to initialize stabilization. Additionally, if it is too late in the season, the grass may not have a chance to become fully established until the following spring. Therefore, time frames lo nger than 30 days should be allowed
under certain circumstances.

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, and 2.35.



# Comment ID 0090

- A1.001.017

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.2.1.2Q Also on the issue of site stabilization under Part 2.2, EPA should be aware that local and state permits already may require site stabilization within a certain number of days. EPA should take note that those stabilization requirements may be as s hort as a 7

- day period or more than a year; for example, vegetative stabilization in the desert

- southwest could take almost two years to achieve, given sparse rainfall and an exceptionally short natural seed germination season.

Response: Refer to Essay Responses 2.33 and 2.41.



# Comment ID 0091

- A2.001.005

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.2.1.2Q 5. Fact Sheet Item 7. Part 2.2.1.2 and 2.2.1.1.a and 4.2.2.2.b: These deadlines may not be practical during cold weather when ground is snow covered, frozen or temperatures are below freezing. In some cases, overnight frost, it may not be appropriate to seed the site. The type of day should always be identified clearly to avoid confusion. The terms 14 cal endar days, 14 or more days, 7 or more days, are used in the indicated sections. In a subsequent section the term 3 working days is used.

Response: Refer to Essay Responses 2.35.



# Comment ID 0097

- A1.001.006

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 2.2.1.2Q

7. Must be an extension for weather, particularly on large sites

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

431 

# Comment ID 0103

- A3.001.008

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.2.1.2Q In Part 2.2.1.2 Deadline to complete stabilization activities, the EPA proposes to require that, within 7 calendar days of in itiating stabilization on exposed areas of the construction site, certain aspects of stabilization have to be completed. These aspects include: (1) For vegetative cover: soil conditioning, seeding, watering, mulching, and other all other activities related to planting and establishment of vegetation; and (2) for no n- vegetative cover: the installation or application of all non

- vegetative measures.

TCEQ believes that this timeframe is too restrictive and requests that the EPA maintain the timeframe as in the current CGP. The
current time frame is to initiate stabili zation measures as soon as practicable, but in no case more than 14 days after the construction activity has ceased. This timeframe corresponds to the TPDES CGP TXR150000. TCEQ believes there will be too many instances where the 7 day deadline is not practicable, such as during frozen conditions or other weather conditions or in cases where the construction activity is ceased for a shorter period of time. Alternatively, TCEQ proposes that EPA's CGP follow the ELGs at 40 CFR §450.21(b), which requires stabil ization of disturbed areas be initiated immediately whenever construction activities have temporarily ceased on any portion of the site and will not resume for more than 14 days.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0111

- A2.001.009

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.2.1.2Q Dow believes that the seven calendar days requirement to complete stabilization activities (after initiation) on exposed port ions of the site presents an unreasonable burden to the permittee. For example, weather may prevent the safe operation of equipment that is required to complete stabilization efforts after initial stabilization measures have occurred. Dow suggests that alternant ve rbiage be
conside red: "Complete stabilization activities as soon as practicable. If stabilization can not be completed in a timely manner, the n suitable BMPs must be implemented as soon as practicable."

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0123

- A2.001.007

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.2.1.2Q Comment: Exceptions should not be provided for stabilization requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

432 Response: EPA disagrees with the commenter. EPA has tried to minimize exceptions to the stabilization requirements, but the Agency believes there are legitimate reasons to include flexibility in the stabilization requirements to account for unforese en circumstances.



# Comment ID 0126 -A2 .001.008

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.2.1.2Q
The 7

- day deadline is not practical and exceptions should be provided for weather/season, complexity of installation of stabilizati on BMP's or scheduling wi th other phases.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0127

- A2.001.005

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 2.2.1.2Q
Section 2.2.1.2

Proposed Language Request for Comment: EPA requests comment generally on the practicability of these timeframes. EPA requests comment on specif ic
instances when the 7

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

Concern
Compliance could be difficult to achieve and potentially damaging to the site. There are no exceptions for weather delays, we t site conditions, frozen ground, arid conditions, other construction delays, etc.

Suggested Correction
Add acceptable allowances/ exceptions for delays, especially when completing the certain aspects of stabilization that could cause more harm than corrective actions.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0131

- A1.001.009

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.2.1.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

433 The 7

- calendar day deadline to complete stabilization is not practical considering there will be variability in the size and nature of the
areas of disturbance and the availability of sufficient labor, equipment and materials to complete the task. Additionally, by establis hing a 7 calendar day requirement EPA is suggesting that certain projects will need to be staffed on Saturday and Sunday in order t o meet the deadline for stabilization. This will require the operator to increase the number of mobilizations and to work on smaller areas to keep ahead of the 7 day deadline. There is an economy of scale in the construction industry whereby it is more eco nomical to mobilize and work on a larger area that it is to mobilize several times to work on smaller areas. If the operator is required to increase the number of mobilizations and work on smaller areas, it will be less productive and the cost of stabilization will increase, especially if the operator is required to work on Saturday and Sundays. It would also likely extend the period of unstabilized portions of the site due to a delayed construction schedule.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0145

- A2.001.010

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.2.1.2Q We consider establishment of vegetative or non

- vegetative cover on areas that will not have further earth

- disturbing activity to be of the utmost importance. We urge EPA to adopt the deadlines proposed in this draft CGP.

Response: EPA appreciates the commenter’s support. See Essay Response 2.30.



# Comment ID 0168

- A1.001.027

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2.2.1.2Q

-- Stabilization Timing Criteria (Section 2.2.1, page 21): Performing site stabilization within 7 days of terminating earth

- moving activities is not always practicable. Twenty (20) working days (28

- calendar days) or "as soon as practicable", whichever is longer, is more realistic, and reasonable - particularly for large, or complex sites. Considerations for stabilization in arid and semi

- arid areas are supported. It may be reasonable to also incorporate language to al low additional time for site stabilization in areas where there is a federal declaration of drought (by the United States Department of Agriculture, or National Weather Service), or documentatio n of a related declared state of emergency. Many areas in the south and west, such as Dallas, are currently experiencing a regional drought with multiple 90

- plus degree days, making initial germination challenging (even with irrigation).

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0171

- A1.001.009

Author Name: Davis Stephen Organization: Association of Illinois Electric CooperativesRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

434 Issue Category: 2.2.1.2Q The proposed deadline for completing initialization of stabilization is unrealistic. Three working days for sensitive areas a nd seven calendar days for non

- sensitive areas are too short for completion and do not consider limitations during wet and during dry seasons

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, and 2.35.



# 2.2.1.3 STABILIZATION CRITERIA AND DEADLINES FOR DISCHARGES/DISTURBANCES TO SENSITIVE AREAS

Comment ID 0025

- A1.001.019

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.2.1.3 Perhaps the reference to 2. 1.2. 1.i.4 should be 2.1.2.2.b?

Response: EPA appreciates the comment, and has corrected mistaken references throughout the permit.



# Comment ID 0025

- A1.001.020

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.2.1.3 The agency applauds the flexibility afforded by this condition; however, we are concerned about the lack of specificity of when stabilization should be initiated. Some may say that it may not be practicable until the end of the project to begin stabiliz ation. In the
Ari zona CGP, stabilization is to be initiated within 14 days and that seems to work for the state.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0037

- A1.001.018

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.3 An exception should be provided to the requirement to immediately initiate stabilization on disturbed areas within buffer are as, on steep slopes, or on sites that discharge to a sediment or nutrient impaired water where earth

‐ disturbing activities have permanently
ceased or temporarily ceased (and will not resume for a period exceeding 7 calendar days) if 1) soil conditions due to an earlier storm

event are too wet for stabilization activities (e.g. preparing the soil for planting, seeding and mulching, etc.) or 2) the soil was frozenRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

435 during this period precluding any further activities. If any of these events were to occur, EPA could require that stabilizat ion activities should be initiated as soon as practicable.

Respon se: Refer to Essay Responses 2.28.2, 2.33, 2.34, 2.35 and 2.36.



# Comment ID 0037

- A1.001.019

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.3 There should be an exception to the requirement to complete stabilization on disturbed areas within buffer areas, on steep slopes, or on sites that discharge to a sediment or nutrient impaired water within 3 workdays of initiating stabilization in the event that 1) a storm

event occurred during the 3

‐ day d eadline period which prevented stabilization activities from taking place, 2) soil conditions due to an
earlier storm event are too wet for stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil

was fro zen during this period precluding any further activities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable in these sensitive areas.

Response: Refer to Essay Responses 2.2 8.2, 2.33, 2.34, 2.35 and 2.36.



# Comment ID 0045

- A1.001.005

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 2.2.1.3
2.2.1.3 - This section discusses several situations concerning proximity to special waters and seeks comments upon whether stabilization deadlines noted previously for buffers and on steep slopes should generally prevail in these situations as well . As noted above, we believe that the maximum amount of time within which stabilization on any;regular constr uction site should begin to occur is seven days, and that in the special geo

- physical situations described in this section (as previously), an even shorter timeframe for beginning stabilization

-- 72 hours after earth

- moving disturbance has stopped temporar ily or permanently

-- should prevail.

Response: EPA appreciates the comment. EPA has tried to balance the need to stabilize exposed portions of construction sites as soon as possible with the need to recognize the practical challenges that operators face in meeting definitive deadlines for vegetative stabilization. EPA believes this balance has been reached in the final permit.



# Comment ID 0053

- A2.001.015

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.2.1.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

436 13 . Page 21; 2.2.1.3 Stabilization criteria and deadlines for discharges/disturbances to sensitive areas. Consider language dis cussed in comment number 2, above. [See Comment Id 0053

- A2.001.002]

Response: See related response.



# Comment ID 0055

- A1.001.006

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 2.2.1.3 This section overlaps effluent limitation guidelines. We do not see the need to require additional stabilization requirements if effluent
limitations w arrant more stringent sediment controls.

Response: Refer to Essay Response 2.35.



# Comment ID 0055

- A1.001.007

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 2.2.1.3 Language stating "as soon as practicable" is subject to regulatory interpretation and should not be included.

Response: Refer to Essay Response 2.36.



# Comment ID 0056

- A2.001.009

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecologi cal Restoration (DER) Issue Category: 2.2.1.3 As above, the criteria for stabilization for sensitive areas may be overly rigid for a restoration activity which, by definit ion, is likely within or associated with a sensitive area. Returning a wetland or wat erway to a functioning system with native species is an important milestone in restoration. In some restoration projects revegetation and stabilization may need to be an iterative process to achieve long term ecological diversity and sustainability. Rushing to meet time constraints has the potential to interfere with restoration goals. For example, during salt marsh restoration it may be necessary to track tidal inundation over a full month's neap to spring cycle to
determine if the micro - topography of the marsh surface is correct. Unintentional depressions or mounds could result in invasive species intrusion onto the site. Small elevation changes in a New England marsh surface can allow Phragmites australis to est ablish quickly, which out competes native salt marsh grasses. As these examples illustrate, stabilization requirements may not be advantageous for restoration projects. The DER requests restoration projects be exempt from the requirements in 2.2.1.3.

Response: Refer to Essay Response 2.35.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

437 

# Comment ID 0065

- A1.001.015

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.2.1.3 Section 2.2.1.3 provides stabilization criteria for sensitive areas. Under certain circumstances (within 50 feet of US jurisdictional
waters, certain impaired waters and slopes of at least 15 percent) stabilization must commence in 3 days, consistent with Parts 2.1.2.1.i.4, 2.1.4.2c, and 4.2.2.2. As identified above, there should be flexibility with the schedule to allow t ime to achieve stabilization
and not the 3 days as proposed.

Response: Refer to Essay Responses 2.35 and 2.36.



# Comment ID 0071

- A3.001.007

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.1.3 •Part 2.2.1.3(a) Criteria for special stabilization deadlines (iv). Three days to achieve stabilization on a 3% slope is too restrictive. These are often the most difficult to stabilize as installation is more difficult and slopes are more dangerous. Restr icting the deadline may often result in poor installation of the product. CDOT often works in mountain areas where slopes are very steep, even up to 90%. Stabilization in these scenarios is time consuming and difficult. Allowing extensions to be documented in the SWPPP may be a reasonable alternative to the three day deadline.

Response: Refer to Essay Responses 2.35 and 2.36.



# Comment ID 0076

- A1.001.010

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.2.1.3
The EPA has proposed different stabilization schedules for buffers, slopes and the balance of the site. Target recommends that the stabilization criteria be consistent across all areas of the permitted site for consistency and ease of implementation, while not lesseni ng environmental provisions.

Response: Refer to Essay Responses 2.35 and 2.36.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

438 

# Comment ID 0103

- A3.001.009

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.2.1.3
In Part 2.2.1.3 Stabilization criteria and deadlines for discharges/disturbances to sensitive areas, EPA established deadlines for stabilization of sites located in sensitive areas. EPA suggests that stabilization should be initiated immediately if work is ceased for more than 7 days.

Once again, TCEQ believes that this timeframe is too restrictive and might not be practicable to meet. TCEQ recommends clarif ying that stabilization must be initiated immediately if construction is not planned for the next seven days or has not occurred within the previous seven days.

Response: Refer to Essay Responses 2.35 and 2.36.



# Comment ID 0115

- A2.001.014

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.2.1.3 2.2.1.3 b. Typographical Error. Part b makes reference to deadlines specified in parts 2.1.2.1.i.4, among other parts. Part 2.1.2.1.i.4.
was not found.

Response: EPA appreciates the comment, and notes that it has corrected typographical errors found in the draft permit.



# Comment ID 0130

- A2.001.035

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.2.1.3 33. Part 2.2.1.3.b. Special Stabilization Deadlines, says you must comply with the special stabilization deadlines specified in Part
2.1.2.1.i.4......... There is no such part in the proposed permit. Perhaps the reference was meant to be to Part 2.1.2.2.b?

Response: EPA appreciates the comment, and notes that it has corrected typographical errors found in the draft permit.



# Comment ID 0133

- A2.001.020

A uthor Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.2.1.3 MDT does not believe it is reasonable to require more stringent stabilization timelines for sensitive areas. The new Effluent Limitation
Guidelines alre ady specify that soil stabilization measures must be initiated on disturbed areas where activities have temporarily ceasedRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

439 and will not resume for a period exceeding 14 calendar days. A more stringent timeframe was not found to be economically achievable; as such the proposed technology based limit is unsupported. In addition, disturbance in these sensitive areas already requires implementation of additional controls. More stringent stabili zation measures seem unwarranted.

Response: Refer to Essay Responses 2.35 and 2.36.



# Comment ID 0137

- A2.001.011

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.2.1.3 This section requires accelerated stabilization when impairment or certain conditions such as 15% steep slopes are present. Projects may stop work for more than 7 days due to bad weather. This permit would require stabilization in those cases. The three day stabilizationrequirement is not feasible. Even larger companies s tabilize at a rate of about 5 acres per day when we are usually working on 20 acre grading units. The language contains no provisions for weather or difficulties with contractor scheduling or defau lt. We also see no technical justification or sufficient ne xus between accelerated stabilization of sediment and the presence of excess nitrogen or phosphorous in the adjacent water body. EPA should consider that accelerated stabilization often requires the use of nutrient fertilizers
that will increase the discha rge of phosphorous.

Response: Refer to Essay Responses 2.35 and 2.36.



# Comment ID 0159

- A1.001.009

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.2.1.3 This section requires accelerated stabilization when impairment or certain conditions such as 15% steep slopes are present. Projects may stop work for more than 7 days due to bad weather. This permit would require stabilization in those cases. The three day stabilization requirement is not feasible. Eve n larger companies stabilize at a rate of about 5 acres per day when we are usually working on 20 acre grading units. The language contains no provisions for weather or difficulties with contractor scheduling or default. We also see no technical justification or sufficient nexus between accelerated stabilization of sediment and the presence of excess nitrogen or phosphorous in the adjacent water body. EPA should consider that accelerated stabilization often requires the use of
nutrient fertilizers that will increase the discharge of phosphorous.

Response: Refer to Essay Responses 2.35 and 2.36.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

440 

# 2.2.1.4 CDEADLINES FOR ARID/SEMI

- ARID AREAS

Comment ID 0037

- A1.001.021

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.4 The Southern Ute Growth Fund supports retaining the current requirements in Part 2.2.1.4 of the proposed permit for initiatin g stabilization in arid/semi

‐ arid areas, i. e., "...,you must initiate stabilization as soon as practicable f ollowing the temporary or
permanent cessation of construction activities, ...".

Response: Refer to Essay Response 2.39.



# Comment ID 0037

- A1.001.022

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.4 There appears to be an error in the first sentence of this Part. This Part states ".......you must initiate stabilization as soon as practicablefollowing the temporary or permanent cessation of construction activities, in lieu of meeting the deadlines in Par ts 2.2.2.1 and 2.2.2.2." Parts 2.2.2.1 and 2.2.2.2 do not have deadlines for stabilization. EPA should verify that the correct Parts are being
referenced.

Response: EPA has corrected these and other errors in the final permit.



# Comment ID 0040

- A1.001.010

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.2.1.4
The Section 2.2.1.4 deadlines for arid and semi

- arid areas also should apply to sensitive areas.

Response: Refer to Essay Responses 2.34 and 2.39.



# Comment ID 0065

- A1.001.016

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.2.1.4Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

441 Section 2.2.1.4 provides stabilization criteria for arid/semi

- arid areas. CCWC supports requiring stabilization "as soo n as practicable" after ceasing construction. A more specific deadline such as "no later than 28 days after the cessation of construction activ ities in an area" would not be appropriate in all situations.

Response: Refer to Essay Response 2.39.



# Comment ID 0071

- A3.001.020

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.1.4

- Part 2.2.1.4 Deadlines for arid/semi

- arid areas. This Part states that if your site is located in an arid/semi

- arid area you must initiate stabilization as soon as practicable in lieu of meeting the deadlines in Parts 2.2.2.1 (Vegetative Stabilization) & 2.2.2.2 ( Non

Vegetative Stabilization). The only deadline in these sections deals specifically with arid/semi

- arid ar eas. The wording implies that stabilization needs to be initiated but not completed. Was the intent to refer to different Part(s) of the permit?

Response: Refer to Essay Response 2.39. Also, refer to requirements in Part 2.2.2.b related to the deadl ines for providing vegetative stabilization within 3 years.



# Comment ID 0090

- A1.001.039

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.2.1.4 Typically, arid plant species postpone germination until ideal moisture conditions are available. It is a common practice in the arid regions to expect these species to germinate three years after seeding and to expect the plants to take three more years to d evelop into plants that will achieve a 70% re

- vegetation standard.

Response: Refer to Essay Response 2.39, 2.42, 2.43, and 2.44.



# Comment ID 0096

- A1.001.040

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.2.1.4 EPA has proposed deadlines for initiating and completing sta bilization of exposed areas of the site in arid and semi

- arid areas. Arid
and semi

- arid areas present problems for stabilization because there are periods of the year where a vegetative cover cannot be readil y established without irrigation, and irrigation is not always practicable. Of course, during these dry periods, there most often is veryRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

442 little rainfall. The following is an excerpt from the current Nevada state CGP (Section 5.c.iii) that could serve as a guide for
stabilization in arid or semiarid are as:

In arid areas (areas with an average annual precipitation of 0 to 10 inches), semiarid areas (areas with an average annual pr ecipitation of 10 to 20 inches), and areas experiencing droughts where the initiation of stabilization measures.... (original Nevada CGP says “by the 14th day, which is their standard stabilization time frame)...after construction activity has temporarily or permanently ce ased is precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable. (emphasis added).

Due to the constraints these sites pose, NAHB urges EPA to provide more flexibility through the adoption of this, or similar language.

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44.



# Comment ID 0107

- A2.001.010

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 2.2.1.4
Section 2.2.1.4 gives an open

- ended stabilization timeframe to sites located in arid or semi arid regions. Why are semi arid regions given this exemption? While vegetative cover m ay be difficult to establish in these areas (almost all of New Mexico falls into these

two categories), it is still critical to quickly stabilize a site to stop discharges. Degradable erosion control products can be quickly installed (just as quickly as putting in soil and seeds in non arid regions) and permittees in arid and semi arid regions should have to meet the same deadlines as other locations. Many construction activities occur during the summer months when New Mexico has a regional monsoon period, which can deliver daily rain in the afternoon making stormwater controls and site stabilization critically important. No exemption should be given and if one is a specific fallback deadline should most certainly be set.

Response: Refer to Essay Respons e 2.39.



# Comment ID 0130

- A2.001.036

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.2.1.4 Part 2.2.1.4 says you must initiate s;tabillzation as soon as practicable following cessation of construction activities, in lieu of meeting the deadlines in Parts 2.2.2.1 and 2.2.2.2. There were no deadlines in 2.2.2.1 or 2.2.2.2. These two parts describe how to ac hieve vegetative or nonvegetative stabilization. It appears the contents would leave ~ as soon as pr acticable - as the only description of when stabilization is required on projects in arid and semi

- arid areas. This is a very widely interpretable statement. Sornething more measureable would be appropriate for a stabilization deadline. Clarification .and/o r correction to this part is required

Response: EPA believes that it has provided more specificity with respect to the stabilization requirements in arid and semi

- arid areas. Refer to Essay Responses 2.37 and 2.38.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

443 

# Comment ID 0157

- A2.001.002

Author N ame: McGoff Steve Organization: Nevada DEP Issue Category: 2.2.1.4 NDEP would like to point out that requiring seeding to achieve stabilization also requires irrigation in this part of the country. Until recently, Nevada was in a decade

- long drought and wa ter conservation became a necessity. NDEP believes this requirement will waste an essential resource with little or no benefit to improving water quality.

NDEP has worked diligently with its MS4 Permittees to develop stormwater programs that are appropriate for local conditions, and that will not cause environmental harm or interfere with local programs that are environmentally beneficial. EPA needs to all ow states to develop flexible stormwater programs that work for their particular region. When using a "one size fits all" approach, EPA assumes that climate, topography, soil conditions, population densities and other factors are consistent throughout the country. Obvi ously, that
is not true. EPA needs to have a serious discussion with the states and listen to the different ways the states will be affected if EPA requires states to include some of these proposed measures of this draft GCP in new state GCPs.

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44.



# 2.2.1.4Q STABILIZATIO N IN SENSITIVE AND ARID/SEMI

- ARID AREAS

Comment ID 0037

- A1.001.015

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.4Q There should be an exception to the requirement to complete stabilization on all disturbed steep slopes within 3 workdays of initiating stabilization in the event that 1) a storm event occurred during the 3

‐ day deadline period which prevented stabilization activities from taking place, 2) soil conditions due to an earlier storm event are too wet for stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period precluding any further activities. If any of these events were to occur, EPA could require that stabil ization activities should be initiated as soon as practicable

Response: Refer to Essay Responses 2.35 and 2.36.



# Comment ID 0037

- A1.001.020

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.1.4QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

444 It is not appropriate to include a specific fall back deadline for the initiation of stabilization activities (e.g., no later than 28 days after cessation of construction activities in an area) in addition to the proposed requirement to initiate stabilization as soon as practicable following the temporary or permanent cessation of construction activities for the following reason. The timing of the seeding is often critical in the southwest. Sufficient moisture is required to establish the seedlings. If seeding is to occur during the late spring and summer months, delaying seeding until the monsoonal rain weather pattern begins (i.e., mid

‐ July) will improve the chances of success
in seedling establishment. Another opportune time to seed in the southwest is during t he dormant season so that the seeding is completed in the late fall or early winter so that the seed does not germinate till spring taking advantage of residual winter moisture. I f there is a requirement to seed within a certain number of days after the ce ssation of construction activities which results in the seeding being conducted at the wrong time in the fall, the seedlings may not survive the first killing frost. The operator should hav e the option to delay the seeding so that the seed does not germina te until spring. It is recommended that no change is made to the proposed permit requirement, i.e., initiate stabilization as soon as practicable.

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44.



# Comment ID 0062

- A1.001.027

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.1.4Q Brevard County Comment: What is an "area"? 10 sf?

Response: Refer to Essay Responses 2.32.



# Comment ID 0065

- A1.001.017

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.2.1.4Q EPA requested comment on whether sites in critical habitat areas or those where species listed under the Endangered Species A ct (ESA) exist should be subject to the stabilization requirements that apply to sensitive areas. The CGP should not include stabilization requirements related to listed species or critical habitat, which are protected most effectively through the ESA analysis and any conditions required to meet eligibility criteria for utilizing the CGP. Requirements for species and habitat are highly variable and unique to each species and location. Even a requirement that stabilization be initiated "as soon as practicable" may not be a ppropriate for any g iven species. For example, if there are endangered nesting species with specific protective requirements, requiring stabilization as soon as practicable after construction could result in disturbing the area where the nest is located, and co uld conflict
wi th the site - and species

- specific protections. Or, for example, some phases of a project might be on the Critical Path during the dry season and, therefore, immediately initiating vegetation restoration is not necessary. The CGP should not create the poten tial for inconsistencies between regulatory requirements by adding requirements that are duplicative of conditions otherwise covered b y the permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

445 Response: Refer to Essay Response 2.40.



# Comment ID 0074

- A2.001.011

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.2.1.4Q "As soon as practicable" deadline is appropriate for arid/semi

- arid areas, as well as sensitive areas. The DEQ believes the proposed stabilization deadlines (see Part s 2.2.1.1 and 2.2.1.2) were revised to reflect those special conditions (such as sensitive area, impaired streams or site slopes of 15% or greater), and it is not necessary to create new criteria for special stabilization deadlines

.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44.


# Comment ID 0075

- A2.001.008

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.2.1.4Q Suggest that the timeframe be extended to 7 work days instead of 3 work d ays.

Response: Refer to Essay Response 2.35.



# Comment ID 0080

- A2.001.012

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.2.1.4Q Partner Response: The Partners support the recommend "as soon as possible", 28

- day fall back deadline for all projects in arid areas including those located in sensitive areas.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44.



# Comment ID 0085

- A2.001.010

Author Name: Charl es Mark Organization: City of Rockville, Maryland Issue Category: 2.2.1.4Q Rockville has no comment on proposed deadlines for initiating stabilization specific to arid areas. However, Rockville supports strict requirements to stabilize disturbed areas as quickly as possible after construction ends. As a general comment, the portion of the CGP covering stabilization criteria for discharges/disturbances to sensitive areas is confusing. Part 2.2.1.3.b refers to requirements containedRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

446 in 2.1.2.1.i.4, but no pa rt numbered 2.1.2.1.i.4 appears elsewhere in the document. Furthermore, Rockville questions whether enforcement officers and construction managers will be able to keep track of differing stabilization time frames for different areas of a
site. While the in tent of the rule is correct, this may prove unwieldy to track and enforce.

Response: Refer to Essay Responses 2.35.



# Comment ID 0086

- A1.001.012

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 2.2.1.4Q
The Section 2.2. 1.4 deadlines for arid and semi

- arid areas also should apply in sensitive areas. Although EPA has acknowledged regional variation, its approach to conditions in the arid west may not be adequate to protect permitte es operating under arid
conditions.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44.



# Comment ID 0091

- A2.001.006

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.2.1.4Q
6. Fact Sheet Item 8. Part 2.2.14: Are the special stabilization deadlines applicable only to the areas identified or to all other disturbed areas on the site? The terminology "as soon as practical" should be adequate for the subject arid sites. In some cases, it mi ght not be

p ractical to seed an arid site within 28 days.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44.



# Comment ID 0093

- A2.001.057

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.2.1.4Q For permittees who conduct construction activities in critical habitat areas or areas where listed endangered species exist, AGC recommends that EPA instruct all permit holders to adhere to the provisions of the Endangered Species Act (ESA), which is designed to ensure the protection of species and their critical habitats - rather than add an additional set of unnecessary and potentially burdensome requirements.

24. Part 2.2.1.4. Stabilization Deadlines for Arid/Semi

- arid Areas and Sensitive Areas

.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

447 EPA has requested comment on the proposed deadlines for initiating and completing stabilization of exposed areas of the site in arid
and semi

- arid areas. EPA also requested comment on treating as a sensitive area for stabilization purposes sites that wi ll conduct construction activities in critical habitat areas or areas where listed endangered species exist.

See response above concerning reducing stabilization timeframes. Regarding arid/semi

- arid areas, EPA should retain the language "as soon as practicable" due to the extended time required to establish vegetation and because the risk of discharge is low given the lack of precipitation in these areas. The requirement for stabilization to be complete at the time of the notice of termination is su fficient.

For stabilization in arid or semi

- arid areas, the following excerpt from the current Nevada state CGP (Section 5.c.iii) could serve as a guide:

In arid areas (areas with an average annual precipitation of 0 to 10 inches), semiarid areas (areas with an average annual precipitation
of 10 to 20 inches), and areas experiencing droughts where the initiation of stabilization measures.... (original Nevada CGP says "by
the 14th day, which is their standard stabilization time frame)...after construction activity ha s temporarily or permanently ceased is precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable.

Response: Refer to Essay Responses 2.35, 2.39, 2.40, 2.42, 2.43, and 2.44.



# Comment ID 0096

- A1.001.039

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.2.1.4Q In Part 2.2.1.4, EPA has requested comment on the possibility of establishing separate requirements for permittees who conduc t
construction activities in c ritical habitat areas or areaswhere listed endangered species exist. Rather than adding unnecessary and potentially burdensome requirements for construction projects conducted in critical habitat, EPA should instead instruct all permit
holders to adhere to the provisions of the Endangered Species Act (ESA), which is designed to ensure the protection of species and their critical habitats. The ESA also imposes lengthy and extensive planning and consultation requirements on federal agencie s and applicants to ensure their activities meet its requirements, including those established to protect land designated as critical habitat. In short, under the ESA, habitat modifications cannot reduce the value of the critical habitat both in terms of the survival and reco very of a listed species. Those that may potentially adversely modify critical habitat must comply with the Fish and Wildlife’s (FWS) consultation framework, which requires the FWS and the action agency to:

a) Determine the “Status of the Species/Critical Habitat” in a mandatory biological opinion;
b) Develop an “Environmental Baseline” analysis which provides information on the current condition of the targeted Critical Habitat

area; c) Conduct an “Effects of the Action” analysis which characterizes the direct and indirect effects of the action and those of interrelated and interdependent actions on the proposed or designated critical habitat; and
d) Conduct a “Cumulative Effects” analysis to characterize the effects of future, nonfederal actions reasonably certain to occur in the
action area.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

448 Enforcing the current provisions through the ESA, while flawed and at times costly to the permitee, is more logical than addi ng a new set of provisions to a program that already contains extensive requirements. Importantly, adding additional provisions does not guarantee the preservation of a listed species; it can, however, make the regulated community resistant to working on project s in impacted areas regardless of agreements such as Habitat Conservation Plans (HCPs) and other collaborative processes intended to garner support for species. For example, HCPs have been successfully used in areas where development and conservation collide by providing for partnerships with non

- federal parties to conserve the ecosys tems upon which listed species depend, ultimately contributing to their recovery. Given these benefits, it would be a shame for EPA to embargo these opportunities.

While it is well understood that EPA’s CGP is tailored for the states and territories for which it is the permitting authority, it is also serves as the baseline for all other stormwater permits across the nation. It is important to note, however, that EPA’s CGP p ermit, which by design is intended to be operated by EPA delegated states, is by d efinition not a “federal permit or approval” (except for those 5 states where EPA administers the CWA 402 program) and thus does not “trigger” the ESA Sec. 7 process when a landowner is getting a CGP permit for activities within “unoccupied critical habita t.” A number of courts have found that where an agency lacks the requisite discretion to act, the agency (likewise) simply does not possess the authority to implement measures that inure to the benefit of the protected species.63 Simply because EPA has the decision

- making authority to implement the CGP does not empower the agency to act to protect endangered species or their critical habitat.

Response: Refer to Essay Response 2.40.



# Comment ID 0108

- A2.001.003

Author Name: Paul Roger Organization: Ber nalillo County Public Works, New Mexico Issue Category: 2.2.1.4Q With regard to implementing soil stabilization in arid, semi

- arid and drought

- stricken areas (Subpart 2.2.1.4), the County of Bernalillo cautions EPA that the term "as soon as practicable" is vague and may create situations in which the soil stabilization is unnecessarily delayed while the meaning of the term is debated. Establishing a specific timeframe for soil stabilization, in consultation w ith Cooperative Extension Service experts in arid regions, is preferable.

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4.



# Comment ID 0123

- A2.001.008

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.2.1.4Q
Comment: CRWD supports treating critical habitat area and areas where listed endangered species exist as sensitive areas. Response: Refer to Essay Response 2.40.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

449 

# Comment ID 0126

- A2.001.009

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.2.1.4Q The CSC appreciates the differentiation for arid and semi

- arid areas. A timeline is a useful reference, less ambiguous and more easily
enforceable.

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4.



# Comment ID 0158

- A1.001.012

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 2.2.1.4Q
The Section 2.2.1.4 deadlines for arid and semi

- arid areas also should apply to sensitive areas. Further, although EPA has acknowledged regional variation, its approach to conditions in the arid west may not be adequate to protect permittees operat ing under arid conditions. For example, Section 5.1.3.2, which allows for reduction in frequency of inspections in arid and se mi

- arid areas, appears to contradict the Section 4.2.2.3 requirement of daily inspections of BMPs.

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4.



# Comment ID 0170

- A2.001.007

Author Name: Davis Scott Organization: Arizona Publ ic Service Company (APS) Issue Category: 2.2.1.4Q APS supports EPA's approach to the unique nature of arid and semi

- arid environments. The stabilization and inspection frequency requirements for arid and semi

- arid environments reflect the fact that these areas require a different approach to inspection and stabilization timeframes. APS urges EPA to keep these important provisions in the permit.

Furthermore; Part 5.1.3.2 provides, "For arid and semi

- arid areas. You may reduce the frequency of inspections to once per month if your site is located in an arid area (i.e., areas with an average annual rainfall of less than 10 inches) or semi

- arid area (i.e., areas with an average rainfall of 10 to 20 inches)." EPA should apply this approach to sensitive areas a nd to Part 4.2.2.3. Currently Part 4.2.2.3 and Part 5.1.3.2 contradict each other and create confusion as to what the proper inspection frequency should be in arid and semi

- arid areas. EPA should incorporate the requirements of Part 5.1.3.2 into Part 4.2.2 .3.

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

450 

# 2.2.2 CRITERIA FOR STABILIZATION

Comment ID 0030

- A2.001.017

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.2.2
Section 2.2.2., page 23 Roadway projects, oil and gas developments and other projects that might require significant cuts or fills that create steep slopes may
need non

- traditional seeding options as well as exemptions from furrowing or tilling where it is too ste ep to safely operate equipment on a steep slope. Soil compaction may occur on these slopes due to the act of cutting or filling the slope (for example, a road cut or well pad). Well pads are traditionally built with steep side slopes that are difficult to safely work on with heavy equipment. If the slopes are made less steep, the disturbance footprint is larger. In some cases, crews installing erosion control blanket are tied off due to the steepness of the slope. For these reasons, we recommend there be mo re flexibility in dealing with soil compaction, while recognizing that traditional sites should use techniques to reduce the impacts of soil compaction during construction to the extent
feasible.

Response: EPA appreciates the comment. Part 2.1.2.8 includes modifications that make this provision more flexible by focusing on the minimization of impacts and on those areas where vegetative stabilization will occur or where infiltration practices will be used.



# Comment ID 0030

- A2.001.018

Author Name: K eyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.2.2 Section 2.2.2, page 22 Seed mix is often prescribed by permitting agencies on federal lands or in accordance to landowner agreements. Is the primary intent to
ensure 70% v egetative cover within 3 years? It is difficult in arid or semiarid areas to get good vegetation growth. We recommend changing to state that final stabilization is anticipated to be within three growing seasons. However, if stabilization is no t achieved
du ring this time period, an area will be reseeded or otherwise stabilized.

Response: Refer to Essay Responses 2.41.



# Comment ID 0040

- A1.001.009

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.2.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

451 Additionally, temporary stabilization requirements should not be limited to only cover

- type BMPs. See Section 2.2. Other non

vegetative, non

- cover erosion and sediment control BMPs can be used on flat or sloped ground that will also reduce erosion and

prov ide effective sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with some other materials or practices to provide protection in many instances. Sometimes providing temporary cover after one phase of constr uction

ma y mean that more damage is done to the area to remove the temporary cover in preparation for the next phase. This unnecessary damage may be avoided if other types of temporary stabilization are used.

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site.



# Comment ID 0046

- A1.001.013

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.2.2 The Department requests that both be kept in the permit. One would cover the growing season and other would be useful during the
winter months.

Response: Refer to Essay Response 2.41.



# Comment ID 0049

- A1.001.021

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2 It appears EPA is advocating that the use of non

- vegetative practices cannot apply to "temporary stabilization" measures. Temporary
stabilization methods must include non

- vegetative techniques such as hydraulic mulch, soil binders, ECBs, and other methods.

Response: EPA appreciates the comment, and notes that it has expanded the types of examples listed for non

- vegetativ e stabilization measures.



# Comment ID 0068

- A1.001.023

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.2.2 EPA proposes to institute a site stabilization standard based on soil loss C

- factor associated with the Revised Universal Soil Loss Equation (RUSLE) regression formula. See Proposed Fact Sheet at 62. However, EPA rejected such an approach in the December
2009 C&D ELG ("EPA [believes] it would be difficult to calculate an area

- weighted C

- factor. Per mitting authorities may want to adopt such an approach in their permits, but EPA has chosen not to implement such a requirement in the national rule.") Howev er, theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

452 Proposed CGP is essentially national in scope. Once again, EPA can require appropriate stab ilization requirements, but it should reserve its lengthy discussion in the Proposed CGP, Fact Sheet and Appendix H for a subsequent guidance document that would provide insight and assistance for site operators for implementing the final C&D ELG and subse quent CGP.

Response: Refer to Essay Response 2.46.



# Comment ID 0087

- A1.001.023

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.2.2 In addition, temporary stabilization requirements should not be limited to only cover

- type BMPs. See Section 2.2. Other non

vegetative, non

- cover erosion and sediment control BMPs (e.g., silt fencing and wattles, tracking) can be used on flat or sloped ground to reduce erosion and provide effective sediment control. These alterna tives may also help to avoid unnecessary damage resulting from the removal of temporary cover in preparation for subsequent phases of construction.

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site.



# Comment ID 0088

- A1.001.013

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.2.2 Among t he unrealistic requirements are:

-- temporary stabilization requirements should not be limited to only cover

- type BMPs. Other non

- vegetative, non

- cover erosion and sediment control BMPs can be used on flat or sloped ground that will effectively reduce erosion and provide effective sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with some other materials or practices to provide protection in many instances. Sometimes providing temporary cover after one phase of co nstruction may mean that more damage is done to the area toremove the temporary cover in preparation for the next phase. This unnecessary damage may be avoided if ot her types of temporary stabilization are used

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site.



# Comment ID 0093

- A2.001.007

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

453 Issue Category: 2.2.2
The Draft would also set a site stabilization standard based on the C

- factor associated with the Revised Universal Soil Loss Equation (RUSLE) regression formula. See explanation in proposed CGP Fact Sheet at 62. EPA rejected such an approach for the C&D ELG, explaining that it would be difficult to calculate an area

- weighted C

- factor. Once again, EPA can require appropriate stabilization requirements, but it should reserve t he lengthy discussion included in the Draft, proposed CGP Fact Sheet and Appendix H for subsequent guidance that would provide insight and assistance for site operators, but not fundamentally change the legal requ irements
that the C&D ELG establishes.

Re sponse: Refer to Essay Response 2.46.



# Comment ID 0093

- A2.001.059

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.2.2 AGC is concerned that the specific C

- factors chosen by EPA are not explained and seem to be arbitrarily chosen. They seem to be extremely conservative, and would limit the choices of BMPs found in Table H

- 1. Under the Draft, EPA would require three levels of
C- factor. A factor of 0.05 or less would be required for all fin al stabilizations, which appears to be basically equal to fully mature vegetative cover or sod. (The only other choice from Table H

- 1 with a C

- factor "less than 0.05" is a rock surface cover.) Vegetative cover equal to a 0.05 C

- factor may not be achievable during winter in many areas of the country. In fact, for arid and semi

- arid areas, a
0.05
C- factor could never be achieved with native cover, and non

- native grass would require constant and permanent irrigation to maintain, which may not be practical at m any construction sites. For temporary stabilization, a factor of 0.1 or less would be required for all disturbed areas of slopes less than 15%, where disturbance activities would not resume within 14 days. A factor of 0.3 or less would be required for temp orary stabilization of slopes greater than 15%. Only two similar BMPs - "straw fiber with netting" or "straw fiber
with tackifier" - are able to meet these requirements according to Table H

- 1. These specific choices of required C

- factors need to be thoroug hly vetted by the construction community as to the reasons for the specific "C" factor requirements EPA has chosen.

What is more, contractors working on or constructing sites are not familiar with all the various C

- factors and would have to rely on

someo ne else to tell them if they are in compliance. Also, there is a lot of disparity between various manufacturers on the C

- factor of their products. According to some of the research conducted, C

- factor does not stay constant over time or with various runoff conditions such as high runoff or spring runoff.

The 70% cover approach is much easier to use. The main drawback is on semi

- arid areas where it takes a long time for vegetation to
establish. On semi

- arid sites (e.g., less than 17 inches annual rainfall) the amount of cover could be reduced to 30%.

Response: Refer to Essay Response 2.46.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

454 

# Comment ID 0112

- A2.001.002

Author Name: Karimi Hamid Organization: DC Dept of Environment Issue Category: 2.2.2
Section 2.2.2: Criteria for Stabilization

EPA proposes two options for vegetative stabilizing of exposed portions of the site, including the 2008 CGP's 70% criteria and th e new cover management factor "C

- factor value" approach. For the 70% criteria, EPA does not specify what happens to the remaining 3 0% of the site with respect to total stabilization, if a site operator decides for this option.

Response: Refer to Essay Response 2.46 and 2.47.



# Comment ID 0128

- A2.001.013

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 2.2.2 EPA proposes to institute a site stabilization standard based on soil loss C

- factor associated with the Revised Universal Soil Loss Equation (RUSLE) regression formula. See Proposed Fact Sheet at 62. However, EPA rejected such an approach in the December
2009 C&D ELG ("EPA [believes] it would be difficult to calculate an area

- weighted C

- factor. Permitting authorities may want to adopt such an approach in their permits, but EPA has chosen not to implement such a requirement in the national rule.") However, the Proposed CGP is essentially national in scope. Once again, EPA can require appropriate stabilization requirements, but it sho uld reserve its lengthy discussion in the Proposed CGP, Fact Sheet and Appendix H for a subsequent guidanc e document that would provide insight and assistance for site operators for implementing the final C&D ELG and subsequent CGP.

Response: Refer to Essay Response 2.46 and 2.47.



# Comment ID 0158

- A1.001.011

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 2.2.2 Additionally, temporary stabilization requirements should not be limited to only cover

- type BMPs. See Section 2.2. Other non

vegetative, non

- cover erosion and sediment control BMPs can be used on flat or sloped ground that will also reduce erosion and provide effective sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with some other materials or practices to provide protection in many instances. Sometim es providing temporary cover after one phase of construction may mean that more damage is done to the area to remove the temporary cover in preparation for the next phase. This unnecessa ry damage may be avoided if other types of temporary stabilization are used.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

455 Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site.



# Comment ID 0 171

- A1.001.012

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 2.2.2
Other non

- vegetative, non

- cover erosion and sediment control best management practices can be used on flat or sloped ground that will also reduce erosion and provide effective sediment control. These options should be considered and incorporated for use in th e permitting effort.

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended by other commenters offering this same recommendation are designed for sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site.



# 2.2.2.1 VEGETATIVE STABILIZATION [REQUEST FOR COMMENT]

Comme nt ID 0021

- A1.001.009

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.2.2.1
9. For the arid or semi

‐ arid stabilization requirements in 2.2.2.1 how do you determine if your stabilization method will provide
erosion control for at least 3 y ears? I.E. rolled erosion control blanket with seeding VS. Straw Crimping with seeding? Does straw crimping, hydromulch, and other methods in conjunction with a native seed mix qualify?

Response: Refer to Essay Response 2.43.



# Comment ID 0025

- A1.001.021

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.2.2.1 The agency understands and appreciates the reasoning behind this section. However, would argue that the product pool that may meet this condition may be very limited, thus adding considerable cost to projects.

Response: Refer to Essay Response 2.45.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

456 

# Comment ID 0025

- A1.001.023

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.2.2.1 This condition is not appropriate for the arid areas. ADOT specifically uses custom - designed native seed mixes containing seeds that germinate in different seasons. The requirement for watering defeats the purpose of using native seeds that grow i n low water conditions. In addition, it may be difficult to say if an area "failed to germinate" without waiting for an entire year to see if different species germinate in the appropriate season.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0030

- A2.001.002

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.2.2.1 Another concern with the proposed CGP involves revegetation requirements which, in arid and semi

- arid regions of the country, will
be difficult to achieve.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0037

- A1.001.024

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.2.1
The C

‐ factor for temporary non

‐ vegetative stabilization (0.1 to 0.3 depending on the percent slope) is greater than the C

‐ factor for
permanent non

‐ vegetative stabilization (0.05 or less). The C

‐ factor for temporary vegetative stabilization is the same as for permanent vegetative stabili zation, i.e., 0.05 or less? In Table H

‐ 1. Reported RUSLE C

‐ Factor Cover Values in Appendix H

‐ Compliance with the
C

‐ Factor Stabilization Criteria, three types of vegetative surface covers are listed. All have reported C

‐ Values of 0.5 or less. The vegetativ e cover with the lowest percent cover of the three is described as ‘thin stalked grass (> 60% density) w/mulch). This particu lar vegetative cover probably has a greater percent cover than non

‐ disturbed vegetation in some project areas in southwest Colorado . Why does EPA not allow a greater C value for temporary vegetative stabilization? The operator will be inclined to just apply stra w mulch
for temporary stabilization rather than utilizing vegetative stabilization (which may be a better temporary stabiliza tion measure on some sites than just mulch).

Response: Refer to Essay Responses 2.46 and 2.47.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

457 

# Comment ID 0037

- A1.001.025

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.2.2.1 The permit states "After seeding you must water, as applicable, until the seeds germinate and grow, ....." In the southwest or for linear projects, it is not always practicable or possible to water a newly seeded area. It is recommended that ‘as applicable' is re placed with
‘'unles s infeasible."

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0047

- A2.001.013

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.2.2.1 Section 2.2,2, page 23

Some sites may not be able to condition soils that are compacted due to location (i.e. steep slopes or top of a mountain) where it is not safe/possible for equipment to access. Xcel Energy recommends there be more flexibility and steer clear of using words like " must" in the permit. More appropriately it w ould be better to say where feasible, sites should use techniques to reduce the impacts of soil compaction during construction to support vegetative growth.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0047

- A2.001.014

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.2.2.1 Section 2.2,2, page 23

Projects do not necessarily have control over the choice of a seed mix. Many permitting authorities (i.e. cities, counties, U S Forest Service, BLM, etc) dictate wha t has to be used and some federal jurisdictions may have requirements that do not comply with this permit. Need some clarification with this language - Is the primary intent to ensure 70% vegetative cover within 3 years? It is difficult
in arid or semiarid areas to get good vegetative growth; in some cases it can take as long as 3 to 5 years to establish growth to the 70 percent pre

- disturbance level.

Response: Refer to Essay Responses 2.43, 2.44, and 2.45.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

458 

# Comment ID 0049

- A1.001.023

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1 Mandating "uniform perennial vegetation" using percent of vegetative cover is not advisable.

• EPA's mandate means that it will be possible to introduce broad leaf vegetation (e.g., weeds) to meet the EPA's proposed 70% cover criteria, which has minimal root systems for erosion control..

• Stem density, which indirectly accounts for a good root system to minimize erosion, is more important than canopy cover. EP A's
standard sho uld be 70% of the stem density when comparing to historic conditions

---- not ground cover.

• EPA must mandate that establishment of perennial vegetation consist of indigenous species that are native to the area. • EP A's wording for arid or semi

- arid region s appears to mandate a 70% vegetative cover within three years. However, native vegetation might only have a 65% cover. This needs to be corrected to reflect 70% of historic stem density.

Response: Refer to Essay Response 2.47.



# Comment ID 0049

- A1.001.028

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1 Removal of all of section "iii" by EPA as written needs to occur for the following reasons:

• EPA should NOT be dictating what is necessary to est ablish vegetation on disturbed lands that may not be applicable to local areas. This is a task that designers must include in their S&EC Plans, which will vary throughout areas where the CGP applies.

• Since water is not readily available in arid and semi

- arid environments, EPA's mandate of watering until "seeds germinate and grow" is not realistic. This will be cost prohibitive and may violate water right decrees.

• Establishment of native vegetation in arid and semi

- arid environments may require up to t wo growing seasons.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0053

- A2.001.016

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.2.2.1 This has potential to release permittees from liability prematurely. Germination may take place, the permittee submits a Notice Of Termination and within a week, cover will die off or be predated resulting in lower coverage percentages and exposed areas. W hat established criteria are there to determine an appropriate seed base cover for the 3 year determination? Example: Pure Live Seed (PLS)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

459 recommended amounts will not guarantee germination, or coverage amounts for any time period. This is especially true in the a rid southwest and the variable of animal predation of seed. Most permittees successfully terminate permit coverage well before as establishment timeframe and are under no further obligation to continue maintenance of vegetation. Simply putting in writing that adequate seed has been applied does not equa te to erosion/sediment control. A 70 % cover of established vegetation would be a better condition with a definition of the term "established" being "independently viable plants" without irrigation systems operatin g.

This wording of the clause 2.2.2.1.a. i. requires clarification: " ... provide erosion control for at least three years to achieve 70 percent vegetative cover within 3 years."

Response: Refer to Essay Responses 2.42, 2.43, 2.44 and 2.45.



# Comment ID 0060

- A1.001.010

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.2.2.1
10. Section 2.2.2.1.a. - This section requires the owner to establish a uniform perennial vegetative cover which covers 70% or more of the area that was covered by veg etation prior to commencing earth

- disturbing activities. EPA should require the owner to establish vegetation that covers 100% of the disturbed area so that all areas of disturbance are adequately stabilized. The establishme nt of vegetation is one of the m ost basic and efficient measures for controlling erosion.

Response: EPA appreciates the comment. EPA supports the continued use of the 70 percent criteria for vegetative stabilization, and no tes that it correlates with very high erosion control effectiveness as evidenced by the C

- factor values shown with 70 percent establishment.



# Comment ID 0062

- A1.001.028

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.2.1 Brevard County Comment: Exemption should include areas being converted to ag.

Response: See Part 2.2.1.c.



# Comment ID 0062

- A1.001.030

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.2.1 c. You must also comply with the following requirements:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

460 i. If you are relying on the C

- factor values in Appendix H, you must apply and maintain the cover measure(s) consistent with the specifications provided in Table H

- 1 in Appendix H; ii. If soil compaction has occurred in areas that you intend to apply vegetative stabilization, you must use techniques that condition the soils in locations where soil compaction has occurred to support vegetative growth, consistent with Part 2.1.3.6;

Brevard County Comment: IE: increase erodibility.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0062

- A1.001.031

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.2.1 iii. If you are using seed to establish vegetation, you must: (1) Prior to application, roughen the area with furrows trending along the contours of the slope. After seeding, you must water, as applicable, until the seeds germinate and grow, re

- seed areas that failed to germinate, and protect seeded areas from further disturbance; and

Brevard County Comment: Reseed w/ in how long? To prevent erosion you must loosen the soil, plant seed, and water.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0066

- A1.001.027

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.2.2.1 Discussion: Placing protective cover for all seeding operations will lead to pronounced expenditure increases. For example, T xDOT seeds approximately 18,000 acres per year; the vast majority of this is broadcast seeding. Our specs call for seedbed preparation to 4 inches, and rolling once the seeding is performed. Rolling helps germination and prevents erosion, but the real issue is not all sites
necessitate mulche s or covering. Requiring mulches or erosion control blankets (ECB) on 18,000 acres would lead to increasing costs to TxDOT, at an estimated 90M per year. Providing a mulch cover can cost approximately $5,000 per acre. Requiring this on temporary seeding wi ll only compound this issue.

We agree that soil roughening is a good tool and BMP. TxDOT's specifications call for seedbed prep, but soil roughening along the contours and slopes will be extremely expensive and dangerous. Seedbed preparation is usually done on an up and down method on steep slopes for safety reasons. Requiring contouring along the contour on steep slopes cannot be achieved without jeopardizi ng the slope and equipment operators.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

461 The use of vegetative watering will also increase cost tremendously and also result in the frequency of failed seeding operations. Watering on linear projects is very expensive due to trucking charges associate with the transportation of the water. Also, w atering from water trucks can easily cause germination to occur, but without natural rainfall the seedlings will die (without continuous watering). It is best to not start supplemental watering until after a natural rainfall has occurred. Repeatedly trucking in water to establish vegetation on 18,000 acres (many of which are in remote areas of the state) is cost prohibitive. Additionally, in cases where we have trucked in water, we have gotten public complaints from nearby residents that may be under local water restrictions (e.g. can only water their lawns on certain days of the week). This issue would be compounded if we were to water the roadside adjacent to agricultural property suffering from lack of water.
Suggestion: The requirement of for covering seeding operations and vegetative watering should be a BMP t hat can be incorporated
into the project's SWPPP, and given flexibility based on local conditions while the project is being constructed.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0069

- A1.001.006

Author Name: Cramer M. Organization: Issue Category: 2.2.2.1 We would like to comment on another part of this section that states: "When background vegetation covered less than 100 perce nt of the ground prior to commencing earth

- disturbing activities, the 70 percent coverage criteria is adjusted as follows: if vegetation covered 50 percent of the ground prior to construction, then the requirement would be to provide a total vegetative cover at final stabilization of 70 percent of 50 percent (0.70 X 0.50 = 0.35), or 35 percent of the site." We support this methodology and recommend that it be included in the final permit language.

Response: This language is included in the permit fact sheet.



# Comment ID 0071

- A3.001.008

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.2.1 •Part 2.2.2.1 Vegetative Stabilization (c).(iii).(1). Requiring watering in arid/semi

- arid areas is not practicable for a variety of reasons. First, accessible water supplies for these projects are often not available. Second, watering is actually counter

- productive. The seeds will be watered until vegetation is established and then returned to an arid/semi

- arid condition, resulting in a reduction in vegetation after the permit has been closed for achievement of stabilization. (Depending on how EPA clarifies Part 2.2.1.4 this comment may not be applicable as this Part may not to be required for Arid/Semi

- Arid sites)

Response: Refer to Essay Responses 2.44 and 2.45.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

462 

# Comment ID 0071

- A3.001.021

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.2.1

- Part 2.2.2.1 Vegetative stabilization. This Part discusses the establishment of vegetation based on the area covered by veget ation prior

to commen cing earth

- disturbing activities. Does this mean pre

- existing historic? Or does this mean just prior to the earth disturbing activities associated with the permit? For example if earth disturbing activities were in what had previously been a dirt p arki ng lot, would pre

- existing conditions be considered zero percent cover?

Response: Refer to Essay Responses 2.44 and 2.45. See clarified language in Part 2.2.2.1, which EPA believes better articulates the 70 percent requirement.



# Comment ID 0071

- A3.001.022

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.2.1

- Part 2.2.2.1 Vegetative Stabilization. (a).(i). This Part is awkward and unclear. Does vegetation need to be established with in 3 years in arid/semi

- arid areas or does the seed mix need to be one that typically establish within 3 years? Or both? Establishing vegetation within 3 years in an arid/semi

- arid area is difficult regardless of the seed mix. CDOT suggests the permit remai n open until vegetation
is established.

Response: Refer to Essay Response 2.43.



# Comment ID 0075

- A2.001.018

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.2.2.1 In Wyoming high desert climate conditions (e.g., <10

- inches annual precipitation and extreme evapo

- transpiration (ET) rates), it is not unusual for four growing seasons to recover 70% of the baseline vegetative cover post

- construction. This rule seems to imply whole project coverage with rolled erosion blankets, even flat areas for minimum of 3

- years. Only long term temporary rolled blankets would meet this time stipulation at much higher cost including an extreme labor commitment for a whole project install of 100 acres or more. The WYD OT actual weighted bid prices, FY2010, Bid Item 216.03955 erosion prevention using Long Term Temporary Rolled Blanket (100% coconut) including seed and fertilizer = $8,721/acre installed versus Bid Item 216.03900 erosion prevention usi ng Crimped, Dry Mulch (cereal straw) including seed and fertilizer = $4921acre.

The proposed 100% blanket stipulation would increase erosion prevention costs by $8,229/acre or in typical 100 acre

- disturbed project by $822,900 cost inflation. This cost inflation would not inc rease speed of vegetative cover under high desert climates since the surface rolled erosion blankets hold and quickly evaporate or sublimate precipitation in high evapo

- transpiration conditions in contrast toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

463 soil

- crimped straw mulches that infiltrate flas hy storm events and improve soil moisture conditions. Desert DOT's like Wyoming only operate under arid conditions but should not be penalized for natural vegetative climate restrictions beyond their control. I n contrast, construction disturbed agricultura l lands with much higher erosion potential are exempt from this final stabilization criteria.

Response: Refer to Essay Responses 2.44 and 2.45.



# Comment ID 0110

- A1.001.005

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.2.2.1
See comments in Appendix H. The break point of 15% for slopes and the products that are listed in the Appendix H do not all meet
the desired C

- Factor values. For example, by only classifying slopes as greater than 15% or greater as steep, it is implied that a user could pick any of the products in the list of Appendix H for a slope as steep as 30 to 60 %, and many products/technologies o n the list will fail miserably.

Response: Refer to Essay Response 2.46.



# Comment ID 011 0- A1.001.007

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.2.2.1
The C

- Factor values of 0.1 for slopes less than 15% and 0.3 for slopes greater than 15% appear to be backwards. With a steeper sl ope, you would want a lo wer C

- Factor requirement as more sediment would likely be eroding. To follow up with my previous suggestion for slopes:

Mild: < 15% - C- Factor of 0.3 or less
Moderate: 15 - 30 % - C- Factor of 0.1 or less Steep: 30 - 60 % - C- Factor of 0.05 or less
Severe: > 60 % - C- Factor of 0.05 or less

The C

- Factor values as stated before, should all be normalized to account for differences in testing facilities/field locations. I have developed an equation that allows for this to happen and would be happy to discuss this further. Using the reported C

- Factors from various laboratory/field conditions in their current form does not provide for a proper comparison and will lead to non

- conservative
results.

Response: Refer to Essay Response 2.46.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

464 

# C omment ID 0115

- A2.001.015

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.2.2.1 2.2.2.1 Vegetative Stabilization. In some circumstances, achievement of 70% vegetative stabilization may contradict special p ermit conditions regarding certain state rare or threatened species. For example, in Massachusetts, the MA Natural Heritage & Endangered Species Program (NHESP) may specify that post construction conditions leave portions of the ROW as open sandy areas suitable for
turtle habitat. Therefore, National Grid recommends that the language regarding percentage cover include recognition of unique permit conditions that may require a lesser cover.

Response: Refer to Essay Responses 2.45 and 2.47.



# Comment ID 0120

- A2.001.002

Author Name: Batson Jon Organization: Anderson County, South Carolina Issue Category: 2.2.2.1 ADD: "Acceptance of Vegetation" means that:

1. All soil disturbing activities at the Site have been temporarily or permanently completed and either of the two following criteria are

met:

a. A uniform (e.g., evenly distributed, without large bare areas) vegetative cover with a density of 70 percent of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures. Vegetated Stabilization of a site requires stabilization with vegetation to a 70% coverage rate. This does not mean that 30% of the are a to be stabilized with vegetation can remain bare. The coverage is defined as looking at a square yard of coverage, in which 70% of that square yardage is covered with vegetation.; or

b. Equivalent stabilization measures (such as the use of mulch, riprap, gabions, or geotextiles) have been employed.

Response: Refer to Essay Responses 2.45 and 2.47.



# Comment ID 0124

- A2.001.003

Author Name: Eubanks Kevin Organization: Clark County Regional Flood Control District Issue Category: 2.2.2.1 EPA's demand for vegetation can also be harmful. For arid areas, the draft permit requires "an appropriate seed base . . . to achieve 70 percent vegetative cover within 3 years" (paragraph 2.2.2.1.a.1). But seed

- based vegetative cover can be inappropriate in the desert where requisite irrigation might waste a precious resource. Local municipal entities have bee n buying up turf - meaning homeownersRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

465 are paid not to grow grass and other non

- desert plants because they use so much water, which has been in unusually short supply during the recent drought. EPA's stormwater program should not encourage wasteful uses of w ater, especially during a drought.

Response: Refer to Essay Responses 2.42, 2.43, and 2.44, 2.45, and 2.47.



# Comment ID 0137

- A2.001.012

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.2.2.1 We oppose idea of using another method other than 70% stabilization as the factor to determine if the site is stabilized for the following reasons.

a. Many people in the industry are not familiar with using the Universal Soil loss equation. I am specifically referring to inspectors, contractors, technicians, agency staff, many engineers and other specialties. The purpose of the equation appears to be cal culation of a volume of soil loss. This is important if the intent is to dete rmine the amount of sediment that could reach a lake or may be transported down a riverine system, and a determination of how fast the wet volume of a sediment is being reduced by sediment. We however are more interested in reducing the amount of sediment leaving the site.
b. The effort to train the tens of thousands of people who will need to make the determination will be time consuming and exp ensive for little apparent effect.

c. The calculation to determine a value of less than 0.05 for a site cannot be done with any precision if a range of values or "insufficient data available" are the choices in order to average to less than 0.05. Leaving aside the training and cost to i mplement issues noted above, for this to work, a constant for the C

‐ value must be established to use in an equation otherwise it is subject to a wide range of interpretation and therefore doomed to fail.

Response: Refer to Essay Responses 2.45, 2.46, and 2.47.



# Comment ID 0153

- A1.001.017

Author Name: Wortkoetter Judith Organizat ion: Greenville County, South Carolina Issue Category: 2.2.2.1 This item is too prescriptive to include in the permit. These practices vary from site to site and should be part of a design implementation manual. This section should be removed. This is not permit language, this is a seeding specification!

Response : Refer to Essay Responses 2.45 and 2.47.



# Comment ID 0170

- A2.001.008

Author Name: Davis ScottRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

466 Organization: Arizona Public Service Company (APS) Issue Category: 2.2.2.1 The requirement to water seeds in situations where vegetation has been selected to satisfy the stabilization requirements should be removed from the permit. This requirement is overly prescriptive, may have negative consequences to the growth of vegetation, and is
not feasible in many situations. Watering seeds to the point of germination and growth during the dry season in arid and semi

- arid climates would result in almost certain plant mortality once watering has stopped. To establish a perennial vegetative cover, the plants

mus t be allowed to germinate and grow as the natural environment dictates. Furthermore, watering seeded areas can result in the rapid growth of noxious weed species.

Watering seeded areas at linear projects may not be feasible in many situations. Linear projects that pass through rugged terrain may not have a water source available or may be located in areas where water transport equipment cannot access. APS regularly ach ieves vegetative stabilization at construction sites without watering. The watering r equirement is not needed in the permit and should be
removed.

Response: Refer to Essay Responses 2.43, 2.44, 2.45 and 2.47.



# 2.2.2.1Q C

- FACTOR ONLY APPROACH

Comment ID 0007

- A1.001.004

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 2.2.2.1Q Comment: I believe the two option approach as proposed will work well. It will be difficult, though, to objectively judge the 70% of preconstruction cover. Allowing this flexibility is good, but putting it into practice will be very subjective.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0015

- A2.001.009

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.2.2.1Q Q9. 70% cover & C factor - Ok with both, altho ugh 80% cover seems more consistent with other regulations and best guidance.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0017

- A1.001.014

Author Name: Metcalf MarkRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

467 Organization: Integrys Business Support, LLC Issue Category: 2.2.2.1Q 12) 2.2.2 - EPA is requesting comment on whether to include the 2008 70 percent coverage criteria and/or include the new "C

‐ factor" approach. The use of the C

‐ factor approach is overly restrictive compared to the 70% coverage criteria. The C

‐ facto r approach requires that the site,once established, has a C

‐ factor of 0.05 or less, but does not take into account the conditions of the site prior to construction (where the C

‐ factor may have been higher). The proposed rule indicates that in order to reach the desired C

‐ factor, the site
needs to have either 75 to 96% growth cover, 60% thin stalk grass (>60%density with mulch), sod, or 1⁄4 to 1 1⁄2" crushed stone. This
should be the standard for evaluating whether or not a site has achieved stabilization, and n ot the proposed "C

‐ factor" approach.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0025

- A1.001.022

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.2.2.1Q In response to EPA's request for comment: In Arizona, vegetative cover can be very sparse. The method for determining stabilization in the 2008 CGP (achieving 70% of background) provides a quantifiable goal that can be used for determining whether fmal
stabilization has been a chieved.

Response: Refer to Essay Response 2.47.



# Comment ID 0049

- A1.001.024

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1Q Assuming stabilization of all sites must achieve a specific C

- Factor value of 0.05 is not realistic or achievable and should not be an EPA criterion. Many of the C

- Factor values found in Table H

- 1 have not been substantiated for construction site conditions.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0049

- A1.001.025

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1Q Assigning a C

- Factor value of 0.30 for roughen soil (all designers will use this value) is ludicrous. Even if it were correct, one rainfall

event can change that value to nearly 1.0.

Response: Refer to Essay Responses 2.46 and 2.47.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

468 

# Comment ID 0049

- A1.001.026

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1Q
Low C

- Factor values may never be achieved in arid and semi

- arid environments for historic conditions.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0049

- A1.001.027

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1Q
• EPA should avoid prescribing C

- Factors values based upon "one size fits all" concept. Let designers and regulatory agencies determine values for their locations based upon historic vegetative conditions.

• Much more research needs to be completed before assuming al l C

- Factor values in Table H

- 1 are accurate enough to ensure applicability to construction site stabilization.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0061

- A1.001.012

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.2.2.1Q The Agency requests comments on whether the 70% revegetation standard and the new "C

- factor" approach should both be included in the final permit. The EHSCP supports the inclusion of both methods as criteria to support final stabilization. The 70% revegetation standard is a functional and effective measure of final stabilization. Additionally, that standard is understood by those inv olved with implementation of the SWPPP without the requirement fo r additional documentation, new calculations which serve to increase cost without the realization of any environmental benefit, and without adding unnecessary confusion on the jobsite.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 006 2- A1.001.029

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.2.1Q Brevard County Comment: EPA should not expect small contractors, municipalities/ developers to keep track of this.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

469 Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0065

- A1.001.018

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.2.2.1Q CCWC members see no environmental benefit to restricting the contr actor to using only the Cfactor. CCWC supports allowing contractors the choice of using either the 2008 CGPS 70% criteria or the C

- factor. Contractors should be provided this choice because some stabilization methods may be more efficient and productive fo r the contractor to implement than utilizing the C

- factor methods provided in Appendix H. Neither approach is more advantageous from an environmental protection perspective, and therefore it is not rational to foreclose the use of equally protective, more effective compliance measures

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0069

- A1.001.005

Author Name: Cramer M. Organization: Issue Category: 2.2.2.1Q
5. Part 2.2.2.1. of the draft EPA CGP discusses whether the C

- factor stabilization criteria should be used as the sole option for complying with the permit's stabilization requirements, as opposed to allowing, as the draft permit does, permittees to choos e either the
C- factor method or the 70 percent areal cover approach. W e recommend keeping both options, as more experience with the day

- to

- day practicality of the C

- factor method under various conditions should be acquired before its use is mandated in the permit.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comm ent ID 0071

- A3.001.030

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.2.1Q •Part2.2.2.1 Vegetative Stabilization. CDOT is supportive of having both the option of 70% pre

- existing vegetation or the C- Factor method. This still establishes vegetation requirements, but allows some flexibility. CDOT would not be supportive of only the CFactor method.

Response: Refer to Essay Responses 2.46 and 2.47.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

470 

# Comment ID 0074

- A2.001.012

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.2.2.1Q EPA should allow permittees to choose either the C

- factor method or the 70% cover approach in the proposed permit and to state which approach they selected in the SWPPP.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0080

- A2.001.013

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.2.2.1Q Partner Response: Compliance with the C

- factor Stabilization Criteria is a reasonable alternative; however, design engineers are really going to have to do their homework and apply the criteria correctly in order to achieve compliance under the proposed CGP. Th e Partners support having mul tiple options in achieving compliance under the CGP. The proposed language and alternative approach to achieving site stabilization would not limit contractors or the Partners from using the C

- factor option or the 70% criteria. The Partners support a tool

- box approach for permit implementation and compliance. However, this new requirement will add to the workload of the engineers designing the BMPs to assure that the required 0.05 C factor in the RSULE is reached by final stabilization. As
mentioned earlier in our responses, in arid areas it is difficult enough to get 70% of existing cover through precipitation. The additional requirement would add to the project workload and cost and increase the difficulty in file CGP Notice of Terminations (NOTs).

The P artner's interpretation of the draft permit language is that this criteria only applies to temporary stabilization practices where the area has not undergone construction activity for 7 or 14 days.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0085

- A2.001.011

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.2.2.1Q
Rockville supports using the C

- factor stabilization criteria as the sole option for meeting stabilization requirements. If EPA continues to accept stabilization achieved solely through vegetative stabilization, then EPA should consider requiring final cover dens ities well
above 70% for non

- arid regions. For example, Maryland has required densities as high as 95%. See Maryland Standards and Specifications for Soil and Erosion Control (1994).

Response: Refer to Essay Responses 2.46 and 2.47.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

471 

# Comment ID 0087

- A1.001.044

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.2.2.1Q UWAG supports the continued use of the 70% vegetative cover requirement in lieu of solely utilizing the C

- Factor requirements. The 70% requirement has been, and continues to be, an effective and easily understood requirement for vegetative stabilization.

Response: Refe r to Essay Responses 2.46 and 2.47.



# Comment ID 0090

- A1.001.018

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.2.2.1Q AGA also requests that EPA clarify whether the C

- factor value approach noted in Part 2.2.2.1 under Criteria for stabilization will incorporate the 70% cover option as a means of obtaining final stabilization. If this is the case, AGA considers the C

- factor value to be appropriate and reasonable.

Response: Refer to Essay Responses 2.46 and 2.4 7.



# Comment ID 0091

- A2.001.007

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.2.2.1Q 7. Fact Sheet Item 9. Part 2.2.2.1: Recommend allowing the permitee to choose either the C

-- factor or 70% areal coverage approach.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0093

- A2.001.058

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.2.2.1Q In the Draft, EPA provides two options for stabilizing exposed portions of the site with vegetation, including the 2008 CGP's 70%
criteria and the new C

- factor value approach. EPA has requested comment on whether the C

- factor stabilization criteria should be used as the sole option for complying with the permi t's stabilization requirements, as opposed to allowing permittees to choose either the Cfactor method or the 70% area cover approach.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

472 AGC finds that the C

- factor approach should not be the only criteria for stabilization. As stated above, EPA rejected such an approach for the C&D ELG, explaining that it would be difficult to calculate an area

- weighted C

- factor. ("EPA [believes] it would be difficult to
calculate an area

- weighted C

- factor. Permitting authorities may want to adopt such an approach in thei r permits, but EPA has chosen not to implement such a requirement in the national rule.") However, the Draft is essentially national in scope. EPA can requ ire appropriate stabilization requirements, but it should reserve its lengthy discussion in the Draft , proposed CGP Fact Sheet and Appendix H for subsequent guidance that would provide insight and assistance for site operators for implementing the final C&D ELG and subsequent CGP.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0096 -A1 .001.041

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.2.2.1Q EPA has requested comment on whether the “C”

- factor stabilization criteria should be used as the sole option for complying with the permit’s stabilization requirements, as opposed to allowing permittees to choose either the “C”

- factor method or the 70 percent areal cover approach. EPA’s proposal seeks to institute a site stabilization standard based on the soil loss “C”

- factor associated with t he Revised Universal Soil Loss Equation (RUSLE) regression formula, even though EPA rejected such an approach in the final C&D ELG, stating “EPA [believes] it would be difficult to calculate an area

- weighted “C”

- factor. Permitting authorities may want to a dopt such an approach in their permits, but EPA has chosen not to implement such a requirement in the national rule.” [FN 64] However, because the proposed CGP will likely have a national impact, it is uncertain why EPA now believes such an approach is app ropriate.

The “C” factor approach should not be the only criteria for stabilization. It is not always practicable in every circumstance , and operators may need the flexibility to define stabilization by some other parameter. In some cases, the 70% vegetative cover option is more definitive and easier to implement if vegetation is to be used for temporary or final stabilization. There are many ambiguities and inconsistencies in the “C” factor method, as discussed below.

First, the BMP approaches for erosion control and stormwater management need to be flexible enough to cover a wide range of site and weather conditions. Requiring that only the “C” factor method can be used unnecessarily boxes operators into a corner, and forces
them to make decision s that are not best for the site situations they confront. The requirements for stormwater erosion control at construction sites have gotten exponentially more complex over the years, and reducing acceptable options makes the issues mo re difficult, not eas ier.

Second, the specific “C” factors identified by EPA are not explained and seem to be arbitrarily chosen. They seem to be extre mely conservative, and in fact severely limit the choices of BMPs found in Table H

- 1. The “C” factor option in the CGP requires that three levels of “C” factor must be attained. A factor of 0.05 or less is required for all final stabilizations, which appears to be basically equal to fully mature vegetative cover or sod. (The only other choice from Table H

- 1 with a “C” factor “less than 0.05” is a rock surface cover.)
Vegetative cover equal to a 0.05 “C” factor may not be achievable during winter in many areas of the country. In fact, for ar id and semiarid areas, a 0.05 “C” factor could never be achieved with native cover, and no n- native grass would require constant andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

473 permanent irrigation to maintain, which may not be practical at many construction sites. For temporary stabilization, a facto r of 0.1 or less must be achieved for all disturbed areas of slopes less than 15% where d isturbance activities will not be resumed within 14 days. A factor of 0.3 or less must be achieved for temporary stabilization of slopes greater than 15%. Only two similar BMPs, “straw fiber with netting” or “straw fiber with tackifier,” are able to meet these requirements according to Table H

- 1. These specific choices of required “C” factors need to be thoroughly vetted through the construction community, including identifying the source(s) of the “C” and the justification for the specific “C” factor requi rements EPA has chosen.

Third, the assignment of specific “C” factors to various BMP techniques seems rather arbitrary and ambiguous. Table H

- 1 in Appendix H is supposed to be the list of tested BMPs where the “C” factor is known. However, for many of th e non

- vegetative BMP materials, the “C” factors given in the table for specific BMPs are presented as a very large range of values.

For example, “hydromulch with netting” has a “C” factor range from 0.1 to 0.4 for slopes less than 15%, and 0.1 to 0.6 for slopes greater than15%, so it is not clear at all whether this BMP would meet the required “C” factor for temporary stabilization. EPA only says that the manufacturer should be consulted for BMPs that have ranges of “C” factors. However, since this is now a permit compliance issue, what BMP documentation would EPA require to ensure compliance with the CGP? There needs to be a more definitive explanation as to how an operator will verify compliance with specific “C” factors when such wide ranges of “C” factors are assigned.

Finally, the exclusive use of the “C” factor can be counterproductive to the use of new and innovative erosion control BMPs. If a BMP technology is currently not listed in Table H

- 1, EPA says that the operator must provide documentation of the unlisted BMP “C” factor based on recognized standard testing procedures such as ASTM 6459, even though, as discussed above, the results of such testing often seems to be ambiguous. The practical effect is that no BMP technology that is currently no t listed in Table H

- 1 will likely ever be used. EPA is strongly urged to allow the use of either the “C” factor or the 70% areal cover.

[FN 64] 74 Federal Register 63,050 (December 2009)

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0098

- A1.001.012

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 2.2.2.1Q
[ Part 2.2.2.1.b Criteria for stabilization The Agency asks whether the C

- Factor approach alone should be adopted as the test for final
stabilizati on or whether the new permit also should retain the traditional 70% cover standard. We believe that making both approaches available to define final stabilization is appropriate because the 70% standard is familiar to site personnel who have implem ented it for years and because the C

- Factor approach requires highly technical skills that are not commonly found on construction sites. We also suggest utilizing the C

- Factor approach when the establishment of 70% density of cover over 100% of the exposed soils i n difficult or unlikely, such as in arid climates.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

474 Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0103

- A3.001.010

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.2.2.1Q
In Part 2.2.2 Criteria for Stabilization, EPA provides detailed description of vegetative stabilization coverage. EPA continues the 2 008 CGP's 70 percent (%) vegetation criteria, and adds an alternative to use a cover management factor ("C

- factor") value approach . EPA requests comments on whether both options should be included in the final permit or whether only the C

- factor approach should be
included.

TCEQ recommends including both the 70% criteria option and the new C

- factor value option, as they provide fle xibility to the permittees. The 70% vegetation calculation may be easier for permittees to implement, since it is relatively easy and familia r; particularly in the short term as operators gain experience in calculating a C

- factor.

Response: Refer to E ssay Responses 2.46 and 2.47.



# Comment ID 0110

- A1.001.006

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.2.2.1Q
I think that both methods have utility and the 70% criteria is something that users are familiar with, so it is good to have that as an option.

The C

- Factor method needs to be worked on quite a bit to develop a consistent method for users to determine the values and not have a table of values for various products/techniques with C

- Factors that are not comparable (most of the C

- Factors provided in Appendix H tables were developed from varied testing/field conditions and are not comparable).

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0110

- A1.001.009

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 2.2.2.1Q Further, if you are going to implement the use of C

- Factors for soil stabilization, an understanding of the relationship between C

- Factor and Turbidity should be explored as I have performed some research that shows the relationship is inversely proportional for many of the historical erosion control products, meaning that a low C

- factor does not mean a low NTU.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

475 Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0115

- A2.001.016

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.2.2.1Q
National Grid appreciates the opportunity to demonstrate compliance with the vegetative stabilization requirements by utilizi ng the
new C

- Factor approach (RUSLE). However, due to the complexity of this approach on some sites (e.g., varied terrain, slope, soil types, etc.) and novelty of the approach at this point, we recommend offering the C

- Factor approach as an optional alternative to the 70% vegetative stabilization requireme nt.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0126

- A2.001.010

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.2.2.1Q Per EPA requested commentary, the CSC appreciates the feels that having both options is the best alternative and does not want to be limited to only the C

- factor option

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0130

- A2.001.016

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.2.2.1Q 15. STABILIZATION METHODS. In Part 2.2.2.1, EPA is requesting comments regarding the two options for vegetatively stabilizing exposed portions of the site, including the 2008 CGP‟s 70 percent criteria and the new C

- factor value approach.

ITD‟s preference is to keep both the 70% vegetation criteria and the "C

- factor" criteria. The "Cfactor" is based on ASTM 6459. This test is for rolled erosion control products (i.e. blankets). Many manufacturers also use this test to determine a "C

- factor" for hydraulically applied erosion control products. There is considerable industry controversy over the efficacy of this test for hydraulically applied products since it was designed for rolled products. Given this controversy, the "C

- factors" provided by manufacturers may not meet the intent of this permit requirement. In addition the standard NTPEP test for ASTM 6459 tests slo pes at a 3:1 slope to find a "C

- Factor". A 3:1 slope does not meet the slope requirements of this permit (5% and 15%). It appears that aRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

476 modified ASTM 6459 test will be required. Given these issues it seems absolutely necessary to keep the 70% vegetative cover approach, and further analysis is required by EPA into the C

- factor requirements presented in the permit

Respon se: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0131

- A1.001.011

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.2.2.1Q
A C

- factor of 0.05 is not practical for arid and semi arid regions which would naturally not have such a C

- factor in most cases. The only permanent stabilization that will comply with a C

- factor of 0.05 is crushed rock, vegetative surface cover of 75% or grasses with 60% density. Crushed rock is not economical for larger areas of soil disturbance.

The C

- factor approach would be practical for areas with rainfall that support 75% vegetative surface cover. However, in areas with low rainfall, irrigation must compensate for the lack of precipitation to ensure growth and maturity for a cover that would meet the 0.05
C- factor (as well as reduce the potential for fires). In areas with restricted water use, irrigation is costly and water conser vation must be
taken into consideration.

LBA suggests instead that EPA retain the 70% aerial cov er (Appendix A of the 2008 CGP) approach as an option for stabilization in areas that can support it and allowing projects to select an appropriate C factor based on upon natural C factors. Fire suppr ession must
be a consideration.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0133

- A2.001.021

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.2.2.1Q MDT supports the inclusion of both options for stabilization: vegetatively stabilizing exposed portions of the site and the new Cjactor value approach. Especially in arid and semi

- arid areas, flexibility must be provided to reach final stabilization.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0153

- A1.001.016

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.2.2.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

477 1. This requirement is not consistent with typical determination of 70% coverage. Typical interpretation of 70% vegetation
establishment is that when a nalyzing an area (square foot, square yard, etc.) that 70% of the analyzed area has 70% establishment of vegetation. In black and white, this CGP statement says that if the site was 100% vegetated prior to earthdisturbing activities, it must
be 70% covered with vegetation at the completion of the project! This says that a construction site can only result in a maximum of
30% non

- vegetated area. This is a landuse requirement or a maximum imperious area requirement which would allow only 30% of the project ar ea to be built upon. The permit allows for the 70% rule or the C

- factor rule, but the 70% rule as defined here would be very difficult to implement..

2. Based on experimental studies, the C factor is related directly to the % coverage and the presence of stabilized mulch (mulch tacked to the soil) used in seeding. In calculations that are typically used for design purposes, the assumption is used that the C factor changes
with time after soil preparation and seeding. In the real world, climate factors such as sunshine, temperature, and precipitation along with proper fertilization determine how long it actually takes to establish 90% cover. Taking a C factor from a chart does no t mean that the C factor will actually be attained at any given time. To prove that the C factor was attained, the only reasonable method would be to determine the % cover. Therefore, attaining a given % cover is a reasonable requirement.

3. The condition of the site related to vegetation cover should not be a consideration for stabilization post construction.

4. If you meet the 70% criteria for stabilization, you should be close to meeting a cover practice percentage of 0.05.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0159

- A1.001.010

Author Name: Seawr ight Stephen Organization: Maryland State Builders Association Issue Category: 2.2.2.1Q We are against the idea of using another method other than 70% stabilization as the factor to determine if the site is stabilized for the following reasons.

a. Many people in the industry are not familiar with using the Universal Soil loss equation. I am specifically referring to inspector s, contractors, technicians, agency staff, many engineers and other specialties. The purpose of the equation appears to be calcu lat ion of a volume of soil loss. This is important if the intent is to determine the amount of sediment that could reach a lake or may be transported down a riverine system, and a determination of how fast the wet volume of a sediment is being reduced by sediment. We however are more interested in reducing the amount of sediment leaving the site.

b. The effort to train the tens of thousands of people who will need to make the determination will be time consuming and exp ensive for little apparent effect.

c. The calculation to determine a value of less than .05 for a site cannot be done with any precision if a range of values or "i nsufficient data available" are the choices in order to average to less than .05. Leaving aside the training and cost to implement issues noted above, for this to work, a constant for the C

- value must be established to use in an equation otherwise it is subject to a wide range of interpretation and therefore doomed to fail.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

478 Response: Refer to Essay Responses 2.46 and 2.47.



# 2.2.2.2 NON

- VEGETATIVE STABILIZATION

Comment ID 0049

- A1.001.029

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.2 Assigning C

- Factor values to temporary measures may be meaningless.

• C

- Factor values are not meant for temporary conditions.
• There is no sustaining information on the longevity of C

- Factor values for temporary measures.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0062

- A1.001.032

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.2.2
2.2.2.2 Non

- Vegetative Stabilization. If you are using non

- vegetative cover methods (e.g., hydromulch or straw/fiber with netting, soil bonding agents with polyacrylamide, riprap, geotextiles, gravel) to stabilize an exposed portion of your site, you must comply with one of the following criteria depending on whether you are providing temporary or final stabilization:

Brevard County Comment: Organic materials are contaminants in many instances.

Response: EPA believes that if properly applied to exposed areas there should not be significant loss of organically

- based materials from the stabilized surface sufficient to cause an exceedance of applicable water quality standards. EPA would suspect that, barring an unusually large and intense storm, a significant loss of materials from a stabilized site suggests improper application of the stabilization

cover.



# Comment ID 0071

- A3.001.009

Author Name: Willard Rick Organization: Colo rado Department of Transportation (CDOT) Issue Category: 2.2.2.2
•Part 2.2.2.2 Non

- Vegetative (b) Final Stabilization. It would be valuable to have the 70% pre

- existing cover option in this Part as well.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

479 Response: EPA disagrees with the commenter. W here non

- vegetative cover is used it should be applied to all exposed surfaces. See
Part 2.2.2.2.



# Comment ID 0086

- A1.001.011

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 2.2.2.2 Additionally, temporary stabilization requirements should not be limited to only cover

- type BMPs. See Section 2.2. Non

- vegetative,

non

- cover erosion, and sediment control BMPs can be used on flat or sloped ground that will also reduce erosion and provide e ffective sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with other materials or practices to provide protection in many instances. Sometimes providing temporary cover after one phase of construction may mean tha t more damage is done to the area to remove the temporary cover in preparation for the next phase. This unnecessary damage may be av oided if other types of temporary stabilization are allowed to be used in the CGP.

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site.



# Comment ID 0139

- A2.001.003

Author Name: Aho Andrew Organization: Geosynthetic Materials Association (GMA) Issue Category: 2.2.2.2
2.2.2.2 Non

- Vegetative Stabilization. If you are using non

- vegetative cover methods (e.g., hydromulch or straw/fiber with netting, soil bonding agents with polyacrylamide, ripra p, geotextiles, geogrids, geomembranes, geocells, geocomposites, synthetic turf, gravel) to stabilize an exposed portion of your site, you must comply with one of the following criteria depending on whether you are pr oviding temporary or final stabilizatio n:

Response: EPA notes that it has added geotextiles to the list of examples. The examples provided by the commenter, if applied correct ly, are all good examples of non

- vegetative stabilization covers.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

480 

# 2.2.3 USE OF SITE STABILIZATION TO REDUCE DISTURBED ACRES COUNTED TOWARDS APPLICATION OF NUMERIC TURBIDITY LIMIT

Comment ID 0076

- A1.001.012

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.2.3 Target commends the EPA for providing flexibility within the C&D rule, which creates reduced monitoring requirements for phasing
construction sites.

Response: EPA appreciates the comment. As noted elsewhere in the comment response document, the permit does not include a numeric turbidity limit, therefore this provision has removed.



# Comment ID 0133

- A2.001.022

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.2.3 MDT supports the use of temporary andjinal stabilization measures to reduce the acres counted towards application of the numeric turbidity limit. Inclusion of such a provision will greatly encourage the use of phased construction, which has been shown to substantially reduce the amount of sediment present in stonn water discharges.

Response: EPA appre ciates the comment. As noted elsewhere in the comment response document, the permit does not include a numeric turbidity limit, therefore this provision has removed.



# 2.3 POLLUTION PREVENTION REQUIREMENTS
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 2.3.1 PROHIBITED DISCHARGES

Comment ID 0068

- A1.001.024
Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.3.1 Part 2.3 proposes to prohibit certain discharges otherwise allowed by the December 2009 C&D ELG. For example, EPA specifically allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Proposed CGP creates an abso luteRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

481 prohibition. EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be quashing that flexibility in implementing any ELG.

Response: EPA has modified the permit to better reflect the language of the C&D rule with respect to prohibited discharges. See Part 2.3 and 40
CFR 450.21(e). For instance, in the proposed permit, all discharges from the washout of concrete were prohibited, whereas in th e final permit these discharges are prohibited “unless managed by an appropriate control ...” (see Part 2.3.1.1).



# Comment ID 0068

- A1.001.025

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.3.1 EPA also unnecessarily proposed a strict and overly

- broad prohibition in Part 2.3.1.6 ("Waste, garbage, floatable debris, construction
deb ris, and sanitary waste."). The purpose of obtaining a NPDES permit for stormwater associated with construction activity is t o obtain authorization for pollutants that are expected to be present in such stormwater discharges, such as construction waste or debris. "Construction waste" is defined to include many likely and mostly harmless pollutant discharges (in reasonable quantities), i ncluding "soil generated by construction activity." (Appendix A at 3). Obviously, EPA cannot expect to prohibit the dischar ge of some soil particles from construction operations.

The term "construction debris" is not defined, but arguably might be interpreted to include saw dust, wood chips or other pos sible floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention of the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obligations it has propose d to impose site operators.

Response:
EPA has modified the permit to remove the referenced language from the list of prohibited discharges. The final permit reflects more precisely the list of prohibited discharges in 40 CFR 450.21(e).



# Comment ID 0091

- A2.001.020

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.3.1 20. Part 2.3.1.3: Many installations have established facility procedures, spill plans, and onsite first responders. In these cases the permitee should comply with installation requirements.

Response: EPA allows for use of existing plans such as these to the extent that they are sufficient to comply with the requirements in Part 2.3.1. See Part 7.2.11.1.b of the final permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

482 

# Comment ID 0093

- A2.001.005

Author Name: Pilconis Leah Organization: Assoc iated General Contractors of America (AGC) Issue Category: 2.3.1 Part 2.3 would prohibit certain discharges that the C&D ELG allows, such as concrete washout, provided only that it is manage d by appropriate controls. This is another example of the Draft depriving operators of the flexibility that EPA has already determined to be necessary and appropriate, and trying to undue decisions already made, on a proper rulemaking record. While EPA has a certain amount of discretion, it cannot go so far as to rewrite the C&D ELG on which its revisions to the CGP are based.

Response: See response to Comment 0068

- A1.001.025.



# Comment ID 0093

- A2.001.060

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.3.1 Part 2.3 proposes to prohibit certain discharges otherwise allowed by the December 2009 C&D ELG. For example, EPA specificall y allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Draft creates an absolute pr ohib ition. EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be quashing that flexibility in any implementing CGP.

EPA also unnecessarily proposed a strict and overly

- broad prohibition in Part 2.3.1.6 ("Waste, garbage, floata ble debris, construction debris, and sanitary waste."). The purpose of obtaining a NPDES permit for stormwater associated with construction activity i s to obtain authorization for pollutants that are expected to be present in such stormwater discharges, su ch as construction waste or debris. "Construction waste" is defined to include many likely and mostly harmless pollutant discharges (in reasonable quantities), i ncluding "soil generated by construction activity." (Appendix A at 3). Obviously, EPA cannot ex pect to prohibit the discharge of some soil particles from construction operations.

The term "construction debris" is not defined, but arguably might be interpreted to include saw dust, wood chips or other pos sible floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention of the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obligations it has propose d to impose
site o perators.

Response: EPA has modified the permit to remove the referenced language from the list of prohibited discharges. The final permit refl ects more precisely the list of prohibited discharges in 40 CFR 450.21(e).



# Comment ID 0096

- A1.001.043

Author Name: A smus Susan Organization: National Association of Homebuilders Issue Category: 2.3.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

483 EPA proposes to prohibit certain discharges otherwise allowed by the C&D ELG in Part 2.3. For example, the C&D ELG allows concrete washout to be discharged, as long as it i smanaged by appropriate controls. This is another example of EPA providing more flexibility within the context of promulgating a final C&D ELG, only to subsequently propose implementing the ELG in a more prescriptive CGP.

EPA’s proposed prohibition in Part 2.3.1.6 also is overly broad (“Waste, garbage, floatable debris, construction debris, and sanitary waste.”). Arguably, the purpose of obtaining a NPDES permit for stormwater associated with construction activity is to obtain authorization for pollutan ts expected to be present in such stormwater discharges, such as construction waste or debris. Construction waste is defined to include all sorts of possible discharges, including “soil generated by construction activity .” (Appendix A P. 3). Construction debris is undefined, but arguably might be interpreted to include saw dust, wood chips or other possible floatable materials that are otherwise environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention of the term “cons truction waste” throughout this Part so that it does not create unreasonable or illogical obligations on the part of the site operator.

Response: EPA has modified the permit to remove the referenced language from the list of prohibited discharges. Th e final permit reflects more precisely the list of prohibited discharges in 40 CFR 450.21(e).



# Comment ID 0128

- A2.001.014

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 2.3.1 Part 2.3 proposes to prohibit certain d ischarges otherwise allowed by the December 2009 C&D ELG. For example, EPA specifically allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Proposed CGP creates an abso lute prohibition. EPA provided necessary fl exibility in promulgating the C&D ELG, and EPA should not be quashing that flexibility in implementing any ELG.

EPA also unnecessarily proposed a strict and overly

- broad prohibition in Part 2.3.1.6 ("Waste, garbage, floatable debris, construction debris, and sanitary waste."). The purpose of obtaining a NPDES permit for stormwater associated with construction activity is to obtain authorization for pollutants that are expected to be present in such stormwater discharges, such as construction waste or debr is. "Construction waste" is defined to include many likely and mostly harmless pollutant discharges (in reasonable quantities), i ncluding "soil generated by construction activity." (Appendix A at 3). Obviously, EPA cannot expect to prohibit the discharge o f some soil particles from construction operations.

The term "construction debris" is not defined, but arguably might be interpreted to include saw dust, wood chips or other pos sible floatable materials that are mostly environmentally benign. EPA must re move or clarify this prohibition and each subsequent mention
of the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obligations it has proposed t o impose site operators.

Response: EPA has modified the permit to remove the referenced language from the list of prohibited discharges. The final permit reflects more precisely the list of prohibited discharges in 40 CFR 450.21(e).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

484 

# 2.3.2 POLLUTION PREVENTION STANDARDS

Comment ID 0015

- A2.001.031

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.3.2 2.3.2. Add portable restrooms to the list of activities to consider. They can be significant pollution sources when leaking o r vandalized. Such bacterial discharges are discussed later in the permit.

Add spill training to requirements for any materials stored onsite. Training should include identification of emergency respo nse agency or firm and the location and use of spill materials that are onsite.

Response: The final permit addresses “portable toilets” in Part 2.3.3.3.f. EPA’s training requirements are included in Part 6 of the permit, and provides for procedures on spill prevention and response to be included in the operator’s SWPPP (see Part 7.2.11.1).



# Comment ID 0051

- A2.001.003

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 2.3.2 Pollution prevention standards for fueling and maintenance of equipment and vehicles and for staging and storage areas (Part 2.3.2). The implementation of such standards, including secondary containment and the requirement of onsite spill kits, is a practica ble solution for the necessary prevention of chemical pollution.

Response: EPA notes the supportiv e comment. The final requirements are reflective of the language that the commenter supported in the proposed permit.



# Comment ID 0087

- A1.001.026

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.3.2 Moreover, the CGP includes many pollution prevention requirements, which are far too detailed for a general permit and should be addressed, if at all, in a permittee's SWPPP, including requirements pertaining to washing of equipment of vehicles (Section 2.3.2.2);
washin g of applicators and containers used for paint, concrete, or other materials (Section 2.3.2.4); and storage, handling, and di sposal of construction waste (Section 2.3.2.5). Furthermore, in Section 2.3.2.1, EPA should simply state that "permittees are requi red to comply with applicable SPCC laws and regulations." Similarly, in Section 2.3.2.5, EPA should simply state that "permittees are required to comply with applicability solid and hazardous waste laws and regulations."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

485 Response:
EPA has streamlined Part 2.3 to provide more flexibility to the operator to determine how best to minimize pollution sources at the site and to document such controls or procedures in the SWPPP. See Part 7.2.11.



# Comment ID 0168

- A1.001.028

Author Name: Jordan Jill Organiza tion: City of Dallas Issue Category: 2.3.2

-- Pollution Prevention Standards (Section 2.3.2, page 25

- 27): The pollution prevention measures as proposed in the draft permit should be sufficient to provide adequate site protection from spills or accidental r elease. There are no comparable associated benefits that would justify the significant costs that would be associated with adding a requirement for secondary containment or cove rs for the fueling and maintenance areas of the site, nor for the staging and s torage areas of the site. This would not be practical for any
construction site.

Response: EPA has added flexibility to the proposed permit’s requirements to provide cover or secondary containment. The final permit now provides cover or secondary containment as an option, and specifies that operators may use “similarly effective means” designed to prevent or minimize the discharge from pollution sources. Among the similarly effective means referenced as examples are sp ill kits.



# 2.3.2.1 FUELING AND MAINTENANCE OF EQUIPMENT OR VEHICLES [REQUEST FOR COMMENT]

Comment ID 0017

- A1.001.015

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.3.2.1 13) 2.3.2.1 - Establishing vehicle fueling areas on a linear project where all fueling must occur is not feasible. Linear projects often cover several miles. Requiring heavy equipment to travel back and forth to a fueling area will 1) waste fuel, 2) increase the idle time and duration of a project, 3) result in greater com paction of soil that will need to be restored as the machinery travels to and from the work area, and 4) result in increased air emissions. Having a designated fueling location for a linear project is not a feasi ble, viable alternative. Industry standard i s to have a fueling truck come to the heavy equipment. Existing regulations cover the reporting and cleanup of chemicals and petroleum products. As long as fueling is being conducted outside of a sensitive area, whether the f ueling is in a designated area or out within the job site, and the activity is being conducted in a responsible manner, the overall goal of preventing of spills from getting to waters of the US is achieved.

Response: The requirements in the final permit address the commenter’s requ irements by adding in greater flexibility to the prevention measures that are required. See Part 2.3.3.1. These requirements were specifically modified from the proposal to provide flexibili ty to vehicleRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

486 fueling and maintenance activities for linear projects given the constraints that these types of projects operate under related to the fact that vehicles and equipment move as the project progresses.



# Comment ID 0017

- A1.001.016

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.3.2.1 14) 2.3.2.1(d) - The proposed rule required weekly inspections, documentation, and maintenance of vehicles and equipment that have signs of leaks or spills. It is inevitable that equipment will have signs of leaks. However, the sign of a leak does not mean that there is a release to the environment. Requiring maintenance of equipment whenever a leak is detected is overly burdensome and should be limited to the visible presence of a spill (a drip or visible staining of the ground). Ma intaining equipment with a visible presence of a spill is industry standard but the proposed documentation is cumbersome and offers no value.

Response: During the site’s regular inspections, the operator is required to look for leaks, spills, or other releases. If these conditions are found, Part 2.3.2 requires that action be taken to fix the problem immediately. EPA agrees with the commenter that a leak does not necessarily mean that a discharge of that substance has occurred. However, the permit requires as stated above that action be taken immediately to fix the problem.



# Comment ID 0040

- A1.001.012

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.3.2.1 Section 2.3.2.1.b as proposed would require s econdary containment for all staging and storage activities (or other effective means) "to eliminate discharges of stormwater from these areas" (emphasis added). The purpose of BMPs is to control and minimize the dis charge of pollutants in stormwater, not to eliminate the discharge completely

Response: The discharges that are prohibited are listed in Part 2.3.1. Regarding the commenter’s observation about secondary containm ent, see response to Comment 0168

- A1.001.028.



# Comment ID 0046

- A1.001.015

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.3.2.1 The SWPPP preparer and monitors are not mechanics and not all maintenance activities are relevant to spills and leaks. These requirements need more focus on stormwater.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

487 Response: EPA has modified these requirements to bring more focus to maintenance that targets the proper functioning of pollution preve ntion measures, and to look for signs of leaks or spills. Where those are found immediate action is required.



# Comment ID 0049

- A1.001.030

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.3.2.1 Is EPA recommending that fuel trucks for equipment not be allowed on construction sites except at desig nated refueling areas? Clarification by EPA on this issue is necessary.

Response: No, EPA is not prohibiting access to the site by vehicles or equipment. However, sources of pollution from vehicles or equi pment are controlled under the permit. See Parts 2.3.3.1 and 2.3.3.2.



# Comment ID 0056

- A2.001.010

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 2.3.2.1 The DER appreciates that EPA is soliciting input on this permit requirement. Good housekeeping practices for refueling and maintenance are a necessity but the practicality of providing secondary containment and cover for areas used for these activi ties would be a burden to smaller, short

- term restoration projects. DER consistently works toward eliminating on

- site refueling and maintenance though there is always the potential for unexpected malfunctions or necessary adjustments to on

- site heavy equipment. We believe a spill kit is an adequate back

- up to accep ted on

- site preventive measures for restoration projects, and that the permit should allow for this approach in the above circumstances.

Response: See response to Comment 0168

- A1.001.028.



# Comment ID 0062

- A1.001.034

Author Name: McClure Bach Organiza tion: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.1 Brevard County Comment: No contractor will follow on a regular basis without vigorous enforcement. How will areas be cleaned?
Burn off?

Response:
EPA has made the requirements in the final permit clearer and has provided greater flexibility. It is EPA’s expectation that sites will be able to comply with these requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

488 

# Comment ID 0064

- A1.001.022

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.3.2.1 Section 2.3.2.1.d, page 26 - Full "Maintenance requirements" section
•How does EPA propose daily inspections be documented on a weekly basis?

Response: EPA found that it was unnecessary to have additional inspections focusing exclusively on pollution prevention requirements when there are already site

- wide inspections required in Part 4. Given that the operators is already required as part of their inspection to examine the pollution prevention measures, it is unnecessary to impose additional stand

- alone inspection requirements focusing on pollution prevention. Therefore, the inspection requirements have been removed from this section of the final permit. No additional response is necessary.



# Comment ID 0065

- A1.001.019

Au thor Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.3.2.1 Section 2.3.2.1 provides pollution prevention standards for fueling and maintenance of equipment or vehicles. These provisions should be eliminated from the CGP because they unnecessarily duplicate requirements in Spill Prevention Control and Countermeasure (SPCC) plans. There is no reasonable basis to impose two separate standards to achieve the same regulatory outcome, particula rly
where there is no additional environmental benefit.

Response: See response to Comment 0087

- A1.001.026.



# Comment ID 0066

- A1.001.028

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.3.2.1
Discussion: Often on state DOT projects a mobile fuel/lube truck is utilized to service heavy equipment, and does that servicing at numerous locations throughout the project limits. On some projects, it is not economically feasible or practicable to have a central or designated loca tion for fueling (i.e. it could involve driving tens of miles through the project to get to It, or it may not be possible to move the equipment if it is involved in a complex or time

- sensitive stage of the project.

Suggestion: This requirement to have th e locations clearly delineated and marked is not practicable in all situations. An exception should be considered for when mobile fuel trucks are being utilized.

Response: EPA has removed the location restrictions from the final permit in part due to the concerns of linear construction projects.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

489 

# Comment ID 0068

- A1.001.026

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.3.2.1 Proposed Part 2.3.2.1(c)(i) is not consistent with the C&D ELG proposal (see 40 CFR § 450.21(d)(3)). The language in this subpart should simply track or parrot the language from 40 CFR § 450.21(d)(3).

Response: EPA has removed this language from the final permit.



# Comment ID 0087

- A1.001.040

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.3.2.1 The CGP includes pollution prevention standards for fueling and maintenance of equipment and vehicles that are not appropriat e or feasible for linear utility projects. Section 2.3.2.1. In linear projects, fueling and maintenance tend to be mobile instead of fixed. EPA needs to allow different pollution preventions standards (e.g., mobile BMPs), if pollution prevention measures are warranted, for these
activities.

At a minimum, linear pro jects should be exempt from any and all designated storage and staging area requirements (e.g., Section 2.3.2.3) due to infeasibility and limited space within the corridor.

Response: See response to comment 0066

- A1.001.028.



# Comment ID 0093

- A2.001.061

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.3.2.1 This part states: "If you conduct fueling and/or maintenance activities at your site for equipment or vehicles used for your construction activities... you must ... [c]learly flag off and designate areas to be used for fueling and maintenance activities and conduct s uch activities only in these areas." AGC maintains that this would be very problematic. Moving equipment to central ar eas will be hard on road projects. It would be a waste of fuel, waste of time, and result in inefficient operations and potentially more environm ental harm (e.g., further land disturbance and dust). Contractors need to maintain the ability to perform mobil e fueling.

Response: See response to comment 0066

- A1.001.028.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

490 

# Comment ID 0111

- A2.001.010

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 2.3.2.1 Part 2.3.2.1.b/Part 2.3.2.3.b: Fueling and maintenance of equipment or vehicles / Staging and storage areas - Design requirements

Dow believes that the proposed design requirement for secondary containment structures or similar effective means to prevent the discharge of spilled or leaked chemicals from fueling and maintenance of equipment or vehicles / staging and storage areas is overly burdensome. Dow believes that a more reasonable approach would be to allow the permittee to implement containment and control s for the most likely failure scenario (of a de minimis amount), similar to the Spill Prevention Control and Countermeasures (SPCC) requirements for in

- service regulated oil equipment.

In the event that a permittee meets the SPCC applicability threshold aboveground oil storage of 1,320 gallons (55 gallons or larger oil storage containers), then the provisions of SPCC should be incorporated as appropriate.

Response: See response to comments 0168

- A1.001.028 and 0087

- A1.001.026.



# Comment ID 0115

- A2.001.017

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.3.2.1 2.3.2.1 Fueling and Maintenance of Equipment or Vehicles. National Grid makes every effort to avoid refueling and maintaining equipment within 100 feet of wetlands, however, the provision of 50 foot buffers and vegetative buffers is not feasible along utility ROWs. National Grid recommends provision of an exception similar to the utility exception within 2.1.2.3.

Response: EPA has removed many of the proposed location restrictions from the final permit. Where such re strictions are included, they are provided as examples of effective controls. See for example Part 2.3.3.2.a. EPA notes that where the permittee will retain a natural buffer in compliance with Part 2.1.2.1 of the permit, earth

- disturbing activities in th ose areas are prohibited.



# Comment ID 0120

- A2.001.003

Author Name: Batson Jon Organization: Anderson County, South Carolina Issue Category: 2.3.2.1 Suggest this section to say: "b. Design requirements for stormwater controls. For all areas dedicated for on

- site vehicle maintenance and storage areas or areas on

- site where equipment and vehicles may be refueled, install effective means to eliminate discharges of stormwater from these areas and spill kits must be made available for these areas."

Response: See response to comment 0168

- A1.001.028.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

491 

# Comment ID 0121

- A2.001.017

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 2.3.2.1 • Section 2.3.2.l(a) ofthe pennit requi res that fueling and maintenance activities be located outside of any buffers. However, fixed equipment, such as large cranes and drilling equipment, must be fueled in place. Moreover, other construction equipment such as excavators, backhoes, etc. that are not registered for on

- road travel and requires movement off

- site by a trailer, are commonly fueled by a fuel truck that comes to the construction site. To move this equipment outside ofthe buffer for regular fueling or maint enance would be impractical an d counterproductive, and would likely result in further soil disturbance and would increase the potential for water quality impacts. Therefore, the pennit should allow for re

- fueling in the buffer on the condition that a representative of the
contractor is present and a spill kit is immediately accessible.

Response: See response to comment 0115

- A2.001.017.



# Comment ID 0133

- A2.001.023

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.3.2.1 The proposed pennit condition requiring secondary contairunent structures be provided for all fueling and maintenance activities is impracticable. Exemptions need to be included for portable fuel distribution where it is necessary to carry fuel to grading e quipment
loc ated large distances from fixed fuel storage locations. Secondary containment requirements are already addressed under existi ng SPCC regulations. Inserting additional and/or contradictory requirements within the COP creates potential for regulatory conf usi on and would more appropriately be addressed by updating SPCC rules. Additionally, MDT is unsure of the specific equipment intended to be subject to this condition. As such, MDT recommends addressing SPCC deficiencies through SPCC rulemaking
efforts. If th is condition must remain, MDT requests thai greater flexibility, such as the use of spill kits as suggested, be provided in the permit, as well as a specific listing of the equipment subject to this condition and a threshold (i.e. gallons) above whi ch this condition is triggered.

Response: See response to comments 0168

- A1.001.028 and 0087

- A1.001.028.



# 2.3.2.1Q SECONDARY CONTAINMENT OR COVER FOR FUELING/MAINTENANCE AREAS

Comment ID 0015

- A2.001.010

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.3.2.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

492 Q10 & 11. Secondary containment - Agree. Cover and berms or other containment vessels should be required. Spill kits should be required within 100 feet of any inlet that leads directly offsite without any other treatment facility downstream.

Response: EPA notes the supportive comment. However, EPA notes that it has provided flexibility in the final permit that focuses less on the actual control selected, and more on their effectiveness at “eliminating the discharge of spilled or leaked chemicals.” See Part 2.3.3.1 and response to comment 0168.A1.001.028.



# Comment ID 0025

- A1.001.024

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.3.2.1Q Response to EPA's request for comment: Both secondary containments and spill kits are reasonable requirements; covering a fue ling location is not. On a large construction project, a fueling location may consist of several large (thousands of gallons) abov e- ground storage tanks. Covering such a location would be prohibitively expensive. As an alternative, consider including language regarding the prevention of water accumulation in the secondary containment which reduces the available containment volume.

Response: See response to comment 0168.A1.001.028.



# Comment ID 0030

- A2.001.019

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.3.2.1Q Section 2.3.2.1, page 26
It will be difficult to supply covered fuelin g areas for smaller projects or linear projects where it is likely that equipment is fueled using mobile units. Providing a spill kit should be adequate. Stationary fueling and maintenance areas over a certain size, for projects that are anticipated to occ ur for more than one year, may be appropriate to require a cover. Adding a minimum project size and duration to this requirement would allow more flexibility for smaller and shorter duration projects.

Response: See response to comment 0168.A1.001.028.



# Comment ID 0037

- A1.001.026

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.3.2.1Q It is not practical to provide secondary containment for fueling and maintenance operations for small equipment such as gas engine pumps or generators that might be used on construction sites. Smaller construction sites may not have a staging area but equi pment fueling or maintenance may need to be conducted on site on occasion. It is not practicable to require secondary conta inment for theseRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

493 types of activities. Having spill kits available on site and/or implementing procedural best management practices (BMPs) for fueling and maintenance should be sufficient. The operator should have the option to select effective means of pre venting the discharge of spilled or leaked chemicals that are appropriate for their jobsite.

Response: See response to comment 0168.A1.001.028.



# Comment ID 0046

- A1.001.014

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.3.2.1Q Fueling construction vehicles has not been an issue on construction sites. In addition, moving construction equipment to a ce ntral fueling location can be difficult, and expensive. Existing traffic patterns, safety barriers, right

- of

- way restrictions, waterways and wetlands usually restrict the movement of vehicles on linear construction projects with active traffic. Current requirements such as spill
kits are sufficient.

Response: See response to comment s 0168.A1.001.028 and 0115

- A2.001.017.



# Comment ID 0047

- A2.001.015

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.3.2.1Q Section 2.3,2,1, page 26
It is not practicable to cover fueling areas for smaller or linear projects where typically the equipment is fueled using mobile units. Providing a spill kit should be adequate for these types of projects. Stationary fueling and maintenance areas should use sec ondary containment but it is not practicable to have to cover the area. If a project elects to use a cover as a BMP that is great, but it should not be required

Response: See response to comment 0168.A1.001.028.



# Comment ID 0053

- A2.001.017

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.3.2.1Q The Permit does not define the term "secondary containment". 40 CFR 112 § 112.5. 3. ii defines secondary containment as, "sec ondary means of containment for the entire capacity of the largest single container plus additional capaci ty to contain precipitation." It has been represented as 1.5 times the capacity of the largest container Consider defining the term "secondary containment" in the Permit and include calculation of volume requirements to be reflected in the SWPPP document.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

494 Response: EPA included examples of secondary containment in Part 2.3.3.1. See also response to comment 0168.A1.001.028.



# Comment ID 0054

- A2.001.008

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: 2.3.2 .1Q Issue: Any requirement by the general storm water permit for secondary containment or cover for fueling and maintenance where oil is involved would be duplicitous and confusing when considering the existing regulations under the Clean Water Act, specif ically 40
CFR 112. The Spill Pollution Control and Countermeasures (SPCC) program lays our specifically what needs to be contained and has a low aboveground container threshold (1,320 gallons), which most construction projects would easily exceed. Therefore, it is unnecessary for the GSP to pose separate and potentially conflicting requirements.
Recommended Change: USS recommends that EPA reference by rule the SPCC requirements where applicable.

Response: See response to comment 0087

- A1.001.028.



# Comment ID 0061

- A1.001.013

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.3.2.1Q This Part would require full secondary containment or similar structures for fueling areas. In LCPs, however, the location of the construction effort and equipment

-- and thus the fueling activities

-- can change by miles from day to day as the project progresses. Utility construction in particular utilizes small mobile containers transported to the curre nt equipment location, therefore there are no dedicated equipment fueling locations at which structures or berming would be appropriate. Moreover, all fueling occurs consi stent with applicable SPCC requirements, and the presence of spill cleanup equipment is sufficient to address the kind of relatively small spill that might be associated with these activities.
We recommend that LCPs be excluded from coverage under Part 2.3.2.1.b and, instead, be required to provide protections requir ed by applicable SPCC regulations.

Response: See response to comments 0168

- A1.001.028 and 0087

- A1.001.028.



# Comment ID 0062

- A1.001.033

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

495 Brevard County Comment: The site may not allow designation of a fueling area. If fueling takes place at the equipment instead of centralized location then secondary containment may not be possible. In general, spill kits are not useful because they can c onveniently
be "f orgotten" until an inspector shows up on site.

Response: EPA has provided flexibility in the final permit for the operator to select and implement controls that provide “an effective means of eliminating the discharge of spilled or leaked chemicals.” See also response to comments 0168

- A1.001.028,
0066

- A1.001.028, and 0115

- A2.001.017.



# Comment ID 0067

- A1.001.018

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.3.2.1Q A. As written, the CGP effectively prohibits "wet

- hose" refueling of construction equipment on ROWs using mobile refuelers. Fueling areas must be flagged and containers provided with secondary containment. This condition would require that all heavy constru ction
vehicles transit the ROW numerous time s to return to refueling areas rather than having a single fueling vehicle distribute fuel to the construction equipment at the work location. This requirement is counterproductive to the intent of the stormwater regulation s. Entergy requests that EPA remove this requirement where the requirement would result in an unacceptable environmental impact.

Response: See response to comments 0168

- A1.001.028, 0066

- A1.001.028, and 0115

- A2.001.017.



# Comment ID 0069

- A1.001.007

Author Name: Cramer M. Organization: Issue Category: 2.3.2.1Q 6. Part 2.3.2.1. of the draft EPA CGP specifies pollution prevention standards for fueling and maintenance of equipment and v ehicles and the need to provide secondary containment or cover for fueling and maintenance a reas on the site. The current language is too broad and would seem to apply to all fueling and maintenance activities, no matter how minor. This requirement would be very burdensome to small projects that don't have the space or resources for a dedicated fueling/maintenance area. Oil storage has been covered by other rulemaking. The EPA CGP should simply refer to 40 CFR 112 for compliance requirements and not double

- regulate the same fuel storage situation.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0072

- A2.001.008

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.3.2.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

496 MoDOT believes the spec requirements outlined within 40 eFR 112 and Section 311 of the eWA are sufficient to cover any secondary containment requirements for construction sites discussed in this Part. Any site not exceeding the 1 ,320

- gallon above

- ground storage capacity requirement should not be required to provide secondary containment as outlined in 40 eFR 112. We do un derstand that under 40 eFR 110 we must comply with Part 2.3.1 (Prohibited Discharges) of this eGP, and there are multiple ways to comply with tha t Part beyond just providing secondary containment, as outlined in Part 2.3.2.1.c.

For a specific example, Pa rt 2.3.2.1 (Pollution Prevention Standards) is currently worded in a manner implying that any fueling or maintenance activity on the site would require secondary containment, which is more stringent than the current spec regulatio ns. To give a realistic sc enario of this regulatory contradiction, think about portable diesel refueling tanks situated on the bed ofa pick

- up. Under current spec regulations, these tanks are exempt when mounted on the truck. This exemption is important when you consid er that in li near transportation projects, these truck

- mounted portable tanks carry fuel to grading equipment that may be located a mile or more from a fixed fuel storage location. It would be impractical to require the pick

- up and the dozer to have secondary containme nt around them oul on an active grading location just for refueling the dozer, or to require the dozer to track a mile back to t he fuel storage area in order to refuel.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0074

- A2.001.013

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.3.2.1Q Providing secondary containment for fueling tanks and having spill kits at the site is practicable and sufficient. The DEQ re quires a spill prevention plan (as a part of the SWPPP) be available at the site. This would not be required when mobile vehicle fueli ng is performed.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0075

- A2.001.019

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.3.2.1Q In a typical highway linear construction sequence, daily fueling and lubrication is a mobile operation at the pace of dirt ha uling, it is not easily adaptable to secondary containment nor one with a covered, designated area in miles

- long corridor. SPCC requirements are currently met with good housekeeping spill containment at these mobile stations and equipment lines at daily shutdowns. Spill kits should be sufficient to contain spi lls.

Response: See response to comment 0168

- A1.001.028.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

497 

# Comment ID 0077

- A1.001.010

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 2.3.2.1Q The installation of a secondary containment for fueling and maintenance areas on small sites may be impracticable since costs and disturbances for installation of such a system could be greater than the potential clean up of a spill

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0080

- A2.001.019

Author Name: Verh age Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.3.2.1Q Partner Response: Secondary containment is not always a practicable pollution prevention (P2) approach at active construction sites. Secondary containment of storage containers is permissible and fueling and maintenance areas should be required to have spill plans and spill kits. However, fueling and maintenance areas should not be required to be covered under the CGP or necessitate prov ision for secondary containment. Additionally, active construction sites often require temporary storage of materials. Does EPA intend to require that temporary storage areas have secondary containment? If not, is there a time element or duration that applies to th e temporary storage of materials and the need for any required additional P2 measures. Are the P2 measures the same as for perm anent storage areas - secondary containment, covering, etc.? The Partners recommend that the EPA further define, in the proposed CGP, what specifically secondary storage is and what specific materials require secondary storage. These definitions will help cla rify for the regulated community the specific CGP requirements.

Response: See response to comment 0168

- A1.001.028.



# Com ment ID 0085

- A2.001.012

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.3.2.1Q The improper storage and care of fuel and other hydrocarbons is a frequent cause of accidental discharges and Rockville suppo rts
efforts to reduce the frequency of these discharges. EPA should not only consider requiring spill kits be kept on site, but also requiri ng that the operator provide training to their employees on spill response.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0091

- A2.001.008

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKSRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

498 Issue Category: 2.3.2.1Q 8. Fact Sheet Item 10. 2.3.2.1.b: Fueling often occurs in the field for heavy equipment. At these locations secondary containment or a cover are not practical. Procedures to prohibit unattended fueling should minimize the risk of a spill. Proper spill response procedures will address spills before they are released to stormwater. At sites with SPCC coverage and established first responders the permitee should follow the established spill response procedure for the installation or facility.

Response: See response to comments 0168

- A1.001.028 and 0087

- A1.001.028.



# Comment ID 0093

- A2.001.062

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.3.2.1Q AGC maintains that it is reasonable to require contractors to keep spill kits on the jobsite at areas where equipment fueling and/or maintenance activities occur. On linear projects, for example, a mobile fuel truck refuels equipment located along the right of way at various locations. The truck is equipped with means to clean up any fuel that may get on the ground by use of absorbent pads, a pail in which to place contaminated soil, etc.

AGC finds that it would not be practical for EPA to require secondary containment for fueling and maintenance areas on the si te beyond what is already required under the Spill Prevention Control and Countermeasures (SPCC) requirements i n 40 CFR 112 and Section 311 of the CWA. Secondary containment will not work for vehicles that move up and down the road and this is recognize d by the SPCC rules that exempt "motive power" sources. Fueling and maintenance activities do not always occur in centralized areas; larger projects rely on mobile refueling/maintenance trucks to service construction vehicle at their working location. The co mmon practice of conducting maintenance and fueling at the equipment's current location limits the potential vol ume of spills at any one location and reduces fuel consumption and exhaust emissions by eliminating the need to transfer equipment to centralized loca tions. The use of spill kits at a site is a good practice that is adequate in preventing spills from becom ing an issue.

In addition, AGC maintains that it is not reasonable for EPA to require contractors to "cover" a fueling location.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0096

- A1.001.044

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.3.2.1Q EPA should describe ‘appropriate secondary containment’ in the CGP. It is not clear if cover and berms are considered to be appropriate secondary containment or if drain pans and drop cloths mus t be used in addition to the cover and berms. If a spill kit is made available onsite, additional containment should not be necessary.

Response: See response to comment 0168

- A1.001.028.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

499 

# Comment ID 0097

- A1.001.007

Author Name: Knutsson John Organizati on: Daniel Corporation Issue Category: 2.3.2.1Q 10. Secondary containment should be required

Response: EPA notes the support for secondary containment. EPA received numerous comments on this issue, and found that providing flexibility in terms of what specific controls provide “an effective means of eliminating the discharge of spilled or leaked chemicals” was warranted. See response to comment 0168

- A1.001.028.



# Comment ID 0103

- A3.001.011

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.3.2.1Q In Part 2.3.2.1 Fueling and maintenance of equipment or vehicles, EPA provides pollution prevention standards for fueling and maintenance of equipment or vehicles. Storm water controls for on

- site fu eling are required to have secondary containment structures or other similar effective means of preventing the discharge of spilled or leaked chemicals from the area.

TCEQ requests the EPA provide flexibility in the permit. Permittees might use either spill kits or containment. For some sites, requiring containment is neither practicable nor feasible. Plus, on some linear construction sites these fueling stations mov e along the Right of Way and containment is not practicable.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0117

- A1.001.010

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 2.3.2.1Q The installation of a secondary containment for fueling and maintenance areas on small sites may be impracticable since costs and disturbances for installation of such a system could be greater than the potential clean up of a spill.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0123

- A2.001.009

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.3.2.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

500 Comment: The proposed language to require secondary containment is reasonable.

Response: EPA notes the support for secondary containment. EPA received numerous comments on this issue, and found that providing flexibility in terms of what specific controls provide “an effective means of eliminating the discharge of spilled or leaked chemicals” was warranted. See response to comment 0168

- A1.001.028.



# Comment ID 0126

- A2.001.011

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.3.2.1Q The CSC feels this is not practicable in most cases. Secondary containment for storage containers is achievable. Staging and storage
areas should be required to have spill kits and spill plans but not covers.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0131

- A1.001.012

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.3.2.1Q
Part 2.3.2.1 (b) is ambiguous and the language needs to be clarified to make sure compliance is feasible and practical. As written , it could be interpreted to mean that the entire fueling and maintenance area needs secondary containment or needs to be under co v er. Secondary containment structures are not defined in the Appendix and have a wide range of meanings including structures that are built out of concrete or other materials. The purpose of this section should be to keep oil and other vehicle related fluid s from coming in contact with the ground. The permit should require the use of drip pans or other appropriately sized secondary containment measures to capture leaks or spills from equipment, fueling nozzles and storage tanks.

A fueling area for a large earthmoving operation using heavy earthmoving equipment could require a half

- acre or more. To develop an
entire half

- acre as a secondary containment structure or keep a half acre under cover would not be practical and would be cost prohibitive. It may also increase the overall area of land disturbance.

LBA suggests that the regulation be written so that it is clear that appropriately sized secondary containment measures are needed for containing leaks or spills from maintenance and fueling of equipment or vehicles.

LBA disagrees with the requirement to flag fueling and maintenance areas and has provided comment as a separate item.

Response: See response to comments 0168

- A1.001.028 and 0115

- A2.001.017.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

501 

# Comment ID 0137

- A2.001.013

Author Name: Balle ntine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 2.3.2.1Q We are unaware of circumstances that might prevent the use of secondary containment or cover. Perhaps the amount of space or type terrain could be a limiting factor.

All on

‐ site fueling and maintenance should also be conducted outside of a certain buffer area of streams, wetlands, and other ecologically sensitive area.

Response: EPA notes that support for locating activities outside of the buffer. EPA agrees with the commenter that where a buffer is provided in compliance with Part 2.1.2.1, these pollutant

- generating activities should not occur within those areas.



# Comment ID 0145

- A2.001.011

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 2.3.2.1Q Secondary containment for fueling and maintenance areas on the construction sites are essential and must not be allowed to be discontinued even if spill kits are available. The topography of a construction site is often sufficiently steep that spill kits may not be adequate to contain spills. As for covering the fueling area, we see the environmental advantages, but the expense may outwei gh the advantages.

Response: EPA appreciates the comment, and note s that although flexibility to use spill kits is provided in the final permit, that the operator is required to provide “an effective means of eliminating the discharge of spilled or leaked chemicals.” Therefore, EPA believes that the final permit addres ses the concerns of the commenter. See also response to comment 0168

- A1.001.028.



# Comment ID 0153

- A1.001.018

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.3.2.1Q 1. This statement may want to consider the size of the fueling operations to establish a limit when secondary containment or a cover is required. For example, permanent on

- site fueling tanks containing more than 500 gallons require secondary containment. In all other cases spill prevention kits must be on

- site.

2. For most construction sites it is not feasible to install infrastructure for fueling and maintenance. It would be best to require that fuel be trucked to the site in fueling equipment.

“an effective means of eliminating the discharge of spilled or leaked chemicals”Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

502 Response: See response to comment 0168

- A1.001.028.



# Comment ID 0158

- A1.001.013

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 2.3.2.1Q Section 2.3.2.1.b as propo sed would require secondary containment for all staging and storage activities (or other effective means) "to eliminate discharges of stormwater from these areas" (emphasis added). The purpose of BMPs is to control and minimize the dis charge of pollutants in stormwater, not to eliminate the discharge completely.

The CGP requires placement of covers over all construction materials to prevent contact with rainfall. Section 2.3.2.3.c. Man y materials used on utility projects (e.g., bricks, blocks, exposed structural steel, utility poles) are designed to be exposed to stormwater and should be specifically exempted from this requirement. Also, Section 2.3.2.3.c.iii needs to clarify that it does not requ ire these types of materials

Response: See response to comment 0168

- A1.001.028.



# 2.3.2.2 WASHING OF EQUIPMENT OR VEHICLES
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 2.3.2.3 STAGING AND STORAGE AREAS [REQUEST FOR COMMENT]

Comment ID 0017

- A1.001.017
Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 2.3.2.3 15) 2.3.2.3 - This section indicates secondary containment must be installed around staging and storage areas and eliminate stormwater discharges from these areas. Having secondary containment around materials such as fuel storage tanks or chemicals is reasonable, but requiring secondary containment around areas that do not have the potential to introduce pollutants to a water of the US, suc h as storage areas for pipelines or electrical equipment, is impractical and unnecessary. On a pipeline project there may be miles of pipe which is stored "strung" in a linear fashion prior to being installed in the ground. Secondary containment is impossible for this
scenario.

Response : See response to comment 0168

- A1.001.028.



# Comment ID 0025

- A1.001.026

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

503 Issue Category: 2.3.2.3 Again, it is neither possible nor necessary to cover all construction materials. This should only be required for those materials that pose a threat (i.e. chemicals and fuels).

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0030

- A2.001.020

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.3.2.3 Section 2.3.2.3, page 27 This raises several questions. Would an earth berm around the area suffice? What size must the berm be? Would the bermed area have to be lined? Secondary containment should be used arou nd liquid materials that have the potential to spill (but not necessarily around construction materials that have no significant potential to interact with stormwater and act as a pollutant). If you line an d berm a staging area, it will likely have ponding issues. What about short duration projects where the staging is within the right

- of

- way or projects with no design staging area? What type of secondary containment would be required? If liquid materials stored in staging areas have secondary containment, why would the entire staging area need secondary containment.

We recommend secondary containment around liquid chemicals and fuels but not around the entire staging or storage area.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0030

- A2.001.021

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.3.2.3 Section 2.3.2.3., page 27 If the construction material is PVC piping or other type of "inert" construction material, why does it need to be covered? It would be better if it was stated that construction materials that have the potential to adversely impact stormwater quality should be covered or have secondary containment.

Response: EPA appreciates the comment, and found it instructive in finalizing the permit. To address this issue, EPA has included the following note in Part 2.3.3.3: These requirements do not apply to those products, materials, or wastes that are not a source of stormwater contamination or that are designed to be exp osed to stormwater.



# Comment ID 0040

- A1.001.013

Author Name: Reynolds Paul Organization: Sunflower Electric Power CorporationRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

504 Issue Category: 2.3.2.3 The CGP requires placement of covers over all construction materials to prevent contact with rainfall. Se ction 2.3.2.3.c. Many materials used on utility projects (e.g., bricks, blocks, exposed structural steel, utility poles) are designed to be exposed to stormwater and should be specifically exempted from this requirement.

Response: See response to comment 0030

- A2.001.021.



# Comment ID 0040

- A1.001.014

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.3.2.3 Also, Section 2.3.2.3.c.iii needs to clarify that it does not require these types of materials (e.g., oil) to be located under a roof (i.e., covered).

Response: The final permit provides flexibility to the permittee to choose between cover or a similarly effective means of preventing the discharge of pollutants from these areas. See Part 2.3.3 .3.c.i.



# Comment ID 0047

- A2.001.017

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.3.2.3 Section 2.3,2,3, page 27

If on an Xcel Energy project, wooden poles are staged in a storage yard, why do they need to be covered? These poles are not covered when erected in the field. Materials that have the potential to adversely impact water quality should be covered or have seco ndary containment, but not all construction materials should be subject to this requirement.

Response: S ee response to comment 0030

- A2.001.021.



# Comment ID 0061

- A1.001.014

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 2.3.2.3 As with fueling, staging and storage typically do not occur on

- site at LCPs. This is because of the limited size of the jobsite and the value of the materials involved. The EHSCP would like for the permit to be as clear as possible that the pollution prevention requirements of this Part apply only to on

- site stagin g and storage and do not implicate warehouse or offsite areas at which there is no land disturbance related to the project. Stormwater discharged from such off

- site activities does not constitute "construction
stormwater" as defined at 40Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

505 CFR 122.26(b)(14) (x). Thus, we propose the following alternative language:
2.3.2.3 Staging and Storage Areas.
a. Location Restrictions. When located at the construction site. you must locate areas to be used for staging and storage of building materials, equipment, or ve hicles outside any buffers established consistent with Part 2.1.2.(no changes subsequent)

b. Design requirements of stormwater controls. For all areas at the construction site which are designated for staging and st orage activities, you must install secon dary containment or similarly effective means to eliminate discharges to stormwater from these areas.(no changes subsequent)

Response: For the location restrictions, see response to comment 0066

- A1.001.028. For the design requirements, EPA notes that it has adopted language very similar to that recommended by the commenter. See Part 2.3.3.3.c.i.



# Comment ID 0062

- A1.001.036

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.3 iii. Store diesel fuel, oil, hydraulic fluids, other petroleum products, chemicals, and other materials that could contaminate stormwate r in covered, water

- tight containers, or provide secondary containment. • Label all containers that could be susceptible to spillag e or leakage to encourage proper handling and facilitate rapid response if spills
or leaks occur.

Brevard County Comment: All containers are capable of spillage. Not practical. More labels. Which safety warning should be covered? Opens up huge contractor liability when other labels are covered.

Response: EPA has removed the referenced labeling requirement in the final permit.



# Comment ID 0076

- A1.001.014

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 2.3.2.3 3. Target requests that a definition for staging area be provided.
4. Target requests that the EPA provide a definition of "spill" in the permit instead of several citations referenced in the federal register.

Response: EPA no longer uses the term “staging areas” in the permit, but instead uses the phrase “Storage, Handling, and Disposal of Construction Products, Materials, and Wastes”, which the Agency believes is clearer. EPA includes the following definition of “spill” in Appendix A: “for the purpose of this permit, the release of a hazardous or toxic substance from its container or containment.”Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

506 

# Comment ID 0087

- A1.001.025

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.3.2.3 The CGP also requires the operator to "[p]rotect exposed construction materials with plastic sheeting or temporary roofs to prevent contact with rainwater, or provide secondary containment structures designed to eliminate the potential discharge of runoff from these
areas." Section 2.3.2.3. c. However, some construction materials will become an integral part of the post

- construction design, and will remain exposed to rainwater both during and after construction (e.g., bricks, blocks, exposed structural steel, utility poles ). It makes no

sense to cover these materials during construction because they are designed to be exposed to stormwater. Instead, EPA should specifically exempt such materials from the cover requirement.

Response: See response to comment 0030

- A2.001.021.



# Comment ID 0115

- A2.001.018

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.3.2.3 2.3.2.3.a. Flagging designated areas to be used for staging and storage. This may be feasible for larger construction project s that have designated staging and s torage areas, however it is not feasible for smaller linear construction projects and maintenance projects. Typically smaller construction activities along a utility ROW do not have a constant staging and storage area. In these insta nces, staging and stora ge areas are relocated as crews move from one structure/activity to the next, within a discreet part of the ROW. Therefore, the requirement to flag a designated area is not feasible for most utility projects, as the location is constantly changing.
Nationa l Grid recommends that this language be amended to include recognition that it may not be feasible or appropriate for small utility projects.

Response: See response to comment 0030

- A2.001.021.



# Comment ID 0131

- A1.001.014

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.3.2.3 The second item of concern is the requirement to eliminate stormwater discharges from storage and staging areas.

Eliminating stormwater discharges from storage and staging areas is unwarranted for several reasons. 1) The prescriptive BMPs that are included in the pollution prevention standards set forth in each Part of 2.3 Pollution Prevention Requirements are adequa te minimize the discharge of pollutants from the site. 2) E liminating stormwater discharges is not consistent with the effluent limitation guidelines set forth in Parts 450.21 (d) (2) and (3) of the C & D rule which require the minimization of the discharge of pol lutants from spills and leaks and minimizing exposu re of building materials to precipitation and stormwater. 3) The NPDES permit and authorization to discharge allow the discharge of stormwater from a construction site. 4) The cost to capture, contain, and treat orRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

507 dispose of stormwater discharges from sto rage and staging areas where on

- site disposal and/or treatment (e.g., land application, ATS) is infeasible would be cost prohibitive. For example costs can run approximately $30 per 1000 gallons for offsite haul and tr eat. A 10,000 sq. ft. area in many places in the country (assuming 40 inches of runoff) could have as much as 250,000 gallons per year of runoff that could not be discharged. Hauling and treating water just from this small area of a site might cost more than $7500 per year. The cost of the req uirements set forth in Part 2.3.2.3 (b) would outweigh the environmental benefits.

LBA suggests that the wording of Part 2.3.2.3 (b) be revised to remove the requirement to eliminate discharges of stormwater from storage and staging areas and to more clearly define the term secondary containment.

Response: See response to comments 0030

- A2.001.021. Also with respect to the requirement to eliminate discharges, EPA has modified the language as follows: “You must minimize the exposure to stormwater of any of the products, materials, or wastes that are not a source of stormwater contamination or that are designed to be exposed to stormwater.”



# 2.3.2.3Q SECONDARY CONTAINMENT OR COVER FOR STAGING AND STORAGE AREAS

Comment ID 0021

- A1.001.018

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.3.2.3Q 7. CGP Section 2.3.2.3 states that for all areas designated for staging you must install secondary containment structures or similarly effective means to eliminate discharges of stormwater from these areas. Further guidance needs to be provided on what materials require this. As it is stated now, all stored construction materials require secondary containment. What about wood, steel, a nd numerous other material types that have no threat of contamination? Also, materials are often transported daily to various areas of the site for active usage. Would these materials that are often times moved hourly need to have secondary containment? Or would t hese materials just need secondary containm ent for where they are stored for prolonged periods of time? More information needs to be provided here as to what types of storage areas and what specific materials need secondary containment.

Response: See response to comments 0030.A2.001.021 and 0168

- A1.001.028.



# Comment ID 0025

- A1.001.025

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.3.2.3Q Response to EPA's request for comment: No, it is not practical to require either secondary containment or cover for staging and storage areas. Staging and storage areas can be extremely large. It is better to require the containment and cover for specific mater ials (i.e. chemicals, fuels) that require it. The requirement for the entire area to be covered or contained is defmitely not feasible, overly burdensome, and excessively costly.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

508 Response: See response to comment 0168

- A1.001.028.



# Comment ID 0037

- A1.001.027

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.3.2.3Q It is not practical to install secondary containment structures to eliminate discharges of stormwater from staging and storage sites at all construction sites. Secondary containment is practical for the storage five gallon or larger containers of petroleum products, chemicals, and other materials that could contaminate stormwater. Although enclosed storage structures (typically construction trailers) are often used on construction sites, they are not always practical for the storage of larger construction materials that are temporarily on construction sites, e.g. metal or nonmetal pipe, wire, lumber, brick, or stone. Does EPA expect these non

‐ chemical and typically inert construction materials to be protected from contact with rainwater? Constructing a roof over these materials on a small construction project such as residential construction and small linear project is impractical because of the amount of space required to d o so. Activities within the project area are constantly changing at a small construction site so it is impossible to permanently dedicate an area just to a staging area. Furthermore, pipe materials for linear projects may be staged a various locations along the right of way. If these materials (e.g. metal or nonmetal pipe, wire, lumber, brick, or stone) are required to be protected from contact with rain, covering such materials with tarps or other water resistance sheeting would be more practical than secondary containment.

Response: See response to comments 0 168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0046

- A1.001.016

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.3.2.3Q Generally, Contractors stage and store equipment and materials in areas that will eventually be impacted by the project. These are protected by the same BMPs as the rest of the project. It is not practical to cover these areas.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0047

- A2.001.016

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 2.3.2.3Q Section 2.3,2,3, page 27

Secondary containment should be used around liquid materials. It is not practicable or necessarily to install secondary conta inment

a round construction staging/storage areas with materials that have no significant potential to interact with stormwater.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

509 Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0053

- A2.001.018

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.3.2.3Q 16. Page 26, 27; Part 2.3.2.3 Staging and storage areas. b. Design requirements for stormwater controls. Secondary containmen t of the entire staging/storage area is not necessary if Parts 2. 3.1.2 - 2.3.2.2 have been adhered to.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0055

- A1.001.008

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 2.3.2.3Q Secondary containment may not be practicable in staging areas, since these generally occur at project perimeters. Additional requirements beyond 40 CFR 112 are not necessary under this permit.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0062

- A1.001.035

Auth or Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.3Q Brevard County Comment: Not necessary on all sites: wood, precast concrete structures, clean gravel are examples where cover and
containment are unnecessary.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0065

- A1.001.020

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.3.2.3Q CCWC supports the requirement in Section 2.3.2.3 to clearly mark and flag the area used for staging and storage activities. However, CCWC does not support the requirement to install secondary containment structures or use similar methods to eliminate dischar ges of

stormwate r from these areas. The size and type material at issue make it infeasible to comply with this requirement. For example,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

510 power plants and major industrial facilities have storage yards with permanent materials pre

- fabricated by vendors that are piled
multi ple stories high and wide. In such situations, the use of plastic sheeting and temporary roofs is not possible.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0066

- A1.001.029

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.3.2.3Q Discussion: The requirement of secondary containment structures for staging and storage areas is unreasonable. For example, o ften a staging area may be more than 5 acres in size It is not possible to "eliminate discharges of stormwater from these areas", only to minimize through the use of on

- site BMPs. Plastic sheeting or temporary roofs are not practicable in many instances. This should be addressed in the project's SPCC pl an.

Suggestion: Add language requiring that proper BMPs, as determined by the project's SPCC plan, be implemented as specified. Require that the discharge of pollutants be minimized, not that all stormwater discharges be eliminated.

Response:
Refer to response 0087

- A1.001.028. Also with respect to the requirement to eliminate discharges, EPA has modified the language as follows: “You must minimize the exposure to stormwater of any of the products, materials, or wastes that are not a source o f

stor mwater contamination or that are designed to be exposed to stormwater.”



# Comment ID 0067

- A1.001.019

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 2.3.2.3Q B. The CGP requires placement of cover over all construction materials to prevent contact with rainfall, not just those construction materials that could contribute to pollutant loading of stormwater. Also, secondary containment requirements in staging areas are directed at the area, not the container. This mplies t hat the entire staging/fueling area must be provided with secondary containment, not just those materials that could pose a risk of stormwater pollution. Entergy requests that the provisions be rewritten to avoid the problems stated.

Response: See res ponse to comment 0168

- A1.001.028, which EPA believes addresses the commenter’s point.



# Comment ID 0069

- A1.001.008

Author Name: Cramer M. Organization: Issue Category: 2.3.2.3QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

511 7. Part 2.3.2.3.b. of the draft EPA CGP specifies pollution prevention standards for staging and storage areas and the need for secondarycontainment or cover for staging and storage areas on the site. Other than oil storage containers, exposed construct ion materials do not pose a significant pollution risk that would necessit ate temporary roofs or secondary containment. Oil and other chemical storage should be addressed separately from exposed construction materials which are typically inert in nature. Agai n, this requirement would be very burdensome to small projects that don 't have the space or resources for a dedicated storage area.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0071

- A3.001.031

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.3.2.3Q •Part 2.3.2.3 Staging and storage areas b & c.i. This section states that secondary containment will be installed to "elimina te discharges of stormwater from these areas". CDOT does not feel like this is an attainable requirement for an entire staging or storage area. On large sites the staging areas can be very large. This requirement could mean berming the entire area and pumping out any wate r that collects and removing it from site. This would not be attainable. Instead, CDOT wou ld be agreeable to providing containment that allows treatment and release of stormwater for the staging and storage areas and then providing secondary containment that do es not allow the release of stormwater for specific items, such as petroleum products

.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0074

- A2.001.014

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 2.3.2.3Q Providing secondary containment for staging and storage areas is more practical on most sites in use over one week than providing cover for these areas. Typical secondary containment measures should be used on these sites.

Response: See response to comments 0168

- A1.001.0 28 and 0030

- A2.001.021.



# Comment ID 0075

- A2.001.020

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.3.2.3Q Not all designated staging sites are used for hydrocarbon storage and disbursing. Many are just temporary building material staging locations. A better list of construction materials that need plastic sheeting needs to be created. Not all construction materials need to be
covered.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

512 Response: See response to comments 0168

- A1.001.028 and 0030

- A2.00 1.021. Additionally, EPA has attempted to more clearly articulate the types of products, materials, and wastes that are affected by the Part 2.3.3.3 requirements, which the Agency believes addres ses the commenter’s point.



# Comment ID 0076

- A1.001.013

Autho r Name: Steadman Marc Organization: Target Corporation Issue Category: 2.3.2.3Q
1. 2.3.2.3 b

- EPA is proposing secondary containment for the entire staging area. Target would like further explanation on this proposal as we are concerned that the requirement is duplicative of existing tank requirements for chemical containers. If there is a specific concern with a material or activity we would suggest that these be identified instead of entire areas of the facility.

2. Target believes current secondary containment language is not conducive with large commercial developments and request that the EPA consider these types of development in crafting permit language.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0080

- A2.001.020

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 2.3.2.3Q Partner Response: Please see the Partner's previous response. Secondary containment is not always practical at act ive construction sites. Secondary containment for "permanent" storage containers is permissible. Staging and storage areas should be required to have spill plans and spill kits but these areas should not be required under the CGP to be covered or necessitate provisions for secondary
containment.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0085

- A2.001.013

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 2.3.2.3Q See comment 10 above. [The improper storage and care of fuel and other hydrocarbons is a frequent cause of accidental discharges and Rockville supports efforts to reduce the frequency of these discharges. EPA should not only consider requiring spill kits be kept on site, but also requiring that the operator provide training to their employees on spill response.]Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

513 Response: EPA agrees with the commenter, but prefers to leave the choice as to what controls will be implemented to “minimize the expos ure to stormwater” of these types of pollution sources to the operator. The permit requires also that the SWPPP specify the spill prevention and response procedures that will be in effect at the site (Part 7.2.11.1) and training is required of key personnel in these procedure s (Part 6).



# Comment ID 0086

- A1.001.014

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 2.3.2.3Q The CGP requires placement of covers over all construction materi als to prevent contact with rainfall. Section 2.3.2.3.c. Many materials used on utility projects (e.g., bricks, blocks, exposed structural steel, utility pol es) are des igned to be expos ed to precipitation and eventual storm water. The CGP should specifically exempt these materials from the requirement to be covered. Also,
Section 2.3.2.3 .c.iii needs to clarify that it does not require these types of materials (e.g., oil) to be located under a roof (i. e., cove red).

Response: See response to comment 0030

- A2.001.021.



# Comment ID 0087

- A1.001.024

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 2.3.2.3Q The CGP requires staging and storage areas to be equipped with "secondary containment structures or similarly effective means to eliminate discharges of stormwater from these areas." Section 2.3.2.3.b. We agree with EPA that staging and storage areas should be managed and controlled with BMPs to avoid or minimize stormwater impacts. However, we do not believe that elimination of
stormwater di scharges from these areas is necessary, feasible, or appropriate. In order to completely contain such discharges, the operator would need to install some kind of detention or retention facility, even if the stormwater is otherwise clean. This makes no

sens e, is infeasible, and would be a logistical nightmare to try to accomplish. For example, on a pipeline or transmission project, there may be many miles of pipe or poles and cable that are stored in a linear fashion or at multiple points along a right

- of

- wa y prior to installation. Secondary containment is practically impossible in such a scenario.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0088

- A1.001.014

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.3.2.3Q Among the unrealistic requirements are:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

514 -- The pollution prevention section as proposed would require secondary containment for all staging and storage activities "to e liminate discharges of stormwater from these areas." The purpose of BMPs is to control and minimize the discharge of pollutants in stormwater, not to eliminate the discharge completely

Response: See response to comments 0030

- A2.001.021. Also with respect to the requirement to eliminate discharges, EPA has modified the language as follows: “You must minimize the exposure to stormwater of any of the products, materials, or wastes that are not a source of stormwater contamination or that are designed to be exposed to stormwater.”



# Comment ID 0090

- A1.001.021

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 2.3.2.3Q The requirements of the Draft Permit in Part 2.3.2.3 for storage of all materials, equipment, and vehicles outside of establi shed buffers is not practical for linear utility projects working within road right

- of

- way or utility easements. For example, multiple sections of pipe maybe welded or fused together before being installed into the excavated trench

- it would be impracticable, cost

- prohibitive, and cause
subs tantial delays if the construction team were required to move the amalgam of this process, including the pipe, stone, and rel ated equipment out of the buffer area at the end of each work day. A sufficient alternative for pollution prevention is the availa b ility of spill kits along with the requirement to refuel and store equipment 100 feet from a wetland or water body. EPA should recognize tha t its concern for buffer integrity is not relevant for pipeline linear construction processes. Thus, EPA should eith er modify the storage provisions or exempt all major above

- ground installation activities taking place within the buffer area during linear construction projects.

AGA submits that there could be cause for providing secondary containment for fuel

- containing equipment but observes that the current text of pollution prevention standards under Part 2.3.2.3 applies to companies with equipment that contains potential fuel or other contaminants (i.e. new pipe), requiring them to "protect exposed construction materials with plastic sheeting or temporary roofs to prevent contact with rainwater, or provide secondary containment structures designed to eliminate the potential discharge of runoff from these areas Under these standards, linear construction projects' excavation methods create stockpiles (See Exhibits) for which plastic sheeting is an adequate and effective protection - temporary roofs are not feasible for these projects.

AGA requests that EPA exempt equipment that does not contain potential contaminates from the secondary containment provisions because such containment is unnecessary.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0091

- A2.001.009

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.3.2.3QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

515 9. Fact Sheet Item 11. Part 2.3.2.3.b and 2.3.2.3.c: Providing secondary containment for all construction material is not pra ctical or required. A number of inert material such as precast concrete pipe or vaults, fiberglass or HDPE pipes, clean aggregate, or clay roofing tiles have very limited potential to contaminate storm water. In many cases, these materials will be staged near the final in stallation location. The term "exposed" should be defined. Plastic wrapping of the constru ction materials described above would not be practical for many items. 2.3.2.3.c.i Containers should be labeled in accordance with OSHA requirements. 2.3.2.3.c.v Spill clean

- up procedures will vary based on the spilled material and location. Dry clean

- up m easures may not be appropriate for every spill. Some material may require that a liquid stabilizer or neutralizer be applied to the material before the clean

- up.

Response: See response to comment 0030

- A2.001.021.



# Comment ID 0093

- A2.001.063

Author N ame: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.3.2.3Q EPA has requested comment on the practicability of providing secondary containment or cover for staging and storage areas on the site. These parts state: "You must also clearly flag off and designate areas to be used for staging and storage of building materials, equipment, or vehicles... and conduct such activities only in these areas" and "you must install secondary containment structur es or similarl y effective means to eliminate discharges of stormwater from these areas."

AGC opposes this language because it would make it easier for vandals/thieves to target equipment and materials. In addition, it would not be possible for contractors to move all of their heavy equipment to one area because some large machines are not mobile and must remain in place on the project to perform their intended function.

In addition, it is not practical to provide cover for all construction equipment and materials. Co vering staging areas is not necessary and is impractical for large projects which tend to have multiple large staging areas. Also, the vast majority of material st ored within staging areas is inert material such as lumber, iron, etc that do not represent a storm water pollution threat. Elsewhere, the Draft would address the stock piling of any materials that could represent a stormwater pollution threat, such as soil stock piles, which are required to be protected with stormwater controls.

As stated above , EPA should continue to rely on the SPCC requirements in 40 CFR 112 and Section 311 of the CWA and avoid creating a duplicate program.

Response: See response to comments 0066

- A1.001.028 and 0115

- A2.001.017.



# Comment ID 0097

- A1.001.008

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 2.3.2.3Q
1. These areas should be included in the stormwater controls for the site. Non hazardous materials should be in the control a rea. Hazardous or high polluting materials should have an initial system controlling that storage area ahead of the site controls.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

516 Response: EPA agrees with the commenter, and believes it has incorporated this basic concept into Part 2.3.3.3.d of the permit.



# Comment ID 0103

- A3.001.012

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.3.2.3Q In Part 2.3.2.3 Staging and storage area, EPA provides pollution prevention standards for staging and storage areas. Storm wa ter controls for staging and storage a reas are required to have secondary containment structures or other similar effective means of preventing the discharge of spilled or leaked chemicals from the area.

TCEQ provides the same comment as provided to Part 2.3.2.1

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0123

- A2.001.010

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.3.2.3Q Comment: Secondary containment for storage of materials or equipment that do not pose a threat of discharge of chemicals or other contaminants should not be required.

Response: See response to comments 0168

- A1.001.028 and 0030

- A2.001.021.



# Comment ID 0126

- A2.001.012

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 2.3.2.3Q The CSC believes this is not practicable in most cases. Secondary containment for storage containers is achievable. Staging a nd storage areas should be required to have spill kits and spill plans but not covers.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0131

- A1.001.013

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.3.2.3QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

517 b. Design requirements for stormwater controls. For all areas designated for staging and storage activities, you must install secondary containment structures or similarly effective means to eliminate discharges of stormwater from these areas.

The term "secondary containment structures" as it is used in this paragraph is neither clear nor defined. It is unclear whether EPA intends the definition to mean a simple appropriately sized and localized secondary containment measure placed directly under a storage tank, barrel, or materials, or EPA is suggesting that a containment structure be built for the entire area potentially consisting of

a non

- permeable surface and berm made of concrete covering the entire staging and storage area's surface.

It is not practical, reasonable, feasible, or cost effective to provide cover or secondary containmen t for an entire construction site staging or storage area.

The components for "Pollution Prevention Standards" in Part 2.3.2.3 (c) are well written to minimize the exposure of potentia l pollutants to stormwater. They are effective measures that will prevent the materials from coming in contact with stormwater and would be just as effective as building some type of containment structure or cover over the entire area.

Response: See response to comment 0168

- A1.001.028.



# Comment ID 0133

- A2.001.024

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.3.2.3Q Permanent staging areas are not typical for long, linear transportation projects. Also, right

- of

- way constraints can make location of the staging areas outside of buffer areas infeasible. As such, MDT requests greater flexibility be provided to account for linear constraints

.

Response: See response to comments 0115

- A2.001.017 and 0066

- A1.001.028.



# Comment ID 0153

- A1.001.019

Author Name: Wortkoett er Judith Organization: Greenville County, South Carolina Issue Category: 2.3.2.3Q 1. This requirement is not practicable and too severe for staging and storage areas for building materials, equipment, or veh icles. Most
of the construction materials that actually require storage or cover are listed in 2.3.2.3.c.

2. This section should say:" b. Design requirements for stormwater controls. For all areas designated for staging and storage activities, you must install effective means to eliminate discharges of stormwater from these areas. "

Response: See response to comment 0168

- A1.001.028. EPA notes that it has adopted language that is compatible with the commenter’s recommended language. See Part 2.3.3.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

518 

# Comment ID 0171

- A1.001.013

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 2.3.2.3Q The CGP requires placement of covers over all construction materials to prevent contact with rainfall. Many materials used on utility projects such as bricks, blocks, exposed structural steel, utility poles are designed to be exposed to stormwater and should be specifically exempted from this requirement.

Response: See response to comment 0030

- A2.001.021.



# 2.3.2.4 WASHING OF APPLICATORS AND CONTA INERS

Comment ID 0014

- A1.001.001

Author Name: Jeffrey Richard Organization: CWS Colorado, LLC Issue Category: 2.3.2.4 Part 2.3.2.4 Washing of applications and containers used for paint, concrete, or other materials.

Item b section i. reads as follows: Design requirements for stormwater controls. You must: Direct all washwater into a leak proof container or pit:

For clarification we would recommend: Direct all washwater into a leak

- proof container or leak

- proof pit.

This added verbiage will reinforce and clarify the requirements to ensure structural integrity for washout pits. The original draft does not specifically call for a leak

- proof pit. Too many construction sites have cut comers by digging a pit for washwater, but fail to properly line the pit to prevent leakage into the groundwater. This change would also address the issue of leaking liners, which is a

common occurrence.

Response: EPA has incorporated the commenter’s recommended modification to the final permit. See Part 2.3.3.4.a.



# Comment ID 0014

- A1.001.002

Author Name: Jeffrey Richard Organization: CWS Colorado, LLC Issue Category: 2.3.2.4 Part 2.3.2.4, section C Pollution Prevention Standards.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

519 Items i. and ii. address liquid wastes, and item iii. addresses hardened concrete waste, but there is no mention of the management of the toxic washwater generated by the washing ofthe ready

- mix trucks and pump trucks. Although items ii. and iii. Refer to Part 2.3.2.5 for guidance, 2.3.2.5 does not address this issue. As wastewater from washout of concrete is highly toxic, and is specifically identified as a Prohibited Discharge, in Part 2.3.1.1, it should be managed properly. Therefore, we recommend the following language be added as 2.3.2.5, iv;
All concrete washout water must be disp osed of in an approved treatment facility.

This would insure that the toxic concrete washwater is properly managed and not allowed to contaminate local groundwater or s urface streams. This would also allow state or local agencies to determine what is "app roved". Lacking proper washwater disposal regulations, many contractors have found it easier to just make it go away instead of treating it as a toxic waste.

Response: EPA disagrees that the proposed language is necessary. The final permit requires that the container or pit used for this purpose be
“leak

- proof” and that it be designed so that “no overflows can occur due to inadequate sizing or precipitation.” Therefore, from a pollutant discharge, EPA believes that these requirements are stringent and and guard against the type of risks the commenter raises in
the comment.



# Comment ID 0030

- A2.001.022

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 2.3.2.4 Section 2.3.2.4.d, page 28
Half

- full of a pre

- fabricated container is not very full. Special considerations should be listed that the washout area can be filled if scheduled to be picked up after it is more than half full (for example, bridge pours or roadway pours in an arid climate, whe re the wa sh out can be filled up and picked up in one day).

Response: The proposed requirement was removed from the permit.



# Comment ID 0037

- A1.001.028

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.3.2.4
Part 2.3.2.4.b requires that all washwater is directed "into a leak

‐ proof container or pit." Do the pits used to collect washwater need to
be ‘leakproof'? If so, do they need to be leakproof regardless of the depth to groundwater? It does not make sense to require the operator to line these pits if the depth to groundwater is great enough that the potential for groundwater contamination is negligible. The permit could specify that best management practices must be implemented to protect groundwater, such as requiring that soils have adequate buffering capacity, washout sites should be used for less than a year, the washout site should not be located in an area where shallow ground water may be present such as near natural drainages, springs, or wetlands.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

520 Re sponse: EPA appreciates the commenter’s points about the importance of focusing on risk to groundwater contamination. However, EPA believes it is important to manage these wastes at the source so that discharges are from these areas are eliminated consi stent with 40 CFR 450.21(e)(2).



# Comment ID 0062

- A1.001.037

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.4 b. Design requirements for stormwater controls. You must: i. Direct all washwater into a leak

- proof container or pit; and ii. Design washwater containers or pits so that no overflows can occur during rainfall or after snowmelt.

Brevard County Comment: How big a storm...1000 yr storm is too broad, even 25 year - 24 hour event ma y be excessive. Not possible on many sites, small site penalty.

Response: EPA does not define the size storm that the container or pit needs to be designed around, nor does it believe it is necessary to do so. The operator will need to use their best professional judgment to determine how best to design these containers or pits so that
overflows will not occur.



# Comment ID 0064

- A1.001.023

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.3.2.4 Section 2.3.2.4.b.ii, page 2 8 - "Design wash water containers or pits so that no overflows can occur during rainfall or after snowmelt."
•Is this requirement feasible? What size storm event do wash water containers need to be designed to handle?

Response:
EPA does not define the size storm that the container or pit needs to be designed around, nor does it believe it is necessary to do so. The operator will need to use their best professional judgment to determine how best to design these containers or pits so th at
overflows will not occur.



# Comment ID 0073

- A1.001.001

Author Name: Mullings Gary Organization: National Ready Mixed Concrete Association (NRMCA) Issue Category: 2.3.2.4 NRMC supports and is committed to smart practices for keeping our nation's waterways and their tributaries clean and healthy. In reference to the provisions "Prohibited Dischargers: The following dischargers from regulated construction istes are prohibit ed: 1. Wastewater from washout of concrete, unless managed by an appropriate control..." contained in the Environmental ProtectionRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

521 Agency's (EPA) proposed Draft National Pollution Elimination System (NPDES) General Permit for Stormwater Dischargers from Construction Activities, NRMCA has current recommended best practices in place for helping to meet the rule's criteria.

Prior to the draft rule's publication, NRMCA worked in cooperation with the National Association of Home Builders (NAHB) to d raft a set of recommended best practices and guidelines for managing wasterwater from washout of concrete chutes on residential construction sites. This fact sheet which details the appropriate handling of concrete washout is title "Environmental Best P ractice Guide for Ready Mix Concrete Chute

- Rinse

- Off at Residential Building Sites" and can be found as part of these comments under Appendix A. [Please see Appendix A in the orgional comment letter. Docket ID EPA

- HQ

- 2010

- 0782

- A1

- 0073

- A1.].

As for recommended best practices for managing wastewater from concrete washout on commercial construction sites, NRMCA as well, although unilaterally, has guidelines in place. The guidelines, which actually cover more than just commercial construc tion, are contained in chapter 6 of the NRMCA publication titled "Environmental Management in the Ready Mixed Concrete In dustry." The guidelines can also be found as part of these comments under Appendix B [Please see Appendix B in the orgional comment letter

. Docket ID EPA

- HQ

- 2010

- 0782

- A1

- 0073

- A1.].

Response: EPA notes the reference to these materials.



# Comment ID 00 91

- A2.001.021

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.3.2.4 21. Part 2.3.2.4.d: Weekly inspections should only be required when washout structures are in use.

Response: See response to comment 0064

- A1.001.022.



# Comment ID 0130

- A2.001.019

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 2.3.2.4 18. DESIGN REQUIREMENTS FOR WASHWATER CONTROLS. Part 2.3.2.4b.ii. No specific criterion was included. We

re commend this, like other design criteria, is a 2

- year, 24 hour design.

Response: EPA does not define the size storm that the container or pit needs to be designed around, nor does it believe it is necessary to do so. The operator will need to use their best professional judgment to determine how best to design these containers or pits so that
overflows will not occur.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

522 

# 2.3.2.5 STORAGE, HANDLING, AND DISPOSAL OF CONSTRUCTION WASTE

Comment ID 0021

- A1.001.019

Author Name: Unrein Terrance Organization: Tepa Issue Category: 2.3.2.5 8. CGP Section 2.3.2.5.b.2 states that all waste containers need to have lids or covers. On most projects and all LEED Certif ied projects there are recyclable content dumpsters used to dispose of woods, plastics, metals, etc. that have no threat of contamination. Additional verbiage needs to be included here to exclude these types of dumpsters from this requirement. This will make this requirement easier to enforce.

Response: The requirement to provide lids for these containers has been removed. The permit provides flexibility to the operator to determine
how best to contain the waste.



# Comment ID 0053

- A2.001.019

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.3.2.5
Con sider revising the language to read: "You must stabilize portable toilets to prevent being tipped or knocked over."

The term "will not be" indicates zero potential and is unachievable.

Response:
EPA has retained the proposed language. EPA believes tha t it is unlikely that an operator would have a problem meeting this requirement. If the portable toilet is tipped over on purpose or by accident, this would not constitute a violation, as lon g as it was immediately put back in place upon finding it this way.



# Comment ID 0053

- A2.001.020

Author Name: Boesch Kevin Organization: Logan Simpson Design,Inc. Issue Category: 2.3.2.5 c. Pollution prevention standards.i.1 The Permit states: "On a daily basis, ..." Consider revising the language to read: "On a daily basis, when working or during operational days ..."

Many calendar days (i.e. weekends, holidays) will not have any personnel on site and will not be able to clean up and dispose of waste, existent or not. Therefore, non

- compliance with the Permit has occur red.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

523 Response: The final permit language has been modified in a way that addresses the commenter’s concerns. See Part 2.3.3.3.e.i.



# Comment ID 0053

- A2.001.021

Author Name: Boesch Kevin Organization: Logan Simpson Design,Inc . Issue Category: 2.3.2. 5 19. Page 29; Part 2.3.2.5 Storage, handling, and disposal of construction waste. c. Pollution prevention standards.ii.1 The P ermit again states: "On a daily basis, ..." See language from comment 17 above.

Response: The final permit language has been modified in a way that addresses the commenter’s concerns. See Part 2.3.3.3.e.i.



# Comment ID 0053

- A2.001.022

Author Name: Boesch Kevin Organization: Logan Simpson Design,Inc. Issue Category: 2.3.2.5
d. Maintenance requirements. The Permit states: "At least once per week, you must inspect all containers or other devices used for the collection, storage, detention, and/or disposal of wastes for leaks or overflows."

This language indicates a site inspection every 7 days and is in conflict with the 14 day inspection indicated in Section 5, Part 5.1.2 of
the Permit (page 45).

Consider revising this language to correlate to Inspection frequency required by the Permittee in Part 5.1.2 and Part 5.1.4.3 of the
Permit.

R es ponse: See response to comment 0064

- A1.001.022.



# Comment ID 0062

- A1.001.038

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.5 (3) Store wastes that cannot be disposed of in a container under cover or indoors.
Brevard County Comment: Not practical for large scale demolition and land clearing. "Put those bushes and roots in the dumpst er"?

Response: EPA removed the proposed requirement for lids on waste containers.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

524 

# Comment ID 0064

- A1.001.024

Author Name: Dees Richard Organization: City
ofMeridian Issue Category:
2.3.2.5
Section 2.3.2.5.d, page 29 - Full "Maintenance requirements" section
•This weekly requirement seems to undermine the 14

- day inspection option as presented later in the proposed permit.

Response : EPA has removed this requirement. See response to comment 0064

- A1.001.022.



# Comment ID 0093

- A2.001.064

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.3.2.5
EPA should remove all of the "On a daily basis ..." references in this Part. AGC recommends that EPA revise the language to say "During work days ... ."

Response: The final permit language has been modified in a way that addresses the commenter’s concerns. S ee Part 2.3.3.3.e.i.



# Comment ID 0093

- A2.001.065

Author Name: Pilconis Leah Organization: Associated General Contractors of America(AGC ) Issue Category: 2.3.2.5
The Draft states: "At least once per week, you must inspect all containers or other devices used for the collection, storage, detention, and/or disposal of wastes for leaks or overflows." This language indicates a site inspection every seven (7) days and is in c onflict with
the 14

- day inspection indicated in Part 5.1.2 of the Draft (at page 45). Consider revising this language to correlate to the inspection frequency required by the permittee in Part 5.1.2 and Part 5.1.4.3 of the Draft.

Response: EPA has removed this requirement. See response to comment 0064

- A1.001.022.



# Comment ID 0098

- A1.001.013

Author Name: Davis Richard Organization : Beveridge & Diamond,P.C. Issue Category: 2.3.2.5 We are unsure that "roofing tar" is appropriately included in the list of materials requiring special handling and disposal u nder this
Part. It is our understanding that roofing tar is a solid at room temperature and should not require special handling.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

525 On the other hand, there may be other liquid coatings used in modern roofing systems that are immediately mobilizable by stor mwater
and that should be included in this list.

Also, we are unclear whether debris from roofing demolition is included under this section. Those materials typically are stable by the time they are removed, so it would be our position that they should not be regulated under thi s Part.

Response: EPA has removed “roofing tar” from the list of examples included in Part 2.3.3.3.d. Roofing demolition debris should be tre ated as
construction waste under Part 2.3.3.3.e.



# Comment ID 0161

- A2.001.001

Author Name: Hitchcock Reed Organization: Asphalt Roofing Manufacturers Association(ARMA) Issue Category: 2.3.2.5
ARMA would like to address a concern we have with the Proposed Construction General Permit. Roofing tar, which ARMA is assuming EPA is referring to asphalt, should not be included in the list of materials requiring special handling and disposal as indicated
in Part 2.3.2.5.b.ii - Storage Handling and Disposal of Construction Waste. Tar is normally a term used for materials that contain coal tar which is very different than asphalt.
Asphalt is a solid at room temperature and is often used as a sealant for water storage lagoons, etc. It is also not a DOT ha zardous material unless stored or heated and is not water soluble. Asphalt is a petroleum materials product but has nothi ng in common with paints, solvents, acids, pesticides, or other materials referenced in the permit. Therefore, no special handling should be re quired and it certainly should not be regulated as a hazardous material and/or referred to as a hazardous or toxi c waste.

Response: See response to comment 0098

- A1.001.013.



# 2.3.3 EMERGENCY SPILL NOTIFICATION No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

2.3.4 FERTILIZER DISCHARGE RESTRICTIONS

Comment ID 0015

- A2.001.032

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 2.3.4Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

526 2.3.4.3 "Heavy rain" is too vague. Should list a number that refers to the weather conditions listed on the product. Some hor ticultural chemicals need multiple days of dry weather to function properly.

Response: EPA does not believe it is necessary to define “heavy rain” further. This type of detail is difficult to define with any precision, and is
best left to what is considered best industry practice in applying fertilizer. EPA’s interest is in not having fertilizers applied during situations that are guaranteed to result in a discharge.



# Comment ID 0062

- A1.001.039

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.4 2.3.4.2 Apply at the appropriate time of year based on your location, and preferably timed to coincide as closely as possible to the period of maximum vegetation uptake and growth;

Brevard County Comment: Contradiction in some areas

Response: EPA appreciates the comment. The proposed language has been retained. EPA notes that some discretion on the applicator’s part is given to be able to decide what is the best practice if there are conflicts.



# Comment ID 0062

- A1.001.040

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.4 2.3.4.3 Avoid applying before heavy rains;

Brevard County Comment: define "heavy rains", contradiction in some area.

Response : Response: EPA does not believe it is necessary to define “heavy rain” further. This type of detail is difficult to define with any precision, and is best left to what is considered best industry practice in applying fertilizer. EPA’s interest is in not having fertilizers applied during situations that are guaranteed to result in a discharge.



# Comment ID 0062

- A1.001.041

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Off ice Issue Category: 2.3.4 2.3.4.6 Never apply to stormwater conveyance channels; andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

527 Brevard County Comment: How will you vegetate conveyance channels? Not practical for areas where base flow is minimal and ban ks need to be vegetated.

Response:
This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, which th e Agency believes addresses the commenter’s concern.



# Comment ID 0075

- A2.001.021

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.3.4 Why limit application of Nitrogen and Phosphorus fertilizer on steep slopes (e.g., as defined by EPA as 6:1's (H:V) and steep er) which would eliminate nutrient amendment on most highway fore

- slopes and back

- slopes? These are very disturbed areas most likely to be nutrient deficient and limiting to vegetative cover regrowth. Similarly, why prohibit fertilizing storm water channels where rapid plant rooting is necessary to develop critical shear stress resistance? Fertilizer amendment is sitespecific per soil types and should not be
treated as a "one

- size

- fits

- all" fertilizer recommendation.

Response: EPA is providing best practice requirements as part of this permit so that the risk of discharge during storm events of these fertilizers is minimized. This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, which the Agency believes addresses the commenter’s concern.



# Com ment ID 0098

- A1.001.014

Author Name: Davis Richard Organization: Beveridge & Diamond,P.C. Issue Category: 2.3.4 The statement that permittees should "never" apply fertilizer to a stormwater conveyance channel seems to be problematic. While care
should be taken in such applications it is difficult to understand how such channels can be vegetated as the Agency and industry intend if fertilizer cannot be used to facilitate early growth. We suggest that this section be revised to allow fertilizer use as n ecess ary for the establishment and maintenance of vegetation to sustain adequate cover of underlying soils. If added controls are deemed necessary the permit could include a qualification that care should be taken to avoid mobilization of fertilizer in stormwat er flows.

Response: This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, whi ch the Agency believes addresses the commenter’s concern.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

528 

# Comment ID 0133

- A2.001.025

Author Name: Martin Tom Organization: Montana Department of Transportation(MDT) Issue Category: 2.3.4 The proposed permit condition prohibits the application of fertilizer to stormwater conveyance channels. The stormwater conve yance channels for most MDT projects are roadside swales that are re

- vegetated in order to function as long

- term stormwater BMPs. It is routine practice to apply fertilizer to roadside swales and ditches when seeding to help establish vegetation. This restricti on should be
eliminated as it would not allow MDT to effectively stabilize projects sites, thereby adversely affecting water quality.

Response: This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, whi ch the Agency believes addresses the commenter’s concern.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category: 3. Numeric Turbidity Limit and Sampling Requirements

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

529 

# 3 NUMERIC TURBIDITY LIMIT AND SAMPLING REQUIREMENTS

Comment ID 0072

- A2.001.009

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 3 MoDOT is concerned that the proposed numeric turbidity limit and the associated sampling requirements will lead to a signific ant, additional resource expenditure for transportation projects, which in many cases may be beyond what would be considered reasonable. Increased project cost inevitably means less projects being constructed to address the transportation needs of our customers, and in turn, less employment opportunity for workers w ithin the construction industry.

Response Refer to Response 3.1.



# Comment ID 0130

- A2.001.037

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 3 The second paragraph under Part 3 references an exception in Pa rt 3.1.3.2. There is no such part in the proposed permit. It appears the intent may have been to reference Part 3.1.2.3?

Response Refer to Response 3.1.



# 3.1 APPLICABILITY OF NUMERIC TURBIDITY LIMIT

Comment ID 0045

- A1.001.006

Author Name: Epstein Lee
Organization: Chesapeake Bay Foundation Issue Category: 3.1
3.1 - Pertaining to nationwide turbidity limits yet to be designated, this section provides a timetable and acreage limits within w hich designated construction activities are to be brought under n umeric limits. The sequential rule proposes that construction activities on less than 10 acres would not trigger turbidity limits. While this is generally acceptable, in highly urban settings where thi s regulation will apply (e.g. the District of Columbia) that acreage limitation is too large. In these places most construction activity occurs on considerably smaller sites; nevertheless, there can be a relatively significant addition of sediment and other pollutants to stressed urban streams. We therefore recommend that in highly urban settings, the acreage cutoffs/applicability by timeframe be set at ten acres and five acres, respectively (versus 20 acres and 10 acres).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

530 Response Refer to Response 3.1.



# 3.1.1 TYPES OF CONSTRUCTION ACTIVITIES WHOSE DISCHARGES ARE COVERED BY THE NUMERIC TURBIDITY LIMIT

Comment ID 0052

- A1.001.004

Author Name: Hamilton Kristopher Organization: E.S. Wagner Company Issue Category: 3.1.1 EPA should not set any requirements for BMPs that are upstream or tributary to a discharge that would be susceptible to a numerical turbidity limit. If a particular discharge on a site would meet the criteria for having to meet a numerical turbidity limit t hen there should be no additional requirements or standards for any area that is tributary to that discharge. Otherwise, for example, a permittee may be found in violation for not enough check dams installed even though the final discharge to the receiving stream has met all nu merical turbidity limits. A permittee should only be held to one set of requirements SUbjective or objective, but not both.

-- Recommendation - Remove any requirements or standards for areas that are tributary to a discharge that is controlled by a numerical turbidity limit.

Response Refer to Response 3.1.



# Comment ID 0064

- A1.001.025

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.1.1 Section 3.1.1, page 31 - Full "20

- acre land disturbances" paragraph

•Does this include a gravel source being used for just this project?

Response Refer to Response 3.1.



# Comment ID 0066

- A1.001.003

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.1.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

531 TxDOT disagrees with the overall methodology used to calculate typical disturbed acreages for transportation projects. If this permit takes effect with the recommended changes, a project site in acres must ultimately be limited to 10 acres or less disturbed a t any given time, in order to be exempt from implementing and complying with the proposed n umeric Effluent Limitation Guidelines (ELG) that will become part of this permit (20 acres in the interim). At this time, the updated nephelometric turbidity unit (NTU) limit has not been released for further comment. We are very concerned that it will not be physically possible to comply with the numeric limit in a large number of cases, which would necessitate limiting disturbance to 10 acres or less. It is our determination that requiri ng such a low acreage limit will cause unknown and difficult to antic ipate changes in how transportation projects are built.

We believe that a transportation project's acreage limit should be based on an individual state's numbers and not averaged ac ross all states. For example, Texas is a physically larger state, where our cities and roadways interconnecting them are inherently longer distances which require more acres to be disturbed on a regular basis for maintenance or construction projects Comparing our averages to another state, which may have many fewer miles of roa dway to maintain and less right

- of

- way (ROW) to obtain for new roads, is not an equitable assumption If plotted out on a graph, it would be helpful to see how each individual state would appear on t his graph taken from the EPA publication, Economic Analysi s of the Final Construction & Development ELGs(2009) http://water.epa.gov/scitech/wastetech/guide/construction/upload/2009_1 2_8_guide_construction_files_economic.pdf

Figure 7

- 2: Projection of Aggregate Construction Value, 2009 - 2014. [Please see page 3 of the original letter (Docket ID 0066

- A1.001)].

Another assumption stated in how this acreage limit was determined, "EPA assumed that the combined width of the road surface, median, and buffers is 4 lanes and 88 feet, and therefore, one mile of new highway would represent 10.67 acres in disturbed a rea." TxDOT ROWs are more typically about 100 feet, which alone would indicate that this acreage assumption is potentially flawed and not a good fit for projects in Texas. As an example, a simple highway widening of 10 feet total, versus an all new location w here everything will be disturbed from ROW line to ROW line. In this case, one has relatively minor environmental impacts, while the other has greater impacts, yet both would be required to follow the same ELGs and meet the soon to be proposed NTU.

Therefore, we believe that the trigger limit for requiring ELG sampling requirements should be based not on the methods prescribed in the original document used (referenced above) to set the proposed acreage limit. The acreage limit should be based on a more common sense approach, which should potentially include looking at th e variance between states for potentially setting this limit based on individual states, as well as the type of work being performed.

Response Refer to Response 3.1.



# Comment ID 0066

- A1.001.030

Author Name: Saenz Amadeo Organization: Texas Department o f Transportation (TxDOT) Issue Category: 3.1.1 Discussion: On pg. 31, the explanation of how the NTU limit applies to projects does not seem equitable to large linear trans portation projects. "... and will disturb 20 (or 10 later on) acres of land at one time, including non

- contiguous land disturbances that take place at the same time and are part of a larger common plan of development." This will essentially force many state DOTs to completely change how projects are planned and constructed, which will add an extraordinary burden and cost to many, if not all, linear typeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

532 transportation projects This requirement does not appear to take into consideration linear transportation projects and the un ique challenges they face.
Suggestion: Consider providing an exemption for state linear transportation projects. Another way would be to modify the requirement by increasing the acreage trigger, or basing it on acreage disturbed within a common drainage location. (See also introductor y comments on page one of this d ocument.)

Response Refer to Response 3.1.



# Comment ID 0072

- A2.001.010

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 3.1.1 The first concern is the proposed, phased acreage thresholds for complying with the turbidity limit, from 20 acres on August 1, 20 11 , down to 10 acres on February 2, 2014. MoDOT believes the proposed I O

- acre limit is too low and should either be left at 20 acres or, if transitioning to the lO

- acre limit is justifiable, then it should be stated that the 10 acres must be contiguous and/or must all drain to one common outfall location or receiving stream. This would capture larger grading projects, but allow exception for some of the smaller jobs which may disturb a total of 10 or more ac res, but in several smaller areas of disturbance scattered throughout a corridor. The way this Part currently reads, many, ifnot most linear transportation projects would be subject to the numeric turbidity limit requirements, which equates to more time and money being spent each of these projects.

Response Refer to Response 3.1.



# Comment ID 0091

- A2.001.023

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 3.1.1
23. Part 3.1.1: In the situations below would the land disturbance area be computed for each single project based "common plan" then compared to the 20 acre or 10 acre threshold to determine sampling requirements?

EPA FAQ GUIDANCE (2008 Construction general Permit): "What if the "Common Plan of Development or Sale" Actually Consists
of Non

- Contiguous Separate Projects?

There are several situations where discrete projects that could conceivably be considered part of a larger "common plan" can actually be treated as separate projects for the purposes of permitting:

A. A public body (e.g., a municipality, State, Tribe, or Federal Agency) need not consider all their construction projects wi thin their entire jurisdiction to be part of an overall "common plan." For example, construction of roads or buildings in different parts of a state, city, military base, university campus, etc. can be considered as separate "common plans." Only the interconnected parts of s ingle project would be considered to be a "common plan" (e.g., a building and its associated parkin g lot and driveways, airport runway and associated taxiways, a building complex, etc.)"Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

533 Application of the area threshold to each separate project "common plan" is recommended. This approach is recommended for the new permit. If the surface area threshol d is calculated for the entire installation, significant costs would be added to all construction projects. Construction costs would be based on including the sampling requirement in every project. At the start of a constru ction project, there is no way fo r a contractor to know if activities on a nearby project will exceed the surface area threshold. On a large installation, geographically separate projects may discharge to significantly different receiving waters through different dr ainage
basins.

Response Refer to Response 3.1.



# Comment ID 0130

- A2.001.038

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 3.1.1 The very last sentence of Part 3.1.1 references a Part 3.1 .3 of the permit. There is no such part in the proposed permit. It appears the intent may have been to reference Part 3.1.1 and 3.1.27

Response Refer to Response 3.1.



# 3.1.2 EXCEPTIONS TO THE APPLICATION OF THE NUMERIC TURBIDITY LIMIT

Comment ID 0015

- A2.001.033

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.1.2 3.1.2.2 How will sites prove they are under the disturbed area threshold? Is reporting required?

Response Refer to Response 3.1.



# Comment ID 0025

- A1.001.027

Author Nam e: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.1.2 For DOTs projects can occur quite literally, in the middle of nowhere. If the on

- site rain gauge is damaged or stolen, there may not be another data point within 5 miles. Suggest requiring the use of the closest reasonably attainable data.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

534 Response Refer to Response 3.1.



# Comment ID 0066

- A1.001.031

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.1.2 Suggestion: Add an exemption for linear state DOT projects, similar to the one provided for the construction of interstate na tural gas pipelines.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.068

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.1.2 AGC maintains that EPA should also exempt from the turbidity limit any project that does not have the potential to discharge to waters of the United States. This could include flat (less than 2% grade) or isolated sites with no storm drain inlets in the immediate vicinity. It should also include sites that are engineered to retain and infiltrate all of their stormwater onsite. On such sites, the stormwater either evaporates or is absorbed into the ground, and no discharge of stormwater into waters of the U.S. occurs.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.074

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.1.2 In addition, if a construction site operator is using all low impact development (LID) stormwater controls to infiltrate stormwater flow into the ground, the contractor should not have to sample, except where overflow pipes are part of the LID device. For example, Maryland's current state stormwater rule mandates only LID devices for stormwater management, unless it can be shown that suc h devices cannot be utilized at a particular building site.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

535 

# Comment ID 0130

- A2.001.021

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 3.1.2 Part 3.1.2.3 exempts interstate gas pipelines from compliance. We respectfully request the same exemption for transportation projects

Response
Refer to Response 3.1.



# 3.1.2.1 STORMS LARGER THAN THE LOCAL 2

- YEAR, 24

- HOUR STORM

Comment ID 0017

- A1.001.018

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 3.1.2.1 16) 3.1.2.1 - The exemption from numerical turbidity l imits in this section hinges on the definition of a 2 year, 24

‐ hour storm event occurring "in that day", or within a period of midnight to midnight. This is in direct conflict with the definition of a "24

‐ hour" event.
This section should be rewritten to ex empt the discharge from a 2 year, 24

‐ hour event, regardless of when the event started or stopped.

Response Refer to Response 3.1.



# Comment ID 0034

- A1.001.007

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 3.1.2.1
7. Exceptions to Turbidity Limit for Storms Larger than the Local 2

- year 24

- hour Storm

Proposed Requirement/Section Addressed: CGP Section 3.1.2.1, Exceptions to turbidity limit for storms larger than the local 2

- year 24

- hour storm.

Comment: The exception for the turbidity limit for storms larger than the 2

- year 24

- hr storm only applies on the day that design storm is exceeded. The fact sheet (page 78) clarifies that the turbidity limit applies on subsequent days if the rainfall depth is less than the
desi gn storm.

Discussion: When the local 2

- year 24

- hour storm is exceeded, the turbidity limit does not apply because the BMPs are not designed to handle that storm. Since these larger storms can damage control measures, it is unreasonable to require that the turbidity limit be met on subsequent days that the design storm is exceeded. The turbidity limit should only apply after the operator has had a reas onableRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

536 amount of time to inspect and implement corrective actions that may be necessitated by storms larger than what the control measures are designed for.

Recommendation: Recommend that EPA clarify in the fact sheet and in the permit that the exception to the turbidity limit woul d continue to apply until two days after the conclusion of a storm event tha t exceeds the design storm.

Response Refer to Response 3.1.



# Comment ID 0038

- A1.001.014

Author Name: Minervini W. Organization: Issue Category: 3.1.2.1 Allowing permittees to use rainfall data from offsite rain gauges (or similar devices) up to five miles distant from the permittee's site seems questionable. USEPA's Proposed Construction General Permit (CGP) - Fact Sheet did not provide any justification for the five mile limit. Five miles seems too long a distance, especially for local thunderstorms.

USEPA should evaluate technical literature on rain gauge density and consider reducing the five mile value, but also allow pe rmittees to use radar estimates of rainfall at the permittee's site, and make it simple for permittees nationwide to obtain such estimates at no cost where available. (For a brief introduction to this subject, see Debo, T.N. and Reese, A.J. (2002), Municipal Storm Water Mana gement, Second Edition, Boca Raton, Florida: Lewis Publishers.)

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.031

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.1.2.1 Storm events that occur more than 5 miles away do not represent the amount of rainfall falling at a construction site. EPA sh ould require installation of one or more strategically located rainfall gages within a construction site area occur to ensure the collecti on and recording of local climatic data.

Response Refer to Response 3.1.



# Comment ID 0066

- A1.001.032

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.1.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

537 Discussion: Regarding this requirement, Appendix I restricts the source of the 2

- year 24

- hour rainfall to TP

- 40 or NOAA Atlas 2 or 14.
TP

- 40 was published in 1961. NOAA Atlas 2 refers you to Hydro

- 35 which was published in 1977. NOAA Atlas 14 is not applicable
for Texas.

Suggestion: USGS has a new rainfall atlas (Scientific Investigations Report 2004

- 5041) specifically for Texas which includes more recent rainfall data. This atlas provides more accurate rainfall for Texas than TP

- 40 or NOAA Atlas 2. We request the use of SIR
2004

- 504, and apply it anywhere EPA requires the use of a 2

- year 24

- hour rainfall standard.

Response Refer to Response 2.9.



# Comment ID 0069

- A1.001.009

Author Name: Cramer M. Organization: Issue Category: 3.1.2.1
8. Part 3.1.2.1. of the draft EPA CGP includes a minimum 24

- hour rainfall amount below which no sampling is required. 24

- hour rainfall levels do not typically determine when discharge to an outfall will occur. Rather rainfall intensity, antecedent soil conditions and vegetation determine if and when stormwater discharge will occur at a given outfall. We recommend that instead of setting a minimum
24

- hr rainfall amount consider the use of rainfall intensity levels combined with added clarity to the language to ensure an understanding that only actual outfall discharges require sampling and that not all storms will provide a discharge.

Response Refer to Response 3.1.



# Comment ID 0072

- A2.001.011

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 3.1.2.1 MoDOT does commend the EPA for including exceptions for stonns larger than the 2

- year, 24

- hour stonn and also that temporary or pemlanent stabilization can bring acreage back under the threshold; however, we still feel the acreage threshold should be revised as proposed above.

Response Refer to Response 3.1.



# Comment ID 0075

- A2.001.022

Author Name: McOmie Delbert Organization: Wyoming Department of T ransportation Issue Category: 3.1.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

538 Since it is unknown how large a storm will be until after it is over, the inspector will need to measure turbidity until the storm concludes or the rainfall amount exceeds the local 2 year, 24 hour storm.

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.016

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.1.2.1 Target requests that the EPA remove the 2 year 24 hour requirement and base all monitoring requirements on measurable su rface discharges at the site. The requirement will result in the Permittee having to monitor all events regardless if they meet the event. Only after the event will it be determined whether the Permittee will report the monitoring event. We are concerned t hat this requirement
adds a level of complexity to the permit without necessarily improving outcomes.

3.1.2.1. This requirement appears to be in direct contradiction to 3.3.9. in which all samples are required to be reported. T herefore, every event that we sample which exceeded the 2

- year 24

- hour, would be required to be submitted even if not required. We seek clarification as the requirements appear to be in conflict.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.067

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.1.2.1 Under the Draft, on projects where the numeric turbidity limit applies, permitees would be exempt from the turbidity limit if a storm event produced a discharge that exceeded the local 2

- year, 24

- hour storm. To demonstrate that it qualified for this exception following a particular storm event, the construction site operator would have to "record the amount of rainfall (in inches) that occurr ed at his site using a rai n gauge, or similar device, or using data from other sources that are no more than five miles distance from your site." AGC points out that many construction projects occur in rural areas. If the on

- site rain gauge is damaged or stolen, there may not be an other data point within five miles. AGC requests that EPA edit this provision to require the use of the closest reasonably attainab le data.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.070

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.1.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

539 While the Draft does provide an exception for complying with the turbidity limit for storms exceeding the 2

- year, 24

- hour rain event, this provision, as currently written, is unworkable. The Draf t provides "If you determine that your stormwater discharges in any day are generated by a storm event in that same day that is larger than the local 2

- year, 24

- hour storm, you are not required to comply with the numeric turbidity limit for that day." Ther e are technical problems with the emphasis of the "same day" language in the CGP, as
follows:

1. The meteorological definition of a 2

- year, 24

- hour rain event is just that: 24 hours. It is not confined to a calendar day as written in
the
Draft, and this is contrary to provisions stated in the C&D ELG. If at any time during any 24

- hour period, rain occurs that exceeds the
2- year, 24

- hour rain event total, then the 2

- year, 24

- hour rain has been exceeded by meteorological definition, whether it all occurred on the same calendar day or not. The site must qualify for the turbidity exemption based on the meteorological rain event.

2. The CGP as written does not exempt the runoff from any 2

- year, 24

- hour rain event; it only provides an exemption for the same calendar day. AGC maintains it would make more sense for the turbidity exemption to apply for some period of time after the 2

- year, 24

- hour event. AGC has two suggestions: 1) that the turbidity limit exemptions extend until discharge from the 2

- year, 24

- hour event is complete; or 2) that the turbidity exemption would extend until flooding or disruptive conditions have abated at the site, and the passive treatment and site BMPs can be safely accessed and repaired.

AGC also recommends that EPA craft pro visions for contingencies other than a single rain event that might exceed the 2

- year, 24

- hour threshold. Extended rain for many days or a heavy rain while the ground is still saturated from previous rains can produce flooding or disruptive conditions ofte n much worse than a single large and isolated rain event, even if no individual 24

- hour period exceeded the
2- year, 24

- hour threshold. If there is significant flooding or active flash flooding in the local area (maybe as reported on the local news), then a turbidity limit exemption should be granted until the flooding or disruptive conditions subside. All of the streams in the area would be turbid anyway, and the impact of construction runoff would be negligible under these circumstances.

In addition, an exemption is also needed for high intensity rainfall events, such as one (1) inch per hour or more. These events could be
less than the volume of a 2

- year, 24

- hour storm event, however cause significant damage to even stabilized construction areas.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.073

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.1.2.1 In addition, AGC recommends that EPA clarify its definition of "storm event" (see Appendix A and Part 3.1.2.1). The Draft appears to require sampling during every storm and also every snow melt event which results in any amount of runoff. It unclear to AGC h ow long permitees would be required to sample when the storm starts out heavy in the first 24 hours and then continues to drizzle for the next few days. The Draft also would require sampling even if no land changes have occurred since the last compliant sample wa s collected/analyzed. AGC members also question if they would need to sam ple in the middle of winter when there is a slight snow melt and then the ground freezes back up again.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

540 Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.052

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.1.2.1 The exception for complying with the turbidity limit due to storms exceeding the 2 year, 24 hour rain event is unworkable as written in the draft CGP. The rule provides that permittees are not expected to comply with the numeric lim its on any day that stormwater discharges are generated by a storm event in that same day that is larger than the local 2

- year, 24

- hour storm. There are technical problems with the emphasis of the “same day” language in the CGP, as follows:

First, the me teorological definition of a 2 year, 24 hour rain event is just that: 24 hours. It is not confined to a calendar day as writt en in the proposed CGP, and this interpretation is contrary to provisions stated in the C&D ELG. If at any time during any 24 hour period, rainoccurs that exceeds the 2 year, 24 hour rain event total, then the 2 year, 24 hour rain has been exceeded by meteorologic al definition, whether it all occurred on the same calendar day or not. The site must qualify for the turbidity exemption b ased on the meteorological rain event.

Second, the CGP as proposed, does not exempt the runoff from any 2 year, 24 hour rain event, it only provides an exemption fo r the same calendar day of the 2 year, 24 hour storm exceedence. It is likely that this mu ch rain could create flood or near flood conditions at the construction site. Passive controls and BMPs for turbidity will likely be overwhelmed and disrupted. They may be inaccess ible, or dangerous to access. The only sensible solution is that the turbidi ty exemption must apply for some period of time after the 2 year, 24 hour event. NAHB submits two suggestions: 1) that the turbidity limit exemptions extend until discharge from the 2 year, 24 h our event is complete; or 2) that the turbidity exemption exte nd until flooding or disruptive conditions have abated at the site, and the passive treatment and site BMPs can be accessed and repaired. Both of these options meet the intent of the rule while recogni zing and providing practical solutions to on

- site condi tions.

Third, there also needs to be provisions for contingencies other than a single rain event that might exceed the 2 year, 24 hour threshold. Extended rain for many days or a heavy rain while the ground is still saturated from previous rains can prod uce flooding or disruptive conditions often much worse than a single large and isolated rain event, even if no individual 24 hour period exceeded the 2 year, 24 hour threshold. If there is significant flooding or active flash flooding in the local area (ma ybe as reported on the local news), EPA should grant a turbidity limit exemption until the flooding or disruptive conditions subside. All of the streams in the area would be naturally muddy, turbid, and swollen anyway, thus the impact of construction runof f would be negligible under these circumstances.

Finally, an exemption is also needed for high intensity rainfall events, such as 1 inch per hour or more. These events could be less than the volume of a 2 year – 24 hour storm event, but due to its intens ity can cause significant damage to even stabilized construction areas. EPA must be especially cognizant of how these terms might be applied in the territories and Puerto Rico, where EPA’s p ermit is valid. These areas regularly experience periods of signif icant rainfall that can occur on subsequent days, and operators need to know
how these situations will be addressed.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

541 Response Refer to Response 3.1.



# Comment ID 0110

- A1.001.010

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 3.1.2.1
As a practicing professional Hydraulic Engineer, I strongly believe that the 2

- yr, 24 hour storm event is inadequate and not
conservative for design purposes and if the permittees are not responsible for conditions greater than this , that the receiving waters will be severely polluted with sediment when the larger events do occur. Many cities and counties across the country use design storms that are much greater, such as the 10, 25 or even the 100 yr events.

Response
Refer to Re sponse 3.1.



# Comment ID 0153

- A1.001.020

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.1.2.1 Rainfall intensity (or maximum rainfall depth over a specified duration) would provide a better indication of conditions where exceptions are needed and should be allowed. Since most BMPs are designed for a 24

- hour duration storm, it is reasonable that highly intense storms (often with less than 1

- inch of rainfall) over a much shorter duration will exceed the capa bilities of on

- site BMPs. An exception that includes the 2

- yr, 24

- hr rainfall depth or a maximum intensity would be preferred and could be used by those with
access to incremental rainfall data.

Response Refer to Response 3.1.



# 3.1.2.2 DISTURBED AREAS ARE LESS THAN THE THRESHOLD FOR APPLICATION OF NUMERIC TURBIDITY LIMIT
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 3.1.2.3 CONSTRUCTION OF INTERSTATE NATURAL GAS PIPELINES

Comment ID 0017

- A1.001.019
Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 3.1.2.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

542 17) 3.1.2.3 - This section indicates interstate pipelines subject to FERC regulation are exempt from the numerical turbidity limit. The activities that occur as part of an interstate pipeline are similar to other liner utility project and all linear utility projects should be exempted from this requirement.

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.032

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.1.2.3 Natural gas pipelines should not be exempt from complying with numeric turbidity limits.

Response Refer to Response 3.1.



# 3.2 NUMERIC EFFLUENT LIMIT

Comment ID 0032.001.001

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.2
In table 3

- 2, Nephelometric Turbidity Units are referenced as the units of measure, but the measurement method is not specified (e.g. EPA 180.1 or ISO 7027). Because results can vary depending on the method us ed, we suggest that the measurement method be specified in the CGP.

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.033

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.2 It is evident that EPA is seeking a n upper numeric effluent limit on discharge waters from a construction site. Unfortunately, such a value will be restrictive and may not represent local conditions. It is our understanding that this is a reason why EPA is re quiring each state to decide appropriate NTU values.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

543 Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.034

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.2 EPA should consider developing an upper numeric effluent limit value based upon achieving Performance Goals for reducing sediment discharges from a construction site to, or be a percentage of, historic values. Since sediment yields and turbidity values are related, achieving Performance Goals for sediment yields is applicable to deter mining upper numeric effluent limits.

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.035

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.2 Accompany this response is a part of Chapter 7 from my manual for designers and reviewers. A review of the attached material demonstrates how using the results of RUSLE2 to calculate a percent reduction (i.e., Performance Goal) of potential sediment yields from bare ground conditions when compared to historic sediment y ield conditions can occur. This concept can be applied to calculating upper effluent limits. Please contact me if you wish to discuss this further.

Response Refer to Response 3.1.



# Comment ID 0064

- A1.001.026

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.2 Section 3.2, Table 3

- 2 "Numeric Effluent Limit," page 32

•How will the NEL be balanced with State Water Quality Standards that are typically more stringent than 280 NTU? For example, the Idaho state water quality standard for turbidity is lower than 280 NTU but also considers background conditions. Will the more stringent requirement apply?

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

544 

# Comment ID 0067

- A1.001.011

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 3.2 C. This CGP provides a placeholder for establishing a yet to be determined numeric discharge limit for turbidity in stormwate r discharges from sites of ten acres or more of disturbance at one time after August 201 4 (twenty acres prior to that deadline). This limit will apparently not be flow

- weighted to be dependent upon the volume of water discharged per unit time. In other words, periods of high and low flows will have the same discharge limit

Response
Refer to Response 3.1.



# Comment ID 0072

- A2.001.012

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 3.2 MoDOT also has concern with the set numeric effluent limit for all project sites regardless of soil type in a region and the pre

- existing turbidity of receiving streams. In regions with finer grain soils, such as clays or fine silts, where total settable solids ( TSS) may be low, and turbidity may be high, it is highly likely that chemical treatment would be required to achieve the turbidity limit. Chemical treatment systems (e.g. chitosan, polyacrylamide (PAM)) add considerable project cost, not only with the cost of the product itself, but also with maintenance and inspection of the system. Also, with regard to re ceiving streams, Missouri is an agrIcultural state with many tilled acres, and many of the streams in these agricultural regions were channelized in the past and are still in the infancy of phasing through the channel evolution process. During any rain eve nt, with agricultural runoff and stream degradation, many of these streams become highly turbid, and there is concern with spending a considerable amount of resources on a chemical flocculant to keep potential turbidity from our projects below the permitte d limit when the receiving stream may be exceeding that threshold already. As an example, according to turbidity data collected by USGS, the Missouri River, during normal flow, has turbidity around 100 N TU, and during river rise, these readings range betwe en 100 and 700 NTU, with the capability of reaching 1000 NTU during extreme events. This is not to say that MoDOT desires to exacerbate the situation, and add excessive siltation within these stream sy stems, or that we don't make every practical attempt to limit sediment loss from our construction sites,just that it seems impractical in instances such as these to add additional cost beyond traditional erosion and sediment control devices.

Response Refer to Response 3.1.



# Comment ID 0077

- A1.001.004

Autho r Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 3.2
The EPA has proposed a NTU discharge limitation of 280 on disturbances of 20 acres or more beginning August 1st, 2011 and 10

acres or more beginning February 2nd, 2014. This limi t may not be exceeded on any given day or time regardless of pre

‐ existingRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

545 conditions of the land to be developed. Therefore they are imposing a higher level of standard than may currently exist prior to the development or land disturbance. This may not be achievable until stabilization of an existing area occurs. In other words you may be in violation prior to your development occurring or at the onset of proposed development and approval of a CGP. Development w ill require stabilization of an existing area that has turbid runoff before disturbing the area for development and then maintaining a turbidity level under 280 NTU's.

Response Refer to Response 3.1.



# Comment ID 0085

- A2.001.001

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 3.2 Absent a numeric limit, EPA and the States will struggle to successfully implement the intent of the CGP. The agencies tasked with enforcing the CGP will be unable to inspect all sites after rainfall events. Therefore, the self

- reported numeric limit assumes a special role in making the CGP enforceable and providing adequate incentives for operators to comply with all aspects of their permit

. The Clean Water Act requires numeric limits be included in NPDES permits where feasible. 40 C.F. R § 122.44(k). When properly maintained, sediment control BMPs can control the amount of sediment leaving construction sites. Combined with simple turbidi ty monitoring technology, it is feasible to monitor whether sediment controls are adequately designed, constructed and maintained. Therefore, we recommend that EPA either adopt a new numeric limit prior to the finalization of the CGP or that EPA include sp ecific language in the permit allowing EPA to reopen the CGP and insert the recalculated limit.

Response Refer to Response 3.1.



# Comment ID 0088

- A1.001.009

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 3.2 Among the unrealistic requirements are:

-- the numeric turbidity limit

Response Refer to Response 3.1.



# Comment ID 0102

- A2.001.009

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 3.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

546 a. How are commenters expected to provide comments on a rule with numeric limits when we don't know what those limits are? We
would suggest the comment period to be extended until the numeric effluent limit is defined in order to commenters to be able to address this critical aspect of the rule.

Response Refer to Response 3.1.



# Comment ID 0102

- A2.001.010

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 3.2 7. Using one figure for a numeric effluent limitation for turbidity does not allow recognize the varying soil conditions foun d throughout the country and situations where sediment

- laden runoff entering the site is highly turbid. An alternative provision that allows for a maximum increase in turbidity compared to influent levels would allow more flexibility for both natural backgrou nd turbidity as well as off

- site impacts that increase tur bidity levels.

Response Refer to Response 3.1.



# Comment ID 0105

- A2.001.008

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 3.2 [ Numeric turbidity limit (Part 3). CLF strongly supports incorporation of technology - based numeric limits on stormwater pollution into the CGP. Such limits are the cornerstone of effective Clean Water Act implementation. EPA's long

- delayed adoption of a turbidity limit in the C&D Rule and now the CGP Permit, albeit further d elayed by the calculation error in the rulemaking, is a modest but crucial step toward a modern, scientifically sound permitting regime for stormwater discharges. The numeric limit on turbidit y should be inserted into the final CGP, as the Draft CGP propos es, following speedy completion of EPA's parallel rulemaking to recalculate the limit. Although EPA deserves considerable credit for proposing to impose a numeric limit on turbidity in construction stormwa ter discharges, the requirement should apply at more sites and more quickly than EPA's proposal provides.

Response Refer to Response 3.1.



# Comment ID 0109

- A2.001.005

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 3.2
The final Permit should include a technology

- based, numeric limit for turbidity. The limit should apply at more sites and more quickly than EPA's proposal provides.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

547 Response Refer to Response 3.1.



# Comment ID 0168

- A1.001.009

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 3.2

-- Naturally occurring sediment transport rates vary significantly depending upon the local geology and topography. The numeric limits should be established in a manner that is addresses basic geomorphological differences across the country. There may not be one value that fits all circumstances; selecting a value that is lower than the carrying capacity of the stream will result in adverse impacts to that stream (eg, if the volume of sediment instream is less than the carrying capacity, the water will scour out the channel until it reaches equilibrium and the carrying capacity is met).

Response Refer to Response 3.1.



# 3.3 SAMPLING REQUIREMENTS

Comment ID 0017

- A1.001.020

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 3.3 18) 3.3. - All references to stormwater sampling should be removed. This proposal would require such an enormous work effort that proposing it is irresponsible. It is impossible to determine how much preci pitation will initiate a discharge and when that discharge may start. The only way to comply with this requirement is to employee someone to "stand guard" waiting for a discharge. For a multiple mile linear project, that would require a small army of inspe ctors. With such an enormous effort to comply, this rule would have to be life saving, which it clearly isn't since inspections aren't required after work hours.

Response Refer to Response 3.1.



# Comment ID 0047

- A2.001.018

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 3.3 Section 3.3, page 32Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

548 When a construction project is dealing with multiple operators (both primary and secondary), who is responsible for sampling if the site exceeds the disturbance threshold. For example, Xcel Energy has a feeder project that is disturbing 0.8 acres of land on a 23 acre development? And if there is an exceedance in the turbidity result, who is responsible?

Response Refer to Response 3.1.



# Comment ID 0051

- A2.001.004

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 3.3 Sampling requirements to demonstrate compliance with a numeric effluent limit for turbidity (Part 3.3). Monitoring at all dis charge sites, during any storm event that results in a discharge, is an important procedure to reduce sediment pollution into nearby waters. MRWC supports the provided sampling protocols and encourages EPA to require a sampling frequency of every two hours following the first sample. Th is option will serve as a more structured sampling procedure, as compared to the alternative method of sampling at the beginning, middle, and end of the storm duration during each day. It will provide representative samples, less influenced by human
factor s.

Response Refer to Response 3.1.



# Comment ID 0061

- A1.001.002

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 3.3 As described above, the sampling of discharges from LCPs presents challenges not faced in traditional construction projects. By itself, the inability of LCPs to segregate off

- site run

- on from the runoff from their own limited construction activities makes representative sampling impossible, particularly with respect to a ny technology

- based effluent limitation.[FN 6] Moreover, the presence of tens and perhaps hundreds of discharge (and, thus, sampling) locations along a miles

- long linear project renders the sampling protocols established by the Draft Permit [FN 7] logistic ally impracticable, cost

- prohibitive, and inconsistent with the much smaller sampling burden that would be imposed on the vast majority of traditional construction projects.

[FN 6] A broad application of sampling requirements to LCPs not only would be impracticable, but also would not leave the Agency on legally solid ground. In particular, sampling discharge points at LCPs to determine compliance with a technology

- based numeric limitation would be legally problematic, for a number of reasons. Assuming, as the Draft Permit does, that a numeric turbidity limitation will shortly be incorporated into the Construction and Development Effluent Limitations Guidelines, it is likely t hat such a limitation will have been developed based solely on the ability of o ne or more model technologies to reduce pollutant loads in stormwater runoff from construction activities. Unless the record underlying any such numeric limitation specifically characterizes and then accounts for the model technology's treatment efficacy f or combined construction and non

- construction stormwater runoff (that is,
accounts for the unknown but foreseeable run

- on that is unavoidably experienced at LCPs and assesses the cost of treating suchRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

549 additional flows), the resulting effluent limitation wo uld not be applicable to mixed discharges. Moreover, from the permitting perspective, compliance with that standard could not reasonably be assessed by sampling where sampling methods capable of segregating construction from non

- construction runoff are not available.

[FN 7] See, e.g., Draft Permit at 3.3.1.1 (numeric limitation sampling required for any storm event or snowmelt resulting in a discharge); 3.3.2 (numeric limitation sampling must include 3 samples per day of discharge or samples every 2 hours ); 4.2.2.1.b.i (benchmark sampling to comport with Part 3.3.1); and 4.2.2.1.b.ii (benchmark sampling to occur at least weekly and to include 3 samples per day of discharge or samples every 2 hours).

Response Refer to Response 3.1.



# Comment ID 0066

- A1.001.033

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.3 Discussion: These requirements will greatly influence how contractors phase work on linear projects. If these draft rules are approved as written, the trend will be to limit earth disturbing activities to less than 10 acres, since it will not likely be possible to comply with the numeric turbidity limit in all cases. This could exponentially increase construction costs and the time necessary to comp l ete projects.

Suggestion: Exempt linear transportation construction projects from this requirement. Refer to Response 3.1.



# Comment ID 0072

- A2.001.013

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 3.3
The final concern is with the sampling requirements. MoDOT believes the proposed sampling frequency, location and reporting are n ot reasonable for linear transportation products. Highway construction projects can have up to 50 or more outfall/discharge loca tio ns for a single job. Even if a DOT were able to pare down some of the required sampling locations by calling them "substantially ident ical discharge points", there would still be enough sampling locations remaining that the resource commitment would be con siderable. Then, when you multiply the number of sampling locations by the required 3 samples per day per sampling location (during disc harge events) the requirement becomes impractical. The additional resource commitment associated with conducting the req uired sampling and sampling data management for every discharge event for the multitude of job sites across the entire state would be substa ntial. In addition, MoDOT believes there would also have to be a significant resource commitment from the regulatory permitting agency in order to manage and review the mass amount of sampling data that would flood their agency every month. MoDOT commends the EPA for making an attempt to pare down the workload for linear projects by allowing representative sampling for "substantially identical discharge points"; however, even with this flexibility to alleviate some of the workload, the sampling requirements are still believed to be unreasonable and impractical for linear transportation projects for the reasons outlined a bove.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

550 Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.015

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3 Target requests that the Environmental Protection Agency (EPA) clarify whether qualified personnel will be required to collect samples.

Response Refer to Response 3.1.



# Comment ID 0080

- A2.001.023

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 3.3 Additionally, the City objects to the cost of having to purchase, calibrate and maintain several nephelometers, train City staff on the proper use of the nephelometers, and comply with these sampling and reporting requirements on City projects. Also, if the bas eline sampling is not an effective co mpliance tool in the arid west, the City objects to any possible future third

- party sampling compliance mandates which may be included under its existing MS4 Municipal Stormwater Permit Construction Sites Program.

The Partner's contend that visual observ ation and inspection, as now required by the 2008 CGP, is the best indicator of sediment leaving a permitted construction site. Visual inspection remains the most appropriate form of CGP compliance evaluation for sites in
the arid west.

Response
Refer to Response 3.1.



# Comment ID 0080

- A2.001.033

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 3.3 Also, precipitation events less than 2

- year, 24 hour frequency would make it necessary for large NMDOT projects to perform the monitoring for turbidity. Currently NMDOT does not have monitoring requirements and this will add to the cost of the project. The sampling requirements and monthly reports to the EPA require more manpower and funding. The supplemental requirements for "impaired waters" would further add cost. Moreover, it is difficult to monitor rainfalls that occur infrequently, haphazardly , and only last a few minutes, which is characteristic of most rainfalls in New Mexico.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

551 Response Refer to Response 3.1.



# Comment ID 0087

- A1.001.028

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 3.3 The CGP says "[y]ou are required to take samples of your stormwater discharges during any storm event or snowmelt condition that results in a discharge of stormwater from your construction site...." Section 3.3.1.1. This requirement applies to each dischar ge location (Section 3.3.3) on every day of discharge (Section 3.3.1.3). In some parts of the country and d uring some parts of the year, this may necessitate daily sampling. Requiring sampling of each and every discharge is per se unreasonable, especially as there sh ould be little or no variability in the nature of the runoff from any particular disturbed site from one storm event to another. The frequency of sampling proposed by EPA is dramatically different and more extreme than any other stormwater permit and, for that matter, ty pical municipal or industrial NPDES wastewater permits. Moreover, the burden on p ermittees will far outweigh any value derived from the sampling results. It would be far better, more efficient, and more environmentally protective to require permittees to monito r representative stormwater discharges quarterly or at some other reasonable frequency, and then require them to focus their efforts during non

- sampling storm events on the proper operation and implementation of their various site BMPs. Also, sampling should be limited to rain events that are predicted at least 48 hours in advance by the National Weather Service to have a >50% chance of occurring and to generate > 0.5 inch of rainfall.

Response Refer to Response 3.1.



# Comment ID 0090

- A1.001.031

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 3.3 EPA requested comments on the various sampling requirements in the Draft Permit. As to Part 3.3.1.1. on proposed discharge sa mple, AGA observes that the current (2008) NPDES general permit already requires construction sites to provide, maintain, and monitor erosion control. This is documented on the inspections logs completed every 7 days and within 24

- hrs of a precipitation event greater
than 0.5

- inches. If sediment is seen exiting the site, action is required to be taken and documente d. Adding discharge sampling to these detailed requirements is both duplicative and very costly. The requirement could also potentially result in a construction si te being held responsible for up

- gradient pollutant sources or pollution levels that are flow ing through the construction site.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.066

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

552 Issue Category: 3.3 The Draft fails to identify the recording and reporting that its monitoring provisions contemplate. And to that significant degree, the Draft is inconsistent with EPA's NPDES regulations, which state that "all permits shall specify requirements concerning the p roper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate." See 40 CFR § 122.48.

Response Refer to Response 3.1.



# Comment ID 0099.001.002

Author Name: Anonymous Anonymous Organization: Issue Categor y: 3.3 The sampling requirements are also unreasonable.

Response Refer to Response 3.1.



# Comment ID 0100

- A2.001.017

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 3.3 Throughout the document, USEPA consistently refers to sampling for TSS; however, TMDLs, 303d lists, and chitosan are mentioned as concerns. For purposes of the proposed permit, does USEPA propose to only sample for TSS, or will sampling be required for other parameters?

Response Refer to Response 3.1.



# Comment ID 0121

- A2.001.004

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 3.3 The Draft permit's monitoring requirements will not provide meaningful inf ormation and are therefore unwarranted. Stormwater quality and quantity vary widely over short time periods; therefore, grab samples provide little information on the overall quality of storm water discharges. Instead of monitoring, more emphasis on inspec tion of erosion and sediment control measures after sizeable storms is sufficient to ensure their proper operation. This would serve as a more direct means to an end for ensuring that BMPs are installed and operated correctly.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

553 Response Refer to Response 3.1.



# Comment ID 0125

- A2.001.003

Author Name: Johnson Michelle Organization: Northeast Ohio Areawide Coordinating Agency (NOACA) Issue Category: 3.3 Sampling of storm events and discharge is difficult. As outlined in the CGP defensible results are not obtainable and therefore sampling becomes a waste of time and effort yielding very little good data that most likely would not stand up in a court of law.

1 The simplified sampling method proposed in the CGP is not defensible and possibly easily manipula ted. Most sediment controls are designed to fill up and drain down slowly over a 2 to 5 day window to re

- set for the next storm event. Under ideal conditions sampling would occur during the entire drawdown time. The first samples would be the most turbid, after 3

- 5 days the later part of the discharge would be the cleanest, those samples should be averaged to determine effectiveness of the practice. The protocol as outlined in the CGP does not reflect how practices are designed to work. To complicate matter s storms do not always occur 3 to 5 days apart, during back to back storms your beginning and ending points for each event become unclear.

2 Only requiring sampling during business hours again leads to indefensible results. By the time someone shows up in the morning the turbid water from a thunderstorm the night before may be well past an in

- effective sediment control.

3 Sample collection by grab samples leaves a lot of room for human error and influence.

Response Refer to Response 3.1.



# Comment ID 0143

- A2.001.001

Author Name: Bashel Renee Organization: Small Bus. Ombudsman/Small Bus Env Asst Prog Issue Category: 3.3 Comment: The proposed draft permit does differentiate between large and small construction activities with regards to the tur bidity sampling requirements, but imposes the same requirements for a large operator as that for a small operator. We believe this places an undue burden on the small operators, and doesn't consider the difference in available resources.

Response
Refer to Response 3.1.



# Comment ID 0150

- A1.001.001

Author Name: Borysenko Jim Organization: REI Engineering Inc. Issue Category: 3.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

554 I. It is our understanding that EPA is still trying to define it`s Turbidity Limit for larger construction sites. In general, we d o not agree with the idea of the sampling requirements as outlined. If this was expected to work at all, there would likely have to be a means of a 3rd party (certified) agency responsible for setting up a remote collecting station so that the samples can be collected and analyzed for compliance based upon the rainfall. Although a unit like this would likely be expensive to own and maintain, we would see thi s as the only way to make this idea remotely possible and worthwhile. The expectation of having the c ollecting done in person (realtime) is unrealistic and will be too difficult to monitor. The EPA should develop a proprietary (automated) system that accomplishes t his. The approved system can then be rented out (either direct by the permit applicant or through the state water quality organization (eg WDNR). A person with a recognized cert ification (Professional Engineer or similar background with training in using the appa ratus) could then be contracted to collect the samples. This way, the turbidity test ing and monitoring can be done with confidence and more fully meet the intent.

Response Refer to Response 3.1.



# Comment ID 0168

- A1.001.007

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 3.3

-- Requiring an onsite rain gauge or documented gauge within 1 mile of the site with subsequent documentation of precipitation within the SWPPP is recommended. Consistent with the terms of the MSGP, this reflects experience with variable rainfall intensities and durations, and operators indic ating that no rain occurred at their site during working hours.

Response Refer to Response 3.1.



# 3.3.1 WHEN TO SAMPLE. [REQUEST FOR COMMENT]

Comment ID 0037

- A1.001.029

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 3.3.1 The Southern Ute Growth Fund agrees with EPA that including a minimum rainfall amount associated with the turbidity limit bel ow which no sampling is required would be difficult to implement in the field prior to the operator knowing how much precipitation will end up falling. However, the operator is already in a similar position of not knowing during a rain event whether the event w ill be larger than a 2

‐ year 24

‐ hour event and will have to proceed with collecting samples regardless until it is determined that the storm event was greater than a 2

‐ year 24

‐ hour event.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

555 There could be the situation where a rainfall or snow melt event did not result in a discharge that is of sufficient volume to allow collection of a representative sampl e. The proposed CGP does not address this situation. EPA should provide guidance on how this
situation should be documented.

Response Refer to Response 3.1.



# Comment ID 0060

- A1.001.011

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 3.3.1
11. Section 3.3.1 - We recommend that EPA require the owner to collect samples at 2

- hour intervals or some similar set duration of time. There are plenty of sampling devices that are designed to be triggered when a flow is detected. With the use of automatic samplers there is no need to confine sampling to "work hours". By not limiting the sampling to just work hours, an owner would have the ability to monitor the efficiency of the erosion and sediment controls at all times. Turbidity has a 48 hr holding time, therefore, samples collected on a Saturday could still be sent to the laboratory on Monday for analysis.

In addition, the "discharge condition" needs to be more precisely defined. However, we do not th ink defining it by a rainfall amount is appropriate. Given a set amount of rainfall, say 0.25" for example, a construction site that is predominantly sand will handl e that amount differently than a site that is predominantly clay soils. The 0.25" of rain m ay not cause a "discharge" at the site with sands, but will likely cause one at the site with clay soils.

Response Refer to Response 3.1.



# Comment ID 0067

- A1.001.013

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 3.3. 1
This section of the CGP has conflicting language as to when sampling must commence

- only during normal business days but within one hour of discharge from the project site. As noted above, a typical transmission line spans numerous drainage basins. Samp li ng all or even a representative number of outfalls on a major line construction project would be very difficult to perform within on e hour of the discharge occurring, particularly when factoring in terrain of many transmission line ROWs. Results of samplin g must be reported

on at 30

- day intervals. If the turbidity field reading exceeds the discharge limit, corrective actions to reduce the readings to withi n acceptable limits. Entergy requests that EPA remove these monitoring requirements and, instead, state that compliance with the best management practices required by the CGP will constitute compliance with the Clean Water Act for purposes of stormwater pollu tion
control.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

556 

# Comment ID 0071

- A3.001.010

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 3.3.1 •Part 3.3 Sampling Requirements. CDOT supports taking samples during working hours and not requiring sampling during unsafe
conditions.

Response Refer to Response 3.1.



# Comment ID 0075

- A2.001.023

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 3.3.1 A relative turbidity increase requirement may be more reasonable than a flat rate since the turbidity of stormwater entering a project may already exceed the NTU threshold.

Response Refer to Response 3.1.



# Comment ID 0121

- A2.001.008

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 3.3.1
Section 3.3.1 requires sampling " ... during any storm event or snowmelt condition that results in a discharge of storm water from yo ur construction site ... " Ensuring that samples are collected during any runoff event will be very difficult in many circumstan ces and likely impracticable. Small unexpected precipitation events may lead to very minor intermittent runoff. Ensuring that this ru noff is sampled would be very challenging and would require substantial resources. Even more challenging would be collecting r unoff from all snowmelt events. Snowmelt can occur slowly over days or weeks. During this time there may be very low and intermittent fl ows from a construction site. Ensuring that samples are collected from all runoff events is impracticable. Instead the p ermit should require sampling following a set amount of precipitation, for example following a 0.5 inch of rain. This would provide a clear standa rd for when sampling should be required.

Response Refer to Response 3.1.



# Comment ID 0131

- A1.001.033

Author Name: Gear KenRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

557 Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.1 Part 3.3.1 defines when to sample and includes sampling of authorized non

- stormwater discharges. Allowable non

- stormwater discharges are defined under part 1.4.1.4 and are "allowable" as long as they do not impact water quality standards. If any of the 11
allowable non

- stormwater sources are expected to be discharged off

- site, BMPs are required to be listed in the SWPPP to prevent impact to water quality standards. What benefit will be added by sampling allowable non

- stormwater discharges? Sampling for
allowable non

- stormwater discharges will add significant burden and cost to the project including additional manpower needed to take the sample and cost of submitting t o laboratories for analysis.

LBA suggests removing allowable non

- stormwater sampling requirement from the permit. If EPA does not remove non

- stormwater sampling requirements from the Proposed CGP, then the EPA should add non

- stormwater sampling as a separate requirement apart from general sampling requirements and more clearly define more limited sampling and analytical requirements for this allowab le discharge.

Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.022

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.1 2. Determining the appropriate stormwater sampling times (start and interval) is always a problem as runoff hydrographs do no t follow nice patterns. In the absence of continuous m onitoring, it is difficult to develop a method that will document all exceedences of water quality standards. Finding a time schedule that will achieve that is difficult. The interval used should sample the entire st orm, however, it is hard to predict the expected duration at beginning of a storm. It is important to have a rainfall event that is too small to sample. It should at least exclude rainfall events that are a trace. A suggestion is that it set for rainfall events that exceed the ini tial abstractio ns. I have no clue as to what should be done for sampling intervals.

3. "When to Sample" - The requirement to sample when discharge occurs is sufficient. If a 2

- year, 24

- hour event or greater occurs, sampling should be conducted up to the point rainfall depth exceeds the amount for the 2

- year, 24

- hour storm event at the given intensity for the area in question.

Response Refer to Response 3.1.



# Comment ID 0168

- A1.001.006

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 3.3.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

558 -- We suggest requiring sampling after precipitation occurs in excess of 0.1 inch, or sufficient to cause runoff from the site; thi s is consistent with the monitoring threshold for industrial sites covered under the Multi

- Sector General Permit (MSGP).



# 3.3.1.1 TYPES OF DISCHARGE CONDITIONS REQUIRING SAMPLING

Comment ID 0021

- A1.001.004

Author Name: Unrein Terrance Organization: Tepa Issue Category: 3.3.1.1 4. How would you conduct the sampling for the NTU requirements if a site is discharging via sheet flows with no concentrated flows occuring?

Response Refer to Response 3.1.



# Comment ID 0037

- A1.001.030

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 3.3.1.1 Part 3.3.1.1 requires that samples must be collected o f "stormwater discharges during any storm event or snowmelt event condition that results in a discharge from your construction site." According to Appendix A, a storm event is defined as "a precipitation ev ent that results in a discharge." During the monsoon season in the southwest, there can be one or more thunderstorm during a work day and one or more of them may result in separate distinct discharges from a site. If the discharge from the site is non

‐ continuous, is each
thunderstorm that results in a discharge considered a storm event as per the permit definition? If so, will the operator have to collect
three samples during each discharge if the thunderstorm is less than or equal to the local 2

‐ year 24

‐ hour storm? EPA should revise this
Part to addres s areas that have a monsoon season so that it will not be overly burdensome for the operator to comply with the sampling requirements.

Response Refer to Response 3.1.



# Comment ID 0062

- A1.001.042

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.1.1 Brevard County Comment: Many contractors stop work and go home when it starts raining.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

559 

# Comment ID 0076

- A1.001.018

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.1.1 Target recommends that snowmelts not be considered monitorable events as it is neither practical nor representative of site c onditions.
Snowmelts are difficult to monitor. When snowmelt events are normally occurring, the soil is frozen and therefore sediment mobility is
limited.

Target also believes that to capture an event within an hour of when discharge has begun is very difficult to do. Alternative ly, if the EPA intends to keep monitoring requirements for snowmelt events, they should consider removing the one hour timeframe. The one hour requirements is also not necessary because of the accumulation of sediments over the winter, the snowmelt would be homog enous and therefore not capture a flash flush, which is presumed what the one hour requirement was intended to capture.

Lastly, often during winter conditions the site may be temporarily inactive. Target is uncertain if the EPA intends to requir e monitoring at these times and questions whether snowmelt matters when the site is still covered with snow. Target suggests that instead the emphasis be placed on stabilization Best Management Practices (BMPs) prior to inactivity or winter weather and snow cover.

Response Refer to Response 3.1.



# Comment ID 0100

- A2.001.009

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 3.3.1.1 Section 3.3.1 describes USEPA's suggested types of discharge conditions requiring sampling. USEPA is suggesting the requireme nt to take samples of stormwater discharges during any storm event or snowmelt condition that results in a discharge of stormwater from the construction site, or when there is an authorized non

- stormwater discharge from the site. This is not practical nor is it feasible. USEPA should define is required to sample. Who is the responsible party? Is this a self

- monitoring effort? Please explain how you expect responsible parties to sample sheet flow. USEPA should also explain how it is expected to sample snow melt a nd when is the sample to
be collected.

Response Refer to Response 3.1.



# Comment ID 0127

- A2.001.006

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 3.3.1.1
Section 3.3.1.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

560 Proposed Language
You are required to take samples of your stormwater discharges during any storm event or snowmelt condition that results in a discharge of stormwater from your construction site, or when there is an authorized non

‐ stormwater discharge from your site.

Concern

Com pliance will be difficult to achieve during inactive construction periods when construction staff is no longer onsite while f inal stabilization (grass growing) is occurring.

Suggested Correction
Add language that states the samples are only required during active construction phases.

Response Refer to Response 3.1.



# Comment ID 0146

- A1.001.004

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 3.3.1.1 3.3.1.1: "You are required to take samples of your stormwwater discharges during any storm event or snowmelt condition that results in a discharge of stormwater from your construction site." 3.3.2: "You must collect your first sample within the first hour t hat the discharge begins. After you take your first sample you must take a minimum of 2 additional samples during the remaining hours of the work day that the discharge continues. The 3 samples must be distributed in such a way that the beginning middle, and end of the discharge for that day are repr esented. If the discharge continues on the subsequent day(s),. You must take a minimum of 3 samples per day that there is a discharge." 3.3.3: "You must take samples of all discharge points where stormwater is discharged."

The projects that we work on vary from a Burger King on a half

- acre lot to subdivisions or plants with several hundred acres. In the State of Tennessee, no more than 50 acres can be disturbed at any one time under a general permit, and our clients adhere to this regulation. However, tha t does not mean that all 49 exposed acres are contiguous and drain to a single outfall. It is typical in subdivision development to have vertical construction (home building) underway on vacant, exposed lots at the same time that a new phase of the subdivi sion is under land development construction. Multiple outfalls are typical to accommodate our rolling terrain and eliminate one single, large wet or dry pond which can be unsightly or a hazard to children. Just making it around to all of t he outfalls

on so me of our sites would take an hour, never mind sampling or intelligent observations of any conditions.

Tennessee enjoys an average rainfall of 48" per year, and it is dispersed throughout the year. Pop

- up storms and showers are frequent in the summer, and their development and trajectory are unpredictable. The draft permit sampling requirements would necessitate having a designated person present at all times the site is active to conduct inspections and take stormwater samples under t he permit
criteria. This person could not leave the site unless a replacement was designated: not for meetings, not for training, not for lunch. The use of automatic sampling equipment in a heavy construction environment is not practical because of dirty site conditions, th e dynamic and unstable working environment, and the high potential for damage to these expensive instruments that would have to be plac ed at every outfall. At the end of my comments, I will discuss what I believe would be a workable combination of inspection s, required observations, and water sampling.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

561 Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.023

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.1.1 Mild, non

- intense events may not generate enough runoff sufficient to collect any type of sample.· Dependent upon construction sequencing, some post construction BMPs may facilitate infiltration, further reducing available runoff from disturbed areas t hat have not reached final vegetative stabiliz ation. Regardless of these challenges, the resources/logistics associated with sampling makes it impractical to capture samples for all events. Weather forecasts and radar will have to be used to anticipate the collection of an appropriately sized event, > 0.25 inches. EPA should expect the permittee to miss storm events due to the unpredictability of localized
weather.

Response Refer to Response 3.1.



# 3.3.1.1Q MINIMUM RAINFALL AMOUNT FOR NO SAMPLING

Comment ID 0015

- A2.001.011

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.1.1Q Q 12. Rainfall limit for sampling - Agree, seems reasonable. The 2

- year, 24 hour storm event could be used to create a volume based
standard - i.e. "1⁄2" of rainfall. Th en operators could judge sampling need based on predicted rainfall amounts.

Response Refer to Response 3.1.



# Comment ID 0046

- A1.001.017

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 3.3.1.1Q The Department believes a minimum rainfall amount is a must. It is very difficult to predict when runoff will occur and it is almost impossible to monitor. Having a clear and measurable trigger to require the Contractor to act is invaluable. The Department believes sampling should begin after 0.5" of liquid precipitation has fallen during working hours is prudent in New Hampshire. Measuri ngRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

562 precipitation works very well and can be automated so the Contractor, third party monitors, Department Personnel and Regulators all
get an e

- mail or text message at the same time.



# Comment ID 0055

- A1.001.009

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 3.3.1.1Q
A minimum rainfall benchmark should be included in the permit. However, there should also be definitions of continuous rainfall events. Continuous outflow from the site may result when relatively quick back to back events occur. Smaller rainfalls with f requent occurrences should be addressed in the permit to avoid interpretation.

Response Refer to Response 3.1.



# Comment ID 0065

- A1.001.021

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 3.3.1.1Q Section 3.3.1.1 states the types of discharge conditions that require sampling. EPA requested comment on whether a permit should include a minimum rainfall amount below which no sampling is required. CCWC believes that it would be possible to implement s uch a minimum rainfall requirement in the field. For exampl e, if a rain gauge is installed at the site, the site contractor could be required to take a sample only if the rain gauge indicates more than 0.25" or other established amount of rain has fallen

Response Refer to Response 3.1.



# Comment ID 0066

- A1.001.034

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.3.1.1Q Discussion: Taking samples during a rainfall event is often problematic, and involves life and safety issues that cannot be i gnored. The problem is not only asking if there should be a minimum rainfall event that would trigger sampling, but whether or not there is a maximum that is unsafe. Texas historically has large and highly productive storm events that can produce 2 to 5 inches at a time. You do not know how much is produced before the rainfall occurs, only afterwards.

Suggestion: Setting a minimum rainfall standard is questionable at best.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

563 

# Comment ID 0070

- A1.001.006

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 3.3.1.1Q d. Discharge Condition Types Requiring Sampling - Alcoa has concerns as to how the sampling condition as written will be interpreted. In some parts of the country distinct rainfall events can occur several times per day or on consecutive days for a week or longer. Would sampling each of these individual events provide meaningful information on compliance? Also, if a design storm event is chosen, how will the time period be determined for compliance purposes if rainfall occurs sporadically over several days?

Response Refer to Response 3.1.



# Comment ID 0074

- A2.001.015

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 3.3.1.1Q The DEQ believes a minimum rainfall amount can be difficult to determine because there are so many factors that can affect stormwater discharges during any storm event or snowmelt. It is often not possible to take a sample during storm events that result in a discharge of s tormwater. EPA should consider requiring sampling only when the rain event meets the inspection criteria of within 24 hours of a 0.5 inch rainfall or greater. This will allow owners/operators to obtain samples at the same time that inspections of the site are occurring.

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.017

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.1.1Q Target thinks that the EPA should not include language about minimum rain events. As stated in previous comments, Target believes that all monitoring should hinge on whether there are measurable surface discharges which can be sampled. Because of variabil ity of soil and site conditions, a minimum storm event would not help in determining whether a Permittee would need to sample. By including language which makes monitoring based on measurable events the EPA would be simplifying the permit and making language which is easily understood by regulated parties. Target understands the intent of the proposal, but supports establishment of a standard that can be applied in practice.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

564 

# Comment ID 0077

- A1.001.005

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 3.3.1.1Q Samples could be taken as prescribed by the requirements of the regulations and if the rainfall amount is under the threshold then the samples are simply disregarded. There may be times when the rainfall amount does not produce sufficient runoff for the requir ed sampling as prescribed under the proposed ruling

Response Refer to Response 3.1.



# Comment ID 0085

- A2.001.014

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 3.3.1.1Q Rockville supports requiring turbidity sampling after all sizes of rain events because this data will help design and construction professionals assess the efficacy and function of sediment control BMPs.

Response Refer to Response 3.1.



# Comment ID 0087

- A1.001.045

Author Name: Smith Brooks Organization: Utility Water A ct Group (UWAG) Issue Category: 3.3.1.1Q UWAG supports the implementation of a minimum rainfall amount below which no sampling is required. Requiring sampling for every rain event, even very small ones, is too burdensome and would result in significant expenditures for companies located in an area of significant rainfall, with multiple projects being carried out at one time.

Response Refer to Response 3.1.



# Comment ID 0088

- A1.001.020

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 3.3.1.1Q Among the unrealistic requirements are:

-- Minnkota believes that trying to apply a minimum precipitation amount to a sUbstation construction site as if it was an indus trial facility with impervious surfaces is not a good fit situation. Impervious surfaces act in a similar manner with respect to water flowRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

565 regardless of their location. Varying geographical, climatic, soil, and geomorphological setting dictate water borne sediment transport. In much of our operating region, tak ing into account our typical substation project, we typically wouldn't have appreciable sediment transport with a 0/. inch rainfall event (in a 24 hour period). In addition, the majority of streams and rivers would have a background TSS level exceeding wha t it would receive with up to a 0/. inch event due to their setting within fine silt \ clay areas. We would suggest that minimum rainfall amounts would best be established on a project

- specific basis, and that should be with respect to larger projects
of a n on

- linear type.

Response Refer to Response 3.1.



# Comment ID 0091

- A2.001.010

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 3.3.1.1Q 10. Fact Sheet Item 12. Part 3.3.1.1: A minimun rainfall and snowmelt event (or rate) should be established below which no sampling is required. A recommendation is 20% of the 24

- hour 2 year design storm. In western Washington, many storm events last many hours, but only produce minor amounts of precipitation.

Response
Refer to Response 3.1.



# Comment ID 0093

- A2.001.072

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.1.1Q AGC urges EPA to include a minimum rainfall amount in the permit. Smaller rain events are unlikely to cause significant erosion, and the total volume of water discharged, if any, would be small and short

- lived. Any low amount of runoff from these events can be very difficult to sample cleanly, and the measured turbidity might artificially appear to be m uch higher than the actual runoff. The recently adopted California CGP (effective July, 2010) only requires sampling from rain events that exceed 0.5 inches. Similarly, AGC recommends that EPA not require turbidity sampling for rain events less than 0.5 in ches. If a site starts having discharge, and the operator takes a sample within the first hour of discharge, the results need not be reported if the rain event does not excee d 0.5 inches. EPA might specify that to qualify for this exemption, the site must have a suitable rain gauge on the premises.

In the Draft, EPA expresses some concern about this approach. It questions, for instance, how a permittee could know how much precipitation would end up falling. AGC, however, recommends that EPA define a minimal rainfall for which reporting would not be required, instead of exempting sampling for a pre

- determined minimal rainfall event. This approach would achieve EPAs goals while eliminating operator speculation as to how much precipitation will fall.

R esponse Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

566 

# Comment ID 0096

- A1.001.046

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.1.1Q EPA has requested comment on whether the permit should include a minimum rainfall amount below which no sampling is required. As drafted, the permit only requires sampling when there is discharge. For many construction sites that can have stormwater d etention ponds, discharge is unlikely to occur for small rain events less than 0.5 inches unless th ere is significant impervious area at the site. However, at other construction sites, including but not limited to linear projects such as road construction, ponds are not f easible, and runoff might occur for smaller rain events. These smaller rain events are unlikely to cause significant erosion, however, and the total volume of water discharged, if any, would be small and short

- lived. Any low
amount of runoff from these events can be very difficult to sample cleanly if no outfall is present (such as a roa dside ditch), and the measured turbidity might artificially appear to be much higher than the actual runoff. For example, the recently adopted Cali fornia CGP65 (effective July, 2010) only requires sampling from rain events that exceed 0.5 inches. For all o f the above reasons, NAHB recommends that turbidity sampling not be required for rain events of less than 0.5 inches. If a site starts having discharge and the operator takes a sample within the first hour of discharge, the results need not be reported if the rain event does not exceed 0.5 inches.

Response Refer to Response 3.1.



# Comment ID 0097

- A1.001.009

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 3.3.1.1Q
12. A minimum rainfall amount should be included. For sites with on

- site storage, which results in the point discharge conditions, the testing would not start until well into the event and the minimum would probably be reached.

Response Refer to Response 3.1.



# Comment ID 0102

- A2.001.007

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 3.3.1.1Q a. Local/state information should be available that can provide an estimate of a minimal runoff

- producing rainfall event - this should be the minimum rainfall depth required to trigger monitoring efforts.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

567 

# Comment ID 0110

- A1.001.011

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 3.3.1.1Q I think it should be required as written and if not enough water was generated for sampling then the appropriate documentation stating
that this is what occurred should be filed.

Response Refer to Response 3.1.



# Comment ID 0117

- A1.001.005

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 3.3.1.1Q EPA requests comment on whether the permit should include a minimum rainfall amount associated with this requirement below which no sampling is required. The Agency has some concerns about this approach, for instance, how it would be implemented in the
fie ld prior to the permittee knowing how much precipitation will end up falling, but is interested in feedback on this issue. Sa mples could be taken as prescribed by the requirements of the regulations and if the rainfall amount is under the threshold then th e samples are simply disregarded. There may be times when the rainfall amount does not produce sufficient runoff for the required sampl ing as prescribed under the proposed ruling.

Response Refer to Response 3.1.



# Comment ID 0123

- A2.001.011

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 3.3.1.1Q Comment: The proposed language to require monitoring whenever a discharge occurs is appropriate. A minimum rainfall threshold may not account for hi gh intensity, short duration storms where discharges could exceed limits

Response Refer to Response 3.1.



# Comment ID 0126

- A2.001.013

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 3.3.1.1Q
The CSC has concerns about the implementation of the minimum rainfall sampling requirement. It is difficult to predict the amount of rainfall that will occur and the resulting runoff.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

568 Response Refer to Response 3.1.



# Comment ID 0131

- A1.001.015

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.1.1Q Sampling for "any storm event or snowmelt condition that results in a discharge of stormwater from your construction site" is impractical and overly burdensome. The practical as pects of potentially monitoring flow, which may or may not occur or that is intermittent, will dramatically and unreasonably increase field effort and sampling costs. This is particularly the case at c onstruction sites (as opposed to general urban storm wa ter sampling) as during construction many sites have little imperviousness for extended periods during mass grading. It would be a dramatic improvement to allow the design engineer to define storm conditions as pa rt of the SWPPP development that should be sampled based on runoff instead of rainfall. LBA recommends this approach.

If a single threshold were to be selected nationwide for construction sites it would be reasonable to focus on events greater than 0.25 inches in magnitude. At many construction sites a minimum event size of 0.25 inches can be expected to produce some runoff.

In many jurisdictions the legal definition of what a storm event is tied to a minimum magnitude. For example Virginia defines "Storm event" in code for the VPDES program (9V AC25

- 151

- 70

- A.2.b) as an "event that is greater than 0.1 inch in magnitude (defined as a "measurable" event), providing the interval from the preceding measurable storm is at least 72 hours." Various similar defini tions apply across the country. As almost every storm water monitoring Quality Assurance Project Plan reviewed and approved by EPA indicates, establishing a minimum storm size or minimum mobilization criteria for runoff sampling is technically sound and pr actical.

In addition, it is widely accepted in storm water monitoring guidance that readily available tools such as NOAA Quantitative Precipitation Forecasts (QPFs) and Probability of Precipitation (POP) forecasts can be used to establish quantitative samplin g mobilization criteria. At all sites, the utilization of forecast information is a practical approach; however, at remote sites or those requiring significant mobilization time, using forecast information is the only practical means for conducting a thoughtful and not wasteful sampling progra m. QPFs and POPs are easily accessible to the public via the NOAA web site: ( http://www.hpc.ncep.noaa.gov/pqpf_6hr/conus_hpc_pqpf_6hr.php ) and are auditable as sampling mobili zation criteria.

Response Refer to Response 3.1.



# Comment ID 0137

- A2.001.014

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 3.3.1.1Q The permit should not include a minimum rainfall amount

‐ it should be measured anytime there is a discharge of stormwater. Not only would it be hard to implement in the field, it would be hard to enforce.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

569 

# Comment ID 0145

- A2.001.013

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 3.3.1.1Q There should not be a minimum rainfall amount below which no sampling is necessary. Sampling should be undertaken during all conditions that result in a discharge of stormwater. Earth

- disturbing activities associated with construction and development frequently concentrates stormwater flow in ways that do not allow stormwater infiltration and exacerbates stormwater runoff.



# Comment ID 0153

- A1.001.021

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.1.1Q 1. A minimum storm event should be listed, because a very small event (say 0.1 inches) may have a discharge only during a ver y short period of time during the first hour, and then there may be no more discharge for the remainder of the sampling period.

Response Refer to Response 3.1.



# Comment ID 0159

- A1.001.011

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 3.3.1.1Q The permit should not include a minimum rainfall amount - it should be measured anytime there is a discharge of stormwater. Not only would it be hard to implement in the field, it would be hard to enforce.

Response Refer to Response 3.1.



# Comment ID 0170

- A2.001.009

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 3.3.1.1Q The permit should include a minimum rainfall amount associated with the requirement to sample. Traveling to remote or unstaff ed sites to determine if a discharge is occurring is an inefficient use of resources and will result in unneeded trips when no discharge is occurring. A logical, common sense approach would be to utilize the 0.25 inch rainfall inspection minimum in Part 5.1.2 as the rainfall minimum above which sampling requirements would be triggered.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

570 Response Refer to Response 3.1.


# 3.3.1.2 SITE CONDITIONS NOT REQUIRING SAMPLING

Comment ID 0030

- A2.001.023

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 3.3.1.2
Section 3.3.1.2, page 33 This needs to be more clear if it applies to sites that do not have a concentrated flow and where, in larger events, a discha rge may leaveas sheet flow. For example, along a pipeline where there may be a silt fence or sediment control log along the downgradient perimeter, what if a relatively small portion of stormwater seeps through the BMP? is this considered to be a non

- discernible flow? This type of grab sample will be almost impossible to sample without building a trench along the peri meter and purposely concentrating the flow, which would be counter productive in terms of protecting stormwater quality.

Response Refer to Response 3.1.



# 3.3.1.3 TIME OF DAY

Comment ID 0015

- A2.001.034

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.1.3 3.3.1.3 Why is the 6am to 6pm time standard not used here, it is used elsewhere? Also workers should not be able to leave in the middle of required sampling. The current text encourages oper ators to wait till end of work shift to sample and therefore call an end to the day before completion.

Response Refer to Response 3.1.



# Comment ID 0064

- A1.001.027

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.3.1.3
Section 3.3.1.3, page 33 - "... normal working hours are considered to be Monday through Friday, between the hours of 8:00 a.m. and 6:00 p.m...."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

571 •Typical working hours are 8:00 a.m. to 5:00 p.m. Suggest changing this language accordingly.

Response
Refer to Response 3.1.



# Comment ID 0093

- A2.001.075

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.1.3 According to the Draft Part 3.3.1.3, "normal working hours are considered to be Monday through Friday, between the hours of 8:00 am and 6:00 pm, unless your working hours are different at your site." This appears to arbitrarily dictate the working day, and also potentially would require overtime, since this is longer than 8 hours. EPA is not in a positio n to judge what normal hours work best for aconstruction site. For example, 6:00 pm during the winter is dark in most locations, and many construction activities might not be practical. Most construction sites likely have a set period of time each day where the permanent work crews and their direct supervisors are expected to be at the site working, however, these hours may vary seasonally or for other reasons. EPA should delete any reference to a specific time of day and indicate that the company's general hours of business (when sampling could occur) should be specified in the SWPPP, with flexibility to cover seasonal or job related adjustments.

Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.048

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.1.3 EPA states that normal working hours are considered to be 8:00 AM to 6:00 PM, Monday through Friday. This appears to arbitrar ily dictate the working day, and also potentially would require overtime, since this is longer than 8 hours. EPA is not in a position to judge what normal hours work best for a construction site. For example, 6:00 PM during the winter is dark in most locations, and many construction activities might not be practical. Most constructio n sites likely have a set period of time each day where the permanent work crews and their direct supervisors are expected to be at the site working, however, these hours may vary seasonally or for other reasons. The general hours of business (when samplin g could occur) could be specified in the SWPPP (if different from 8 AM to 6 PM), with flexibility to cover seasonal or job related adjustments.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

572 

# Comment ID 0098

- A1.001.015

Author Name: Davis Richard Organization: Beveridg e & Diamond, P.C. Issue Category: 3.3.1.3 This Part is unclear and may inadvertently suggest that the hours from 8:00 AM to 6:00 PM are somehow the preferred, or that they are default working hours for projects. We appreciate the Agency's recognition that sampling crews should not be required to respond outside of a site's normal working hours but suggest that this Part be revised to eliminate the reference to "8:00 AM to 6:00 PM." Instead, we recommend that this Part be revised to state that the permittee is responsible for establishing and memorializing the actual working hours on its site

Response Refer to Response 3.1.



# Comment ID 0100

- A2.001.010

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 3.3.1.3 It is not practical to deploy staff to sample within the first hour that discharge begins. This would require additional staf f and funding to support sampling of this frequency. USEPA should state what the purpose of the sampling effort of snowmelt and rainfall within the first hour. Why is this data being collected? This not practical in the least.

Response Refer to Response 3.1.



# 3.3.1.4 UNSAFE STORM CONDITIONS UNDER WHICH SAMPLING IS NOT REQUIRED

Comment ID 0021

- A1.001.006

Author Name: Unrein Terrance Organization: Tepa Issue Category: 3.3.1.4 6. If a site is shut down due to a storm event and considered a "weather day" as defined by the U.S. Army Corps of Engineers does
NTU sampling and monitoring still need to occur?

Response
Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

573 

# Comment ID 0062

- A1.001.043

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.1.4 Lightning, wind, snow... Nobody has to sample.

Response Refer to Response 3.1.



# Comment ID 0075

- A2.001.024

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 3.3.1.4 High elevation, mountain thunderstorms have high potential of death or injury from lighting strikes. Absolutely, no sampling should be inferred during their passage over a site since the inspector would be well

- grounded standing in water or saturated soil plus placed in an exposed, open location.

Response Refer to Response 3.1.



# Comment ID 0087

- A1.001.030

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 3.3.1.4 Section 3.3.1.4 identifies situations under which it is not safe to conduct sampling and during which sampling is not require d. Because many linear projects are located in areas where there is limited access on paved roads, EPA should also consider that situations will arise when access to discharge locations is unsafe and sampling (and inspections) cannot be conducted. EPA should add "unsafe access" to their list of examples of when it is not safe to sample.

Response Refer to Response 3.1.



# 3.3.2 SAMPLING FREQUENCY. [REQUEST FOR COMMENT]

Comment ID 0007

- A1.001.005

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 3.3.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

574 Comment: The requirement to sample within the first hour that the discharge begins will be practically impossible to implement. For example, the normal workday is 8:00 a.m. to 5:00 p.m. The probability that a storm event will occur and cause discharge to oc cur during the normal work hours s eems to be low. Also, for a typical construction site, the travel time to the site for someone who is charged with the responsibility to sample could very well be in excess of the minimum requirement cited. Unless the site if v ery large, most sites will not be able to support a person qualified to sample to be on site all the time. That qualified person will likely be overseeing several sites. More flexibility is needed in this paragraph.

Response Refer to Response 3.1.



# Comment ID 0032.001.002

Author Na me: Sadar Mike Organization: Hach Company Issue Category: 3.3.2 In section 3.3.2, it is suggested that three separate samples be measured, and the results averaged. To reduce variability in the measurement, we suggest that the three samples be combined int o a single composite sample. The composite sample should be measured in triplicate, with the results averaged.

Response Refer to Response 3.1.



# Comment ID 0034

- A1.001.008

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 3.3.2 Proposed Requirement/Section Addressed: CGP Section 3.3.2, Daily sampling requirements of discharges (three times per day at all discharge points) for projects which meet the size thresholds. The three samples must be taken and distributed in such a way that the beginning, middle, and end of the discharge for that day is represented. EPA also asks for comment regarding taking samples a t two hour frequencies following the first sample.

Comment: For high rainfall areas such as Bremerton, WA which rec eives rainfall 150 days per year, this will require significant effort (manpower and cost) that would require a full time person to perform sampling. Even in areas with moderate rainfall amounts, this requirement would be burdensome. Since it is not possib le to know how long a storm event will last, it is not possible to plan sampling times to represent the middle and end of the discharge. Discharges could already be occurring at the beginning of the workday , extend past the workday, or start/stop within th e workday

Discussion: It is unclear whether EPA is saying that it is their expectation that sampling only during working hours. Recogni zing that it is difficult to predict how long discharges will occur, what size storm is causing the discharge, and the manpower needed for this effort, some flexibility in sampling frequency should be provided.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

575 Recommendation: Samples should be taken at the beginning of the day or the beginning of the discharge (whichever occurs later ) and then two more samples should be collected at set time intervals of one to three hours.

Response Refer to Response 3.1.



# Comment ID 0040

- A1.001.015

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 3.3.2 The permit requires the permittee to collect the first sample during the first hour after a discharge begins and take a minimum of two additional samples during the remaining hours of the work day (for normal working hours) that the discharge continues. Sectio n 3.3.4. The three samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represented. Rain events are too unpredictable to be able to comply with these requirements.

Response Refer to Response 3.1.



# Comment ID 0046

- A1.001.018

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 3.3.2 Measuring every 2 hours for 8 hours (4 rounds maximum) after 0.5" of precipitation has fallen is appropriate. Sampling should
continue until the ELG is met.

Response Refer to Response 3.1.



# Comment ID 0046

- A1.001.019

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 3.3.2 Sampling every single drop of stormwater leaving a site is not feasible. It may be feasible to require a certain percentage of the stormwater to be sampled. Small discharges could be visually checked.

Response Refer to Response 3.1.



# Comment ID 0055

- A1.001.010

Author Name: Gucker HansRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

576 Organization: Ohio Department of Transportation (ODOT) Issue Category: 3.3.2 Requiring 3 samples per day as described in the permit seems excessive and unnecessary. Performance of a particular BMP shoul d not vary from day to day if maintained correctly. A representative samp le taken less frequently should suffice in determining BMP's
effectiveness.

Response Refer to Response 3.1.



# Comment ID 0060

- A1.001.012

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 3.3.2
12. Section 3.3.2 - We do not think that the "beginning, middle, and end" of the discharge period is a good way to define when to take the samples. How will the owner know when the storm/discharge will end? If they don't know when it is going to end, how do th ey determine the middle? Additionally, once the discharge condition "ends," there will be no flowing water to collect for the sa mple. We recommend that EPA require the owner to collect samples at 2

- hour intervals or some similar set duration of time. Also, caution should be taken with the caveat that allows the owner to take more than the required 3 samples. How do we prevent them from collecti ng more samples after the peak of flow that will "dilute" down their turbidity average?

Response Refer to Respons e 3.1.



# Comment ID 0064

- A1.001.028

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.3.2 Section 3.3.2, page 33 - "You must collect your first sample within the first hour that the discharge begins."

•This could be very difficul t to meet especially if only certain personnel are trained to take samples. Consider only requiring three samples every 24 hours during a rain event or, at a minimum, increasing timeframe for initial sample to within 3 hours after the discharge begins.

Response Refer to Response 3.1.



# Comment ID 0067

- A1.001.012

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 3.3.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

577 This section of the CGP establishes a minimum sample collection and analysis for turbidity of three times daily from each outfall when discharge is occurring. Discharges during a two

- year, 24

- hour storm event (4"

- 6" of rain for Entergy's service area) are exempted from the limit during the storm event; however, as written, the numeric limit would apply afterwa rds even if the site is inundated by
floodwaters

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.019

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.2 Target believes that the EPA suggested monitoring frequency is impractical. Target recommends that flexibility be allowed on monitoring frequency and when actual samples are collected.

Target prefers that one sample be collected at the highest intensity of the event, or beginning of the event. This monitoring scheme would allow for samples to be collected during first flush and while runoff events are the most intense. Target believes this is the basis
for the limit and demonstrates BMPs maximum effectiveness.

Target also is concerned about the ambiguity of permit language in this requirement. What will be the determination for beginning, middle, and end of event? How will this requirement be enforced? Will Permittees be penalized if not exact in the timing of c ollection? There are currently no definitions explaining phasing of a storm event and this could become up to the interpretation of the Permittee
or enforcement official.
Response Refer to Response 3.1.



# Comment ID 0086

- A1.001.015

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 3.3.2 The proposed CGP requi res the permittee to collect the first sample during the fi rst hour after a discharge begins, and tak e a minimum of two additional samples during the remain ing hours ofthe work day (for norma l working hours) that the discharge continues. Secti

on 3.3.4. The three samples must be di stributed in such a way that the beginni ng, middle, and end of the discharge for that da y are represented. Tri

- State beli eves that rainfall events are too sporadi c and unpredictable over the course ofa day, and make compliance with these requirements impractical in the arid west. Tri

- State believes that EPA should provide an alternative sampling methodo logy
for these situations.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

578 

# Comment ID 0088

- A1.001.010

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 3.3.2 Among the unrealistic requirements are:

-- the obligation to collect a minimum of three samples in connection with each storm event from each stormwater outfall (with limited opportunity to designate representative outfalls)

Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.047

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.2
In this section, EPA states -
“You must collect your first sample within the first hour that the discharge begins. After you take your first sample (as required in Part 3.3.1), you must take a minimum of 2 additional samples (a total of 3 samples) during the remaining hours of the work day (for normal working hours) that the discharge continues.
The 3 samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represe nted. If the discharge continues on the s ubsequent day(s), you must take a minimum of 3 samples per day that there is a discharge.”

We cannot meaningfully comment because our comment will depend on the turbidity limit. And only the EPA knows what that limit is going to be. Requiring multiple sam ples over a specified period of time would create manpower issues and significantly raise the cost of stormwater compliance. EPA should allow flexibility for monitoring depending on site conditions and preceding data from the site which shows consistently low discharge.

EPA is proposing to have a sample collected within the first hour that the discharge begins. In many cases, a site operator may not be onsite to witness the beginning of a discharge, especially if it occurs outside working hours. Therefore, there will be cases where it will be impossible to capture discharge within the first hour. NAHB suggests that EPA modify the permit to say, “to the extent pra ctical that the first sample be taken during the first hour of discharge if it occurs during nor mal daily operating hours.”

Likewise, discharge may not commence until the last hour of business. In such situations, a single sample taken before the en d of the business day should be sufficient. Similarly, discharge may not occur until within say, 3 hours until the end of the day. In these cases, it is suggested that if the discharge does not commence until within one hour of closing for the day, EPA deem a single sampl e sufficient for that day. If discharge does not commence until within three hours of closing, then two samples would be sufficient for that day. In either case, a sample would be required the next working morning if discharge were still occurring.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

579 

# Comment ID 0130

- A2.001.022

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 3.3.2 20. MONITORING. Part 3.3.2 and 4.2.2 require three discharge samples per day that represent the beginning, middle, and end of a discharge for that day. Absent a controlled release of stormwater from an engineered structure, an inspector/sampler cannot predict the beginning, middle, and end of a discharge for any given day if a discharge is based on a storm event. A site may have multipl e discharge points. Not every discharge point will have flow cease at the same time. This provision may be workable for developments,
such as a 1

- 2 acre square which drains to one basin and can discharge under controlled conditions. It does not work well for remote, linear, multiple discharge point proje cts that often characterize transportation projects.

Response Refer to Response 3.1.



# Comment ID 0133

- A2.001.026

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 3.3.2 The requirement that 3 grab samples be collected when a discharge occurs, with the first sample collected within the first hour that the discharge begins is impracticable. First, it is difficult to predict when a discharge will occur. Every rain event will not n ecessarily result in a discharge. Additionally, the discharge does not usually occur at the same time the precipitation event begins since some of the rainfall is infiltrated and/or diverted. It is also impossible to predict how long a discharge will occur, making infeasible the require ment to distribute the 3 samples in such a way that the beginning, middle, and end of the di scharge are represented. While MDT understands the need to demonstrate compliance with the proposed turbidity limit by collecting representative samples, the na tur e of the discharge needs to be considered. Unlike traditional wastewater treatment systems that experience a controlled discharge, storm water discharges are highly variable and are not easily predictable. Given the magnitude of changes proposed in this CG P, MDT strongly encourages EPA to provide greater flexibility to demonstrate permit compliance. The proposed sampling frequency cannot be reasonably implemented. Instead, MDT suggests that only one representative grab sample be required, with no specificat ion as to the time that the sample be collected (i.e. first hour the discharge begins; beginning, middle, and end of discharge; etc.)

Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.024

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.2 Requiring a set time period of when samples are required can remove variability of sampling and actually make implementation easier, but may not fall within normal work hours.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

580 Response Refer to Response 3.1.



# Comment ID 0158

- A1.001.014

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 3.3.2 The permit requires the permittee to collect the first sample during the first hour after a discharge begins and take a minimum of two additional samples during the remaining hours of the work day (for normal working hours) that the discharge continues. Sectio n 3.3.4. The three samples must be distributed in such a way that the beginning, middle, and end of the discharge fo r that day are represented. Rain events are too unpredictable to be able to comply with these requirements.

Response Refer to Response 3.1.



# Comment ID 0168

- A1.001.013

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 3.3.2

-- The proposed sampling frequency exceeds the requirements and stated intent of the C&D Rule, and may not be practicable to fully implement in many situations.

> We recommend simply monitoring water quality in the pond and allowing discharge of the pond to rece iving waters when the measured turbidity meets the numeric effluent limits, with documentation of compliance sampling.

> Obtaining the first sample within 1 hour and then 2 additional times during the discharge period may be challenging due to site

access and storm duration. Sampling every two (2) hours would have similar anticipated issues. In areas with high intensity, short duration rain events, the storm event may not last long enough to capture the follow

- on measurements. In longer duration events, it may not be possible to physically access the sample location to obtain a sample. These requirements may require full

- time site personnel dedicated to sampling during inclement weather; since many sites shut down during these conditions, this WQuid enta il additional project expenses.

> The NOAA National Weather Service provides e

- list notifications of predicted severe weather and anticipated heavy rain (typically for amounts greater than the 2

- year, 24 hour event); however, there is very little pre

- notific ation for smaller rainfall events that would trigger sampling. This means that Operators may need to sample every time it starts to rain.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

581 

# 3.3.2Q ALTERNATIVE SAMPLING – ONCE EVERY TWO HOURS

Comment ID 0015

- A2.001.012

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.2Q Q13. 2

- hour sampling frequency - Disagree, 2

- hour sampling is too stringent. Sampling three times a day seems more reasonable to implement.

Response Refer to Response 3.1.



# Comment ID 0021

- A1.001.020

Author Name: Unrein Terrance Organization: Tepa Issue Category: 3.3.2Q 9. CGP Section 3.3.2 states that you must take your first sample within the first hour that the discharge begins. This new s ampling will require a specially training person and nephelometer. Arriving to a site within one hour is often times not feasible or pract ical especially in inclement weather conditions. The only means in which this is feasible is if each site has a testin g device and person who knows how to use it. And this would increase construction cost substantially.

Response Refer to Response 3.1.



# Comment ID 0025

- A1.001.028

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.3.2Q Response to EPA's request for comment: 2 hours is defmite1y clearer in terms of implementation. As an example: a contractor t hat usually works until 5pm and a rainfall producing discharge starts at 4pm. Under the 2

- hour rule, it is clear that only one sample will be taken that day. Under the rule as written, should the contractor attempt to take 3 samples in the remaining hour of his work day?

Response Refer to Response 3.1.



# Comment ID 0037

- A1.001.031

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth FundRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

582 Issue Category: 3.3.2Q The proposed permit requires three samples per day distributed to capture the beginning, middle, and end of the discharge. Sa mpling the middle and end of the discharge will be easie r to schedule for storm events that are the result of a slow moving front moving into the area, particularly if the event lasted all day. But for other types of storms, it will be difficult for the operator to d etermine when the middle of the discharge is occurring. The alternative option of requiring samples to be taken once every 2 hours following the first sample would be easier to schedule but could be more labor intensive and costly for the operator if the storm event lasted al l day.

During the monsoo n season in the southwest, some thunderstorms can be high intensity but of short duration. It will be difficult to know how long the discharge will last and thus how to schedule sample collection to capture the beginning, middle and end o f the discharge. In addition, there may be only one thunderstorm or several separate thunderstorms over the course of a work day. It will be hard to know how to schedule the sampling because there is no way to know in advance if there will be another thunderstorm.
Further more, when the thunderstorm is very short in duration, it will be difficult to notify and activate the sampling crew. Utilizi ng automatic samplers is not always feasible due to remoteness of the construction site and vulnerability to vandalism. The alte rnative option of requiring samples to be taken once every 2 hours could result in only one sample being collected during some monsoo nal storm events because of the short duration (less than 2 hours) of many thunderstorms.

Response Refer to Response 3.1.



# Comment ID 0047

- A2.001.019

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 3.3.2Q Section 3.3,2, page 33

Since it is unknown how long a rainfall event will occur, it will be very difficult to determine how to collect the three sam ples from the beginning, middle and end of a rainfall event, and if there will be a discharge or not in the first place. If it rains for tw o or three days in a row and there is discharge each day then three samples must be collected each of those days also . This seems excessive

Response Refer to Response 3.1.



# Comment ID 0062

- A1.001.044

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.2Q Perhaps 4 hr intervals, starting at beginning of event if personnel are on site.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

583 

# Comment ID 0062

- A1.001.045

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.2Q Different storms have different beginning, middle, and end points. This is not practical without extensive flow and storm info.

Response Refer to Response 3.1.



# Comment ID 0062

- A1.001.046

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.2Q
Yes

Response Refer to Response 3.1.



# Comment ID 0065

- A1.001.022

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 3.3.2Q Section 3.3.2 proposes taking three samples during the course of a day when a discharge begins. The samples must be representative of the beginning, middle, and the end of the day. EPA requested comments on the alternative of taking samples every two hours af ter the initial sample. While EPA's alternative option would generate more samples, it would not be practical to implement. As an initial matter, it would be difficult for field personnel to take samples every two hours. Also, it is unclear what personnel should do if the storm stops and then resumes later. It is impractical for personnel at a construction site to assess whether the two hour clock should be restarted every time it stops raining. Instead, allowing the contractor to determine when the heaviest rainfall is occurring in the middle of the day would be more practical and yield more accurate data. Finally, there would be no discernable additional environmental benefit from the impractical sampling methodology.

Additionally, the sampling frequency required under Section 3.3.2 is the same as the frequency required for the initial startup and shutdown of a water treatment plant. A construction site is not analogous to a water treatment plant; therefore, there is no rational basis for collecting samples at a construction site at this same frequency.

Response Refer to Respo nse 3.1.



# Comment ID 0066

- A1.001.035

Author Name: Saenz AmadeoRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

584 Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.3.2Q Discussion: Based on information gained from the Texas Transportation Institute (TTI) through their sampling of research projects on TxDOT construction locations, utilizing the three sample timing method is adequate to achieve accurate sampling. One at least one hour after runoff has occurred and at least two additional samples throughout the duration of the storm.

Suggestion: Sampling every two hours after a rainfall event is expensive and not scientifically necessary to receive credible findings. Modify this requirement to meet an achievable and recognized standard for sampling.

Response Refer to Response 3.1.



# Comment ID 0070

- A1.001.007

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 3.3.2Q e. Sampling frequency - Again, how effective will this type of sampling frequency be? The sampling frequency may depend on the type of control measure utilized, as there could be a difference between sediment basins and other types of control measures as to the appropriate time(s) to monitor.

Response Refer to Response 3.1.



# Comment ID 0071

- A3.001.032

Author Name: Willard Rick Organization: Colorado D epartment of Transportation (CDOT) Issue Category: 3.3.2Q •Part 3.3.2 Sampling Frequency: The sampling requirements will be difficult in Colorado and Western states regardless of whic h method is chosen, because our storms are usually very short in duration. The three sample method will be difficult because it will be challenging to predict the duration of the event. The two hour method will not be practical because many storms will be less than two hours, which means only a first flush sample will be obtained. For this reason, an alternate version that allows the site to obtain the data for the average duration storm for any specific area would be practical. The number of samples and time frame could be derive d for that specific area.

Response
Refe r to Response 3.1.



# Comment ID 0074

- A2.001.016

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

585 Issue Category: 3.3.2Q There is no evidence which option would be better as representative samples. The sampling f requency specified in the proposed permit is practicable.

Response Refer to Response 3.1.



# Comment ID 0077

- A1.001.006

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 3.3.2Q The required continued sampling of the discharge every 2 hours after a stormwater discharge event would not make sense since the heaviest suspended solid loading is during the first few hours of discharge (ie. first flush). It might make sense to continu e samples up to the first 3 samples then use the average of the 3 for the discharge limit. This would allow time for most systems to activate and yield representative discharge values. For discharges that continue after the 3 samples time frame, the storm event would have most likely have exceeded the 2 yr 24 hr threshold anyway

Response Refer to Response 3.1.



# Comment ID 0080

- A2.001.022

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 3.3.2Q Partner Response: As already stated, baseline sampling is both burdensome and costly and in arid areas results in arguably statistically unreliable data. The proposed CGP language will require that one or more fully trained samplers either reside at the construc tion site during "business hours" or be readily available to arrive at the site within an hour of the precipitation event with one or more nephelometers in hand. In the arid west, despite this significant effort, it is unlikely the sampler will be able to obtain a sample.
Response Refer to Resp onse 3.1.



# Comment ID 0085

- A2.001.015

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 3.3.2Q Rockville questions the practicality of requiring three samples from the "beginning, middle, and end" of a stormwater discharge event because the duration of events will be highly variable and unpredictable. Therefore, the requirement for sampling at regular intervals throughout a discharge event seems more practical. If EPA is concerned that a regular sampling schedule w ill not provide enough data to assess discharges, then EPA should consider more frequent testing or tailoring the CGP to geographic regions (ie. more fre quent sampling only required in areas prone to frequent short thunderstorms).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

586 Response
Refer to Response 3.1.



# Comment ID 0087

- A1.001.029

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 3.3.2Q In addition to frequency, we are concerned about the specific sampling requirements proposed by EPA. The CGP would requ ire permittees to collect a minimum of three samples over the course of each and every storm event, "distributed in such a way that the beginning, middle and end of the discharge for that day are represented." Section 3.3.2. This section also requires the first sample to be collected within 1 hour of the beginning of the discharge. This assumes a level of predictive ability over the nature and dur ation of a storm that simply does not exist in practice. A permittee will have no way of knowing the mid

- point o r end of a storm until after the event is over. And then, of course, it will be too late to collect the samples prescribed by EPA. The practical result will b e to force permittees to sample continuously (or nearly continuously) through the storm event, so that they can ensure at least three of their samples meet EPA's expectations. Multiplied by each and every outfall, and each and every storm event, this will make samplin g the dominant exercise for site operators. As another commenter put it, "[f]or a mult iple mile linear project, [EPA's sampling requirements] would require a small army of inspectors." Comments of Integrys Business Support, LLC, dated June 14, 2011. As proposed, EPA' s sampling requirements are just plain infeasible. We urge EPA to substantially revise its sampling requirements so that they are both reasonable and valuable without undue cost or operational burden. Ideally, EPA should require only a single sample per day du ring a storm event, if the storm is of sufficient duration to enable su ch sampling. [FN 8]

[FN 8] We note that a passing thunderstorm of very short duration may not allow such sampling, both because of the short dura tion of the event and safety concerns.

Response Refer to Response 3.1.



# Comment ID 0087

- A1.001.046

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 3.3.2Q Section 3.3.2 (sampling frequency) – Please see above [See Comment ID 0087

- A1.001.046]. Also, EPA’s suggested alternative, samples taken every 2 hours following 1 st sample, would be burdensome and is unrealistic on linear projects where multiple outfalls for different disturbed areas may be spread out over a long distance.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

587 

# Comment ID 0091

- A2.001.011

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 3.3.2Q 11. Fact Sheet Item 13. Part 3.3.2: As a practical matter, the sampling requirement will encourage a few larger discharge poi nts at the site as opposed to many smaller discharges. A minimum sa mpling frequency of 2 hours is recommended. The sampling frequency should be adjusted if there is a procedure to meter stormwater out of a storage structure. There should be no penalty (EPA no tification) if sampling is not possible due to lack of flow offsite. Contractors should be encouraged to employ onsite stormwater management practices. It will be very difficult to accurately capture the "middle" and "end" of a discharge event for most storms.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.076

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.2Q EPA requested comments on the sampling frequency specified, and on the alternative option of requiring samples to be taken on ce every two (2) hours following the first sample.

The Draft states You must collect your first sample within the first hour that the discharge begins. After you take your first sample (as required in Part 3.3.1), you must take a minimum of 2 additional samples (a total of 3 samples) during the remaining hours of the work day (for normal working hours) that the discharge continues. The 3 samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represe nted. If the discharge continues on the subsequent day(s), you must take a minimum of 3 samples per day that there is a discharge.

AGC disagrees with EPA's proposal to require a sample to be collected within the first hour that discharge begins. In some cases, a person qualified to perform sampling may not be onsite to witness the beginning of a discharge. Therefore there will be cases where it will be impossible to capture discharge within the first hour. AGC suggests that EPA modify this part to read: "To the extent practical, and if the rain event occurs during normal operating hours, the first sample should be taken during the first hour of dischar ge." AGC is also concerned about a situation where a discharge does not begin until the last hour of business. It would be impractical to require thesite operator to collect three samples in one hour. Similarly, a discharge may not occur until the last two or three hours of the workday. To facilitate permit compliance, AGC recommends that EPA require site oper ators to collect only a single stormwater sample on each day when a discharge of more than 0.5 inches leaves the site during normal working hours. Requiring multiple samples over a specified period of time would create manpower issues and significantly raise the cost of stormwater compliance. A construction site operator could choose to take additional samples on any given day as circumstances may warrant.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

588 The purpose of sampling should be targeted toward corrective action. There is no purpose in sampling again and again if the site has not changed. Once sampling has been done on an area, it is pretty easy to predict what the next sample may look like. If the first sample collected from the site shows compliance with the turbidity limit, AGC believes that the site operator should be finished sampling for the day. If, however, the first sample collected from the site shows any exceedance of the turbidity limit, the Draft would require corrective action. After taken action, the construction site operator woul d continue to take additional samples (at his discretion) and initiate additional corrective action as necessary until the average of all of the samples taken that day meets the compl iance limit. (Note that AGC continues to prefer a daily average compliance limit.) If the overall daily average of all the samples collected is below the turbidity limit, then the site would be in compliance with the CGP. According to the required reporting schedule (prefera ble quarterly), the site operator would submit on his discharge monitoring report the daily average calculation.

AGC also finds that the logistics of sampling every two hours would be difficult if not impossible on large projects with mul tiple discharge points. Depending on the number and distance between d ischarge points and condition of access to those points it will be unlikely if not impossible to complete all sampling within two hours.

Response Refer to Response 3.1.



# Comment ID 0097

- A1.001.010

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 3.3.2Q 13. 3 samples per day is more than adequate. If the event occurs more than half way throught the work day, then only 2 sample s should be required. If the event spans multiple days, 2 samples per day (beginning and end of the day) should be sufficient.

Response Refer to Response 3.1.



# Comment ID 0103

- A3.001.013

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 3.3.2Q In Part 3.3.2 Sampling frequency, EPA describes how often samples are required to be collected to monitor for turbidity. EPA proposes that the first sample should be collected with the first hour of discharge and then two additional samples should be collected in such a way that the beginning, middle, and the end of the discharge for that day are represented. EPA considers altering the language to require that the first sample should be collected during the first hour of discharge and the additional samples should be collected every two hours f ollowing the first sample.

TCEQ requests that the EPA adjust the sampling frequency to allow for additional more practical options in terms of timing of the sampling events. TCEQ is of the opinion that attempting to collect samples during the middle and t he end of a discharge would likely generate situations where the end of the discharge is missed, because it will be difficult to predict when the discharge will cease. TCEQ further suggests that EPA provide additional clarification that samples are only re quired to be collected during normal working hours.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

589 Response Refer to Response 3.1.



# Comment ID 0111

- A2.001.011

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 3.3.2Q Dow believes that the proposed requirement to obtain three samples per day is burdensome. Flow patterns, unique site geographical considerations, variable safety conditions and unpredictable weather all contribute to sampling uncertainty. Another burden i s the intensive resources required to obtain and then complete analytical field tests within holding times, if applicable. Alternatively, Dow believes that a more reasonable requirement would be to obtain one (or more) daily representative samples after at least one hour of
stormwater flow condition.

Response Refer to Response 3.1.



# Comment ID 0117

- A1.001.006

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 3.3.2Q The required continued sampling of the discharge every 2 hours after a stormwater discharge event would n ot make sense since the heaviest suspended solid loading is during the first few hours of discharge (ie. first flush). It might make sense to continu e samples up to the first 3 samples then use the average of the 3 for the discharge limit. This would allow time for most systems to activate and yield representative discharge values. For discharges that continue after the 3 samples time frame, the storm event would have most likely have exceeded the 2 yr 24 hr threshold anyway.

Response Refer to Response 3. 1.



# Comment ID 0123

- A2.001.012

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 3.3.2Q Comment: Requiring sampling every two hours may result in more instances where at least three samples are not collected during a rainfall event. A combination of the two approaches (including language that samples be taken at least every two hours) shoul d be
considered.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

590 

# Comment ID 0126

- A2.001.014

Author Name: Burke John Organiz ation: Colorado Stormwater Council Issue Category: 3.3.2Q The CSC believes that the sampling frequency is too prescriptive and not implementable leaving the Operator in a position to provide inaccurate data and therefore not very useful. Storms in our semi

- arid climate can be very sporadic with short durations and variable precipitation. Snowmelt events on the other hand are somewhat continual and fluctuate with the temperature. Neither situation lends itself to the categorization of "beginning, middle and end of the discharge".

A more reasonable approach would be to require one sample per work day when there is a discharge.

Response Refer to Response 3.1.



# Comment ID 0127

- A2.001.007

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 3.3.2Q
Section 3.3.2

Proposed Language
You must collect your first sample within the first hour that the discharge begins. After you take your first sample (as required in Part 3.3.1), you must take a minimum of 2 additional samples (a total of 3 samples) during the remaining hours of the work day (for normal working hours) that the discharge continues. The 3 samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represented. If the discharge continues on the subsequent day(s), you must take a minimum of 3 samples per day that there is a discharge. If you are unable to conduct the required minimum number of samples in any one day, you mu st notify EPA of this fact when you submit your monthly report and indicate the reason why the 3 samples were not taken. You may take more than 3 samples in a given day provided the samples, taken as a whole, are representative of your discharge for that day. You must
use all val id sample results in calculating compliance with the numeric limit.

Concern
Compliance with the requirement will be difficult because of people and equipment. Collecting a minimum of 3 samples a day fr om multiple locations requires a significant amount of time, trained construction staff, and proper equipment. During storm events, construction may be halted, and no staff may be available for sampling. It would be difficult to find and hire qualified outs ide consultants (not working solely at the construction site) with the necessary skills and equipment during a storm to perform the sampling at the required frequency.
Suggested Correction
Revise the requirement to a single sample at any time during any one storm resulting in runoff. The sampling would only occur during normal working hours. If the storm lasts more than 24 hours with no more than a 12 hour break in precipitation, it is still c onsidered one storm and would only require one sample from each discharge location onsite.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

591 Response Refer to Respons e 3.1.



# Comment ID 0131

- A1.001.016

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.2Q LBA does not agree with the sampling frequency contained in the Proposed CGP. The requirement is problematic because it presents a significant logistical and financial burden and is unlikely to be an effective tool for initiating corrective action. Samplin g and analysis requirements are intended to determine if BMPs implemented on a construction site are effective for preve nting sediment/silt or other pollutants from impacting water quality objectives. Most projects, by design, are not expected to cause or contribute to impa cting water quality standards or objectives if the non

- numeric effluent standards are implemented at t he construction site.

LBA is concerned about the financial burden for turbidity monitoring placed on the construction site owner or operator for th e prescribed sampling frequency regulation contained in the Proposed CGP. The regimen of sampling throughou t the day is excessive and an operational and cost burden that should be revisited.

Members from areas where sampling is required state that it costs $600.00 to $1,000 per day for a consultant to sample stormw ater discharges and prepare a report and these are not typically cases where samples must be collected every 2 hours.

An operator will also experience significant cost if the sampling is conducted by the operator's employees. The operator will be paying for a full day of labor plus overhead as well as training costs and cost for sampling equipment and supplies. If the first samples of discharges indicate that the site is in compliance it may not be necessary during many storms to continue to sample throughout the day.

The goal of sampling is to determine if the erosion and sediment controls are working effectively. Depending on storm dynamics, the first sample taken during the day will provide a good indication whether the erosion and sediment controls are working effect ively. It is recommended that the sampling frequency be reduced to one sample per discharge point per day as long as the sample results are within limits. If the first sample taken at each discharge point is analyzed and in compliance with effluent limits, no furth er sampling or

ac tion should be required until the next day, assuming there is a continuing discharge. If the first sample is not in complianc e with effluent limits or benchmarks based on natural background levels, the up gradient BMPs and area should be inspected and corr ective actions taken as needed. Monitoring and additional stormwater samples should be taken following the corrective actions to det ermine if the BMPs are working effectively. If the average of the samples taken after the corrective action is within approp riate limits, the site should be considered in compliance and no more sampling should be required for the rest of the day. Prescribed sampling throu ghout the day is not necessary where the storm does not increase in intensity, and the requirement should be revised to be more cost effective.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

592 

# Comment ID 0145

- A2.001.014

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 3.3.2Q Requiring sampling each 2 hours would yield a more representative resu lt than the method described here. Allowing the permittee to subjectively decide when to sample will result in sampling that minimizes the apparent loss of sediment from the site.

Response Refer to Response 3.1.



# 3.3.3 SAMPLING LOCATION. [REQUEST FOR COMMENT]

Comment ID 0015

- A2.001.035

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.3 3.3.3. Discharge points should only include channelized flow. Include guidance on sampling from sedimentation manholes or the back end of pond or trap facilities - assume at the point where waters leaves the facility. EPA should also consider requiring a site map showing anticipated and planned drainage catchments and associated sample points.

Response
Refer to Response 3.1.



# Comment ID 0025

- A1.001.029

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.3.3 As discussed previously, flagging should be reserved for avoidance areas. If we cover our construction si tes with flags, they lose their impact. I suggest that the monitored discharge points be clearly labeled on a site plan within the SWPPP.

Response Refer to Response 3.1.



# Comment ID 0030

- A2.001.024

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 3.3.3 Section 3.3.3.2, page 34Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

593 What about common detention ponds for a large development with several developers? If this shared BMP contains all of the permittee' s (i.e., developer's) discharges, how do you determine non

- compliance?

Response Refer to Response 3.1.



# Comment ID 0030

- A2.001.025

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 3.3.3 Section 3.3.3, page 34 We recommend some flexibility for sites to apply for a variance to use single representative samples for projects that might have a significant number of discharge points. For example, under the federal requirements, oil and gas sites are not required to ob tain coverage under the CGP. However, many states do require oil and gas to obtain state stormwater discharge coverage for construction. This would include natural gas fields with hundreds of well pads, access roads, and pipelines. Many well pads are designed to have sheet flow; however, there will be some that will have concentrated flows, and collecting samples at every one of these pads would be impractical.

Another example, is based on large land developments (e.g., subdivisions) where during land development there are limited dis charge points but after roads and utilities are installed there are a significant number of discharge points. These types of developments should have some local detention ponds, but in some portions of the country regional detention is utilized. Sampling each storm sewer inlet

w ould be impractical. We recommend variances be able to be apply for from EPA when single representative sampling would likely be
utilized due to site conditions.

Response Refer to Response 3.1.



# Comment ID 0034

- A1.001.010

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 3.3.3 10. Sampling Location, Storm Water Inlets

Proposed Requirement/Section Addressed: CGP Section 3.3.3.3, Requirements that discharges to storm drain inlets should be sam pled
where storm water enters the inlet.

Comment: Samples should not be collected where storm water enters storm drain inlets.
Discussion: The requirement to collect samples where flow enters storm drain inlets is not consistent with the requirement to sample
downstrea m of control measures since most if not all inlet protection measures (filter covers, guards, etc) will preclude sampling whe re flow enters the inlet. Samples should be collected at the outfall or the property line rather than the storm drain inlets.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

594 Reco mmendation: Recommend that the requirement to sample where storm water enters storm drain inlets be deleted.

Response Refer to Response 3.1.



# Comment ID 0037

- A1.001.032

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 3.3.3 EPA should also consider allowing representative sampling for subdivisions/developments. In a large subdivision/development, there are innumerable discharge points (i.e., storm sewer inlets) into the storm sewer. For example, at one of our large developments, there are more than 19 storm sewer inlets within a 10 acre tract that would need to be sampled if representative sampling was not a llowed in the permit. It is more than likely that two or more of the storm sewer inlets will have c omparable stormwater discharges due to 1) multiple inlets receiving stormwater discharges from the same drainage area and 2) the similarities between drainage areas fo r the inlet (i.e., similarities in the type of exposed soils, the slope and the type of stormwater controls used). In addition, it might not be possible to sample all of the storm sewer inlets within the first hour of discharge and at the middle and end of the discharge during the short duration high intensity storms that occur during the monsoons in the southwest. The Southern Ute Growth Fund recommends that the permit is revised to allow representative sampling for subdivisions/development.

Response Refer to Response 3.1.



# Comment ID 0040

- A1.001.018

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 3.3.3 The proposed CGP sampling requirements are particularly unworkable for linear utility project. Overhead utility construction projects, for example, have small discrete land disturbanc e areas (70' x 70' areas are typical for foundation work) with long areas of no disturbance between them for the length of the right of way (30 to 100 miles is typical). It takes several days to complete a n inspection
of all the disturbed areas. It is ther efore not reasonable to require sampling of all outfalls within the first hour of a rain event and three times a day for this type of linear construction. Use of representative monitoring as described in Section 3.3.3.4 would stil l be essential
to be able to collect samples as required by the proposed CGP.

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.036

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.3.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

595 designed SCS, then at the SCS is the only place where sampling should occur.

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.037

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.3.3 Only if the storm sewer system discharges directly into the nation's water ways should sampling at each inlet occur.

Response Refer to Response 3.1.



# Comment ID 0053

- A2.001.023

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 3.3.3 The Permit language uses the term: "you believe" Consider revising this language to be more rigid, or simply remove these two words
from the clause.

Response Refer to Response 3.1.



# Comment ID 0060

- A1.001.013

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 3.3.3
13. Section 3.3.3.4 - This section should be updated to require the use of the protocol in 40 CFR 122 if there is more than one "outfall".

Response Refer to Response 3.1.



# Comment ID 0061

- A1.001.018

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 3.3.3 We appreciate the Agency's retention in Part 3.3.3.4 of representative sampling for linear construction. This is an appropria te recognition of one of the unique characteristics of LCPs.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

596 We also believe, however, that the final permit should clarify that, to the extent sampling is required for LCPs, sampling sh ould be required only in the area where trenching activities are occurring. This interpretation of the ELG is expressly and cogently supported by the following excerpt from Section XIX.A of the preamble to the final rule.

Monitoring from Linear Construction Activities: EPA believes that the permitting authority should exercise discretion when determining the monitoring locations and monitoring frequency for linear construction projects. For instance, the permitting authority might choose, for example, to utilize representative sampling at certain discharge locations that are representative of the d ischarge characteristics of other locations. EPA views the use of representative sampling points as being acceptable for linear projec ts due to the potential unique nature of these projects. Because of the size of linear projects, there may be dozens or more discharge points spaced over a large geographic area. In addition, accessing certain areas of the project during a storm event (such as areas that have recently been stabilized) may not be possible without significant disruption of the stabilization measures in place (such as might occur if it would be necessary to drive a vehicle over an area that has been recently stabilized in order to access the discharge point). EPA would generally recommend that permitting authorities concentrate on those areas of linear projects that are actively being constructed and not concentrate on areas that have been completed and stabilized. An example, for a project such as a pipeline or underground utilities, would be those areas where trenching activities are occurring.

74 Fed. Reg. at 63049, col. 1 and 2 (emphasis added).

Response Refer to Response 3.1.



# Comment ID 0064

- A1.001.029

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.3.3 Section 3.3.3.1, page 34 - "Prior to taking the first sample, you must clearly mark all discharge points on your site with flags, stakes, tape, or other visible markers that will last for the duration of your construction activity..."

•What is the purpose of marking discharge points if they are clearly identified on th e detailed site maps and easily located using the maps? Suggest deleting this requirement.

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.021

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

597 Target also requests that the EPA further define discharge point. Is it the intent of the EPA to have the Permittee monitor before it leaves the operational control and enters waters of the United States or before entering treatment devices such as retention or detention
basi ns?

Response Refer to Response 3.1.



# Comment ID 0086

- A1.001.018

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 3.3.3 The proposed COP sampling requirements are particularly unworkable for li near utility projects. Overhead utility construction projects have small discrete land disturbance areas (70' x 70' areas are typical for foundation work) with long areas of no disturbance between them for the length of the rightof - way (30 to 100 miles is typical). It takes several days to complete an inspection of all the disturbed areas. It is unreasonable to require sampling of the outfalls of such small areas within the first hour ofa rain event, and three times a day for this type of linear constructi on project. Use of representative monitoring, as described in Section 3.3.3.4, should still be provided for to be able to collect samples as required by the proposed COP.

Response Refer to Response 3.1.



# Comment ID 0090

- A1.001.004

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 3.3.3 For example, effluent testing for turbidity would be required for all points where storm water could leave the site. This is obviously based on the assumption that in a "box" project, there are a limited number of known, identifiable points where effluent would leaves a development site, all located within a short distance of one another - typically a few city blocks. In contrast, a linear natural gas project affecting ten acres or mo re would involve a long narrow area only a few feet wide but extending for over 10 miles, crossing varied terrain. There could be an absurd number of discharge points to monitor in such a project. Testing all those points would be a waste of
time and resources that would not lead to a better environmental outcome. It would make far more sense to devote time and resources instead to the implementation of best management practices (BMPs) that have been proven to reduce the impact of stormwater fr om such tempo rary, linear excavation projects. At a minimum, EPA should limit the number of test points to no more than one representative point per mile for linear projects. AGA urges EPA to exempt linear projects from such "box" project requiremen ts or allow the use alternative BMPs for linear projects. Without such changes, the Draft Permit creates disproportionate and costly impacts on gas utilities without providing a commensurate water quality benefit.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

598 

# Comment ID 0090

- A1.001.032

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 3.3.3 Further, in reference to Part 3.3.3, the nature of linear projects creates the possibility of discharge sampling being requir ed at multiple points where stormwate r may discharge. For example, the current requirement proposal could be interpreted to impose an onerous requirement that sampling be done at any bore pit with an associated soil pile along the project route. Collecting three samp les from
the start to the end of each day, at each such point along the route, would clearly present an unfair, disproportionate burden on pipeline projects, particularly cost

- prohibitive for small

- scale linear operations. AGA thus urges EPA to recognize that discharge sampling is both unnecessary and impractical for non

- point source discharges as is the case in linear pipeline projects, exempting linear projects from such requirements and reconsidering discharge sampling as a feasible means for non

- point source quantitative control s.

Response Refer to Response 3.1.



# Comment ID 0091

- A2.001.024

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 3.3.3 24. Part 3.3.3: Sampling locations. Where would the sampling point be for discharges into a MS4 system where a drain insert is used as the last stormwater control? In some cases access may available at a downstream (next man hole) but in many cases the cons truction site discharge will mix with other storm water from outside the construction site when it dumps into the catch basin. Sampling just upstream of the stormwater control BMP should be allowed in these cases per 3.3.3.3.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.078

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.3 In addition, AGC is concerned about a provision in the part of the Draft that states "you must clearly mark all discharge poi nts on your site with flags, stakes, tape, or other visible markers that will la st for the duration of your construction activity." AGC recommends that such markers be used only to mark area of the site that should be avoided; overuse of flags will cause them to lose their imp act. (This is a problem in other parts of the Draft as well; there are numerous instances where EPA would require the use of flags.) AGC suggests that the site operator clearly label on the site plan within the SWPPP all of the discharge points that will be monitored.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

599 

# Comment ID 0096

- A1.001.049

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.3 The Sampling Location of the CGP states “you must clearly mark all discharge points on your site with flags, stakes, tape, or other
visible markers that will last for the duration of your construction activity.” NAHB recommends that such markers be used only to mark area of the site that should be avoided; overuse of flags will cause them to lose their impact. NAHB suggests that the site

opera tor clearly label on the site plan within the SWPPP all of the discharge points that will be monitored.

Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.051

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.3 In section 3.3.3.3 EPA states that if your discharge enters a storm drain inlet, you should take samples at the point where stormwater flow enters the inlet. This simply is not practical and is not consistent with the requirement to s ample downstream of control measures since most, if not all, inlet protection measures will not allow for sampling where flow enters the inlet.
Samples should only be collected at discrete discharge points such as sediment basin outlet structures.

Response Refer to Response 3.1.



# Comment ID 0121

- A2.001.009

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 3.3.3 MassDOT supports the permit condition in section 3.3.3.4 that allows for the collection of samples from a single location that is representative of other outfalls. This condition is critical for many highway projects that have numerous discharge points, all of which are likely to have storm water discharges of similar quality. Without this allowance, significant resources would be expended by highway departments to collect redundant data.

Response Refer to Response 3.1.



# Comment ID 0127

- A2.001.008

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 3.3.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

600 Section 3.3.3
Proposed Language

You must take samples of all discharge points where stormwater or allowable non

‐ stormwater is discharged, except for linear projects as defined in Appendix B, which are authorized to take representative samples in accordance with Part 3.3.3.4.

Concern
Samples from all discharge points is unnecessary when there is either a small portion of the site (less than 0.5 acres) or a

non
‐ concentrated overland flow.
Suggested Correction
Revise to require sampling for all concentrated flow discharge points that represent at least 0.5 acres tributary area.

Response Refer to Response 3.1.



# Comment ID 0146

- A1.001.005

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee
I ssue Category: 3.3.3 The only way to do this would be to equip my inspectors with manhole cover lifters to lift the grates that weigh 80 - 120 lbs. If stormwater inlet protection is required as proposed in the draft permit, the inspector would have to remove or move the inlet protection in order to access each grate, and replace it after the sampling is complete. With the number of storm drain inlets on some s ites, this would take a full day to sample just once. Most stormwater that enters an inlet is s heetflow and shouldn't be subject to sampling. If the stormwater then drains to a stormwater pond that should have a protected outlet, then this requirement is particularly redund ant. This requirement should be eliminated.

Response Refer to Response 3.1.



# Comment ID 0146

- A1.001.011

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 3.3.3 Water sampling should be conducted upstream and downstream of outfalls at least once per month within 24 hours of rainfall. The sampling locations and protocol should be identified on the SWPPP. There should be at least two sampling locations per receiv ing

water.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

601 

# Comment ID 0158

- A1.001.016

Author Name: Stine James Organization: Rura l Electric Cooperative Association (NRECA) Issue Category: 3.3.3 The proposed CGP sampling requirements are particularly unworkable for linear utility projects. Overhead utility construction projects, for example, have small discrete land disturbance areas (70' x 70' areas are typical for foundation work) with long areas of no disturbance between them for the length of the right of way (30 to 100 miles is typical). It takes several days to complete a n inspection
of all thedisturbed areas. It is therefore no t reasonable to require sampling of all outfalls within the first hour of a rain event and three times a day for this type of linear construction. Use of representative monitoring as described in Section 3.3.3.4 would stil l be essential
to be able to colle ct samples as required by the proposed CGP.

Response Refer to Response 3.1.



# 3.3.3Q REPRESENTATIVE SAMPLING OTHER THAN LINEAR

Comment ID 0015

- A2.001.013

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.3Q Q14. Representative sampling - Agree. EPA should consider allowing use of representative sample areas for sites over 10 acres or having over 20 discharge points, whether they are linear or not.

Response Refer to Response 3.1.



# Comment ID 0034

- A1.001.009

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 3.3.3Q 9. Sampling Location, Representative Outfalls

Proposed Requirement/Section Addressed: CGP Section 3.3.3, Requirements for all discharge points to be sampled except for linear projects where representative outfalls may be sampled.

Comment: Operators should be allowed to sample representative outfalls for all sites, not just linear projects.

Discussion: The requirement to collect samples from all discharge points is overly burdensome since sites above the threshold (10 or 20 acres) would have many discharge points. These sites should be allowed to sample representative outfalls as linear projects areRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

602 afforded this option as well as storm water discharges associated with industrial activity in the EPA MSGP. Outfalls with the same sediment controls could be grouped together to reduce the sampling burden.

Recommendation: Recommend EPA extend the option to sample representative outfalls to a ll projects.

Response Refer to Response 3.1.



# Comment ID 0047

- A2.001.020

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 3.3.3Q Section 3.3,3, page 34

Xcel Energy appreciates allowing a single representative sample location for linear type projects and recommends EPA allow for variance requests for other types of projects.

Response Refer to Response 3.1.



# Comment ID 0055

- A1.001.011

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 3.3.3Q Representative samples for linear projects should be allowed. Too much testing could begin to dictate BMP selection and resul t in a reduction of water quality. We recommend maintaining flexibility in testing procedures for linear projects and projects that have multiple outlets.

Response Refer to Response 3.1.



# Comment ID 0062

- A1.001.047

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.3Q Portions of project may be l inear. If a contractor selects a representative sample location, it will be the cleanest. Perhaps select the discharge point with the highest amount or rate of discharge.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

603 

# Comment ID 0065

- A1.001.023

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 3.3.3Q Section 3.3.3.4 proposes to allow representative monitoring (using a single representative sample location for more than one discharge point) for linear

- type projects. The use of representative monitoring should not be limited to linear sites. In many cases, requiring more than just one representative sample point on a non

- linear project is redundant. For example, if the contractor is installing 130 miles of
transmission line along a river and has to disturb soil every 300 feet for the tower foundations, the discharge points and existing vegetation could be identical.

Response Refer to Response 3.1.



# Comment ID 0070

- A1.001.008

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 3.3.3Q f. Sampling locations - Alcoa agrees that the permit should allow for sampling one outfall to cover multiple discharge points, if the results would be representative of those multiple discharge points.

Response
Refer to Response 3.1.



# Comment ID 0074

- A2.001.017

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 3.3.3Q The proposed permit should allow the use of representative sample locations for non

- linear and linear

- type projects. If the use of representative sample locations for projects is not allowed, the sampling, testing, and reporting burden for these owners/ope rators would be greatly increased.

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.020

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.3QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

604 Target believes that the representative monitoring allowance should be more expansive. Current permit language only allows fo r linear certification. Target believes that if there is uniformity to site conditions (i.e. slope, BMPs, activities) that this certification should be afforded because discharges are similar and not monitoring all discharges does not provide additional environmental harm.

Large sites in acreage will be conducting the monitoring per the C & D rule, and by allowing for representative monitoring it makes the monitoring requirements more feasible.

Response Refer to Response 3.1.



# Comment ID 0080

- A2.001.024

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 3.3.3Q Partner Response: In arid areas, the question remains as to how to conduct sampling if a construction site is discharging by sheet flow. The difficulty of obta ining any sample from an arid region construction site would suggest that representative monitory is applicable here. Any baseline sample obtained should be considered a representative sample for the entire construction site for all arid sites not just limited to linear

- type project sites.

The Partners also recommend that the EPA develop specific guidance and document parameters for allowances to ensure that the concept of representative monitoring is thoroughly understood and implemented by the regulated community under the proposed CGP.

Response Refer to Response 3.1.



# Comment ID 0085

- A2.001.016

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 3.3.3Q Rockville finds the CGP's guidance on when operators may use representative sampling vague and subject to potential abuse. EPA should provide concrete guidance about what constitutes adequate "similarities of the exposed soils, slope, and type of storm water controls used" sufficient to justify representative samplin g.

As noted in previous comments, the sampling requirement will help ensure that operators have adequate incentive to maintain a ll sediment control devices. Where sampling is limited to a representative point; operators may only feel compelled to maintain the sediment controls associated with the sampling point.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

605 

# Comment ID 0093

- A2.001.077

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.3Q
EPA has indica ted that it would prefer to limit the use of representative monitoring (allowing a single representative sample location for more than one discharge point) to linear type projects. AGC feels very strongly that EPA also should allow representative sampling for large non

- linear projects if the operator can document sufficiently within its SWPPP that representative sampling is warranted.

For example, the Washington state Department of Ecology handbook "How to do Stormwater Monitoring: A guide for construction sites" states that permitees are "require[d] to collect samples that are representative of the discharge from the constructio n site. A representative sample means the sample is similar in flow and characteristics (such as color, suspended soil , etc.) to the stormwater running off the site." The state CGP allows permitees to choose how to take the representative sample: 1) a single grab, 2) a time

proportional or 3) a flow

- proportional sample.

Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.050

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.3Q NAHB also recommends that EPA allow representative sampling for all projects. For example, it may be feasible to require a ce rtain percentage of the stormwater discharge to be sampled. There are multiple types of projects that have multiple discharge points. In such cases it is very costly to sample every discharge point. Depending on the size of the site and the number of discharge points

comp liance with the monitoring provisions will incur significant manpower. Therefore, EPA should allow representative sampling fo r large projects if the developer can document sufficiently within its SWPPP that representative sampling is warranted.

Response Refer to Response 3.1.



# Comment ID 0097

- A1.001.011

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 3.3.3Q 14. There should be a limit as to the separation distance of sampling points on linear projects before they can be combined into representative sampling.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

606 

# Comment ID 0103

- A3.001.014

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 3.3.3Q In Part 3.3.2 Sampling location, EPA proposes to require that samples be collected at all discharge points except for linear projects, where representative monitoring may be used. EPA's preference is to limit the use of representative monitoring, but believes the use of representative samplin g points are acceptable for linear projects due to the potential unique nature of these projects. EPA also believes that it might not be feasible to monitor all outfalls on linear projects.

TCEQ prefers that the EPA provide the flexibility of sampling one or more outfalls that are considered substantially identical to other outfalls at the site, provided that the operator can demonstrate that the discharges are substantially similar.

Response Refer to Response 3.1.



# Comment ID 0105

- A2.001.013

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 3.3.3Q [ There is no apparent justification for the Draft CGP's exemption from full turbidity sampling of discharges linear construc tion projects, especiall y in light of the proposed change in the Draft CGP that eliminates a related exemption that exists in the current permit. Contrast Draft CGP at Part 3.3.3.4 (permitting representative sampling rather than sampling of all discharge points) with Draft
CGP at Part 5.1.4. Industry concern that such sampling is impractical is not a legitimate basis to avoid collection of the basic dat a by which compliance with the permit is measured.

Response Refer to Response 3.1.



# Comment ID 0123

- A2.001.013

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 3.3.3Q Comment: Representative monitoring should be limited to linear projects only.

Response Refer to Response 3.1.



# Comment ID 0131

- A1.001.017

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

607 Issue Category: 3.3.3Q The Proposed CGP should allow representative sampling for other types of construction projects as it allows for linear projects. Larger traditional construction projects can have similar size and distance characteristics as linear projects. For example, if a project drains to an MS4 system in an adjacent street, it may have many of the same features of a linear project, that is multiple discharge po ints from a
multitude of small ca tchments.

There are situations where the operator is not able to sample at a discernable discharge point downstream of the inlets. In one case, a member stated that its site discharged into a closed MS4 system (no access manhole was available) and he was not able to sample at the point where the discharge actually leaves the site. The member was required to sample up to 14 drainage inlets within the site that fed the closed system since they were all determined to be discharge points. The conditions and discharges on the site were similar. The ability to conduct representative sampling (e.g., a subset of the locations) would be a prudent option in cases such as t his. LBA supports the ability of representative sampling to represent multiple discharge points and suggests that the permit include such a provision. This provision could be implemented by permitting the SWPPP to allow for careful consideration of the various disc harge points and allow representative sampling where appropriate.
Response
Refer to Re sponse 3.1.



# Comment ID 0145

- A2.001.015

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 3.3.3Q We agree that representative monitoring should be limited and direct monitoring should be assumed to be the appropriate way t o monitor discharges. The variability of soils, their distribution, topographical differences, differences in construction/deve lopment activities at specific locations, and differences in choice and maintenance of stormwater control efforts are probably too large to appropriately assume representative monitoring will provide a reasonable estimate of the impacts of stormwater discharges.

Response Refer to Response 3.1.



# 3.3.4 SAMPLING DISCHARGES CONSISTING OF STORMWATER ORIGINATING OUTSIDE YOUR CONSTRUCTION SITE.

Comment ID 0076

- A1.001.022

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.4 Target believes that the language provided for run

- on requirements is not clear.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

608 Target requests that there be waivers from monitoring obligation or adjusted monitoring values when run

- on is already exceeding the numeric limits. Target understands the obligation to divert or treat run

- on to maximum extent feasible, but does not want to exceed an effluent limit for discharg es originating from off

- site. Target would like clarification on what the Permittee obligations are for run

- on discharges which are largely contributing to numeric limit exceedances.

Response Refer to Response 3.1.



# Comment ID 0090

- A1.001.006

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 3.3.4 Under these conditions, the "source" monitoring and inspection methods in the Draft Permit unfairly burden utilities with the responsibility to measure and report pollutant events caused by others.

Response Refer to Response 3.1.



# Comment ID 0115

- A2.001.019

Author Name: Smith Timothy Organization: National Grid Issue Category: 3.3.4 3.3.3.4. Sampling discharges consisting of stormwater originating outside of your construction site. National Grid is in support of this part. Because of the linear nature of utility line ROWs, there are frequent circumstances where stormwater and streamflow cro ss the ROW. Clarification of the sampling requirements in instances lik e this is helpful.

Response Refer to Response 3.1.



# Comment ID 0168

- A1.001.008

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 3.3.4

-- Benchmark sampling refers to sampling up and downstream of the project site, and monitoring for an exceedence of the determined benchmark value, the numeric limit value, or preferably, a difference of about 50 units between the up and downstream boundar ies of the site. Section 3.3.4 of the permit specifically excludes sampling of onsite run

- on from other sources. In areas with multiple projects or other watershed disturbances, run

- on may be the primary source of off

- site pollutant transport onto the site. Experience with water quality sampling in areas of the southwestern United States with sediment TMDLs indicates that sampling run

- on and comparing results with samples from the site runoff often provides a better measure of specific site impacts, than discharge monitoring alone. ThisRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

609 is particularly true where the geomorphology of the receiving stream is based upon ephemeral streams with arroyo

- type sediment
transport processes.

Response Refer to Response 3.1.



# 3.3.5 SAMPLING PROTOCOLS

Comment ID 0032.001.003

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.5

In section 3.3.5.1, what situations would require auto sampling? Could in

- situ measurement replace manual sampling and
measurement?

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.038

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.3.5 This section should be eliminated. EPA does not need to be mandating procedures.

Response Refer to Response 3.1.



# Comment ID 0075

- A2.001.025

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 3.3.5 The sampling protocol of sampling the horizontal center of a storm water channel, again would place an inspector in hazardous location during Spring runoff in mountain streams due to rapids and poor footing on rock. "Shoreline reach" alternative suggested for personal safety.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

610 

# Comment ID 0110

- A1.001.012

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 3.3.5 Much more detailed descriptions of how the sample is to be collected with examples of the typical conditions that will occur needs to be written in here, otherwise the results will vary to much. Has a study been performed with this described protocol with v arious sample personnel and locations to see how much va riability there is? If so, this should be presented. If not, this will be a big problem. Is anybody allowed to collect the samples or does it need to be a trained person? I would suggest requiring a trained person that has field knowledge of the prot ocol.

Response Refer to Response 3.1.



# Comment ID 0133

- A2.001.027

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 3.3.5 MDT suggests including a provision specifying when sample collection is not feasible . It has been MDT's experience that water depths less than I" do not allow for representative sample collection. It should also be noted that the provisions specified in Sect ion 3.3.5.2(c)
do not apply to automatic samplers.

Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.025

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.5 Various references in this section and others refer to grab samples, sampling container, etc. EPA should encourage the c ollection of in situ measurements within the flow stream with turbidimeters where possible, rather than the collection of measurements in the field from separate containers or subsamples. Sub

- samples can bias turbidity readings due to the difficulty in res uspending large sediment particles.

Response Refer to Response 3.1.



# Comment ID 0168

- A1.001.012

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 3.3.5Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

611 -- Section 3.3.5 contains very prescriptive language for sampling site discharges to an adjacent unlined channel. Physical logistics may form challenges to meeting this requirement for large ponds and large outfall channels. Sampling from the horizontal and vert ical midpoint of the outlet may not be consistent with Section 2.1.4.4a tha t requires the outlet structure to draw from the surface of the pond. Please coordinate and clarify these sections for consistency. Please streamline these measures to be more generally app licable to multiple drainage system configurations and to address d ischarges to other manmade drainage features.

Response Refer to Response 3.1.



# 3.3.6 SAMPLE ANALYSIS

Comment ID 0032.001.004

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.6 In section 3.3.6, no consideration is given to inherent interferences from color and particle absorbance. Measurement technologies that account for these interferences should be used. These are ratio technologies, which would provide more accurate results for t hese types of samples versus single detect or systems, e.g. nephelometers.

Response Refer to Response 3.1.



# Comment ID 0032.001.005

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.6 The settling of particulates can significantly skew measurement results. The combination of settling algorithms and prescriptive measurement protocols can reduce this effect and produce more accurate results. Modern portable turbidimeters include settlin g algorithms in the software.

Response Refer to Response 3.1.



# Comment ID 0032.001.006

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.6Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

612 Most portable turbidimeters on the market have an upper measuring limit of 1000 NTU, which construction effluent samples may exceed. How does the agency recommend addressing these samples that are above the measuring limit of the instrument?

Response Refer to Response 3.1.



# Comment ID 0032.001.007

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.6 Most turbidity methods (EPA 180.1) were designed for low level turbidity measurement. There is one consensus

- approved turbidity method that focuses on high level measurement. ASTM D7315 provides protocol that will lead to more accurate sampling and measurement performance. We suggest that the agency reviews this sampl ing and measurement protocols in this document to provide additional guidance.

Response Refer to Response 3.1.



# Comment ID 0035.001.001

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.6
In section 3.3.6.2a, daily calibration of the turbidity meter is required. Current technologies that incorporate ratiotechniques compensatefor potential optical system instability, therefore daily calibration is not required. Regulations, suchas EPA 180.1, state that calibration is only necessary on a quarterly basis. Requiring daily calibration could imposeunnecessary additional burden on permittees. We suggest that instead of requiring daily calibration, the manufacturer's recommendation for calibration frequ ency befollowed, and daily verification be performed. If the verification fails within a specified acceptance range, recalibrationshould be required.

Response Refer to Response 3.1.



# Comment ID 0049

- A1.001.039

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 3.3.6 This section should be eliminated. EPA does not need to be mandating procedures.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

613 

# Comment ID 0060

- A1.001.014

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 3.3.6
14. Section 3.3.6.1 - Add language that the analysis time must not exceed 48 hours from the time of collection. This section should be updated to include a general requirement that all sample analysis be done by 40 CFR 136 approved me thods and all associated Quality
Control must be met.

Response Refer to Response 3.1.



# Comment ID 0060

- A1.001.015

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 3.3.6
15. Section 3.3.6.2.a - Add lang uage about using calibration solutions that meet the meter manufacturer's specifications and are not beyond their expiration date.

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.023

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.6 Sample Analysis; Calibration Target believes the requirement to recalibrate turbidimeter before each event is inappropriate f or permit language. Instead, Target requests that this language be included in permit guidance. Manufacturer specifications are detailed to assure that the monitoring meter is operating properly and therefore following USGS requirements may be duplicative.

Response Refer to Response 3.1.



# Comment ID 0110

- A1.001.013

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: 3.3.6 Need to better define how to measure the actual NTU value. Settling time? Organics, etc. It would seem to me that a standard needs to be developed for everyone to follow prior to this being implemented, otherw ise the results will be meaningless and not comparable.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

614 Response Refer to Response 3.1.



# Comment ID 0131

- A1.001.034

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.6 EPA is requiring calibration of the turbidity meter prior to each day it is used. However, there are technologies that do not require daily calibration. For example, the Hach 2100P Turbidimeter does not require standardization before every measurement as some turbidimeters do. Periodically, the instrument calibration is checked using the appropriate Gelex Secondary Standard. If the reading is not within 5% of the previously established value, then recalibration is recommended. Requiring calibration before daily use is time consuming and costl y.

LBA suggests that the turbidimeter used for field analysis be required to be calibrated per manufacturer's recommendations.

Response Refer to Response 3.1.



# Comment ID 0143

- A2.001.002

Author Name: Bashel Renee Organization: Small Bus. Ombudsman/Small Bus Env Asst Prog Issue Category: 3.3.6 The proposed requirement may be expensive and complex for the small business operator. The sampling process, manufacturers' recommendations, equipment calibration, formulation of calibration standards, employee training, and laboratory certifications make the requirements for sampling analysis overly burdensome to the typical contractor, and will likely result in a competitive a dvantage for the larger businesses with more resources available.

A turbidimeter will cost a minimum of approximately $1000, and there are additional costs associated with operating and maintaining the equipment. Affected entities must become certified on the use of the equipment, and keeping the equipment in good working order may be diffi cult, particularly for those not accustomed to working with sensitive scientific monitoring equipment.

Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.026

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina
Issue Cate gory: 3.3.6 The calibration of a nephelometer or turbidimeter daily discourages the use of extended deployment of such instrumentation. E xtended deployment would allow the permittee to obtain a much clearer picture of the quality of discharges from a construction site for the entire dewatering period after a storm event. Large storm events often take days to drain and extended" deployment would decr ease theRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

615 number of needed field visits. Various quality control procedures could be put into place to ens ure that the field data is highly reliable at the onset and conclusion of the collection period.

I don't think you can comply with 40 CFR 136 and use a nephelometer or turbidimeter as stated under 3.3.6 as "musts". 40 CFR 136 is for the traditional grab sampling and laboratory analysis.

Response Refer to Response 3.1.



# 3.3.7 RECORDING OF SAMPLING RESULTS

Comment ID 0015

- A2.001.036

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.7
3.3.7 Sampling results should also include the types of discharge (stormwater runoff or non

- stormwater discharge) and a notation of the size or amount of area draining through the discharge point. Revision to the area drainage map should also be required.

Response Refer to Response 3.1.



# Comment ID 0046

- A1.001.021

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 3.3.7 The Department would like more guidance. What happens when discharge ceases right after a short duration event? If the monitor
looks and fmds there is no discharge, does that equate to a zero NTU reading.

Response Refer to Response 3.1.



# Comment ID 0060

- A1.001.016

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 3.3.7
16. Section 3.3.7 - Update section to require measurements to be taken and recorded per 40 CFR 136 approved methods including all associated QA/QC. The details of the daily instrument calibration should also be recorded in the field log.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

616 Response Refer to Response 3.1.



# 3.3.8 ACTIONS REQUIRED IF YOU VIOLATE NUMERIC TURBIDITY LIMIT. [REQUEST FOR COMMENT]

Comment ID 0031

- A2.001.006

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: 3.3.8 EPA should set up a structured and simplified reporting system for permitees who are required to meet the numeric effluent li mit. The Draft permit requires that permittee report exceedances to EPA of the Numeric Eff luent Limit within 24 hours. There is concern that such a reporting scheme does not result in any additional protection to the environment or the public and should be omitted. It is more appropriate to require corrective action within a certain period of t ime and quarterly reporting of the numeric turbidity values.

Response Refer to Response 3.1.



# Comment ID 0040

- A1.001.016

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 3.3.8 If EPA retains the turbidity limit, reporting exceedances (Section 3.3.8) should be conducted per existing Notice of Non

- compliance mechanisms. A release of turbidity from a construction site likely would not be categorized as endangering health or the envi ronment, but would more prob ably be categorized as an upset condition. Reporting these upset conditions and the corrective actions would fall under the normal requirements of reporting on the regular monthly report and not a 24

- hour notification requirement as would be required for t hose incidents endangering health.
Response Refer to Response 3.1.



# Comment ID 0045

- A1.001.007

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 3.3.8
3.3.8 - Concerning what level of turbidity limit upset should trigger the direct notification of EPA within 24 hours, we recommend that if either (a) the limit is exceeded by twice the turbidity, or (b) the limit is exceeded more than two times within a 24

- hour period, EPA be directly notified.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

617 Response Refer to Response 3.1.



# Comment ID 0046

- A1.001.020

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 3.3.8 It is reasonable to require notification of a violation of the ELG within 24 hours. In order to limit the amou nt of information coming into EPA, EPA may want to have any sampling that was within compliance stay on site.

Response Refer to Response 3.1.



# Comment ID 0055

- A1.001.012

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 3.3.8 The NOI applicant is responsible to manage and maintain BMP's for compliance with the permit limits. Reporting individual occurrences to the EPA could involve additional regulatory input in corrective actions and result in slower resp onse times.

Response Refer to Response 3.1.



# Comment ID 0064

- A1.001.030

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.3.8 Section 3.3.8, page 36 - Full "Actions Required if You Violate Numeric Turbidity Limit" section

•This section seems to discount the importance of background conditions in the receiving water body. Suggest that background conditions be accounted for as they can have significant impacts on seasonal water quality.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

618 

# Com ment ID 0064

- A1.001.031

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.3.8 Section 3.3.8, page 36 - Full "Actions Required if You Violate Numeric Turbidity Limit" section

•This section seems to not consider higher initial readings associated with a first flush of the system nor does it account for impacts of storm duration and potential impacts of time on water quality. Suggest this section be reworded to consider both impacts.

Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.027

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.8 1. Would have to Scientifically establish what "extremely high" is in relation to the final turbidity limit. Arbitrarily selecting two times greater is not an effective way to determine this. Research has shown that common NTU discharges from construction activities are well above 1,000 NTU.

2. There should not be a threshold for immediate notification to EPA. Highly intense events will create frequent exceedances depending on on

- site soils. The permittee should record exeedances for quarterly_ reporting.

Response Refer to Response 3.1.



# Comment ID 0159

- A1.001.012

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 3.3.8 As presented, the monitoring, inspection and reporting requirements are not practical. Allowing seven days to discover, desig n, review, approve and install additional practices is unreasonable. The permit is not clear about what information EPA will be immediately notified or what purpose it will serve to notify EPA. Moreover, the permit requires 30 day reports and time is better spent o n corrective actions rather than reporting. The permit requires monitoring from disc harge points instead of from the regulated waters. Turbidity violations are only violations if the receiving waters are in excess of standards and measurements should be done only at the se entry points to the waters. Readings at BMP discharge points are no t necessary valid in this regard. Further, this provision must account foralready developed without controls. How are these situations to be addressed? Projects employing Environmental Site Design will not have discharge points and we believe the relevant turbidity measurement is in the regulated waters. This monitoring protocol seems inconsistent with the discharge into a storm sewer which assumes discharge is at the point where regulated waters are reached prior to discharge into impaired waters.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

619 Response Refer to Response 3.1.



# 3.3.8Q IMMEDIATE NOTIFICATION FOR EXTREMELY HIGH TURBIDITY LEVELS

Comment ID 0015

- A2.001.014

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.8Q Q15. Immediate notice of high turbidity - Agree, seems reasonable.

Response Refer to Response 3.1.



# Comment ID 0024

- A2.001.017

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 3.3.8Q EPA should revise Part 3.3.8. to require permittees to take immediate corrective actions, and to notify EPA immediately when the turbidity limit is violated. Immediate notification should be required regardless of the level of exceedance. Repeated violat ions due to only slightly elevated turbidity levels can be just as detrimental to water quality as single violations that are extremely high. Accordingly, we disagree with an approach that would establish a numeric limit below which the immediate notification of a vi olation would not be required.

Response Refer to Response 3.1.



# Comment ID 0025

- A1.001.030

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.3.8Q Response to EPA's request for comment: Would the exception outlined in 3.1.2.1 (storm in excess of a 2 year, 24

- hour) apply as an exception for notification? In order to be consistent and thereby prevent confusion, the time line for this notification shou ld be the same as required in 6.6.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

620 

# Comment ID 0037

- A1.001.033

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 3.3.8Q Part 6.6 of the permit already requires that the operator notify the EPA Regional Office by the end of the next full work day after discovering an occurrence of any of the conditions in Part 6.2.2. One of the conditions of Part 6.2.2 is when turbidity sampl es indicate that a discharge exceeds the numeric turbidity limit. Therefore, EPA's request to solicit comments on whether the permi t should require an immediate notification of EPA (e.g. within 24 hours) for extremely high turbidity levels (and for what threshold value) is moot because the permit already specifies when and at what threshold the notification is required. Part 6.6 would need to be modified if Part 3.3.8 was modified to specify a reporting deadline and turbidity level different from what is currently proposed in Part 6.6. The Southern Ute Growth Fund supports retaining the existing requirement in Part 6.6 to report by the end of the next day if the turbidity sample exceeds the numeric turbidity limit.

Response Refer to Response 3.1.



# Comment ID 0047

- A2.001.021

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 3.3.8Q Section 3.3,8,

If you violate a numeric turbidity limit you should allow for more than 24 hours reporting time for an exceedance. Xcel Energy recommends reporting within 72 hours. If there are no exceedances quarterly reporting rather than monthly reporting should be
allowed.

Respons e Refer to Response 3.1.



# Comment ID 0061

- A1.001.015

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 3.3.8Q
The EHSCP believes that a 24

- hour notification requirement is not appropriate in this context. First, events are highly transitory and it is unlikely that such immediate notification would enable EPA to respond to the site in a meaningfully timely manner. In addi tion, over reporting and potentially waste of Agency resources may result when monitoring results are initially reported as violations but are later found not to be subject to the turbidity limit because the even sampled was larger than the 2 year/24hour cutoff. Finally, it is a far better investment of the energies of site personnel to respond to any apparent exceedance than to repair to their construction base toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

621 issue a notification. On balance, while more information often is better, the EHSCP believes that immediate notification in t his case is not appropriate.

Response
Re fer to Response 3.1.



# Comment ID 0062

- A1.001.048

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 3.3.8Q How about applicable to discharges to waters of the US if to an intermediate canal or pond some distance from surface waters may not have significant impact.

Response Refer to Response 3.1.



# Comment ID 0065

- A1.001.024

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 3.3.8Q
Section 3.3.8 requires 24

- hour notification regarding turbidity exceedances. EPA requested comment on whether a permit should require an immediate notification to EPA for extremely high turbidity levels (e.g., within 24 hours). CCWC does not support t his proposal becaus e situations where there is high turbidity are not emergencies or spills that require immediate notification to EPA. Rather, CCWC would support benchmark monitoring. The sampling frequency for benchmark monitoring under 4.2.2.1(b)(ii) is sufficient enough and will capture any high turbidity levels.

Response Refer to Response 3.1.



# Comment ID 0070

- A1.001.009

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 3.3.8Q g. Exceeding the numeric turbidity limit - Aside from Alcoa's concerns with the numeric turbidity limit itself, Alcoa does not believe there is a need to include additional notification requirements for exceeding any limit other than those that are currently a part of the NPDES permitting program found at 40 CFR 122.

Response
Re fer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

622 

# Comment ID 0071

- A3.001.033

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 3.3.8Q •Part 3.3.8. Actions Required if You Violate Numeric Turbidity Limit. Immediate notification of extremely high turbidity levels will not give an overall representation of the site conditions. Requiring notification to EPA would add another administrative step that could be missed due to other responsibility constraints. The information collected can be required to be documented on site with the other permit information and be accessible during regulatory inspections. If reporting to EPA is a requirement it could be ac complished during a semi

- annual submittal.

Response Refer to Response 3.1.



# Comment ID 0074

- A2.001.018

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 3.3.8Q We disagree with the requirement of 24 hour notification for extremely high turbidity levels. Additional notifications would present an unnecessary burden on the permitting agencies and regulated communities. The DEQ would support some alternatives that allow permittees to submit written notifications along with the site's normal reporting documents (i.e. as a cover letter to accompany the site's monthly DMR submission).

Response Refer to Response 3.1.



# Comment ID 0077

- A1.001.007

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 3.3.8Q EPA should only be notified after a respons e of the contractor has taken place and additional corrective measures have been implemented and the discharge continues to exceed an acceptable value by more than 3 times the given NTU

Response Refer to Response 3.1.



# Comment ID 0080

- A2.001.025

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 3.3.8QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

623 Partner Response: 48 or 72 hours is a more reasonable notification period if the turbidity limit is exceeded. The Partners su ggest that a measured numeric value of two or 2.5 times the C&D ELG numeric turbidity limit would be indicative of an "extremely high turbiditylevel." The statistical unreliability in taking theses required samples suggests a higher threshold for reporting. T he question remains as to what the final C&D numeric turbidity value will be. That value will certainly influence the City's recommendati on to EPA on reporting time frames and criteria. The City is also interested in knowing what the EPA's intended use of thi s information is. Will the agency use it for compliance purposes?

Response Refer to Response 3.1.



# Comment ID 0085

- A2.001.017

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 3.3.8Q Yes, EPA should require operators to report these types of permit violations within 24 hours.

Response Refer to Response 3.1.



# Comment ID 0086

- A1.001.016

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 3.3.8Q
!fEPA retains th e turbidity limit, reporting exceedances (Section 3.3.8) should be conducted per existing Notice of Non

- compliance mechanisms. A release of turbid ity from a construction s ite likely would not be categori zed as endangering health or the environment, but would more probably be categorized as an upset condition. Reporting these upset conditions and the corrective actions would fall under the nonnal requirements of reporting on the regular monthly report, and not a 24

- hour notification requirement
as would b e required for those incidents endangering health.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.079

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.8Q AGC strongly opposes the permit requiring an immediate notification (e.g., 24 hours) of EPA for extremely high turbidity levels for the reasons explained below and in Section V of AGC's comments above.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

624 An exceedance of a turbidity limit is not an emergency condition that poses an immediate threat to life or safety and does not warrant an immediate response to, or by, EPA. Collecting and responding to this type of data would divert EPA resources and dilute it s ability to effectively manage the program, which should be focused on reviewing regularly reported data to identify compliance trends and centering attention on projects exhibiting a history of compliance difficulties.

Under the Administrative Procedure Act (APA), agencies must provide interested persons with a meaningful o pportunity to comment on proposed rules. E.g. American Radio Relay League, Inc. v. Federal Communications Commission, 524 F.3d 227, 237 (D.C. Cir. 2008). "It is not consistent with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data, or on data that [to a] critical degree, is known only to the agency." Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 379 (D.C. Cir. 1973). Currently, the EPA has not published a numeric turbidity limit for stormwater discharges from construction sites and therefore the limit that the agency is contemplating "is known only to the [EPA]." Id. Therefore, AGC has no basis to determine what constitutes an "extremely high" limit. For example, EPA's previous turbidity limit was 280 NTU.

Fur thermore, AGC questions whether Congress provided the agency with the authority to "immediately" collect information on "extremely high" turbidity discharges. In certain circumstances, CWA section 308 allows EPA to require dischargers to collect data and p rovide that data to the agency. See 33 U.S.C. § 1318(a). However, Congress only required "immediate" notification to the government when the discharge consists of oil or hazardous substances. See 33 U.S.C. § 1321 (b)(5). Therefore, unless the age ncy is

cre ating the immediate notification requirement pursuant to CWA section 311(b)(5), it is acting outside its authority.

Finally, many of AGC's members operate their businesses as sole proprietorships. Thus, the Fifth Amendment protects them from self

incrimi nation. United States v. Doe, 465 U.S. 605 (1984). The proposed obligation to immediately notify the EPA is in actuality a notification that the permittee is in violation of the CWA. Therefore, sole proprietors should be "free to refuse to create" and prov ide such incriminating "records on fifth amendment grounds." Alito, Documents and the Privilege Against Self Incrimination, 48 Un iv. Pitt. Law Review 27, 65

- 78 (Fall 1986).

Thus, EPA's proposed requirement to immediately notify the agency of extremely hi gh turbidity measurements implicates the Fifth Amendment rights of certain small businesses, is outside of EPA's authority under the CWA, and currently does not contain eno ugh detail to allow the regulated community to provide meaningful comments. Conseque ntly, AGC strongly urges that the agency not include the requirement in the final CGP.

Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.053

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.8Q
EPA has requested comment on whether the CGP should require a permittee to immediately notify EPA of “extremely high turbidity levels.” For the reasons provided below, NAHB recommends that the CGP not contain such a requirement. Under the Administrativ e Procedure Act (APA), agencies must provide interested persons with a meaningful opportunity to comment on proposed rules.[FN 66] “It is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data, or on d ata that [t o a] critical degree, is known only to the agency.” [FN 67] Currently, the EPA has not published a numeric turbidity limit for stormwaterRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

625 discharges from construction sites and therefore the limit that the Agency is contemplating “is known only to the [EPA ].” [FN 68] Therefore, NAHB has no basis to determine what constitutes an “extremely high” limit. For example, EPA’s previous turbidity limit was 280 NTU. NAHB submits that it would be unnecessary for a builder to immediately report, for example, a single reading that doubles the 280 NTU limit (560 NTU) to the Agency.

Furthermore, NAHB questions whether Congress provided the Agency with the authority to “immediately” collect information on “extremely high” turbidity discharges. In certain circumstances, CWA section 308 allows EPA to require dischargers to collect data and provide that data to the Agency.[FN 69] However, Congress only required “immediate” notification to the government when t he discharge consists of oil or hazardous substances.70 Therefore, unless the Agency is creating the immediate notification requirement pursuant to CWA section 311(b)(5), it is acting outside its authority.

Finally, many of NAHB’s members operate their businesses as sole proprietorships. Thus, the Fifth Amendment protect s them from
self

- incrimination.71 The CGP, as proposed, requires the permittee to collect and record stormwater samples in accordance with Par t
3— a protocol most developers currently do not follow. Additionally, the proposed obligation to immediately notif y the EPA is in actuality a notification that the permittee is in violation of the CWA. Therefore, sole proprietors should be “free to refuse to create” and provide such incriminating “records on fifth amendment grounds.”[FN 72]

Thus, EPA’s proposed requi rement to immediately notify the Agency of extremely high turbidly measurements implicates the Fifth Amendment rights of certain small businesses, is outside of EPA’s authority under the CWA, and currently does not contain eno ugh detail to allow the regula ted community to provide meaningful comments . Consequently, NAHB suggests that the Agency not include the requirement in the final CGP.

[FN 66] E.g. American Radio Relay League, Inc. v. Federal Communications Commission, 524 F.3d 227, 237 (D.C. Cir.
2008 ). [FN 67] Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 379 (D.C. Cir. 1973).
68 Id. [FN 69] 33 U.S.C. §1318(a). [FN 70] 33 U.S.C. 1321 (b)(5). [FN 71] United States v. Doe, 465 U.S. 605 (1984). [FN 72] S. Alito, Documents and the Privilege Against Self Incrimination, 48 Univ. Pitt. Law Review 27, 65

- 78 (Fall 1986).

Response Refer to Response 3.1.



# Comment ID 0097

- A1.001.012

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 3.3.8Q 15. I cannot comment on the notification threshold until the turbidity limits are set.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

626 Response Refer to Response 3.1.



# Comment ID 0098

- A1.001.016

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 3.3.8Q We suggest not requiring immediate notification so that s ite personnel can focus on remediating any problem and to allow them time to gather facts (including rainfall intensity) to confirm or deny that a violation has occurred. For example, if the numeric sta ndard is exceeded but the storm event exceeds the 2 yr ./24 hour threshold there would be no violation to report. Such information is typically
not available within the 24

- hour window for immediate notification suggested in the Draft Permit. In addition to burdening permit holders, an immediate reporting oblig ation would be expected to result over reporting that could result in the wasteful dispatch of EPA personnel to investigate events which, upon later review, are determined not to be violations at all.

Response Refer to Response 3.1.



# Comment ID 0100

- A2.001.011

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 3.3.8Q USEPA solicits comments on whether the permit should require an immediate notification (e.g., 24

- hours) of EPA for extremely high turbidity levels. The City strongly disagrees with this approach of immediate notification of EPA. This is not a point source issue nor should it be treated as such. This type of exceedance should not be compared to a sanitary sewer overflow nor is it a pu blic health issue. An alternative approach would be given on weekly or monthly reports. How does USEPA intend to use this information the y suggest be reported in 24

- hours. Who is responsible for reporting such information?

Response Refer to Response 3.1.



# Comment ID 0111

- A2.001.012

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 3.3.8Q Dow believes that the requirement for immediate (24

- hours) notification of extremely high turbidity levels is not appropriate. Dow
believes that the permittee should be given ample time to perform a confirmation of laboratory quality assurance/quality control of th e data; assess the current situation and verify that the BMP, stormwater controls are functioning as intended prior to alerting EPA of extremely high turbidity values. These steps are necessary to verify the extremely high turbidity result(s), and may take more than 24 hours to complete.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

627 In the case of extremely high turbidity results, Dow does believe that immediate steps should be taken to verify the turbidity test results, assess the effectiveness of stormwater controls and BMPs. However, 24 hour reporting to EPA may result in a prematur e and inaccurate disclosure. Dow does support a more reasonable time period of 72 hours after the permittee receives turbidity sampling for agency reporting of an extremely high turbidity result. This 72 hour proposed timeframe should also ensure an accurate agency notification and provide the permittee the necessary time to completely investigate (and potentially correct) causes of the extremely high turbidity result

Response Refer to Response 3.1.



# Comment ID 0117

- A1.001.007

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 3.3.8Q The EPA should only be notified after a response of the contractor has taken place and additional corrective measures have been implemented and the discharge continues to exceed an acceptable value by more than 3 times the given NTU.

Response Refer to Response 3.1.



# Comment ID 0123 -A2 .001.014

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 3.3.8Q Comment: The required actions for instances of exceedance of the turbidity limit are vague and are unlikely to result in impr oved

water quality protection. EPA should provide clear guidance on steps required upon discovery of excessively turbid discharges, and the enforcement steps that will be taken if action is not made to bring the site discharge into compliance.

Response
Refer to Res ponse 3.1.



# Comment ID 0131

- A1.001.018

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.8Q A reasonable time to notify EPA of the discovery is within 48 hours of learning about the exceedance and not 24 hours. This would allow time for the sampler to gather the facts, convey the information to the operator, and allow time for the operator to re medy the situation prior to reporting. The reporting could then be much more complete for EPA review.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

628 Response Refer to Response 3.1.



# Comment ID 0133

- A2.001.028

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 3.3.8Q MDT does not believe that additional notification requirements are reasonable for high turbidity levels. The standard pennit conditions listed in Appendix L already contain 24

- hour reporting requirements for any noncompliance that may endanger health or the environment. Also, the proposed pennit requires the implementation of corrective actions if the numeric turbidity limit is violated, as well as monthly reporting. As such, MDT questions the usefulness of additional reporting. Immediate notification of every hig h turbidity level would be overly burdensome to the regulated community, with no actual water quality benefit.

Response Refer to Response 3.1.



# Comment ID 0137

- A2.001.015

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 3.3.8Q As presented, the monitoring, inspection and reporting requirements are not practical. Allowing seven days to discover, design, review, approve and install additional practices is unreasonable. The permit is not clear about what information EPA will be immediat ely notified or what purpose it will serve to notify EPA. Until we know what the NTU limit will be or the threshold discharge for immediate notification we cannot comment. Moreover, the permit requires 30 day reports and time is better spent on corrective actions rather than reporting. The p ermit requires monitoring from discharge points instead of from the regulated waters. Projects employing Environmental Site Design will not have discharge points and we believe the relevant turbidity measurement is in the regulate d waters. This monitoring protocol seems inconsistent with the discharge into a storm sewer which assumes discharge is at the point where regulated waters are reached.

Response Refer to Response 3.1.



# Comment ID 0145

- A2.001.016

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 3.3.8Q We agree that immediate (within 24 hours) reporting of certain numerical standard exceedances to EPA would facilitate complia nce. Such a requirement will heighten the permittees sense that adequate control of stormwater discharge water quality is important and that they are accountable for the level of success or failure to meet that obligation.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

629 As for what exceedance level should trigger immediate reporting, we agree that monitoring results that are twice the numeric standard or greater should be reported to EPA immediately.

Response Refer to Response 3.1.



# Comment ID 0158

- A1.001.015

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 3.3.8Q
If EPA retains the turbidity limit, reporting exceedances (Section 3.3.8) should be conducted per existing Notice of Non

- compliance mechanisms. A release of turbidity from a construction site likely would not be categorized as endangering health or the envi ronment,
but w ould more probably be categorized as an upset condition. Reporting these upset conditions and the corrective actions would fa ll under the normal requirements of reporting on the regular monthly report and not a 24

- hour notification requirement as would be required for those incidents endangering health. In an effort to reduce paperwork for all parties, an allowance should be mad e for quarterly reporting for no discharge conditions and no exceedance conditions as noted in Section 3.3.9.

Response
Refer to R esponse 3.1.



# 3.3.9 OTHER IPM MEASURES - FOREST CANOPY PEST CONTROL

Comment ID 0025

- A1.001.032

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.3.9 Will the eNOl system be able to accommodate the numerous discharge points that may exist on a linear construction project?

Response Refer to Response 1.6.1.



# Comment ID 0025

- A1.001.033

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.3.9
As discussed above, there may not always be rain data within 5miles if the on

- site gauge is damaged or stolen. Suggest requiring the
use of the closest available data.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

630 Response Refer to Response 3.1.



# Comment ID 0030

- A2.001.026

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 3.3.9 Section 3.3.9.3.d, page 37 There is still a need to report turbidity from sites with greater than the 2

- year, 24

- hour storm. Therefore, if an event is clearly larger
than a 2

- year, 24

- hour storm, there is still a need to have someone to perform sampling. Sampling every two hours at a large site with multiple discharge points also seems impractical. We recommend the EPA approach of collecting three or more samples over the day, as opposed to every 2 hours. In arid to semi

- arid portions of the country, there will likely be several events that are very short in duration and only have one sample regardless of the sampling approach.

Response Refer to Response 3.1.



# Comment ID 0047

- A2.0 01.022

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 3.3.9 Section 3.3,9,3.d page 37

Sampling every two hours at a large site with multiple discharge points seems impractical especially in arid to semi

- arid states where

storm events could be frequent but not long in duration.

Response Refer to Response 3.1.



# Comment ID 0053

- A2.001.024

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 3.3.9 An allowance should be incorporated for permitted sites to report quarterly for reports of "No Exceedance" and for "No Discharge" reports.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

631 

# Comment ID 0064

- A1.001.032

Author Name: Dees Richard Organization: City of Meridian Issue Category: 3.3.9
Section 3.3.9.3.b

- d, page 37 - Sections b through d of "Contents of sampling reports"

•As previously, there is no accounting for background turbidity, TMDL's seasons of concern, storm duration, and first flush t hat may deliver high NTU levels not representative of steady

- state conditions. Suggest this section be reworded to consider these impacts.

Response Refer to Response 3.1.



# Comment ID 0075

- A2.001.027

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 3.3.9 Why the "no discharge" report requirement every 30 days since this would be frequent occurrence, (baseline) given high desert ari d
climates?

Response Refer to Response 3.1.



# Comment ID 0076

- A1.001.026

Author Name: Steadman Marc Organization: Target Corpora tion Issue Category: 3.3.9 Additionally, Target requests clarification on persons qualified to submit sampling results. Target suggests allowing qualifi ed personnel to submit on behalf of the Owner or Operator. Target may not be able to meet signatory timeline requirements if owner signature is required. The requirement could delay the submission of sampling results.

Response Refer to Response 3.1.



# Comment ID 0090

- A1.001.026

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 3.3.9 The presence of multiple operators also makes it significantly more difficult for a natural gas utility to comply with the Draft Permit's "Reporting Turbidity" requirement in Part 3.3.9. EPA should consider how this provision (e.g. du ring routine inspections or as the result of a permit violation) would ensure that a permit holder is not being burdened with the requirement of reporting turbi dityRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

632 violations that are caused by others. AGA requests clarification on accountability in repor ting, and urges EPA to consider linear construction sharing right

- of

- way with non

- permit projects in establishing its notification requirements or alternative thresholds for
immediate notification to EPA.

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.016

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.9 If and when EPA completes and succeeds in defending its C&D ELG, the agency should set up a well

- structured and streamlined system for permittees to submit the required reports. The Draft would require permittees to submit turbidity data reports to EPA once a month and report to EPA within 24 hours any exceedance of the numeric turbidity limit. This reporting scheme is too oner ous and aggressive. It is more appropriate to require quarterly reporting of the numeric turbidity values and corrective action withi n a reasonable time of any exceedances.

According to EPA regulations, requirements to report monitoring results for storm water discharges associated with industrial activity (which includes construction) that are subject to an effluent limitation guideline shall be established on a "case

- by

- case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year." See 40 CFR § 122.44(i)(3). In light of this provision, we stress that a requirement to report turbidity data on a monthly basis is too onerous.

Moreover, the 24

- hour reporting of any exceedance is misplaced. According to EPA regulations, 24

- hour reporting is needed only for "toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance." See 40 CFR § 122.44(g). The sediment found in sto rmwater runoff from construction sites falls into neither category.

In addition, EPA's proposed requirement to immediately notify the agency of any exceedance of the numeric turbidity limit imp licates the Fifth Amendment rights of certain small businesse s. See AGC comments

Response Refer to Response 3.1.



# Comment ID 0093

- A2.001.080

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.9 AGC believes that EPA should set up a structured and simplified reporting system for permittees who are required to meet the numeric effluent limit. The Draft requires permittees to submit turbidity sampling data to EPA once a month and report to EPA within 24 hours any exceedance of the numeric turbidity li mit. This reporting scheme is too onerous and aggressive. As allowed by EPA's regulations, it is more appropriate to require quarterly reporting of the numeric turbidity values and corrective action within a certain period of time if any exceedances occur. See 40 C.F.R. § 122.44(i)(3) and 40 C.F.R. § 122.44(g).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

633 AGC also suggests that EPA relax the reporting requirements for those sites demonstrating compliance. It will aid in improvin g EPA's effectiveness by reducing the amount of data EPA staff must review and allow them to focus on new and/or projects with compliance problems. Also, EPA should provide this relief and other incentives to operators who demonstrate good compliance histories.

Response Refer to Response 3.1.



# Comment ID 0096

- A1.001.054

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 3.3.9 The draft permit requires permittees to submit turbidity sampling data to EPA once a month and report to EPA within 24 hours any
exceedance of the numeric turbidity limit. This reporting scheme is too onerous and aggressive, and it is uncertain what purpose it would serve particularly given that the limit is currently unknown. As allowed by EPA’s regulations, it is more appropriate t o require quarterly repor ting of the numeric turbidity values and corrective action within a certain period of time if any exceedances occur.[FN 73] EPA should set up a structured and simplified reporting system for permitees who are required to meet the numeric effluen t limit.

[FN 73] 40 CFR § 122.44(i)(3) and 40 CFR § 122.44(g).

Response Refer to Response 3.1.



# Comment ID 0105

- A2.001.014

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 3.3.9 [ As is currently proposed (and should be maintained in the final permit) for reporting turbidity sampling data, benchmark monitoring results should be reported to EPA on a monthly basis through the eNOI system. See Parts 3.3.9 (monthly reporting of turbidity sampling data through eNOI system) and 4.2.2.1.e (benchmark monitoring data to be reported on quarterly basis to "EPA Regional Office"). This frequency of reporting will alert EPA and the public to patterns of benchmark exceedances on a reasonably freq uent basis and will permit promp t oversight of required corrective action measures.

Response Refer to Response 3.1.



# Comment ID 0125

- A2.001.004

Author Name: Johnson Michelle Organization: Northeast Ohio Areawide Coordinating Agency (NOACA) Issue Category: 3.3.9Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

634 Reporting is based on a daily limit, as pointed out above sediment control practices are designed to work over several days, reporting should be tied to an event not a day.

For those communities that have taken on the role of regulator under the NPDES Phase II permits, verifying the results that are submitted by private developers within their communities would be next to impossible. The sampling needs to be conducted by someone who has a professional license using the best available methodology and technology.

Response Refer to Response 3.1.



# Comment ID 0146

- A1.001.006

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 3.3.9 Inspection reports do not need to be submitted. Similarly, sampling records should be kept with the SWPPP and produced upon request by a regulator. This would avoid the burden to states of having to create a system for reporting, recording, and keeping stor mwater
effluent results from dozens of outfalls on thousands of construction sites.

Response Refer to Response 3.1.



# 3.3.9Q ALLOWANCES FOR QUARTERLY REPORTING (RATHER THAN MONTHLY)

Comment ID 0015

- A2.001.015

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 3.3.9Q Q16. Quarterly reporting - Agree with quarterly proposal.

Response Refer to Response 3.1.



# Comment ID 0024

- A2.001.018

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 3.3.9QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

635 EPA should also revise Part 3.3.9 to require permittees to report their turbidity sample results to EPA on a monthly basis, as opposed to a quarterly basis. Increasing the frequency of reporting will improve the accountability of permittees and enhance EPA's abil ity to respond to problems in a timely manner. These monitoring reports, like the benchmark monitoring reports for impaired waters, should be made publicly available pursuant to § 308(a)

- (b) of the CWA, 33 U.S.C. §l3l8(a)

- (b).

Response Refer to Response 3.1.



# Comment ID 0025

- A1.001.031

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 3.3.9Q Response to EPA's request for comment: Quarterly reporting would defmitely be preferable. Response Refer to Response 3.1.



# Comment ID 0037

- A1.001.034

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 3.3.9Q The Southern Ute Growth Fund supports providing allowances for quarterly reporting for those sites where no exceedances of th e turbidity limit occur.

Response Refer to Response 3.1.



# Comment ID 0040

- A1.001.017

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 3.3.9Q In an effort to reduce paperwork for all parties, an allowance should be made for quarterly reporting for no discharge conditions and no
exceedance conditions as noted in Section 3.3.9.

Response Refer to Response 3.1.



# Comment ID 0065

- A1.001.025

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

636 Issue Category: 3.3.9Q Section 3.3.9 requires submitting turbidity sample results to EPA every 30 days. EPA requested comment on whether the permit should allow quarterly reporting at sites where no exceedances occur. CCWC supports quarterly reporting at sites where no exceedances occur unless the duration of the project is less than three months (one quarter). For projects that are less than three months, monthly reporting should be required.

Response Refer to Response 3.1.



# Comment ID 0070

- A1.001.010

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 3.3.9Q h. Reporting Turbidity Sample Results - Alcoa does not believe there is a benefit to more frequent sample result submittal for those sites that are in compliance with the turbidity l imit.

Response Refer to Response 3.1.



# Comment ID 0074

- A2.001.019

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 3.3.9Q Quarterly reporting for those sites where no exceedances occur would be practicable.

Response Refer to Response 3.1.



# Comment ID 0075

- A2.001.026

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 3.3.9Q Allowances should be made for quarterly reports for areas with little to no annual rain fall.

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

637 

# Comment ID 0076

- A1.001.025

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.9Q Target requests that no monitoring results be submitted if effluent limits are being met. Permittees would report all sampling results at the end of the project on annual report form (or equivalent). Target supports the approach taken by the State of California o n their permit requirements. This would also aid in submitting quality monitor ing reports.

Response Refer to Response 3.1.



# Comment ID 0080

- A2.001.026

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 3.3.9Q Partner Response: The Partners suggest quarterly report ing for individual construction site operators under their CGP. For municipalities, annual reporting is deemed appropriate. Municipal construction projects could more easily report the baseline sampling information as part of their MS4 Municipal Stormwater Annual Report submittal.
Response Refer to Response 3.1.



# Comment ID 0085

- A2.001.018

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 3.3.9Q If EPA adopts this requirement, EPA should specify that operators who report on a quarterly basis must report their first exceedance within an appropriate time frame and also revert to monthly reporting.

Response Refer to Response 3.1.



# Comment ID 0086

- A1.001.017

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 3.3.9Q In an effort to reduce paperwork for all parties, an allowance should be made for quarterly reporting for no discharge condit ions and no exceedance conditions, as noted in Section 3.3.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

638 Response
Refe r to Response 3.1.



# Comment ID 0087

- A1.001.047

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 3.3.9Q EPA should adopt quarterly reporting as the norm, especially absent substantial exceedances.

Response
Refer to Response 3.1.



# Comment ID 0091

- A2.001.012

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 3.3.9Q 12. Fact Sheet Item 16. Part 3.3.9: Turbidity reporting should only be required if turbidity sampling is required. In the example in the text it is not clear when the turbidity requirement began. If the turbidity sampling threshold is reached within the first month after 4 July, the example is correct. Quarterly reporting should be allowed for sites where no exceedances occu r.

Response Refer to Response 3.1.



# Comment ID 0097

- A1.001.013

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 3.3.9Q 16. Quarterly reporting should be allowed for sites with no exceedances.

Response Refer to Response 3.1.



# Comment ID 0103

- A3.001.015

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 3.3.9Q In Part 3.3.9 Reporting Turbidity Samples Results to EPA, the EPA requires permittees to submit a report of sample results once per month and requests comments on whether allowances should be made in the permit for quarterly reporting for sites where no
exceedances occur.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

639 TCEQ supports providing as much flexibility as possible for sites that demonstrate compli ance with the numeric effluent limits. However, we reiterate our request that any numeric limits go through a public process.

Response Refer to Response 3.1.



# Comment ID 0123

- A2.001.015

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 3.3.9Q Comment: Monthly reporting should be required for all sites regardless of the exceedance frequency. Site and weather conditio ns change rapidly and could cause identification of turbid discharges to go unreported or u nmonitored.

Response Refer to Response 3.1.



# Comment ID 0126

- A2.001.015

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 3.3.9Q The CSC would suggest required sampling be phased out with time (i.e. if the site is moving to stabilization) and lack of exceedances.

Response Refer to Response 3.1.



# Comment ID 0131

- A1.001.019

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.9Q A reduction in reporting of sampling of turbidity to quarterly would significantly reduce the burden on permit holders. It is unclear why there is disparity between turbidity sampling reporting frequency and benchmark sampling reporting frequency (quarterly). Monthly reporting for most projects is far too frequent and it is unclear how such increased frequency benefits the environment.

Response Refer to Response 3.1.



# Comment ID 0133

- A2.001.029

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

640 Issue Category: 3.3.9Q
MDT strongly supports the allowance for quarterly reporting. MDT feels that quarterly reporting is appropriate for all sites, and thaI annual reporting is justified for sites where no exceedances have occurred.

Response Refer to Response 3.1.



# Comment ID 0153

- A1.001.028

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.9Q Yes, an allowance should be made for quarterly reporting for sites where no exceedances have occurred. If the only thing the report is

go ing to show is that no exceedances occurred, then quarterly reporting should be allowed.

Response Refer to Response 3.1.



# Comment ID 0154

- A1.001.004

Author Name: Loehr Aaron Organization: Pace Construction Issue Category: 3.3.9Q Allow simply quarterly reporting of turbidity data to track compliance with EPA's numeric stormwater discharge limit

Response Refer to Response 3.1.



# Comment ID 0166

- A1.001.006

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: 3.3.9Q
IV. EPA sh ould set up a structured and simplified reporting system for permitees who are required to meet the numeric effluent limit. The draft permit requires permittees to submit turbidity sampling data to EPA once a month and report to EPA within 24 hours any

exc eedance of the numeric turbidity limit. This reporting scheme is too onerous and aggressive. As allowed by EPA's regulations, it is more appropriate to require quarterly reporting of the numeric turbidity values and corrective action within a certain perio d of time if any exceedances occur. See 40 CFR § 122.44(i)(3) and 40 CFR § 122.44(g).

Response Refer to Response 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

4

. Water Quality

- Based Effluent Limitations

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

641 

# 4 WATER QUALITY

- BASED EFFLUENT LIMITATIONS

Comment ID 0017

- A1.001.021

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 4 19) Section 4 - This section also requires sampling stormwater and should be removed along with Section 3.

Response Refer to Response 4.1.



# Comment ID 0092

- A2.001.002

Author Name: Killam Gayle Organizati on: Merrimack River Watershed Council, Inc. Issue Category: 4 As noted in the Merrimack River Watershed Council's separately submitted comment on this permit, the Merrimack River is class ified as impaired for nutrients, priority organics, metals and pathogens along various stretches of the river in both Massachusetts and New Hampshire. As the Merrimack River does not yet have TMDLs for any of its impairments at this time, it is critical that all se nsitive or impaired waters, with or without a TMDL, ar e protected under this permit.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.057

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4 EPA's proposed terms are overly burdensome and unnecessary. In fact, the existing terms in the 2008 CGP are sufficient to ensure that impaired waters are adequately protected. Therefore, EPA should remove the additional requirements, and instead follow the wo rkable path set forth in the 2008 CGP. The TMDL program and the 2008 CGP establish a well

- developed process for states to follow to address the waters within their borders that fail to meet their water quality standards. This approach represents a logical and effective approach to addressing water quality requireme nts through a general permitting scheme, and EPA has not provided any evidence that the existing program is not working. It is an approach that has been deemed sufficient to protect the water quality of receiv ing waterbodies in previous CGPs and will conti nue to do so under the new CGP. Thus, NAHB urges EPA to abandon this overly burdensome and costly fix to a problem that doesn't exist.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

642 

# Comment ID 0096

- A1.001.061

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4 EPA's intended efforts to improve the permit are more likely to create confusion and significant cost with no demonstration t hat any additional benefits will be derived in comparison to the more simplified and streamlined approach of the 2008 CGP. Therefore, NAHB urges EPA to remove the costly measures, such as WQBEL requirements, prior to finalizing the CGP. At a minimum, before finali zing the CGP, EPA must develop a cost benefit analysis that fully assesses the cost impacts of the draft CGP on the industry and small businesses, in particular, and then use that information to develop more reasonable alternatives.

Response Refer to Response 4.1.



# Comment ID 0109

- A2.001.006

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 4 The Permit must ensure that state water quality standards are met. We call on EPA to include additional water

- quality based requirements to protect all sensitive or impaired waters, including the proposed requirements for benchmark monitoring and corrective
actions.

Response Refer to Response 4.1.



# 4.1 GENERAL EFFLUENT LIMITATION TO MEET APPLICABLE WATER QUALITY STANDARDS

Comment ID 0055

- A1.001.013

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 4.1 Testing for individual nutrients should not be required under this permit. Levels of most nutrients are directly related to t urbidity effluent amounts. We believe that this requirem ent would increase testing costs unnecessarily. The permit does not include any language that limits the required testing if a particular nutrient (listed as impairment) doesn't originate from construction activities.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

643 

# Comment ID 0064

- A1.001.033

Author Name: Dees Richard Organization: City of Meridian Issue Category: 4.1 Section 4.1, page 38 - "Your discharge must be controlled as necessary to meet applicable water quality standards. You must also comply with any additio nal requirements that your state or tribe requires you to meet in Part 10."

•How is this requirement balanced with pending NEL for turbidity? Will the more stringent requirement always apply?

Response Refer to Response 4.1.



# Comment ID 0067

- A1.001.00 9

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 4.1
A. The CGP requires that any discharge from the project not degrade water quality in the receiving stream. On a linear projec t , monitoring each point of storm water discharge in order to prove this no degradation standard would be very difficult and costly, and selection of representative discharge points could be subjective given the length of some transmission line projects. Entergy requests that EPA clarify the met hod by which the permitting authority and the applicant should develop a reasonable monitoring plan or a plan that allows compliance with the best management practices of the CGP to create at least a presumption that the project's runo ff is not causing or contributing to a violation of water quality standards.

Response Refer to Response 4.1.



# Comment ID 0098

- A1.001.017

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 4.1

To the extent that the second sentence of the first paragraph of this Part is intended to refer exclusively to Section 401 water quality certifications we request that the language be modified to make that clear. Such certifications do indeed become a part of an NPDES permit and are enforceable as suc h. It would be inappropriate and unlawful, however, to seek to incorporate any other state or tribal requirements not otherwise supported by the CWA into an NPDES permit. Thus, this clarification would resolve an important and potentially divisive issue.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

644 

# Comment ID 0119

- A2.001.004

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.1 EPA requires that discharges must be controlled "as necessary to meet applicable water quality standards," but provides, in a similar approach as the anti degradation provision discussed above, that in the absence of contrary information, EPA expects that com pliance with the Draft Permit "will result in stormwater discharges being controlled as necessary to meet applicable water quality standards.,,[FN 2] As with Section 1.3.4 above, we support that determination, which is appropriate based on the control requ irements that apply elsewhere in the Draft Permit. [FN 3]

[FN 2] It is critical to this approach that if the discharger becomes aware, or EPA determines, that the discharge is not being controlled "as necessary to meet applicable water quality standards," the next step is for the discharger to take corrective action unde r Section
6.3.2. There is no indication in Section 4.1 that a permit violation occurs at that point. This is the same approach that was contai ned in the previous CGP, and in the settlement agreement between the FWQC, Utility Water Act Group and EPA over the 2005 MSGP, and we continue to endorse that approach. There is language in Section 6.5 of the Draft Permit that appears to be inconsistent wi th that approach. Section 6.5 cites examples of permit violations; one of the examples is "exceedance of an applicable water quality standard." That example should be deleted, since it does not accurately reflect the structure of the water quality conditions in the Per mit.

[FN 3] As with Section 1.3.4, we believe that not all of the Draft Permit's conditions are necessary to make t his determination, and we encourage EPA to streamline the CGP and make its conditions more reasonable and workable, as recommended in FSW A and FWQC
member comments.

Response Refer to Response 4.1.



# Comment ID 0121

- A2.001.010

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.1 It is not clear what actions are necessary to comply with the permit condition in section 4.1 stating "Your discharge must be controlled as necessary to meet applicable water quality standards." It is not clear what controls are necessary, what water quality standards are applicable, or what it means to meet them. Without clarification on what steps and measures are necessary, permittees will be
vulnerab le to third party lawsuits, enforcement actions, and potentially required to conduct costly studies of discharges and impacts on water quality. Therefore this sentence ofthe permit should be removed.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

645 

# Comment ID 0121

- A2.001.012

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.1 EP A's statement from the following paragraph of the permit should be sufficient to ensure that discharges subject to this permit meet water quality standards while not exposing permitees to third party lawsuits.

"In the absence of information demonstrating otherwise, EPA expects that compliance with the conditions in this permit will r esult in
stormwater dis charges being controlled as necessary to meet applicable water quality standards. If at any time you become aware, or EPA determines, that your discharge is not being controlled as necessary to meet applicable water quality standards, you must take

correct ive action as required in Part 6.3.2, document the corrective actions as required in Part 6.4, and report the corrective acti ons to EPA as required in Part 6.6."

This language allows EPA to determine that additional measures are necessary in specific instances while providing permitees with assurance that the measures outlined in the permit will be sufficient unless informed otherwise by EPA. This is a more approp riate way of ensuring water quality is maintained, because as stated in the permit fact sh eet, EPA is frequently in a better position to judge whether a particular discharge has the potential to contribute to water quality concerns.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.015

Author Name: Robertson Mike Organization: Minneso ta Chamber of Commerce Issue Category: 4.1 EPA requires that discharges must be controlled "as necessary to meet applicable water quality standards," but provides, in a similar approach as the antidegradation provision discussed above, that in the absence of contrary information, EPA expects that compliance with the Draft Permit "will result in stormwater discharges being controlled as necessary to meet applicable water quality st andards." As with Section 1.3.4 [See Comment ID 0128

- A2.001.005} above, the Ch amber supports that determination, which is appropriate based on the control requirements that apply elsewhere in the Draft Permit.

Response Refer to Response 4.1.



# Comment ID 0135

- A2.001.005

Author Name: Orel Linda Organization: Massachusetts Associat ion of Conservation Commissions (MACC) Issue Category: 4.1 The Permit must ensure that state water quality standards are met and that construction site runoff complies with any TMDL li mits that may apply.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

646 Response Refer to Response 4.1.



# Comment ID 0153

- A1.001.029

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 4.1 This section should be removed completely or only be applicable to TMDL water bodies for turbidity, sediment, and TSS. What i s the
basis of this requirement? This was not part of the EGLs! BIO should not be added because it is an indicator of a wide variety of possible stressors in a watershed that are well beyond sediment.

Response Refer to Response 4.1.



# Comment ID 0158

- A1.001.005

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 4.1 In 2000, UWAG appealed provisions in EPA's MSGP that would have subjected permittees to the threat of lost permit coverage an d enforcement (without any opportunity for cure) based on a determination that the permittee was causing or contributing to an excursion of applicable water quality standards, even if the permittee was otherwise compliant with the permit. This appeal was subsequ ently
resolved thro ugh a settlement, which provided:

"At any time after authorization, the Director may determine that your storm water discharges may cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard. If such a determination is made, the Director may require you within a specified time period to:

A. Develop and implement a supplemental BMP action plan describing SWPPP modification ... to address adequately the identified water quality concerns;

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the receivin g water is attaining water quality standards; or

C. Submit an individual permit application...."

(Section 3.3 of the March 2005 S ettlement Agreement between the Federal Water Quality Coalition, UWAG, and EPA resolving the 2000 MSGP appeal).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

647 This settlement is largely reflected in EPA's most recent MSGP

- 2008, which limits the risk of lost coverage and enforcement and

p rovides permi ttees with a more step

- wise and iterative approach to revising/enhancing its BMPs to meet water quality expectations. Unfortunately, the new draft CGP revives the issues that UWAG appealed and were resolved in the MSGP. Section 6.2.2.3 of the CGP requires a permittee to undertake corrective actions upon discovery that the "stormwater controls you have installed and are maintaining are not effective enough for the discharge to meet applicable water quality standards...." Section 6.5 then follows that "If
the c ondition identified in this Part constitutes a permit violation (e.g., a[n] ... exceedance of an applicable water quality stand ard), correcting it does not remove the original violation" (emphasis added). These proposed CGP provisions would have the effect o f exposing permittees to immediate enforcement for excursions of WQS, without opportunity for cure, even if they are otherwise compliant with the CGP.

Response Refer to Response 4.1. Refer also to Responses 6.1

- 6.13.



# Comment ID 0171

- A1.001.004

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 4.1 The proposed CGP provisions would appear to have the effect of exposing permittees to immediate enforcement for exceeding wat er quality standards, even if they are otherwise compliant with the CGP.

Response Refer to Response 4.1.



# 4.2 DISCHARGE LIMITATIONS FOR IMPAIRED WATERS [REQUEST FOR COMMENT]

Comment ID 0015

- A2.001.037

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 4.2 4.2 Guidance is needed in the event a waterway becomes listed during the permit term - will there be a permit modification? Drainage basin information should be required in monitoring reports.

Response
Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

648 

# Comment ID 0024

- A2.001.002

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2 We applaud EPA for recognizing that past iterations of the CGP have not provided sufficient protections for impaired and high

- quality waterways, and for proposing to enhance protections for those waters in the draft 2011 CGP. However, we urge EPA to instead r equire that discharges from priority construction sites be subject to individual NPDES permits. Reliance on coverage under a "general" permit for storm water discharges to waters that are already either impaired for sediment or siltation, or are subject to a Total Ma ximum Daily Load ("TMDL") for these pollutants, will almost certainly result in greater degradation of these waters. Whether a TMDL is in place, impaired streams are those which, by definition, have not been adequately protected by the NPDES permitting process in the pa st. In addition to discharges to streams already experiencing excessive sediment pollution, individual NPDES permits should be required for discharges to high

- quality waters and to streams listed as critical habitat for threatened and endangered species. These streams should receive a higher level of protection entailing site

- specific permit limits and conditions, heightened public scrutiny, and a robust anti degradation analysis.

Response Refer to Response 4.1.



# Comment ID 0024

- A2.001.010

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2 As stated above, we believe that individual permits should be required for discharges to impaired waters. If, however, EPA nevertheless allows coverage under the CGP, we fully support EPA's decision to include new stabilization, inspect ion, and monitoring requirements in the CGP for sites discharging to nutrient - and sediment

- impaired waters, and for providing specific tools to help operators, as well as the public, determine whether a proposed construction site will discharge to such wa ters. See Part 4.2, Appendix J.

Response Refer to Response 4.1.



# Comment ID 0026

- A1.001.015

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: 4.2 D. The Agency has failed to cite controlling legal authority supporting its determination to include waters for which there is an
EPA

- approved or established total maximum daily load within the draft CGP's definition of "impaired waters." The EPA ought to cit e some authority for this definition or remove it from the CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

649 Res ponse Refer to Response 4.1.



# Comment ID 0026

- A1.001.016

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: 4.2
E. Section § 4.2 of the draft CGP states: "If you indicate that you do not discharge to an impaired water, EPA may determine, based on additional information, that you are considered to be discharging to an impaired water." However, the Agency fails to specify either the nature of this "additional information" or the standards that the Agency will use to exercise its supposed authority. The Congress has not delegated the EPA such discretion. Therefore, the Agency ought to specify the "additional information" it will deem relev ant, as
well as the relevant criteria that it will use to evaluate

Response
Refer to Response 4.1.



# Comment ID 0037

- A1.001.035

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2 The permit should specify that the identification of the first water as the waterbody for the construction operator to examine for determining whether an impaired water discharge exists is an initial, threshold determination but EPA can later determine con sistent with its regulatory authority that, despite the discharger's initial assessment there is no dischar ge to an impaired water using the permit's standard, such a discharge exists if there is hydraulic connection between the site and a downstream water segment t hat is impaired.

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.025

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2 The Permit discusses developing an EPA based online mapping tool in an effort to determine "Impaired Waters" site location(s)

. Previous use of EPA ENOI mapping system resulted in an EPA error of incorrect project location by more than 850 miles. Emapping is neither accurate, nor legally defendable. EPA should rectify e

- NOI mapping prior to any further use by the public. EPA map based project location determination opens EPA to legal c hallenges. The Permittee should be solely responsible for accurate coordinates and "Impaired Water" discharge potential determination.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

650 Response Refer to Response 4.1.



# Comment ID 0065

- A1.001.026

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 4.2 Section 4.2 of the CGP proposes that a site is considered to discharge to an impaired water if the first water of the U.S. to which a discharge is made is identified by a state, tribe, or EPA as being an impaired water. This permit element irrationally imposes responsibilities on construction operators that go well beyond the scope of regulated construction activities. EPA exceeds it s authority to establish permit terms for stormwater discharges by including an obligation that an operator determine whether a waterbody is "impaired" for purposes of local, state and federal law. It is rational to require the operator to take measures to limit sto rmwater discharges to an impaired water; it is not rational to impose the burden of the "impaired" determination on the operator, particularly where it is well known that regulatory entities with authority over any given waterbody may not agree on such a determination

.

Because there is a potential for conflict among regulatory bodies, the CGP should defer to the state determinations of whether a water body is impaired. CCWC does not support making this assessment the responsibility of the contractor, regardless of whether on

- line tools are available to help make this assessment. Ultimately the determination of whether or not a body of water is impaired should be left up to the state, eliminating any potential violations.

Response Refer to Response 4.1.



# Comment ID 0068

- A1.001.028

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 4.2 To the extent that Parts 4.2, 4.2.1 and 4.2.3 attempt to enhance and further explain the water quality

- based limitations contained in the 2008 CGP, FSWA could support such an approach. EPA's past, straight

- forward, and uncomplicated approach to requiring NPDES stormwater permittees to comply with appropriate TMDLs if they discharge pollutants to impaired waters that are impaired for those pollutants represents a logical and effective approach to addressing water quality requirements through a general permitting scheme.

Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.010

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

651 Issue Category: 4.2 After closely reviewing of the Draft, AGC is particularly concerned that EPA seeks to establish a water quality

- based effluent limitation (WQBEL) even for stormwater discharged into sewer systems if those systems eventually drain into impaired waterbodies subject to TMDLs. Part 4.2 of the Draft provides: "For discharges that enter a stormwater sewer system prior to discharge, the first water of the U.S. to which you discharge is the waterbody that receives the stormwater discharge from the storm sewer system." By redefining the point of discharge to mean the end of a sewer rather than the end of a property line, EPA is expanding control s across the board without any evidence that the regulated discharges cause or contribute to harm or impairment. Indeed, it remains impossible
for EPA even to determine the separate or distinct impact of any one discharge into such a system.

AGC also finds Part 4.2 of the Draft to be very troubling. That part states: "If you indicate that you do not discharge to a n impaired water, EPA may determine, based on additional information, that you are considered to be discharging to an impaired water." T he Draft neglects to specify the source of such authority, or the nature of the "additional information" that could lead EPA to make such a determination, or the standards that EPA would apply, or the process that EPA would follow. AGC questions whether Congress ha s granted such authority to EPA, and if it has, AGC still calls on the agency to specify the "additional information" it would consider relevant, how it would evaluate that information and how it would ensure that its decision

- making process is fair to permittees.

Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.081

Author Name: Pilconis Leah Organizatio n: Associated General Contractors of America (AGC) Issue Category: 4.2 To the extent that Parts 4.2, 4.2.1 (Identify If You Discharge To An Impaired Water) and 4.2.3 (Requirements for Discharges t o Waters Impaired for Other Pollutants) attempt to enhance and further explain the water quality

- based limitations contained in the 2008 CGP, AGC could support such an approach. EPA's past, straight

- forward, and uncomplicated approach to requiring NPDES stormwater permittees to comply with appropriate TMDLs if the y discharge pollutants to impaired waters that are impaired for those pollutants represents a logical and effective approach to addressing water quality requirements through a general permitting scheme.

However, adding benchmark monitoring (Part 4.2.2) for waters impaired by sediments or nutrients is an unproven and unnecessary obligation that will do more to fuel citizen suit liability than protect the environment. That has been the experience with E PA's industrial general permit and recent attempts (including by the recently proposed California Industrial General Permit) to inappropriately convert benchmark monitoring into numeric effluent limitations. EPA has not provided any justification or sci entific
rationale for its benchmark levels nor has it iden tified any reason why the current approach mandating compliance with locally

- derived (and EPA approved) TMDLs is insufficient to demonstrate compliance with water quality standards.

See also AGC comments at Section IV above.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

652 

# Comment ID 0094

- A1.001.004

Author Name: Oppenheimer Jonathan Organization: Idaho Conservation League Issue Category: 4.2 First, the Idaho Conservation League is concerned that the CGP may inappropriately approve activities in water bodies that ar e currently listed under section 303(d) of the CWA. These water bodies are 303(d) listed because they do not meet Idaho Water Q uality
Standards (IDAPA 58.01.02 et seq.) and because they fail to provide for their beneficial uses as a result of pollutants, hab itat degradation or other issues. The addition of pollutants to 303(d)

- listed streams is contrary to the CWA and language emphasizing this prohibition should be included as standard language in the CGP and associated direction. In some cases, Total Maximum Daily Loads (TMDLs) have been developed to address water quality concerns and to establish specific allocations, criteria and targets to restore beneficial uses. Where TMDLs have established specific wasteload allocations, any activity authorized by the C GP should undergo
site

- specific review to determine whether increased discharges are consistent with TMDL allocations. If no pollutant load allocati ons are specified in a TMDL and the CGP applicant has the potential to increase pollutants, then no degradat ion or addition of pollutants can occur. This includes both point sources and non

- point sources and includes, but is not limited to, the following: flow and habitat alteration, sediment, nutrients, temperature, bacteria, nutrients and any other pollutants, as defined by the CWA. These pollutants could increase as a result of activities permitted by the application of CGPs issued by the EPA. As a result, we feel that Individual Standard Permits should be considered for any water bodies that do not comply wit h Idaho Water Quality Standards, regardless of whether a TMDL has been approved.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.055

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2
The draft CGP imposes additional requirements on construction activities that discharge into impaired waters for which an
EPA

- approved or developed Total Maximum Daily Load (TMDL) has not yet been established. These additional requirements include tighter stabilization deadlines, more frequent site inspections and benchmark monitoring of discharges. It is unnecessary and inappropriate for EPA to unilaterally set benchmark limits for construction site runoff to sediment - and nutrient

- impaired waters and to require costly monitoring of such discharges to ensure compliance with some arbitrary limit. As a result, NAHB is concerned that these additional terms are overly burdensome, unnecessary, and likely to produce unintended consequences.

Both CWA Section 302 and the legis lative history are clear that water quality based limits are to be added to NPDES permits only when national technology

- based standards fail to produce the desired level of water quality in a given watershed. Therefore, EPA should continue to rely on the T MDL program that provides a well

- established process for states to address waters within their borders that fail to meet water quality standards. Water quality based effluent limits (and TMDLs) should be written at the state lev el and rely on the use of proper monitoring programs to develop appropriate benchmarks or other conditions.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

653 Furthermore, EPA may impose additional NPDES permit conditions only if EPA has determined - based on specific factors set forth in EPA regulations - that the terms are necessary to avoid an "excursion" above a specific water quality standard.[FN 74] As far as NAHB is aware, EPA has not made the required determinations nor provided any justification or scientific rationale for these additional conditions, particularly for the benchmark levels, which are not tied to any specific water quality standard.

[FN 74] 33 U.S.C. § 1303; 40 C.F.R. § 122.44(d)(1)(i)

- (iii), (vii).

Response Refer to Response 4.1.



# Comment ID 0105

- A2.001.015

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 4.2 [ EPA's proposed means of determining whether there is a discharge to impaired waters for the purposes of applying Part 4 of the Draft CGP is overly narrow and will allow construction sites to avoid water quality

- based requirements, even if the sites' discharges are contributing to impairment of downstream waters. Part 4 should apply to all sites that will discharge to any water of the U.S. that is identified as impaired on the Section 303( d) list or has an EPA

- approved or established TMDL, but also to all sites that will discharge to any water of the U.S. that is immediately upstream from a listed water or water to which a TMDL applies.

Response Refer to Response 4.1.



# Comment ID 0109

- A2.001.003

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 4.2
Green Infrastructure and Low

- Impact Development ("UD") techniques are widely available and effective at controlling stormwater
runof f from construction sites. The Permit should require the use of these methods - particularly at sites discharging to impaired (degraded) or sensitive waters.

Response Refer to Response 4.1.



# Comment ID 0109

- A2.001.007

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 4.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

654 In heavily polluted waters, where a Total Maximum Daily Load for a pollutant has been issued, we support the requirement that
construction site runoff meet these limits.

Response Refer to Response 4.1.



# Comment ID 0111

- A2.001.013

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 4.2 Dow supports the requirement for benchmark monitoring for stormwater discharges into an impaired stream from construction sites 10 acres or greater.

However, Dow believes that EPA should consider a dynamic model to establish each pollutant benchmark. Specifically, Dow encourages EPA to consider additional factors when determining pollutant benchmark levels, including: rainfall variability, the unique geographical characteristics which would impact stormwater flow and applicable pollutant background levels, including flow

- in and
flow

- on considerations for naturally occurring turbidity.

Response
Refer to Response 4.1.



# Comment ID 0112

- A2.001.006

Author Name: Karimi Hamid Organization: DC Dept of Environment Issue Category: 4.2 Part 4.2 Discharge Limitations for Impaired Waters

Impaired waters in the District of Columbia receive waters from either the CSO or MS4 system. Discharges in the CSO will go to the wastewater treatment plant unless there is an excessive rain event or a storm of increased intensity. The DC mapping tool tha t EPA is preparing for the District should include the CSO boundary and ass ociated features to provide construction site operators with all pertinent information. The discharges from the CSO may have to comply with additional testing or monitoring as per DC Water's regulations.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.005

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

655 Issue Category: 4.2 4. Discharge Limits for Impaired Waters (Section 4.2): EPA imposes significant additional restrictions on discharges to "impa ired"
waters. As to how dischargers are supposed to determine that they discharge to an impaired water, EPA states that it is developing an

on

- line tool that will assist dischargers in determining what their receiving water is, whether that water is impaired, and if s o, for what pollutant. That tool is not available yet, but according to the Agency, it will be available before the final CGP is issued. Given the importance of knowing whether one's discharge is to an impaired water, and the fact that it is not always easy for s omeone doing construction activities to figure out whether it is covered by these new requirements, we believe that an on

- line tool could be useful. However, since EPA's tool is not available yet, we do not know if it will adequately serve that function. E PA should, before the issuance of the final Permit, make the on

- line tool available for public review and comment.

Response Refer to Response 4.1.



# Comment ID 0121

- A2.001.014

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.2 The requirements relative to TMDLs should also be clarified. It is not clear what is meant by the phrase " .. .included in an
EPA

- approved or established total maximum daily load (TMDL)." TMDL documents frequently include discussion of waters not subject to the TMDL. For example, in some cases TMDLs apply waste load allocations to waters that are not the subject ofthe T MDL and may not be impaired. As drafted, these water bodies could be considered "included" in a TMDL. The phrase should be clarified as
follows" ... or has an EPA

- approved or established total maximum daily load (TMDL)."

Response Refer to Response 4.1.



# Comment ID 0137

- A2.001.016

Author Name: Ballentine Tom Organization: Maryla nd Association of Industrial and Office Properties (MAIOP) Issue Category: 4.2 The application of additional requirements in urban storm sewer locations has the potential to contradict growth management g oals with little or no water quality benefit. EPA's impervious surface data should be made more accurate before additional urban TMDL requirements are imposed through this permit.

Response Refer to Response 4.1.



# Comment ID 0153

- A1.001.030

Author Name: Wortkoetter JudithRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

656 Organization: Greenville County, South Carolina Issue Category: 4.2 1. This section should be removed, but at a maximum, this section should only be required for waters that are included in an EPA

approved or established TMDL. The permit should not dictate how the permittee determines if there is an impaired or TMDL water. There are many resources available for the permittee to determine this. 2. The Federal Register does not support including impaired
waterbodies.

Response Refer to Response 4.1.



# Comment ID 0159

- A1.001.013

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 4.2 Discharges into a storm sewer prior to discharge into impaired waters should be regulated in a manner that accounts for the presence of other pollutant sou rces that discharge to the system and whether the system is subject to an MS4 permit. The application of additional requirements in urban storm sewer locations has the potential to contradict growth management goals with little or no water q uality
benefit. EPA's impervious surface data should be made more accurate before additional urban TMDL requirements are imposed through this permit.

Response Refer to Response 4.1.



# Comment ID 0171

- A1.001.011

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 4.2 Requirements that permittees identify the impairment status of their receiving waters along linear projects that may cross or discharge into multiple different watersheds is burdensome and has the potentia l for error due to various interpretations of impairments and

stressors.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

657 

# 4.2Q METHOD FOR DETERMINING WHETHER THERE IS A DISCHARGE TO IMPAIRED WATERS

Comment ID 0015

- A2.001.016

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 4.2Q Q17. Impaired waters - Agree with proposal.

Response Refer to Response 4.1.



# Comment ID 0026

- A1.001.009

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: 4.2Q 2. Notice § III(E)(17) requests "comment on the way in which this permit [in § 4.2] determines whether there is a discharge t o impaired waters." The Chamber believes draft CGP § 4.2 is contrary to law and that it should be withdrawn an d reworked. To begin with, § 4.2 states: "If you indicate that you do not discharge to an impaired water, EPA may determine, based on additional information, that you are considered to be discharging to an impaired water." However, the Agency fails to disclose either the nature of this "additional information" or the standards that the Agency will use to exercise its supposed authority. The Congress has not delegated the EPA such arbitrary discretion and the Agency's attempt to reserve such broad and unchec ked power should not stand.

Also, the Chamber notes that the Agency has failed to cite controlling legal authority supporting its determination to includ e waters for
which there is an EPA

- approved or established total maximum daily load within the draft CGP's definition of "impaired waters." The EPA ought to cite appropriate authority for this determination or remove it from the draft CGP.[FN 6]

[FN 6] Draft CGP § 4.2 states: "For discharges that enter a storm water sewer system prior to discharge, the first water of the U.S. to which you discharge is the waterbody that receives the stormwater discharge from the storm sewer system." The EPA, however, o ffers no statutory support, scientific rationale or logical basis for treating stormwater from a small plot of land that is directed into a sewer system in this fashion. Appendix J, which purports to expand and explain draft CGP § 4.2, provides: [I]f the point of dischar ge from the site is located within a catchment area that drains to an impaired stream seg ment, pond, lake or to a water segment that is addressed by an approved or established TMDL, then EPA considers that site to be discharging to an impaired water. Likewise, if the poi nt of discharge is located within a catchment that does not include such a water segment, then your site is not considered to discharge to an impaired water. See Appendix J at p. 1, http://www.epa.gov/npdes/pubs/cgp_appendixj.pdf (accessed June 15, 2011). The EPA 's regulatory sleight of hand is impressive. By simply redefining the point of discharge to mean the end of a sewer rather than the end of a property line, the Agency substantially expands its power and control over even the smallest of building plots with out any evidence that the discharges in question cause or contribute to harm or impairment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

658 Response Refer to Response 4.1.



# Comment ID 0030

- A2.001.027

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 4.2Q Section 4.2, page 38 We recommend that EPA does develop a tool with up

- to

- date 303 (d) listed water bodies. If benchmark sampling is required for TMDL and 303(d) listed water bodies, we recommend it only be required when there is a direct discharge to these receiving waters. In
arid to semi

- arid regions, we list receiving waters on SWPPPs and stormwater discharge applications that are sometimes miles from the proposed construction site. Potential pollution is highly unlikely to reach this receiving water. H owever, since it is in that watershed basin, these streams are listed as the receiving waters or at a minimum as the ultimate receiving waters.

Response Refer to Response 4.1.



# Comment ID 0074

- A2.001.020

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 4.2Q
An on

- line mapping tool has been very helpful to the permitting agencies and the regulated communities. EPA should include the link in the proposed permit.

Response Refer to Response 4.1.



# Comment ID 0076

- A1.001.028

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 4.2Q There are no requirements detailed in the permit on who will be affected by the additional WBELs other than first water of U. S. receiving discharges. Target suggests instead having it affect those within a mile and that are direct dischargers to the impaired wate r. Otherwise, a facility's first receiving water may be miles away and not a direct discharge and therefore no possible impacts on that receiving water, yet be obligated by additional permit requirements.

Target finds this problematic since the C & D rule is a Technology Based Effluent Limits (TBELs) and based on site's discharg es, while the WQBEL requirements are receiving water ba sed.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

659 Response Refer to Response 4.1.



# Comment ID 0080

- A2.001.027

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 4.2Q Partner Response: The Partners question the availability and accuracy of the new tool. Will the tool be readily available, easily understood and used by members of the construction industry, permitted municipalities and states with NPDES delegated authori ty? Waters of the U.S. located in urban areas, such as the Rio Grande in Albuquerque have multiple water quality parameters listed on the 303(d) list and are considered "Impaired Waters." The entire metropolitan area is located in the Rio Grande watershed and, th erefore,
all CGPs issued would be burdened with the a dditional requirements under this section.

Response Refer to Response 4.1.



# Comment ID 0085

- A2.001.019

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 4.2Q EPA should consider expanding the requirements of this section to sites located within the watershed of major impaired waterways subject to TMDLS for sediment and nutrients, such as the Chesapeake Bay.

Response Refer to Response 4.1.



# Comment ID 0086

- A1.001.005

Author Name: Walz Barbara Organization: Tri -S tate Generation & Transmission Association, Inc. Issue Category: 4.2Q The proposed CGP is only made worse when considered in conjunction with the proposed EPNCorps Guidance on Identifying "Waters of the United States". Not only does the proposed CGP add on erous requirements, the requirements would need to be met at many new locations due to the extremely broad scope of the new Waters of the United Sates guidance.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

660 

# Comment ID 0088

- A1.001.005

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 4.2Q This concern is exacerbated by the new EPA/Corps Guidance on Identifying "Waters of the United States". Not only does the new CGP add onerous requirements, the requirements would have to be met at many new locations because of the extremely broad scope of the new Waters of the United Sates guidance.

Response Refer to Response 4.1.



# Comment ID 0090

- A1.001.034

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 4.2Q AGA submits that under Part 4.2, an online mapping tool to aid construction operators in the identification of impaired water ways would be helpful, but an adequate testing period should be set aside for any such tool that is made available prior to the issuance of the
final rule.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.062

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2Q The proposed criteria for determining whether a permit is discharging to impaired waters in the CGP is whether the first US water that receives the discharge is listed as an impaired or TMDL water. If so, that site is considered to discharge into an impaired s tream. This seems reasonable. The draft CGP then goes on to say that if a site discharges to a stormwater drainage system that then directly discharges to an impaired stream, then that site also discharges to an impaired stream. This second part is confusing and unw arranted. Once the site discharge goes into a municipal stormwater system, it also would be comingled with other stormwater runoff, and would not be indicative of the actual contribution of the construction site to the TMDL limits. EPA should only consider the first water that
receives the discharge and should not complicate permits by also requiring permittees to trace the discharge to municipal stormwater systems. EPA stated it is developing an online mapping tool that permitees will use to determine whether the construction sit e discharg es to an impaired water. This tool should be evaluated by the regulated entity prior to inclusion in the permit.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

661 

# Comment ID 0097

- A1.001.014

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 4.2Q 17. Criteria is acceptable.

Response Refer to Response 4.1.



# Comment ID 0100

- A2.001.012

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 4.2Q Section 4.2, USEPA requests comments on the way in which this permit determines whether there is a discharge to impaired waters.
See attached letter to USEPA as submitted by the City of Fort Wayne dated May 13, 2011.

Response Refer to Response 4.1.



# Comment ID 0121

- A2.001.013

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.2Q Defining what constitutes a discharge to an impaired water is important so that permitees can clearly identify which requirem ents apply at a given loc ation. The description of what constitutes a discharge to an impaired water below from section 4.2 ofthe permit is helpful in this regard.

Your construction site will be considered to discharge to an impaired water if the first water of the U.S. to which you discharge is identified by a state, tribe, or EPA pursuant to Section 303( d) of the CWA as not meeting an applicable water quality standa rd, or is included in an EPAapproved or established total maximum daily load (TMDL). For discharges that enter a storm sewer system prior to discharge, the first water of the U.S. to which you discharge is the waterbody that receives the stormwater discharge from th e storm sewer system. For further instructions regarding whether your site discharges to an impaired water, refer to Appendix J.

However, the definition of "discharge to an impaired water" in Appendix D indicates that such a discharge occurs " ... if the first named water of the U. S to which you discharge is identified ... as not meeting an applicable wa ter quality standard ... " (emphasis added).

The additional specification that the standard applies to the first named water is unnecessary, arbitrary, and will lead to r unoff being considered discharge to an impaired water in cases where there is very little connection between the project runoff and the impairedRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

662 water. It is not clear why EPA differentiates between named and unnamed waters in this definition. The naming of waters is no t dependent on objective criteria related to water quality, but rathe r local history and practice. Therefore, this distinction is unsupported.

The distinction between named and unnamed waters may also lead to inappropriate conclusions about whether a discharge has the potential to impact an impaired water. Unnamed water bodies are frequently listed as impaired waters. As a result, there could be locations where a construction site drains to an impaired unnamed water that is upstream of a named water that is not impaire d. Based on a strict reading of this definition, discha rge to the unnamed impaired water would not be considered a discharge to an impaired water for the purposes of the permit. This is clearly problematic and likely not what EPA has intended. Furthermore, in many cases unnamed waters can be extensive in size. As a result, there will be situations where discharges enter unnamed waters and travel long distances before entering named waters. In these situations, the discharge should not be considered discharges to that named water, but
instead should be considere d discharges to the first water that receives the discharge.

Response Refer to Response 4.1.



# Comment ID 0126

- A2.001.016

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 4.2Q The CSC would request exemptions for stream rehabilitation projects.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.016

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2Q EPA imposes significant additional restrictions on discharges to "impaired" waters. EPA states it is developing an on

- line tool that will assist dischargers in determining what their receiving water is, whether that water is impaired, and if so, for what pollutan t. The Chamber recommends that prior to issuance of the fi nal Permit, EPA should make the on

- line tool available for public review and

comment.

Response Refer to Response 4.1.



# Comment ID 0141

- A2.001.002

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, IdahoRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

663 Issue Category: 4.2Q 1. Discharge Limits for Impaired Waters (Section 4.2): EPA proposes significant additional restrictions on construction site discharges to "impaired" waters. Knowing that determining if a construction site discharges to an impaired receiving water can be a difficult task, EPA has stated that it is developing an on

- line tool that will assist dischargers in determining their receiving waters, whether that water is impaired, and if so, for what pollutant. While the City of Nampa applauds the efforts of EPA on the development of this on

- line tool, the City has some concerns that this tool will not be available prior to the issuance of the final CGP Permit and if this too l will adequately provide the required information. The City respectfully requests that EPA make the on

- line tool available for public review and comment prior to the issuance of the final CGP Permit.

Response Refer to Response 4.1.



# 4.2.1 IDENTIFY IF YOU DISCHARGE TO AN IMPAIRED WATER

Comment ID 0062

- A1.001.049

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 4.2.1 How far away? Is this applicable if you discharge 10 miles upstream of impaired waters. Shouldn't samples be collected at the point entering impaired waters?

Response Refer to Response 4.1.



# Comment ID 0075

- A2.001.028

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 4.2.1
See Part 1.5.1 comments - How would a contractor determine Sec. 303(d) listed waters as the initial d ischarge point, given the multiple databases in Wyoming?

[See comment ID 0075

- A2.001.001]

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

664 

# 4.2.2 REQUIREMENTS FOR DISCHARGES TO SEDIMENT OR NUTRIENT- IMPAIRED WATERS. [REQUEST FOR COMMENT]

Comment ID 0031

- A2.001.004

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: 4.2.2 The Water Quality Based Effluent Limit (WQBEL) provision currently proposed in the draft CGP will require dischargers exceedi ng the 10 acre disturbance threshold to conduct benclnnark monitoring. However, adding benclnnark monitoring for waters impaired by sediments or nutrients is an unproven and unnecessary obligation that will do more to fuel citizen suit liability than protect the
environm ent. EPA has not provided any justification or scientific rationale for its benclnnark levels nor has it identified any reaso n why the current approach mandating compliance with locally

- derived (and EPA approved) TMDLs is insufficient to demonstrate compli ance with water quality standards. Additionally, water quality standards and all TMDLs should be handled at the state level through proper monitoring programs to develop appropriate benchmarks. For the reason stated above, OHBA urges EPA to remove this pro vision from the COP until further research and analysis.

Response Refer to Response 4.1.



# Comment ID 0051

- A2.001.009

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 4.2.2 The obligatory benchmark monitoring for disturbed areas of greater than 10 acres that discharge into impaired waters should be required regardless of whether the impaired water has an established TMDL (Part 4.2.2). In such cases, discharge from large areas can have a significant i mpact on the quality of the water and thus needs to be monitored to determine the impacts of construction activities. Although benchmark monitoring results will not correspond to a specific TMDL

- based target, the required monitoring will ensure
environment al accountability on the part of the operator. Monitoring results will also provide information to environmental organizations and state agencies about the state of impaired waters, potentially informing a future effort to develop a TMDL. This issue
is of particular importance to MRWC because the Merrimack River is classified as impaired water without a TMDL for nutrients, priority organics, a few metals, and pathogens along various stretches within New Hampshire and Massachusetts.

Response Refer to Respo nse 4.1.



# Comment ID 0055

- A1.001.014

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

665 Issue Category: 4.2.2 Testing for individual nutrients should not be required under this permit. Levels of most nutrients are directly related to turbidity effluent amounts. We believe that this requirement would increase testing costs unnecessarily. The permit does not include an y language that limits the required testing if a particular nutrient (listed as impairment) doesn't originate from construction activities. Language addressing this concern should be included in the permit.

Response Refer to Response 4.1.



# Comment ID 0055

- A1.001.015

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 4.2.2 Also, if testing for nutrients or sediment is required based on TMDL reports, then the source of pollutants should list const ruction sites as the source. For example, no testing should be required for phosphorus from a construction si te if agriculture is listed as the major source of pollutant.

Response Refer to Response 4.1.



# Comment ID 0067

- A1.001.010

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 4.2.2 B. The CGP contains a sampling and reporting provision for nutrients similar to that for turbidity if the site discharges into a water quality impaired stream. Impaired streams are those that do not meet EPA's numerical water quality criterion or designated use criteria due to pollutant loa ding. Other than a weekly sampling frequency requirement, the sample protocol is essentially the same as for turbidity sample collection with a sample collected from each stormwater outfall when stormwater flows occur. Analytical resu lts must be reported on a quarterly frequency. EPA reserves the right to expand the list of analytical parameters to other pollutants of concern in the impaired water body. This requirement, along with the field sampling for turbidity and increased inspection requirements, will likely require that each transmission line project be assigned an environmental technician for the duration of the project. E ntergy requests that EPA remove these monitoring requirements and, instead, state that compliance with the best management practic es required by the CGP will constitute compliance with the Clean Water Act for purposes of stormwater pollution control.

Response Refer to Response 4.1.



# Comment ID 0088

- A1.001.011

Author Name: Graves JohnRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

666 Organization: Minnkota Power Cooperative, Inc. Issue Category: 4.2.2 Among the unrealistic requirements are:

-- the more stringent expectations associated with discharges to impaired waters, coupled with an often ill

- defined obligation to determine the impairment status of the receiving water body

Response Refer to Response 4.1.



# Comment ID 0105

- A2.001.009

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 4.2.2 [ Water quality

- based requirements for discharges to impaired waters, including benchmark monitoring and reporting, immediate corrective action for benchmark exceedances, and daily visual inspections (Part 4.2.2). CLF strongly supports the Draft CGP's proposal for more stringent discharge sampling, stabilization, and inspection requir ements at sites discharging to impaired waters. Benchmark monitoring, in particular, is a powerful tool to gather needed data on pollutants in construction stormwater and the role the y play in specific instances of impairment. Benchmark monitoring provides data necessary to the determinations whether discharges are consistent with instream water quality standards and TMDL allocations. Without numeric monitoring data, EPA cannot provide th e required assurances under Part 1.3 of the CGP and under 40 C.F.R. § 122.4(i). These requirements should apply more broadly than EPA proposes in the Draft CGP, to all covered sites discharging to impaired or sensitive waters; as water quality

- based limitations, these requirements should be triggered solely by receiving water body impairment or special characteristics, not by the size of the covered site. In addition to the requirements in the Draft CGP, CLF also urges EPA to consider requiring Low Impact Developme nt and green infrastructure stormwater management practices at all sites discharging to impaired waters. These practices are discussed in
more detail below.

Response Refer to Response 4.1.



# Comment ID 0107

- A2.001.012

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 4.2.2
The method of determin ation outlined in this section of whether the permittee is discharging to an impaired water that is outlined in this section seems appropriate. Benchmark monitoring, at a minimum, is essential for protecting water quality and ensuring 30 3d waters are not further degraded. To fully protect water quality and ensure that 303d waters are protected and cleaned up, permit limits, not just benchmark monitoring, should be established for discharges into 303d waters. In addition, benchmark monitoring for i mpaired

pa rameters should be required for discharges to all 303d waters, not just sediment related impaired 303d waters. At the very le ast, benchmark monitoring in E. coli or fecal coliform impaired streams should be required. Benchmark monitoring should be require d forRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

667 impaired waters regardless of whether or not a TMDL has been issued. Impaired waters are just as impaired and just as in need of protection regardless of whether or not a TMDL has been prepared. Since benchmark monitoring is merely benchmark monitorin g and not permit limits (which would be more influenced by a TMDL) there is no reason to only require monitoring in TMDL waters.

Response Refer to Response 4.1.



# Comment ID 0109

- A2.001.009

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 4.2.2 The Permit should ensure that construction site runoff will not degrade waterways that are currently healthy. We support t he inclusion of additional, "anti

- degradation" requirements for new or current ly unpermitted discharges to high quality or Outstanding Resource

waters.

Response Refer to Response 4.1.



# Comment ID 0111

- A2.001.003

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 4.2.2 Dow does not support the proposed end

- of

- pipe numeric effluent limitations since these limits do not consider highly variable confounding factors including wet weather conditions, flows, and the individual site geographical characteristics. Alternativ ely, site specific Best Management Prac tices (BMPs) will enable the permittee to include and consider these highly variable in addition to site specific factors. This approach should result in more efficient control of any potential pollutant loadings to the water body

.

Response Refer to Resp onse 4.1.



# Comment ID 0111

- A2.001.014

Author Name: Yee Philip Organization: The Dow Chemical Company Issue Category: 4.2.2 Dow believes that the additional inspection requirement of daily visual examinations for dischargers into impaired waters is overly burdensome and does not provide valuable information, especially during no stormwater flow conditions.

Dow believes that a more appropriate requirement would be to examine critical stormwater controls specifically associated wit h an impaired pollutant w ithin 24 hours after significant rainfall events during safe conditions.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

668 Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.012

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2
6. Stabilization Requirements for Sediment and Nutrient

- Impaired Waters (Section 4.2.2.2): EPA requires that where the discharge is to a water that is impaired for sediment or nutrients, the discharger must immediately initiate stabilization in exposed area s if earth

distu rbing activities are temporarily or permanently suspended, and then complete certain stabilization activities (including acti vities related to vegetative cover) within three work days of initiating stabilization. This requirement raises several concerns. F irst, it addresses possible impacts after construction has been discontinued, and therefore falls into the realm of "post

- construction" discharges. We do not believe that post

- construction discharges are properly regulated under the CGP, which is intended to address discharges that occur during construction activities. In addition, it does not make sense to apply these requirements to temp orary suspensions. In the Draft Permit, a temporary suspension can be for as few as eight days. So a construction operat or could have an eight

- day "break" in activities that would trigger this requirement, meaning that it would have to immediately start stabilization activities, and within three days, would have had to have completed soil conditioning, seeding, watering and mulching. But five days later, the operator would resume construction in that area, and all of those activities would have been a waste of time, resources, and seeds. Any stabilization requirements that are imposed should not apply in that situation.

Re sponse Refer to Response 4.1. Refer also to response on stabilization related

- comments in section 2 of this document.



# Comment ID 0128

- A2.001.018

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2
In addition to that general concern about the new benchmark monitoring requirement, the Chamber has specific concerns about several aspects of these provisions. One of those issues is scope: the benchmark requirements apply to all impaired waters, including those that

a re covered by a Total Maximum Daily Load (TMDL). In a TMDL, EPA or the State would have already considered the contributions provided by construction stormwater sources and determined the reductions, if any, that are needed from those sources. Any
monitori ng requirements for those sources should be keyed specifically to how the sources were addressed in the TMDL. As an example, if a TMDL specifies no reductions in loadings are needed from those sources, extensive benchmark monitoring would no t be appropriat e. Therefore, any benchmark requirements that are specified in the final Permit should not apply to waters covered by
TMDLs.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

669 

# Comment ID 0128

- A2.001.021

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2 For all of these reasons, the benchmark monitoring provisions should be removed when EPA issues the final CGP. If, despite th ese comments, benchmark monitoring is required in the final Permit, then EPA does need to address the specific issues set forth in the proposal as to how this requirement will be implemented. One of those issues raised by EPA is that fertilizers that are appli ed in establishing vegetative cover could result in nutrient levels in discharges that exceed be nchmarks and therefore require corrective action. EPA should adopt an exception from the benchmark requirement for situations where vegetative cover is applied.

Response Refer to Response 4.1.



# Comment ID 0145

- A2.001.019

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 4.2.2 It is reasonable to expect dischargers to impaired waters to meet higher construction stormwater standards than dischargers t o waters that are not impaired. Streams are resilient if given the opportunity to recover. Lowering pollutant loading rates can help facilitate

stream recovery. Moreover, it is unreasonable to continue pollutant loading to streams that are already impaired by that pollutant. Responsible individuals and corporations see the value of protecting the values supported by healthy streams and should not object to more stringent discharge standards for impaired streams or critical habitat.

The goal of the Clean Water Act clearly states that protection of the physical, chemical, and bio logical qualities of our waters is intended. Using NPDES permits to achieve that protection is well established. Therefore, it is appropriate to expand the focu s of this construction general permit to address biological impairments that are clearly attributable to either sediment or nutrients.

Response Refer to Response 4.1.



# Comment ID 0153

- A1.001.031

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 4.2.2 1. Benchmark requirements are not applicable to 303( d) listed streams that do not have a TMDL. The Tables in Appendix] show that there is minimal benchmark data available for Nitrogen, Phosphorus, and TSS for 303( d) water bodies. Therefore, the majority of the sampling under this section will not be a pplicable, and will be a waste of time and money. Benchmark sampling only makes sense for approved TMDLs for sediment, TSS, or Turbidity for construction projects. Nitrogen and Phosphorus should not be required beca use there are not benchmark levels set fo r most water bodies and the number of phosphorus and nitrogen TMDLs is low.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

670 2. The Federal Register does not support including impaired waterbodies.

Response Refer to Response 4.1.



# 4.2.2Q DISCHARGES TO IMPAIRED WATERS; FOCUS ON BIOLOGICAL IMPAIRMENTS

Comment ID 0015

- A2.001.017

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 4.2.2Q Q18. Benchmark monitoring - Agree, for TMDL waters only. No exception for fertilization since compost alternatives likely have lower nutrient runoff loads. Consider monthly averaging of flows to determine benchmark compliance. Fisheries could be protec ted with different monitoring parameters as surrogates such as TSS.

Response Refer to Response 4.1.



# Co mment ID 0015

- A2.001.019

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 4.2.2Q Q20. Impaired waters - Agree, additional requirements are reasonable. The EPA webinar implied only sediment and nutrient impairment were to be considered, but this language is much broader. EPA needs to reassess how biologic impairment would be evaluated since many times the impairment comes from instream sediment creation, sediment transportation and carrying capacit y volum es of concern.

Response Refer to Response 4.1.



# Comment ID 0024

- A2.001.013

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2.2Q EPA should expand the definition of impaired waters subject to the protections in Part 4.2.2. of the Draft 2011 COP to include waters suffering from biological impairments that are attributable to sediment and nutrients. Although sediment and nutrients (and t heir related parameters) are the most commonly

- recognized impairment s associated with construction stormwater, biological impairmentsRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

671 attributable to these pollutants are also common. Accordingly, EPA should make clear that these biologically impaired waters are within the scope of waters subject to the protections of Part 4.2.2.

Response Refer to Response 4.1.



# Comment ID 0051

- A2.001.012

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 4.2.2Q Additionally, in regards to benchmark monitoring, we support the proposal to expand the focus on impairments for sediment and nutrient data to cover biological impairments that are attributable to either sediments or nutrients. Biological impairments can be significant impediments to the designated uses and the ecological integ rity of the waters. Thus they should be similarly accounted for if the discharge of nutrients or sediment from construction activities in large areas has the potential to further the negative impact of the impairment. However, we request clarification on how EPA would define these biological impairments. We also request information on how EPA would determine the correlation between the biological impairment and the sediment and nutrient loads, and subsequ ently establish an appropriate numeric limit for the benchmark monitoring procedures. This addition to the permit is important to MRWC because the Merrimack River and its estuary are habitat for the endangered Shortnose Sturgeon and the Atlantic Sturgeon, and we request additional information on how the benchmark monitoring as a result of biologically impaired waters would occur.

Response Refer to Response 4.1.



# Comment ID 0074

- A2.001.023

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 4.2.2Q EPA has proposed stringent requirements for site stabilization and site inspection in this draft permit. EPA should give more focus on additional BMP requirements and ensure appropriate corrective actions are taken after site inspections. Additional monito ring requirements do not provide useful information but, instead, puts an unnecessary financial burden on permittees (also see Request 18).

Response Refer to Response 4.1.



# Comment ID 0080

- A2.001.030

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 4.2.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

672 Partner Response: The Partners suggest that there is insufficient data available to directly correlate construction site TSS loading and any resultant biological impairment to a receiv ing water. A time intensive and resource consuming "fate and transport study" for each permitted site would have to be prepared. Preparing a "fate and transport study" for individual construction sites is simply not practical.

Response Refer to Response 4.1.



# Comment ID 0085

- A2.001.022

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 4.2.2Q Rockville supports these requirements

Response Refer to Response 4.1.


# Comment ID 0115

- A2.001.020

Author Name: Smith Timothy Organization: National Grid Issue Category: 4.2.2Q Samples for Total Nitrogen and Total Phosphorus must be submitted to a laboratory, which takes 5 to 7 days for normal reporti ng turnaround of analytical results.

The requirement to address exceedances within 7 days is not feasible (this part directs one to part 6.3.1.2). The regulations may need to clarify that "the time of discovery of this condition" coincides with the time analytical results are available.

While it is possible to put a rush on labo ratory testing, the costs to do so are significantly higher than normal results reporting. On a linear utility project, the costs, multiplied by several potential discharge points, can be significant if a rush is required on each sample to meet the 7 day t imeframe.

National Grid recommends that there be an Appendix that provides references to Best Management Practices designed to attenuat e nitrogen and phosphorus that may be in solution, as opposed to adsorbed or absorbed to particulates that are managed through best management practices that are designed to control sedimentation. Manufacturers are beginning to test their best management pr actices (e.g., compost filter socks, etc.) for nutrient removal capabilities; however, temporal effectiveness for such BMPs is not readily available. It is understood that compost and mulch BMPs can be effective at nutrient removal, but their effectiveness drops over time. We suggest that EPA provide guidance for selecting and maintaining BMPs, regardless of manufacturer testing results, in a manner that supports the requirements of this part.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

673 

# Comment ID 0119

- A2.001.011

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2Q
Another issue raised by EPA is whether the benchmark provisions should be expanded to apply to waters that are habitat for listed endangered or threatened species. We believe that application of benchmarks in those situations would be completely inappropr iate. If
benchm arks pose major problems, as described above, in situations where there are identified pollutant

- related impairments, then use of benchmarks would be even less suitable in species

- related situations, where the connection between pollutant levels and the pr oblem is even more tenuous. Benchmarks should not be applied to address species issues.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.018

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2Q EPA asks for comment on whether the requirement for sediment or nutrient impairments should be expanded to cover biological impairments that are "attributable to either sediment or nutrients." We do not think that this expansion of the nutrient/se diment provisions would be appropriate. If EPA or the State believe that an impairment is "attributable" to sediment or nutrients, and wat to impose controals on those pollutants, then they should girst ament the State's list of impaired waters to make it clear that the waterbody is listed for sediment or nutrient impairments. A subjective judgement that a listed biological impairment is "attributable" to sediment or nutrients is not an acceptable substitute for a clear listing decision as to a particular pollut ant.

Response Refer to Response 4.1.



# Comment ID 0126

- A2.001.017

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 4.2.2Q CSC would not be supportive of requiring benchmarking on impaired waters if a TMDL has not been approved. If benchmark is required CSC supports limiting it to over 10 acre disturbances.
CSC supports exempting the use of nitrogen and phosphorous to establish vegetative cover.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

674 

# Comment ID 0128

- A2.001.017

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2Q The primary new water quality

- based requirement in the Draft Permit is the benchmark monitoring provisions for discharges to waters that are impaired for sediment or nutrients. EPA is seeking comment on several aspects of these provisions, apparently recognizing that these new requirements pose substantial concerns. The Chamber believes in general, benchmark monitoring is not an appropriate tool to use in assessing the effect iveness of construction stormwater controls. The Chamber believes sporadic sampling of effluents during storm events will not provide an accurate picture of water quality impacts, and are not a true indicator of how well existing controls are performing. I t is far more useful to focus on specific best management practices (BMPs) that are being implemented, utilize available information as to the effectiveness of these practices in reducing pollutant loadings, and ensure that the practices are applied effect ively on an ongoing basis.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.022

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2Q Another issue raised by EPA is whether the benchmark provisions should be expanded to apply to waters that are habitat for listed endangered or threatened species. The Chamber believes that application of benchmarks in those situations would be completely inappropriate. If benchmarks pose major problems, as described above, i n situations where there are identified pollutant

- related impairments, then use of benchmarks would be even less suitable in species

- related situations, where the connection between pollutant levels and the problem is even more tenuous. Benchmarks should n ot be applied to address species issues.

Response Refer to Response 4.1.



# Comment ID 0130

- A2.001.024

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 4.2.2Q
22. DISCHARGE LIMITATIONS FOR IMPAIRED WATERS. Part 4.2.2. EPA asked for comment on whether benchmark monitoring is an appropriate tool to assess the effectiveness of stormwater controls. If EPA is unsure it is effective, why would it be required? Set the threshold higher.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

675 

# Comment ID 0137

- A2.001.022

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 4.2.2Q Regulating Biological Impairments

We believe the TMDL is designed to address sediment, nitrogen and phosphorous only and does not directly regulate fish and micro invertebrates or other biological impairments. Water quality improvements resulting from the TMDL limitation on sediment and nutrients will provide biological improvements.

Response Refer to Response 4.1.



# Comment ID 0145

- A2.001.018

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 4.2.2Q The U.S. Fish and Wildlife Service designates critical habitat for most federally listed species. We encourage the EPA to consult with the Service and reach an understanding of how much, if any, additional sediment or nutrient loading is compatible with mainta ining habitats critical for the survival of imperiled species. We hope that EPA will recognize that in some cases, any additional pollutant loading may not be compatible with protecting critical habitats and these imperiled species. In those cases, developers should meet a higher standard of water quality protection for those projects that might impact designated critical habitat. Developers need to include estimates for meeting higher construction stormwater costs in their budgets if they plan projects that may potentially impact streams with critical habitat. We cannot continue to have development as it is typ ically done in these areas that are among the very last habitats available for these species. While economic development is very important, it should not happen at the expense of imperiled s pecies.

Response Refer to Response 4.1.



# 4.2.2.1 WATER QUALITY BE NCHMARK MONITORING

Comment ID 0025

- A1.001.034

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 4.2.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

676 As discussed in comment #24 [See Comment ID 0025

- A1.001.028] with reference to 3.3.2, sampling on a 2- hour basis is clearer in terms of implementation.

Response Refer to Response 4.1.



# Comment ID 0037

- A1.001.036

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.1 It would be helpful to stakeholders in determining the utility of benchmark monitoring if EPA would provide the stakeholders with any analysis they have conducted on the effectiveness of benchmark monitoring required by EPA's Multi

‐ Sector General Permit for stormwater discharges associated with industrial activities or the location where this data is available.

Response Refer to Response 4.1.



# Comment ID 0037

- A1.001.037

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.1 Compliance with Part 4.2.2 should only be required for sites that discharge to those impaired waters without an approved or
established TMDL. Benchmark monitoring should be required only for those impaired waters without an approved or established
TMDL.

Response
Refer t o Response 4.1.



# Comment ID 0037

- A1.001.038

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.1 Benchmark monitoring should only be required for those construction sites that discharge to an impaired water without an approved or established TMDL and that have ten or more acres disturbed. The comments on Part 3.3.2 Sampling frequency are also applicable to
this Part.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

677 

# Comment ID 0046

- A1.001.022

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 4.2.2.1 The Clean Water Act is very clear that controlling the in

- stream water quality (State Water Quality Standards) is to be strictly regulated by the States through Sections 303 & 401. The Benchmark Sampling requirement in this section may not be aligned with identifiable sources in the TMDL and actions of the TMDL Implementation Plan, resulting in additivle regulatory requirements above and beyond what the State has required. This may be further exasperated if Benchmark Sampling is required for every impairment. If a TMDL has not identified "construction activities" as a pollutant source to a water quality impairment, the Construction and Development sectors shoul d no t be burdened with the sampling?

4.2.2.1. Water Quality benchmark sampling

New Hampshire DOT has experience measuring construction stormwater discharges and in

- stream water quality through its 401 State Water Quality Certification process for a number of projects. It is very complicated and is much more in depth than is laid out in this permit. To adequately assess the relationship between "discharge" and "in

- stream" water quality, one needs to add background sampling. In order to avoid instantaneous St ate Water Quality Violations at the point of discharge, the Department needed to introduce the concept of a "Mixing Zone". However, in almost every case the discharge overwhelms the background dilution and exceeds the State Water Quality Standard. Highway projects are not always situated next to big rivers or the ocean like sewage treatment plants for which most State Water Quality Standards were originally drafted to regulate. Appling State Water Quality Standards, which ar e set up to regulate "point discharges" in highly controlled situations for sewage treatment and industrial facilities has been difficult in linear constI¥ction situations. We are still working with our State regulators to craft a regulatory solution that marries "discharge" limits with

" in

- stream" water quality standards to regulated construction stormwater discharges.

Nitrogen and Phosphorus

New Hampshire DOT has experience measuring Total Nitrate and Total Phosphorous in our construction stormwater discharges. Our State regulators required the DOT and its Contractors to test our discharges from our flocculated water for Nitrogen and Phosphorous to a nutrient impaired lake. The Department found that the concentration of nitrate was unchanged, and the phosphorous concen tration

was app roximately one

- half after passing through our BMPs. We also noted both were in much lower concentration than found in undisturbed landscape runoff. These findings make sense considering the following:

1) Construction sites are usually devoid of topsoil, which contain the bulk of the nutrients. Most of the organic nitrogen and phosphorous was removed at the onset of earthmoving activities and is returned, seeded and stabilized the end of the project.

2) Construction Best Management Practices are designed to remove particulates and let the water, with it dissolved phased nutrient pass through. Phosphorous in the soil is generally 50% precipitatible (solids) and 50% dissolved phase (aqueous). Therefore, approximately one

- half, the solid form of phosphorous, is captured by the BMPs and the other half flows though the BMP. Almost all the nitrogen originates from nitric acid in the rain (aqueous) and is unaffected by the construction BMPs, which are designed to collect particles.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

678 3) We also found that the tur bidity and nitrogen concentrations limits imposed by our regulators counteracted each other violating pre

determine benchmarks for discharge. Early in a storm event, we were not able to discharge stormwater because the turbidity wa s too high even though ni trate level was sufficient. Later in the event, the turbidity level was acceptable but the nitrate level was too high to release the water. EPA should be careful not to tighten up the regulations to the point where all discharges are prohibited.

If there are exceedances for Nitrate or Phosphorous, there is little the construction industry can do to renovate the runoff on site. There are no known Construction BMPs that remove aqueous nitrogen or phosphate from stormwater. Aqueous nitrogen is removed from

s ewage with anoxic activated sludge treatment. However, the concentrations are usually hundreds of times greater than are foun d in stormwater, and require a carbon source in an anaerobic environment to work. Permanent Stormwater treatment ponds are somewha t effective, but usually need time to establish flora and fauna that make them work. They are also highly sensitive to sediment

.

Fertilizer is necessary to establish vegetative grown in New Hampshire. The ultimate goal of erosion control is to establish a long lasting vegetative cover. In areas where our State Regulators have restricted the use of fertilizer, growth has been sporadic and patchy requiring multiple applications of seed and mulch leading to increased sedimentation of surrounding waterbodies.

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.026

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.1 4.2.2.1 Water quality benchmark monitoring. This Permit condition adds confusion to monitoring of turbidity in Part 3 of the Permit. There is little benefit of having permittees determine if their discharge(s) fall below benchmark parameters of very few list ed waterbody reaches in Appendix J. Furthermore, many of the "Benchmark" parameters in Appendix J have not been established and state: "No benchmark/monitor for information purposes only". Is EPA requesting that permittees unqualified in laboratory samp ling techniques build unreliable information for future benchmark development? Part 3 of the Permit already requires permittees to take corrective action(s) in Part 6.3.1/Part 6.3.2 based on exceedances.

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.027

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.1 e. Reporting benchmark monitoring results to EPA: The Permit contains no established means of reporting monitoring of benchma rk results to the applicable EPA Regional Office.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

679 Has EPA developed an official Benchmark Monitoring Report form similar to a Discharge Monitoring Report (DMR)?

Response Refer to Response 4.1.



# Comment ID 0060

- A1.001.017

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 4.2.2.1
17. Section 4.2.2.1.b.ii. - The benchmark monitoring requirements have the same issues for sampling frequency as the turbidity sampling requirements. See comments 11 and 12 above [See comment ID 0060

- A1.001.011 and 0060

- A1.001.012.]

Response Refer to Response 4.1.



# Comment ID 0060

- A1.001.018

A uthor Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 4.2.2.1
18. Section 4.2.2.1.d./ Table 4

- 1 - The "Monitoring Frequency" requirement listed in Table 4

- 1 does not agree with the text in Section
4.2.2.1.d.. Table 4

- 1 requires a monitoring frequency of once per week while Section 4.2.2.1.d. indicates "samples in any day". These sections must be updated accordingly

Response Refer to Response 4.1.



# Comment ID 0061

- A1.001.003

Author Name: Bond Grif Organizati on: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 4.2.2.1
1. EPA Should Confirm When Disturbed Land Reverts to "Undisturbed" Status We believe, however, that owing to the fact that LCPs are in constant motion and leave relatively little disturbed land exposed to stormwater behind their moving front, it may be unnecessary to resolve these difficult questions. That is, we believe that it will be rare that an LCP will ever trigger requirements for disturbed acreage associated with either the application of the yet

- to

- be established turbidity standard or the benchmark sampling requirement for discharges to sediment - or nutrient

- impaired waters. The key issue here is the point at which land reverts from "disturbed" to "undistu rbed" status. Through our comments below, we ask that EPA consider and confirm our understanding that compliance with the requirements of 40 C.F.R. 450.21(b) terminates land's status as "distu rbed" for purposes of 40 C.F.R. 450.22(a) and draft Permit Section 4.2.2.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

680 With respect to a technology

- based numeric standard (such as the expected turbidity standard), the ELG states that its standard would apply "during construction activity that disturbs [20 or 10, depending upon the date] acres of land at one time, . . .." 40 C.F.R. 450.22(a) (emphasis added). Similarly, the requirement to perform benchmark monitoring of discharges to sediment - or nutrient

impaired waters applies "[i]f your construction activities disturb 10 or more acres of land at anyone time , . . .." Draft Permit at 4.2.2.1 (emphasis added).

It is our understanding that, for the purposes of the ELG, land is considered to be "disturbed" from the time it is subjected to construction activity until the time it has met the stabilization require ments stated in the ELG at 40 C.F.R. 450.21(b). That section provides as follows:

(b) Soil Stabilization. Stabilization of disturbed areas must, at a minimum, be initiated immediately whenever any clearing, grading, excavating or other earth disturbing a ctivities 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 t ime 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.

40 C.F.R. 450.21(b) (emphasis added).

The ELG provision quoted above thus imposes two requirements: (1) when stabilization must be commenced (which is, when construction has ceased and will not resume for a period exceeding 14 days); and (2) when such stabilization must be comp leted (which the ELG leaves to the permit writer to decide). To fill in the second element, the Draft Permit provides for completio n as follows:

2.2.1.2 Deadline to complete stabilization activities. Within 7 calendar days of initiating stabilization on e xposed portions of your site consistent with Part 2.2.1.1, you are required to have completed:

a. For vegetative cover, all soil conditioning, seeding, watering, mulching, and any other required activities related to the planting and establishment of vegetation; and/or

b. For non

- vegetative cover, the installation or application of all such nonvegetative measures.

Draft Permit at 2.2.1.2.

Thus, in order to be in compliance with the ELG's stabilization requirement, (1) stabilization must commence with in the specified time (as modified for steep slopes or other special circumstances) and (2) the permittee must have completed the stabilization act ivities enumerated in Draft Permit Part 2.2.1.2 within 7 days of their initiation as required by that section . Once these conditions are satisfied it is our understanding that land, previously disturbed, is considered to have met the stabilization requirements of 40 C.F.R. 450.21(b) and, thus, to no longer be "disturbed" for purposes of computing the total acreage requirements under 40 C.F.R. 450.22(a) and Draft Permit Part 4.2.2.1. We ask that EPA review this interpretation of the requirements of the ELG and its application under the Draft
Permit and confirm them as correct.

2. Sampling Discharges from LCPs Gen erally Is ImpracticableRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

681 If EPA is unable to provide the confirmation requested above, for construction projects generally or for LCPs in particular, it should nevertheless exempt LCPs from discharge sampling requirements, for the following very practical r easons.

First, there typically is no good way for the LCP operator to prevent run

- on onto his long, narrow project. As noted above, a barrier to stormwater on the uphill side or sides of the LCP, even if it could be fit into the narrow width of the easem ent, would create a new storm water channel and block designed flow into the drainage swale.

Even if there was no such easement limit or flood risk, the very act of installing a silt fence or other perimeter control to prevent run

- on would require at least digging a trench six to twelve inches deep in which to tie in the base of a silt fence. One would be faced with the prospect of digging that trench and later removing it, each time disturbing the soil surface, in order to preclude stormwater run

- on o nto a parallel compacted trench installed as part of the LCP. Since a typical LCP has such limited potential to increase sediment loading anyway, the net environmental effect (of installing and removing a perimeter control to limit run

- on onto an LCP) woul d seem to be negative.

If an LCP operator thus cannot practically speaking prevent run

- on, the operator cannot separate out and sample the stormwater discharge originating only from the LCP. As noted above (at footnote 7[FN 7]), we believe the Agency can not legally require such mixed discharges to meet a technology

- based numeric limitation, unless the Agency's underlying record and calculations account for
the contribution from the non

- construction stormwater runoff.

The relatively small flows and disch arges specifically from the typical LCP segments between streams would be so small, that the environmental impact of the sampling activity would be a significant counterweight. The sample collector wading across a smal l stream to collect swale discharge sa mples from both sides may have more adverse impact through disturbing natural sediments than the impact avoided through enforcing the discharge limitation in the LCP context. [FN 7] See comment 002, FN 7. Response Refer to Response 4.1.



# Comment ID 0062

- A1.001.050

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 4.2.2.1 So construction can be phased to avoid monitoring, but you may discharge turbid water?

Response Refer to Response 4.1.



# Comment ID 0068

- A1.001.029

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 4.2.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

682 However, adding Benchmark Monitoring (Part 4.2.2) for waters impaired by sediments or nutrients is an unproven and unnecessary obligation that will do more to fuel citizen suit liability than protect the environment. That has been the experience with E PA's industrial general permit and recent attempts (including by the recently proposed California Industrial General Permit) to inappropriately convert benchmark monitoring into numeric effluent limitations. EPA has not provided any justification or sci entific rationale for its benchmark levels nor has it identified any reason why the current approach mandating compliance with locally

- derived (and EPA approved) TMDLs is insufficient to demonstrate compliance with water quality standards.

Response Refer to Response 4.1.



# Comment ID 0080

- A2.001.021

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 4.2.2.1 Partner Response: The Partners do not support any benchmark sampling as now required under the proposed CGP. In arid areas it will be very difficult to obtain any sample in the first hour when precipitation is immediately absorbed and infiltrates into the unsaturated soils at the permitted construction site. Depending upon the rainfall event obtaining two additional samples will be equally as challenging. In other non

- arid areas of the country a sta tistically

- based, area

- specific lower precipitation threshold limit may be appropriate but in the arid west a one

- size

- fits

- all sampling approach that works well in wetter climates is not useful.

Response Refer to Response 4.1.



# Comment ID 0087

- A1.001.031

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 4.2.2.1 The CGP provides that, if a discharge occurs to a water impaired for sediment and/or nutrients, and 10 or more acres of land are disturbed at any one time, "then you must conduct water quality benchmark monitoring for the sediment and/or nutrient parameter(s) for which the receiving water is impaired." Section 4.2.2.1. While UWAG does not oppose the general concept of additional, ta rgeted
monitorin g in impaired waters (particularly when tailored to an approved TMDL), UWAG is concerned that EPA's proposal is unworkable in practice. First, many states lack numeric sediment and/or nutrient criteria, so their listing decisions often r ely on the underlyi ng uses as opposed to any specific criteria. Second, absent numeric criteria, proper benchmarks cannot be derived without a waterbody

- specific analysis that compares causes and effects in the context of the specific use(s) to be protected. The benchmarks

p roposed by EPA are arbitrary, unreasonable and likely unattainable in practice, especially given ambient background condition s. Third, linear utility projects may involve multiple small and disconnected disturbances within different watersheds. As a res ult , EPA needs to clarify that its special monitoring provision is triggered by the disturbance of "10 or more acres of land at any on e time that drain to the same impaired waterbody." Otherwise, a linear utility project operator may be forced to conduct addi tional monitoring based on small, isolated disturbances that do not even drain to an impaired waterbody. Fourth, EPA's proposed benchmarks are absurdly low (e.g., as low as 1.0Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

683 NTU turbidity), which cannot conceivably serve as a measure of performance or c ompliance (if it did, everyone would fail).

Response Refer to Response 4.1.



# Comment ID 0090

- A1.001.033

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 4.2.2.1 EPA's water quality provisions must consider the minimal impacts that natural gas linear projects have on water quality: the trenches are relatively narrow, are constructed over a short duration at any one location, utilize construction best management practices (BMPs)
to minimize sedimentation and erosi on, and typically do not involve the installation of new impervious surface materials. AGA's comments above on the "acreage" threshold, for example, demonstrate that the earth disturbed in constructing or renovating a housing development or suburban shoppi ng mall is rectangular in nature whereas gas pipe installation work is linear. A linear construction project ranging from a mile to several miles, a few feet in depth, and about 10 to 12 feet in width does not fit the wing

- span approach
taken in Part 4.2.2 .1 to measuring earth disturbance activities for water quality control.

Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.009

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 4.2.2.1
Both the language and the legislative history of Section 302 of the Clean Water Act make it clear that NPDES stormwater permits should include water quality limits only when national technology

- based standards fail to produce the desired level of water quality in a given watershed. Now, for the first time, EPA proposes to include such a technology

- based standard in its CGP. At this point in the process, it is quite clearly impossible for EPA to know whether that standard will or will not be sufficient to meet the water quality standards for any one waterbody. EPA cannot possibly justify the additional water

- quality based effluent limits (WQBEL) found in the Draft (i.e., the new stabilization, inspection and monitoring requirements for construction discharges to sedi ment - or nutrient

- impaired waters). According to 33 U.S.C. § 1303 (40 CFR § 122.44(d)(1)(i)

- (iii), (vii)), EPA may impose additional NPDES permit conditions only if EPA has determined - based on specific factors set forth in EPA regulations - that the term s are necessary to avoid an "excursion" above a specific water quality standard. As far as AGC is aware, EPA has not made the required determinations nor provided any justification or scientific rationale for these additional conditions, particularly for t he benchmark levels, which are not tied to any specific water quality standard.

AGC believes that EPA should continue to rely on its Total Maximum Daily Load (TMDL) program to protect impaired waterbodies. That program provides a well

- established process for states to meet their water quality standards and/or to address threats to those standards. It enables the states readily to require NPDES stormwater permittees to comply with appropriate TMDLs - which may include numeric benchmarks, in addition to str ingent controls - if these permittees discharge pollutants to waters impaired for those pollutants. This is a logical and effective way use the general permitting scheme to address water quality requirements. It i s anRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

684 approach that that EPA has long consid ered effective, and EPA has yet to produce any information that would justify the proposed change in course.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.065

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2.2.1 Additionally, TMDL type regulations are supposed to apply to all stormwater runoff within the affected watershed, not just ru noff from construction sites. The sediment and nutrient limit criteria for TMDLs are considered guidelines for the types of BMP practices. Urban and suburban runoff, stormwater discharge from industrial sites, and also especially agricultural runoff all contribute to th e impairment of the watershed, and these, along with construction sites, are required to provide additional BMPs as prescribed by the TMDL. None of these other types of runoff have been singled out for sampling. Construction sites, which by definition are temporary, are being singled out for sampling even though they represent only a tiny fraction of the total stormwater runoff within the watershed. EPA should abandon the need for benchmark monitoring and, thus the proffered benchmark values.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.066

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2.2.1 EPA has proposed a set of requirements for discharges to sediment or nutrient

- impaired waters that do not yet have an EPA

- approved or established TMDL/water quality benchmark monitoring requirement. The CGP is not an appropriate vehicle to establish such standards, and doing so may be beyond EPA's authority under the CWA. The purpose of the TMDL is to analyze the full suite of issues, contributors, and reduction strategies available to meet the necessary reductions, then to set allocations. Without this comprehensive study, EPA should not inappropriately use the CGP to mandate additional requirements that may or may not be nee ded and may or may not help the waterbodies meet their pollutant reductio n goals.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.067

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

685 The CGP also requires sampling for nutrients, namely total nitrogen and total phosphorus, with samples taken up to three times during a day, presumably upstream and downstream at least once per week when there is discharge. NAHB is opposed to this monitoring. The proposed CGP already provides extensive additional protection to water s of the US, including a 50 foot vegetative buffer (or equivalent), monitoring requirements, and additional BMPs. Further, the proposed sampling schedule and protocol is far too fr equent, costly, and potentially hazardous to the site personnel.

Unlike turbidity monitoring, EPA is proposing complex lab tests which are much more expensive and sensitive than turbidity monitoring. Total nitrogen is the sum of the total Kjehldahl nitrogen (TKN) and the nitrate

- nitrite nitrogen, which are at least two
separate tests, or maybe more, depending how they are analyzed by the lab. The phosphate test is supposed to be Total phosphate, which is not the appropriate test for this type of nutrient monitoring. Presumably these tests for nutrients are supposed to find out if a construction site is overusing fertilizers to enhance the growth of grass or other covering vegetation, which upon entering a water body in excess can cause eutrophication through over

- rapid biological growth. Total phosphate is not the correct analytical test for this purpose, in that many soils naturally contain high concentrations phosphorus minerals that also show up in this test. For exa mple, in some areas of the country, topsoil contains more than 20% phosphate as P and has been mined for years for its phosphate content. These mineral phosphates (such as apatite) are not water soluble, and therefore are not available for the growth of algae and other aquatic organisms. If they were, every stream in these areas would be overgrown with algae. Given th at the total phosphorus content in these soils is so high, even relatively low turbidity water containing these soils will contain very high concentrations of " total" phosphate. A more appropriate test to assess the presence of excess fertilizer would be e ither dissolved phosphate or some form of acid leachable "available" phosphate.

The issue of nutrient testing is far more complex and far more expensive than a few simple additional tests. Because of the n utrient content of many existing soils and the limited additional nutrient sources associated with construction activities, NAHB opposes having to monitor for nutrients. Furthermore, because the use of fertilizer on construction sites is limited, it makes little sense to focus
on construction sites and not on other sites (developed residences, parks, agricultural, etc.) that likely use far more fertilizer for longer periods of time than construction sites.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.006

Author Name: Andes Fredric Organiz ation: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.1 5. Benchmark Monitoring for Sediment and Nutrient

- Impaired Waters (Section 4.2.2.1): The primary new water quality

- based requirement in the Draft Permit is the extensive set of benchmark monitoring provisions for discharges to waters that are impaired for sediment or nutrients. EPA asks for comment on several aspects of these provisions, apparently recognizing that these new requirements pose substantial concerns. The FWQC believes that b enchmark monitoring is not an appropriate tool to use in assessing the effectiveness of construction stormwater controls. As we have expressed before in commenting on previous EPA permits, spo radic sampling of stormwater discharges during wet

- weather events will not provide an accurate picture of water quality impacts, and will not tell very much about how well existing controls are performing.[FN 4] It is far more useful to focus on specific best man agementRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

686 practices (BMPs) that are being implemented, utilize available information as to the effectiveness of these practices in reducing pollutant loadings, and ensure that the practices are applied effectively on an ongoing basis.

[FN 4] In addition, stormwater runoff quality, particularly in arid or semi

- arid areas, is often influenced strongly by the type and intensity of the storm event; as a result, a simple comparison of discharge levels to benchmark concentrations will not give a reliable
indication of BMP effectiveness

Response Refer to Respon se 4.1.



# Comment ID 0119

- A2.001.010

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.1 For all of these reasons, the benchmark monitoring proVIsIons should be removed when EPA issues the final CGP. If, despite these comments, benchmark monitoring is required in the final Permit, then EPA does need to address the specific issues raised in t hese comments, as well as the issues set forth in the Draft CGP, as to how this requirement will be implemented. One of those issues raised by EPA is that fertilizers that are applied in establishing vegetative cover could result in nutrient levels in discharges that exceed benchmarks and therefore require corrective action. EPA should adopt an exception from the benchm ark requirement for situations where fertilizers are applied to vegetative cover.
Response Refer to Response 4.1.



# Comment ID 0129

- A2.001.003

Author Name: Lauenstein P. Organization: Issue Category: 4.2.2.1 Benchmark monitoring and corrective actions are important - had this site been required to conduct benchmark monitoring under representative conditions, as is proposed in the CGP, the site operator would have faced a greater degree of awareness of, an d accountability for, the pollution leaving the site . Timely corrective action could have been taken to prevent the degradation of the surrounding ecosystem that is shown in these photos.

Response Refer to Response 4.1.



# Comment ID 0159

- A1.001.014

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 4.2.2.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

687 Numerous aspects of the benchmark monitoring are impractical. Monitoring from discharge points but not from the regulated wat ers provides a data set that is not useful in measuring impact on the resource. Projects employing Environmental Site Design will not have the discharge points referenced in the permit. We believe any measurement should account for pre

- construction background levels and offsite influences but does not favor a default background level that is based on modeling or averages. Monitoring at 10 acres is not practical. The minimum threshold should be a project size that triggers an individual permit. We do not see what EPA will do with the volume of monitoring data generated by this requireme nt.

Response Refer to Response 4.1.



# Comment ID 0168

- A1.001.004

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 4.2.2.1 Sampling Protocols, ELG Monitoring versus Benchmark Monitoring: Section 2.1.2, Page 11

- 12, (Section 3.3, page 31

- 33): Several comments are offered concerning how the C&D Rule has been incorporated into this draft permit:

-- The proposed approach for water quality benchmark sampling for impaired waters actually makes more sense than the approach fo r water quality monitoring for effluent limit guidelines. Providing two different required monitoring approaches within the same permit is redundant and confusing. Given that many of the listed streams do not have identified benchmark values, we suggest using
benchmark t ype sampling for water bodies that require monitoring, and for which there is no established numeric limit.

Response Refer to Response 4.1.



# Comment ID 0168

- A1.001.010

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 4.2.2.1

-- Phosphorous or nitrogen would only be used on a construction site to establish vegetation. Requiring monitoring for these parameters only if the site discharges to waters impaired by nutrients, or if these materials are used onsite may be as effec tive, and would be less costly than simply requiring benchmark monitoring for phosphorous and nitrogen.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

688 

# Comment ID 0168

- A1.001.011

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 4.2.2.1

-- There are no known biological impairments that would be attributed to sediment or nutrients associated with construction sites, so expanding the sampling requirements to consider biological impairments within the CGP should not be necessary.

Response Refer to Respons e 4.1.



# 4.2.2.1Q BENCHMARK MONITORING; 10

- ACRE THRESHOLD; LISTED FISH SPECIES HABITAT

Comment ID 0012

- A1.001.007

Author Name: Dillard J. Organization: Joyce Dillard Issue Category: 4.2.2.1Q Monitoring should occur with or without TMDLs approved or established. The State of California, Los Angeles Regional Board, has
set aside re

- issuance of the Los Angeles County MS4 Permit, placing pollutant mitigation in limbo.

Benchmark monitoring would need to be based on seasonal conditions clearly stated with reporting based on the applicable
benchmark. In areas like Los Angeles, oil fields, the rise of oil to the surface and methane seepage is an ongoing problem that contributes to water pollution. There should not be benchmarks to avoid this mitigation as the public health and safety are an issue.

Response Refer to Response 4.1.



# Comment ID 0024

- A2.001.014

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2.2.1Q We agree with EPA's proposal to use benchmark monitoring as a tool for assessing the effectiveness of construction stormwater controls and whether a discharge is contributing to existing impairments, see Part 4.2.2., and we urge EPA to require such mo nitoring regardless of whether a TMDL has been established for the impaired water at issue. Monitoring should be coextensive with the activities covered by the COP. However, we believe EPA should withdraw the proposed 10

- acre disturbance threshold in Part 4.2.2.1. below which no monitoring would be required. The I O

- acre disturbance threshold is much too high and could result in significant cumulative pollution of waterways with no associated monitoring of the extent and source of that pollution.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

689 Response Refer to Response 4.1.



# Comment ID 0045

- A1.001.008

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 4.2.2.1Q
4.2.2.1 - "Water Quality Benchmark Monitoring." We believe this is a useful tool to assess the effectiveness of management practices so that construction activities do not contribute to existing impairments, regardless of whether the impaired water has a TMDL written for it or not. Since we are most concerned with our own, Chesapeake Bay watershed, this General Permit's effect is limited fo r the most

par t to the District of Columbia. As noted previously, given its highly urban setting, a 10 acre disturbance threshold for the a pplication of any part of this Permit is not particularly helpful to the water quality issues at hand; we re:commend that for the District, a five acre
threshold be set.

Response Refer to Response 4.1.



# Comment ID 0051

- A2.001.010

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: 4.2.2.1Q Furthermore, no exceptions should be made for any inability of the permittee to achieve benchmark levels due to the use of nitrogen
and phosphorus fertilizer on vegetative covers created for stabilization. Operators should be expected to consider their impact o n impaired waters when proceedin g with stabilization measures, specifically taking care not to over apply nitrogen and phosphorus which can have significant and long

- lasting impacts on water quality and ecological integrity.

Response Refer to Response 4.1.



# Comment ID 0052

- A1.001.003

Author Name: Hamilton Kristopher Organization: E.S. Wagner Company Issue Category: 4.2.2.1Q EPA should rely on its Total Maximum Daily Load (TMDL) program to control construction site runoff to impaired waters and avo id setting unsubstantiated and costly benchmark limits. The EPA currently has the TMDL program which provides a well

- established and straight forward approach for the states to address waters that fail to meet water quality standards. Further, EPA has not pr ovided any justification or scientific rationale for its benchmark levels. This is an unproven and unnecessary requirement that will do more to fuel citizen suit liability than protect the environment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

690 -- Recommendation - Remove Part 4 of the CGP proposal in its entirety and rely on the current TMDL program to address impaired

waters.

Response Refer to Response 4.1.



# Comment ID 0062

- A1.001.051

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 4.2.2.1Q Justify modifying 29 NTU turbidity above background limit as it seems more protective then new requirements. Spelling "sockeye
salmon".

Response Refer to Response 4.1.



# Comment ID 0071

- A3.001.034

Author Name: Willard Rick Organization: Colorado Department of Transportation (CD OT) Issue Category: 4.2.2.1Q •Part 4.2.2.1 Benchmark Monitoring. Benchmark monitoring seems like something the State Environmental Department should be doing.

Response Refer to Response 4.1.



# Comment ID 0072

- A2.001.015

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 4.2.2.1Q MoDOT has one specific comment under this Part regard ing "whether the use of nitrogen or phosphorus fertilizer on vegetative cover for stabilization would impact the permittee's ability to achieve benchmark levels". When establishing permanent vegetation to control erosion and alleviate sediment pollution, it is typically necessary to apply nitrogen or phosphorouscontaining fertilizer to the soil. Inevitably, a portion of these nu trients will be picked up by site runoff. Therefore, if a project were subject to benchmark monitoring for these nutrients, MoDOT believes the addition of the needed fertilizers would indeed have a direct impact on a project's a bility to achieve benchmark levels during runoff events. Exception should be granted for these instances when fertilizers need to be applied in order to stimulate plant growth and provide nutrients for permanent vegetative stabilization, especially when the overall goa l ofadding
the nutrients is to ultimately control sediment pollution.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

691 Response Refer to Response 4.1.



# Comment ID 0074

- A2.001.021

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 4.2.2.1Q The DEQ does not believe that benchmark monitoring would provide any useful information and it is not an appropriate tool for assessing the effectiveness of construction stormwater controls. Benchmark monitoring would duplicate the efforts of the
well

- established TMDL program. Therefore, it should not be required for impaired waters with or without an approved TMDL.

Response Refer to Response 4.1.



# Comment ID 0076

- A1.001.027

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 4.2.2.1Q Target believes that the benchmark monitoring can be a good tool for prevention of causing or contributing to an impairment, but thinks more context is needed with additional guidance. Target favors having additional requirements for only waters without formal
To tal Maximum Daily Loads (TMOLs). The TMOL will establish contributing sources and requirements and therefore additional permit requirements would be duplicative.

Response Refer to Response 4.1.



# Comment ID 0080

- A2.001.028

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 4.2.2.1Q Partner Response: Whether the EPA calls it benchmark monitoring or compliance monitoring it remains a very cumbersome and expensive activity for nearly all c onstruction site operators who frequently operate on a very slim financial margin. In his economy it is oftentimes difficult to obtain financing to justify construction of any given development or redevelopment project. Expensive benchmark monitoring only contributes negatively to the financial bottom

- line of a project. Furthermore, the scientific data gained from any required benchmark monitoring is considered, by many, as of questionable environmental value. As stated in our earli er comments the Partners question the utility of benchmark monitoring for CPG compliance and suggests visual observation is the best form of compliance monitoring for sites in the arid west.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

692 Response Refer to Response 4.1.



# Comment ID 0085

- A2.001.020

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 4.2.2.1Q Rockville supports reducing the 10 acre threshold to a one acre threshold. This smaller threshold will be important for urban watersheds trying to meet TMDL reduction requirements. In urban areas, development predominantly occurs in small infill projects that would evade the 10 acre threshold. Urban MS4's, which frequently bear the lion's share of reductions required to impleme nt TMDLs will need to concentrate on cleaning up small but dense development sites to prevent sediment from entering impaired waterways.

Response Refer to Response 4.1.



# Comment ID 0087

- A1.001.048

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 4.2.2.1Q Section 4.2.2.1 (water quality benchmark monitoring) – Requiring benchmark monitoring for certain discharges to impaired waters is unwarranted and unlikely to produce probative information. Such monitoring is not required by EPA’s C&D Rule and would be duplicative of proposed nu meric turbidity sampling. Lastly, such monitoring would result in significant, unwarranted expenditures for permittees.

Section 4.2.2.3 (impaired waters) – Please see above. Also, all inspection requirements should be explicitly limited to include only
th ose areas upon which earth disturbing activities are taking place within the site. Thus, if only 1 acre of a 10

- acre site is disturbed, a permittee should only be required to regularly inspect that 1 acre. Requiring more would be burdensome and a waste of resources. Finally, EPA’s focus on impaired waters should not be expanded to cover certain biological impairments, since in most states these impairments cannot be attributed to specific pollutants until the TMDL development process.

Response
Refer to Response 4.1.



# Comment ID 0090

- A1.001.035

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 4.2.2.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

693 However, EPA's proposal under Part 4.2.2.1 for water quality benchmark monitoring imposes an onerous and incongruous requirement for the temporary impacts from linear construction projects. Consider, for example, the benchmarking "threshold" for earth disturbance, set currently at 10 acres.

Response Refer to Response 4.1.



# Comment ID 0094

- A1.001.003

Author Name: Oppenheimer Jonathan Organization: Idaho Conservation League Issue Category: 4.2.2.1Q We also strongly support the proposed benchmark monitoring and encourage EPA to require monitoring for all impaired streams, regardless of the status of the TMDL. Instead of a standard 10

- acre threshold, we encourage you to consider incorporating slope, soil type, presence of listed species, and/or other factors in determining the disturbance area threshold, i.e. where slopes excee d 20% or where listed species are present the threshold should be reduced to 5

- acres.

Response Refer to Response 4.1.



# Comment ID 0097

- A1.001.015

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 4.2.2.1Q 18. I do not see the purpose of the benchmark testing. There is too much variation in water quality levels due to natural affects for this to be meaningful

Response Refer to Response 4.1.



# Comment ID 0121

- A2.001.005

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.2.2.1Q The permit requirements to conduct benchmark monitoring of stormwater discharges from construction sites that disturb ten acr es or more to sediment or nutrient impaired waters are unwarranted and do not provide meaningful information for discharges to waters without benchmark levels against which to assess them. In the case of numeric turbidity limits, consideration should be given to the background turbidity levels of the receiving water. Rather than applying a universal limit, it should be based upon an increase over existing conditions. Further, many of the water bodies listed in Appendix J do not have a benchmark for nutrients or turbidit y. For example, none of the waters in Massachusetts have a benchmark. The Appendix indicates that the monitoring is conducted forRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

694 information purposes only. The goals of any monitoring requirements need to be clearly defined in order to ensure that the requirements are designed appropriately to achieve those goals. Monitoring for "inform ational purposes" only is not a sufficient justification for the significant costs that this requirement will impose on permitees.

Response Refer to Response 4.1.



# Comment ID 0130

- A2.001.034

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 4.2.2.1Q 32. BENCHMARK MONITORING. In Appendix J, the draft permit requires benchmark monitoring for informational purposes for waterbodys impaired for nutrients. We strongly recommend this requirement be deleted. TMDL‟s sh ould already recognize construction stormwater as a potential source of pollutants. What benefit does EPA see in the sample collection and analysis for information purposes? The operator can be held liable for failure to perform, analyze, and report sample s, but the samples are for informational purposes only.

Response Refer to Response 4.1.



# Comment ID 0131

- A1.001.020

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.1Q Benchmark monitoring is poorly suited to assess the "effectiveness of controls in not contributing to impairments." Specifically, given the inherent variability in concentrations of both solids and nutrients from construction sites over short time periods, grab samples collected in any cost effective and practical manner provide at best a statistically invalid assessment of discharge quality and could be quite misleading as to the effectiveness of controls.

Grab sample monitoring may be able to document significant and ongoing major fa ilures of BMPs, however these types of failures are easily identified readily from a visual inspection during an event. The peculiarities of the sampling frequency and event dyn amics will result in both false positive (Type 1 Error) and false negative (Type 2 error) classification of the effectiveness of control measures due to uncertainty. The number of samples required to reduce uncertainty to acceptable levels is discussed by various researchers and correctly required by EPA in many Quality Assurance Project Plans. (See, e.g., Pitt and Parmer, Quality Assurance Project Plan: Effects, Sources, and Treatability of Stormwater Toxicants. Contract No. CR819573. US EPA, Storm and Combined Sewer Program, Risk Reduction Laboratory. Cincinnati, OH. February, 1995. ) In storm water runoff studies the high variability in runoff concentrations (coefficient of variation of pollutant concentrations is often much greater than 1) means that using the arith metic average of three grab samples (or any other easily executed sa mpling approach) is inappropriate for assessing the quality of discharges and one cannot have statistical confidence in the results. The use or, more likely, misuse of the data collected is more likely to be a artifact of the process instead of a valid assessment of a meaningful performance metric.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

695 A more appropriate approach would be to conduct flow

- weighted composite monitoring of runoff over multiple storm events. However, this approach is well beyond what should be required or is practically appropriate. One potential alternative is to require sites to collect grab samples, but more as a screening program to determine if there is a "huge" problem vs. whether a site is cont ributing to an impairment or not.

Discharge of pollutants resulting fr om erosion processes is well correlated to intensity of rainfall. As EPA acknowledges in the proposed sampling methods, it is impractical to collect samples that accurately address rainfall intensity by allowing a mini mum of weekly benchmark sampling. As a result it is unlikely that samples collected in any remotely practical manner including that proposed by EPA would be representative.

Due to the dynamic nature of construction projects and the nature of sampling collection and analysis (e.g. delay in ge tting sampling results from the laboratory vs. the dynamic, constantly changing nature of a construction site), it is often impractical to u se a benchmark sampling strategy as an effective means for initiating corrective action. The practical experience an d expertise of field personnel in identifying deficiencies is a much more effective means of initiating corrective action. Again, any sampling cou ld be used to assess whether there is a huge problem. However visual observations are likely to reveal such a problem much more quickly by visually assessing turbidity, etc.

The selection of 10 acres as the threshold for requirement of sites to conduct benchmark monitoring is highly subjective. Some size
classification of the areas of the construction sites should have been conducted to assess whether 10

- acres is an appropriate size for actually protecting the nations waters.

It is the case that many projects greater than 10 acres are more likely than not to be better managed by professional staff m uch more so than many smaller projects. The cumulative impacts of smaller projects in many places in the country are likely greater than that from more well run larger projects. However, another factor is the value of the project. For example, sites in downtown, highl y urban situations may be smaller than 10 acres, but also well managed. Another potential metric for setting project sizing for any r equirements would be the value of the constructed project. Regardless of the above, the targeting of the larger sites may i n fact not address many or most of the potentially problematic sites. If 10 acres was based upon an economic consideration, what was the basis for that selection?

It is also the case that the proposed benchmark sampling is a poor tool for assessing impacts on waters that are habitat for listed fish specifies. The critical impacts on listed species are much better assessed through direct in

- stream receiving water sampling (recognizing that in many cases there would be other potential sources of pollut ion, including existing development, forestry activities, etc.). Without the use of broad and oversimplifying assumptions about the relationships between the benchmark sampling and receiving water quality, the data would not be useful in assessing potentia l impacts (other than gross failure cases that could be assessed via visual inspections) as a result of the sampling methodologies.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

696 

# Comment ID 0131

- A1.001.022

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.1Q • Water Quality Benchmark Monitoring - Benchmark monitoring as proposed is unlikely to meet the intended purpose of informing the initiation of corrective action. Direct inspection of controls during or following events is a far more useful tool in assessing the
effectiveness of BMPs.

• 10

- acre Disturbance Threshold - The proposed threshold is arbitrary and does not appear to be well linked to impairments, the effectiveness of technology controls utiliz ed, or natural background conditions. Project size varies widely across geographic regions.
LBA is not aware of information that indicates that the area

- specific discharge of pollutants is greater at these sites than at smaller sites. Large sites are typically managed by professional construction personnel with experience in effectively minimizing discharge.

Response Refer to Response 4.1.



# Comment ID 0133

- A2.001.030

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 4.2.2.1Q MDT questions the utility of benchmark monitoring. Although the permit requires corrective actions to be taken if benchmark v alues are exceeded, it is unlikely that these actions would be realized when rainfall is sporadic. Especia lly in arid or semi

- arid states such as Montana, corrective actions would not be triggered until several days after the discharge occurs. This is due to the lag time between sample collection and lab analysis. MDT believes benchmark monitoring should be eliminatedfrom the permit. Ifbenchmark monitoring must be included, MDT believes the disturbance threshold should be set higher and consideration should be given for the likelihood of another storm event occurring.

Response Refer to Response 4.1.



# Comment ID 0137

- A2.001.017

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 4.2.2.1Q Numerous aspects of the benchmark monitoring are impractical. Monitoring from discharge points bu t not from the regulated waters provides a data set that is not useful in measuring impact on the resource. Projects employing Environmental Site Design will not have the discharge points referenced in the permit. We believe any measurement should account for pre

‐ construction background levels and offsite influences but does not favor a default background level that is based on modeling or averages. Monitoring at 10 ac res is not practical. The minimum threshold should be a project size that triggers an in dividual permit. We do not see what EPA will do with the volume of monitoring data generated by this requirement.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

697 Response Refer to Response 4.1.



# Comment ID 0141

- A2.001.003

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: 4.2.2.1Q 2. Benchmark Monitoring for Sediment and Nutrient

- Impaired Waters (Section 4.2.2.1): With all due respect the City believes that benchmark monitoring is not an appropriate tool to use in assessing the effectiveness of constru ction stormwater controls. Sporadic sampling of effluents during storm events may not provide an accurate picture of water quality impacts and can provide a limi ted picture about how well existing controls are functioning. Focusing on specific best managem ent practices (BMP's) that are being implemented, utilizing available information on the effectiveness of these BMPs to reduce pollutant loadings, and ensuring th at appropriate BMPs are effectively being applied on an ongoing basis appears to work effectiv ely in the 2008 CGP.

Response Refer to Response 4.1.



# Comment ID 0145

- A2.001.017

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 4.2.2.1Q
Benchmark monitoring of discharges that drain to a stream segment impaired by excessive sediment or nutrients would provide valuable information to any environmental enforcement agency with responsibilities for protecting the waters of the U.S., eve n for those waters that have had a TMDL completed. Funding for water quality monitoring and study is rarely adequate. It is likely that funding for this type of monitoring or for TMDL study will not increase, but rather will decrease, in the future. The burden of funding benchmark monitoring may appropriately be shifted to those interests that are creating the potential impacts being monitored.

We support inclusion of benchmark monitoring requirements as outlined in this draft construction general permit. As for wheth er such monitoring will be helpful in assessing the effectiveness of cons truction stormwater controls in not contributing to existing impairments, it may only be said that such monitoring will be helpful, but not that it will certainly be sufficient.

We support benchmark monitoring for all construction sites including those t hat are less than 10 acres. Our experience has been that even small construction sites, if poorly managed, can cause large discharges of sediment or other pollutants.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

698 

# Comment ID 0153

- A1.001.032

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 4.2.2.1Q This problematic if your site is not directly connected to the receiving stream. If you are implying that sampling should be conducted at the discharging of the site during storm events. This is hard to do where overland flow occurs from undeveloped areas.

Response Refer to Response 4.1.



# Comment ID 0154

- A1.001.003

Author Name: Loehr Aaron Organization: Pace Construction Issue Category: 4.2.2.1Q Avoid setting unsubstantia ted and costly benchmark monitoring requirements that would merely duplicate the efforts of the
well

- established Total Maximum Daily Load (TMDL) program

Response Refer to Response 4.1.



# Comment ID 0159

- A1.001.016

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 4.2.2.1Q We believe the TMDL is designed to address sediment, nitrogen and phosphorous only and does not directly regulate fish and mi cro invertebrates or other biological impairments. Water quality improvements resulting from the TMDL limitation on sediment and nutrients will provide biological improvements.
Response Refer to Response 4.1.



# Comment ID 0166

- A1.001.003

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: 4.2.2.1Q
III. EPA should rely on its Total Maximum Daily Load (TMDL) program to control construction site runoff to impaired waters an d avoid setting unsubstantiated and costly benchmark limits. Both the language of Clean Water Act Section 302 and its legislative history make clear that water quality limits are to be added to NPDES permits only when national technology

- based standards fail to produce the desired level of water quality in a given watershed. In that case, EPA should continue t o rely on its TMDL program thatRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

699 provides a well

- established process for states to address waters within their borders that fail to meet their water quality standard. Water quality based effluent limits (and TMDLs) should be written at the state level throu gh the use of proper monitoring programs to develop appropriate benchmarks.

Response Refer to Response 4.1.



# Comment ID 0166

- A1.001.005

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: 4.2.2.1Q
The benchmark monitoring r equirements in the draft CGP amount to an unproven and unnecessary requirement that will do more to fuel citizen suit liability than protect the environment. They would introduce a potentially insurmountable array of complica ted and costly analytical metho ds and test procedures for analyzing stormwater runoff.

Response Refer to Response 4.1.



# Comment ID 0168

- A1.001.005

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 4.2.2.1Q

-- The 10

- acre size threshold is consistent with existing permit site thresholds relative to effluent limit guidelines monitoring, and on

site sedimentation ponds.

Response Refer to Response 4.1.



# Comment ID 0171

- A1.001.014

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 4.2.2.1Q It is unreasonable to require sampling of all outfalls within the first hour of a rain event and three times a day for linear construction, the type most encountered by electrical utilities. Use of representative monitoring would still be essential to be able to collect samples as required by the proposed CGP.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

700 

# 4.2.2.1A BENCHMARK LEVELS

Comment ID 0045

- A1.001.010

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 4.2.2.1a Third, we recommend that pre

- construction discharge sampling be undertaken, as was the approach used in the previous General Permit; this is, in fact, the best way to establish a realistic benchmark based in part on the natural background level, rather than starting with what may well be an unrealistic value of zero.

Response Refer to Response 4.1.



# Comment ID 0069

- A1.001.011

Author Name: Cramer M. Organization: Issue Category: 4.2.2.1a Benchmark values need to be based on site specific conditions and background values rather than the apparently arbitrary values included in Appendix J. The turbidity value of 50 NTU observed frequently in appendix J is overly stringent and impractical. Permitees should be given the opportunity to establish alternate benchmark values for their location.

Response Refer to Response 4.1.



# Comment ID 0075

- A2.001.029

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 4.2.2.1a Benchmarks need to be taken, but additional tests should be taken upstream of the event to get a new benchmark. The turbidity above the event culminating with the event could be what takes it over the top. To truly tell how much above the natural turbidity that you are putting into the wa ter, you need a baseline above the event.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

701 

# Comment ID 0076

- A1.001.029

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 4.2.2.1a Target would like a clarification on why the EPA does not intend to use turbidity as a surrogate for benchmark monitoring; all of these parameters directly correlate with sediment mobilization off

- site.

Response Refer to Response 4.1.



# Comment ID 0091

- A2.001.014

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 4.2.2.1a 14. Fact Sheet Item 20. Part 4.2: The language in this section is not clear. Will sampling be required for all parameters lis ted in 4

- 1 or just for the parameters causing the receiving waters to be impaired? The propo sed benchmark limits do not address background levels. Some benchmark limits are at or near the detection limit for approved analytical methods. Adjustment of benchmark limits shou ld be allowed based on limitation of the approved analytical methods and/or natural background levels for constituents of concern.

Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.014

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 4.2.2.1a It is also worth noting that in certain instances, EPA has set benchmark values for turbidity that are not appropriate water quality objectives for some naturally turbid waterways. An influx of unnaturally clear water could have an adverse impact on ecosyste ms in such waters; fa una and flora have developed that are dependent on high sediment loads and dark waters and indigenous species have
become dependent on turbid waters to avoid predators.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.056

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2.2.1aRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

702 Additionally, EPA's failure to account for natural background pollutant levels has resulted in overly stringent and likely un achievable
benchmarks in most instances. This is problematic because any exceedance of a benchmark value would trigger prompt corrective action, requiring home builders to continually enhance and upgrade stormwater controls, ultimately leading to over

- engineered sites. Failure to take prompt corrective action is a permit violation and subject to enforcement action. Multiple exceedances of this randomly selected benchmark could result in requiring a home builder to unnecessarily install additional controls, purchase water qual ity credits from an approved s eller, or, in a worst case, stop work or abandon an otherwise lawful and appropriate project.

Response Refer to Response 4.1.



# Comment ID 0118

- A1.001.003

Author Name: Evans Michael Organization: Colaska, Inc. Issue Category: 4.2.2.1a VII. Alaska, in particular, has many glacier

- fed and other naturally "sediment

- laden" water bodies. We oppose any numeric limitations that would require contractors to control sediment levels in stormwater runoff from their sites to these water bodies to levels below

natu rally occurring levels.

In conclusion, my company appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons outlin ed above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP

- based and flexible approach to ensure the CGP is economically achievable, effective in reducing pollution from stormwater discharges, and work able on a national basis. EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit requirements, and proven effective in protecting water quality. We encourage EPA to work closely with the commercial construction industry and the Associated General Contractors of America during the comment review process and as it continues its work on a final
ELG and new CGP.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.007

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.1a In addition to that general concern about the new benchmark monitoring requirement, the FWQC has specific concerns about seve ral aspects of these provisions. One of those issues is scope: the benchmark requirements apply to all impaired waters, including those that are covered by a Total Maximum Daily Load (TMDL). In a TMDL, EPA or the State would have already considered the contributions provided b y construction stormwater sources and determined the reductions, if any, that are needed from those sources. Any monitoring requirements for those sources should be keyed specifically to how the sources were addressed in the TMDL. It coul d be, for example, that the TMDL specifies that no reductions in loadings are needed from those sources. In that situation, extensiveRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

703 benchmark monitoring would not be appropriate. Therefore, any benchmark requirements that are specified in the final Permit s hould not apply to waters covered by TMDLs.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.008

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.1a Another specific concern about the benchmark provisions relates to how the specific benchmark levels are determined. EPA is using as benchmarks the specific numeric water quality criteria that have been adopted by the States. These criteria were adopted to a ddress water quality impacts in low

- flow situations, so are not appropriate for use during wet

- weather events. Impacts of wet

- weather discharges on aquatic life over short

- term periods are entirely different from the impacts of routine discharges over long periods of time, and "regular" numeric criteria do not and cannot provide an accurate picture of the real impacts of stormwater sources. [FN 5]

In addition, as EPA recognizes in the Draft Permit, some State criteria are based on incremental values above natural backgro und levels. Application of this concept in a general permit context is not really possible. EPA proposes to simply assign a background value of zero. This practice would make dischargers responsible for any levels of the pollutants found in the water naturally. That would not only be unfair; it would be contrary to the Clean Water Act, which regulates only pollutants that one "adds" to the waters. EPA could, instead, assign a default natural background level, or require a preconstruction discharge sample to determine background, bu t those
solutio ns have their own problems; a single sample, for instance, is not appropriate to use in establishing a natural background lev el for all future monitoring and compliance.[FN 6] The larger problem is that these "dry weather" criteria should simply not be use d to assess

wet

- weather discharges.

[FN 5] In addition, EPA needs to consider the fact that these criteria are meant to be used in assessing in

- stream concentrations. In contrast, stormwater runoff levels are not going to represent fully

- mixed concentrations in a receiving water, so requiring corrective action based on a storm water discharge exceeding this benchmark level is simply inappropriate.

[FN 6] This is especially so in the stormwater context; a "natural background" sample for purpose s of stormwater permitting would need to be taken during a wet

- weather event, in order to reflect the higher background levels that are naturally present when storm

water discharges are occurring.

Response Refer to Response 4.1.



# Comment ID 0121

- A2.001.006

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.2.2.1aRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

704 For those waters with defined benchmarks, local conditions are not adequately accounted for. The benchmark levels are set based on the numeric water quality standards ofthe receiving water. As a result, if the discharge from a construction site does not meet the water quality standard at the point of discharge (AKA end of pipe), the permittee would be require d to take corrective action. The application of the water quality standard at the end of the pipe is inappropriate and fails to take into account the site specific factor s including dilution that are critical w~en considering what discharge is acceptable. Furthermore, meeting water quality at the end of the pipe would likely not be feasible in many circumstances.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.019

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2.1a Another specific concern about the benchmark provisions relates to how the specific benchmark levels are determined. EPA is u sing as benchmarks the specific numeric water quality criteria that have been adopted by the States. These criteria were adopted to address water quality impacts in low

- flow situations, so are not appropriate for use during wet

- weather events. Impacts of wet

- weather discharges on aquatic life over short

- term periods are entirely different from the impacts of r outine discharges over long periods of time, and "regular" numeric criteria do not and cannot provide an accurate picture of the real impacts of stormwater sources.

In addition, as EPA recognizes in the Draft Permit, some State criteria are based on incremental values above natural background levels. Application of this concept in a general permit context is not really possible. EPA proposes to simply assign a backg round value of zero. This practice would make dischargers responsible for any levels of the pollutants found in the water naturally. That would not only be unfair; it would be contrary to the Clean Water Act, which regulates only pollutants that a discharger "adds" to the waters.

Response Refer to Response 4.1.



# Comment ID 0131

- A1.001.027

Au thor Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.1a One would assume that EPA intended to set benchmarks to allow the incorporation of natural background and that a site that wa s discharging at natural background levels would not be exceeding the benchmark.

However it appears the language that EPA included is unclear in this regard:

"If the water quality criterion is expressed as a value above "natural background" levels of the pollutant in the recei ving water (e.g., 10 NTUs above background levels of turbidity), the applicable benchmark corresponds to the value that is specified in the criter ion (e.g., in the example, the benchmark would be 10 NTU)."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

705 If EPA is proposing that the background be ignored in setting the benchmark, this approach is not scientifically appropriate.

The intent of using background concentrations is presumably intended to acknowledge the "natural" turbidity present in a rece iving water. A discharge benchmark that only allows for a turbidity value equal to the allowable quantity above background assumes essentially that the background turbidity from the construction runoff is zero. It is unreasonable to assume that this is the case, particularly where background turbidity is inherently high even under undisturbed conditions. Furthermore, if clear waters are introduced from a construction site, well below natural turbidity (and assuming solids have the same pattern), the effect of clear water may actually increase channel d egradation. Much of the arid west could have this issue.

The intent of setting turbidity benchmarks is undermined by this approach as corrective actions may not be necessary to prote ct receiving water quality.

Response Refer to Response 4.1.



# Comment ID 0141

- A2.001.005

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: 4.2.2.1a Another specific concern about the benchmark provisions relates to how the specific benchmark levels are determined. EPA prop os es to assign a background value of zero. This practice would make discharges responsible for any levels of the pollutant found i n the water naturally.

Response Refer to Response 4.1.



# Comment ID 0166

- A1.001.004

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: 4.2.2.1a We also have serious concerns with the method EPA has used to set the pollutant concentration levels (i.e., benchmark values) that, if exceeded, represent a water quality concern. EPA has not pro vided any justification or scientific rationale for its benchmark levels. To this end, EPA`s failure to account for natural background pollutant levels has resulted in overly stringent and likely unachi evable benchmarks in most instances. This is particula rly troubling because any exceedance of a benchmark value would trigger prompt
corrective action - wherein contractors will be forced into a perpetual cycle of action to enhance and upgrade their stormwater controls, ultimately leading to over

- engineered s ites. What is more, failure to take prompt corrective action is a permit violation and subject to enforcement action. In addition, multiple exceedances of a benchmark could result in a State requiring that the facility appl y for an
individual stormwater di scharge permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

706 Response Refer to Response 4.1.



# 4.2.2.1B BENCHMARK MONITORING REQUIREMENTS

Comment ID 0064

- A1.001.034

Author Name: Dees Richard Organization: City of Meridian Issue Category: 4.2.2.1b Section 4.2.2.1.b.ii, page 40 - "You must collect your first sample within the first hour that the discharge begins."

•This could be very difficult to meet especially if only certain personnel are trained to take samples. Consider just requiri ng three samples every 24 hours during a rain event or, at a mini mum, increasing timeframe for initial sample to within 3 hours after the discharge begins.

Response Refer to Response 4.1.



# Comment ID 0069

- A1.001.010

Author Name: Cramer M. Organization: Issue Category: 4.2.2.1b
9. Part 4.2.2.1 of the draft EPA CGP requires projects with greater than 10 acres of disturbed area that discharge into an impaired water body to sample and analyze the stormwater discharge for turbidity, total nitrogen and total phosphorous at least once each week if a discharge occurs during that week. The results of the analysis are to be compared to permit specified benchmark levels. We have several concerns regarding the burdensome nature of this requirement:

Results from samples sent for laboratory analysis would not be available for several days or weeks. At that time, the site conditions
that led to an exceedance probably would no longer exist;

Additional monitoring for turbidity seems redundant to the Section 3 requirements;

Sampling is required within the first hour that the discharge begins. For remote construction sites this would be difficult without the use of costly automated samplers, or a requirement for the sampling staff to be on call 24 hrs/day;

Sampling on remote construction sites outside of daylight hours is a serious safety concern;

The requirement of 2 additional samples each day would further increase the expense and hazard;Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

707 Response Refer to Response 4.1.



# Comment ID 0072

- A2.001.014

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 4.2.2.1b In general, MoDOT has the same concerns with the benchmark monitoring requirements as those expressed in Comment 7 [See
Comment IDs 0072

- A2.001.009 - 012] for the proposed turbidity limit. Specifically, the IO

- acre limit, the quali ty of the receiving streams, and constraints associated with adhering to the sampling requirements. Please refer to Comment 7 f[See Comment IDs
0072

- A2.001.009 - 012] or more detail.

Response Refer to Response 4.1.



# Comment ID 0075

- A2.001.030

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 4.2.2.1b Why would the mere clearing operation initiate nutrient bench marking since fertilization of replaced topsoil occurs much lat er in construction phasing. Would contractors now be held responsible for naturally occurring nitrogen and phosphorus in native soil being stripped?

Response Refer to Response 4.1.



# Comment ID 0076

- A1.001.030

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 4.2.2.1b Target would also request that the EPA consider revising benchmark monitoring requirements to fit more uniformly with other monitoring requirements of the permit. While benchmark monitoring and effluent limit monitoring meet differ ent goals, the inconsistency makes permit requirements very convoluted. Permittees must monitor every event that has a discharge for effluen t limit monitoring, while benchmark monitoring requires weekly. Benchmark monitoring requires the first sample be co llected within a half hour of discharge while effluent monitoring sample must be completed within an hour of discharge. The inconsistencies will ma ke it difficult for inspectors and monitoring personnel to fulfill permit requirements. Target suggests makin g benchmark monitoring protocol similar to effluent limit monitoring protocol to increase permit simplicity of the permit while still being environm entally protective.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

708 Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.013

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 4.2.2.1b The benchmark monitoring provisions would introduce a potentially insurmountable array of complicated and costly analytical methods and test procedures for analyzin g stormwater runoff. Under the Draft, it is likely that many contractors would be subject to separate monitoring programs and protocols for turbidity (i.e., both a benchmark requirement and numeric compliance limit), w hich would cause confusion and impose excessive recordkeeping and paperwork obligations. EPA predicts that turbidity would be measured in the field. Some contractors would, however, find that they also need to send samples to a laboratory to monitor f or phosphorus or nitrogen and perhaps even for turbidity. This is clearly excessive in light of EPA's decision to regulate turbidity using numeric standards based on the fact that turbidity merely is an "indicator pollutant" the control of which helps to reduce th e discharge of other pollutants, su ch as metals and nutrients, from construction sites. See C&D ELG Final Rule at 74 Fed. Reg. at 62,996 and 63,006

- 07 (Dec. 1, 2009).

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.064

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2.2.1b The use of the benchmark values will only make sense if in stream sampling was required. The CGP directs WQBEL sampling to be conducted in the same manner as described in Part 3 of the CGP. Section 3.3 only describes sampling of the discharge from the construction site (selecting sampling points, etc.). Sampling above and below the construction discharge(s), if that is what was intended, is a much more complex issue. Samples taken upstream must be representat ive of the stream during the rain event (which could be dangerous to the sampling personnel), or else it is not meaningful. In order to trace downstream turbidity back to d ischarge from an individual site, the downstream sample must be taken at a point pri or to any other discharge entering the water of the US. This is often not practical to accomplish when the discharge from a construction site enters an MS4 stormwater collection system.

Response Refer to Response 4.1.



# Comment ID 0098

- A1.001.018

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 4.2.2.1bRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

709 EPA should clarify that streams that are waters of the U.S. and that flow through a construction site are not subject to samp ling under this Part. Moreover, the Age ncy should evaluate the status of stream flows that empty into the same detention basin that also manages construction runoff from the site. Such combined flows would cause any discharge sampling from a basin to be unrepresentative of the
construction stor mwater flows from the site.

Response Refer to Response 4.1.



# Comment ID 0100

- A2.001.013

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 4.2.2.1b
Section 4.2.2 discusses the use of fertilizers and benchmarking. USEPA should either provide an exemption for those who use fertilizer in accordance with this permit and have impaired waters with nitrogen or phosphorous concerns, or the use of fertilizers shou ld be completely eliminated.

Response
Refer t o Response 4.1.



# Comment ID 0105

- A2.001.010

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 4.2.2.1b [ Chemicals, alternatives to chemical treatment, and residuals testing. Construction site runoff carries significant levels of chemicals and toxic pollutants.[FN 3] The CGP should require benchmark monitoring for chemicals commonly present at construction and development sites, in addition to chemicals used for erosion control. EPA should add benchmar k monitoring requirements for additional pollutants, such as toxic metals, polycyclic aromatic hydrocarbons, petroleum products and pavement sealants. Seal ants, in particular, have been demonstrated to pose risks for receiving waters from construction proj ects and should be more thoroughly addressed in the final CGP.[FN 4] The final CGP should emphasize natural erosion control and pollutant removal practices, and discourage use of chemicals for stabilization.

[FN 3] See National Research Council, URBAN STO RMWATER MANAGEMENT IN THE UNITED STATES, at 26, 180 (2008),
available at http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf.

[FN 4] See, e.g. University of New Hampshire Stormwater Center, Allison Watts, Robert Roseen et. al., POLYCYCLIC AROMATIC HYDROCARBONS IN STORMWATER RUNOFF FROM SEALCOATED PAVEMENTS (2008) (presentation to StormCon),
available at http://www.u nh.edu/unhsc/sites/unh.edu.unhsc/ files/presentations/watts/watts_stormcon_08_sealant.pdf

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

710 

# Comment ID 0119

- A2.001.009

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.1b The sampling requirements for the benchmark levels are also of concern. EPA requires that dischargers sample at least one day per week, and three times during that day. Then, if the average of the three samples exceeds the benchmark level, the dis charger must take corrective action. Since corrective action must be taken for an exceedance, the benchmark levels constitute effluent limits - the fact that there is no penalty for exceeding the benchmark does not change that fact. And these effluent limi ts have no legal basis. There is simply no reason to believe that a once

- per

- week test, with three samples, will accurately capture what is really happening during a

wet

- weather event.[FN 7] Moreover, to require corrective action (often expensive and time

- consuming) to be taken based on the average of those three samples is arbitrary and has no scientific basis..

[FN 7] In addition, this sampling requirement will impose a significant burden on site operators, since it will require them to have sampling staff and equipment available 24 hours per day, 7 days per week, so once a storm event occurs, they can take samples three times during the storm - and repeat this on a weekly basis.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.020

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2.1b The sampling requirements for the benchmark levels are also of concern. EPA requires that dischargers sample at least one day per week, and three times during that day. Then, if the average of the three samples exceeds the benchmark level, the discharger must take corrective action. Since corrective action must be taken for an exceedence, the benchmark levels constitute effluent limits - the fact that
there is n o penalty for exceeding the benchmark does not change that fact. These effluent limits have no legal basis. There is simply n o reason to believe that a once

- per

- week test, with three samples, will accurately capture what is really happening during a wet

- we ather event. Moreover, to require corrective action (often expensive and time

- consuming) to be taken based on the average of those three samples is arbitrary and has no scientific basis.

Response Refer to Response 4.1.



# Comment ID 0141

- A2.001.004

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: 4.2.2.1bRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

711 In addition to the above listed concern about the new benchmark monitoring requirements, the sampling requirements for the benchmark levels are also of concern. EPA requires that dischargers sample at least one day per week, and three times during that day. This sampling technique may not accurately capture what is really happening during a wet

- weather event.

Response Refer to Response 4.1.



# 4.2.2.1C RECORDING OF MONITORING RESULTS

Comment ID 0064

- A1.001.035

Author Name: Dees Richard Organization: City of Meridian Issue Category: 4.2.2.1c Section 4.2.2.1.c, page 41 - Full "Recording of monitoring results" section

•Again, there is no accounting for background conditions in receiving water body. If discharging during spring melt conditions, background turbidity will likely exceed limit by significant amount. Recommend this requirement consider background water qua lity of the receiving w ater body.

Response Refer to Response 4.1.



# 4.2.2.1D CORRECTIVE ACTION IF BENCHMARK EXCEEDED

Comment ID 0093

- A2.001.012

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 4.2.2.1d EPA has not provided any justification or scientific rationale for its benchmark, though it could have costly consequences. Any exceedance would require prompt corrective action, forcing the permittee into a perpetual cycle of action to enhance and upgr ade its stormwater controls, ultimately leading to over

- engineered sites. See Draft CGP Part 6. What is more, failure to take prompt corrective action would be a permit violation and subject to enforcement action. In addition, multiple exceedances of a benchmark could result in
E PA requiring the permittee to apply for a rarely used, costly and time

- consuming individual stormwater discharge permit.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

712 

# Comment ID 0121

- A2.001.011

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 4.2.2.1d Further, with respect to the requirement to address exceedances within 7 days, it should be noted that samples for Total Nitr ogen and Total Phosphorus must be submitted to a laboratory, wh ich takes 5 to 7 days for normal reporting turnaround of analytical results. The requirement to address exceedances within 7 days is not feasible (this part directs one to part 6.3 .1.2). The regulations ne ed to clarify that "the time of discovery of this condition" coincides with the time analytical results are available.

While it is possible to put a rush on laboratory testing, the costs to do so are significantly higher than normal results rep orting. On a linear project, the costs, multiplied by several potential discharge points, can be significant if a rush is required on each sample to meet the 7 day timeframe.

Manufacturers are beginning to test their best management practices (e.g., compost filter socks, etc.) for nutrient removal c apabilities; however, temporal effectiveness for such BMPs is not readily available. While compost and mulch BMPs can be effective at nutr ient removal, their effectiveness drops over time. EPA should provide guidance for selecting and maintaining BMPs, regardless of manufacturer testing results, in a manner that supports the requirements of this part. It is recommended that there be an App endix that provides references to Best Management Practices designed to attenuate nitrogen and phosphorus that may be in solutio n, as opposed to adsorbed or absorbed to particulates that are managed through best management practices that are designed to control sedim entation.

Response Refer to Response 4.1.



# 4.2.2.1E REPORTING BENCHMARK MONITORING RESULTS

Comment ID 0024

- A2.001.01 5

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2.2.1e Finally, we urge EPA to increase the frequency of the benchmark reporting from the proposed quarterly basis, see Part 4.2.2.1 .e., to at least a monthly basis. More frequent reporting will enhance EPA's ability to ensure that discharges are not contributing to the impai red condition of receiving waters. Given the move towards electronic recordkeeping and submission, complying with a more frequent

r eporting requirement should not be a burden for permittees. These benchmark monitoring reports should also be publicly access ible pursuant to §308(a)

- (b) of the CWA, which authorizes EPA to require owners of point sources to keep records and make such repo rts as necessary to ensure compliance with the permit and fulfill other requirements of the Act, and provides that "any records, reports, or information obtained under this section ... shall be available to the public." 33 U.S.C. §1318(b).

Response
Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

713 

# 4.2.2.2 STABILIZATION REQUIREMENTS

Comment ID 0024

- A2.001.011

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2.2.2 We agree that imposing stricter stabilization requirements, which will limit the amount oftime that exposed soil is left unstabilized, is a prudent and effective way to limit sediment and nutrient loading. See Part 4.2.2.2.

Response Refer to Response 4.1.



# Comment ID 0025

- A1.001.035

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 4.2.2.2 For a large project, three days may not be sufficient time to complete these activities

Response Refer to Response 4.1.



# Comment ID 0037

- A1.001.039

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.2 An exception should be provided to the requirement to immediately initiate stabilization on disturbed areas of sites that dis charge to a sediment or nutrient impaired water w here earth

‐ disturbing activities have permanently ceased or temporarily ceased (and will not resume for a period exceeding 7 calendar days) if 1) soil conditions due to an earlier storm event are too wet for stabilizat ion activities (e.g. preparing the soil for planting, seeding and mulching, etc.) or 2) the soil was frozen during this period precluding any further activities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

714 

# Comment ID 0037

- A1.001.040

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.2 There should be an exception to the requirement to complete stabilization on disturbed areas of sites that discharge to a sediment or nutrient impaired water within 3 workdays of initiating stabilization in the event that 1) a storm event occurred during the 3

‐ day
deadline period which prevented stabilization activities from taking place, 2) soil conditions due to an earlier storm event are too wet
for stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil was frozen durin g this period precluding any further activities. If any of these eve nts were to occur, EPA could require that stabilization activities should be initiated as soon as practicable in these sensitive areas.

Response Refer to Response 4.1.



# Comment ID 0045

- A1.001.011

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 4.2.2.2
4.2.2.2 - As noted in previous comments, we agree with the requirement for stabilization to begin within seven (or, indeed, less) days of major work ceasing on the site, either temporarily or permanently. We agree that there should be daily visual inspections on the:se particular sites, and weekly, more extensive site inspections.

Response Refer to Response 4.1.



# Comment ID 0045

- A1.001.012

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 4.2.2.2 We also strongly recommend that two additional requirements should be set, for sites adjacent to or draining to impaired wate rs or waters with TMDLs. First, there should be an upper limit imposed for the amount of land that may be " opened" and worked at any given time.

In highly urban settings, that upper limit might be five acres, while in more rural settings, the limit might be set at 10

- 20 acres. Second, Federal Clean Water Act regulations prohibit new discharges into impaired waters for which a TMDL has been established unless there is a Waste Load Allocation ("WLA") available to accommodate those discharges.[FN 6] This General Permit should similarl y make this clear, disallowing its application at all into TMDL

- designated stream s unless it is shown that a WLA is, indeed, available, or some other accommodation, such as an off

- site offset (as part of a fully accountable state or local program), is made.

[FN 6] 40 CFR §122.26(d)(4)(A)(ii); 40 CFR §122.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

715 Response
Refer to Response 4.1.



# Comment ID 0053

- A2.001.028

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.2 Clause 4.2.2.2.a. indicates: " ... and final grade has been reached." Final grade is not necessarily an indicator, condition, or definition that construction activities have been completed, temporarily, or permanently ceased.

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.029

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.2 Clause 4.2.2.2.b. dictates a "3 working day" time frame for non

- vegetative stabilization effort completion and Part 2.2.1.4 Deadline for
arid/semi

- arid areas of the Permit states: " ... you must initiate stabilization as soon as practicable following the temporary or permanent cessation of construction activities, in lieu of meeting the deadlines in Parts 2.2.2.1 and 2.2.2.2.", yet has no c ompletion
timetable associated in the text.

If a project is in an arid or semi

- arid location and discharges to an impaired water; is the permittee intended to only initiate stabilization as soon as practicable following the temporary or permanent cessation of construction activities, in lieu of meeting the dead lines in
Parts 2.2.2.1 and 2.2.2.2. wit h no associated time table save seeking termination as stipulated in Part 2.2.1.4, or complete vegetative
and non

- vegetative coverage within 3 working days as stipulated in Part 4.2.2.2.b?

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.030

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.2 Clause b. dictates a 3 working day time frame for vegetative stabilization effort completion including establishment of veget ation. Established vegetation/plants are typically defined as independently viable specimen, not requiring irrigation. This is not an achievable condition within 3 days.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

716 Consider altering the term "established" in the clause.

Response Refer to Response 4.1.



# Comment ID 0060

- A1.001.019

Auth or Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 4.2.2.2
19. Section 4.2.2.2.b - This section requires the owner to complete stabilization activities within 3 work days of initiating stabilization on exposed portions of the site, with no exceptions. While the 3 days may be sufficient on some sites, it may not be practical for every construction site. The time frame to complete stabilization can vary based on site conditions (i.e. size of the disturbance t o be stabilized, final topography/steep slope areas, etc.) and by the weather conditions (i.e. several days of rain that prevents the construction equipment from accessing the site, high intensity rain event that results in erosion and requires additional lan d grading, etc.). EPA should modify this section to provide an owner with additional time to complete stabilization activities if certai n criteria/conditions are met.

Response Refer to Response 4.1.



# Comment ID 0067

- A1.001.020

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 4.2.2.2 The timeline for completion of stabilization for vegetative cover in the CGP requires that "all soil conditioning, seeding, w atering..." be completed within three days of initiation. A single watering of seeds is not adequate to ensure germination and, depending upon rainfall, could require numerous applications of water. Entergy requests clarification that a program of "soil conditioning, seeding, watering. . . " and similar activities not necessarily be designed to be completed within three days, when best management practices
indicated otherwise.

Response Refer to Response 4.1.



# Comment ID 0069

- A1.001.012

Author Name: Cramer M. Organization: Issue Category: 4.2.2.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

717 10. Part 4.2.2.2 of the draft EPA CGP imposes more stringent stabilization requirements on projects with greater than 10 acres of disturbed area that discharge into an impaired water body. Requiring all stabilization to be implemented if work is to be sto pped for only 7 days is not practical. For linear projects where the construction sequence is always in flux due to weather, soil condition, unexpected rock, and a host of other factors, a 7

- day stabilization requirement would be overly burdensome and often completely impractical. Consideration of specifying more stringent requirements for certain potentially sensitive areas is more appropriate for the S WPPP design level where site conditions can be directly assessed and not arbitrarily required by a "one siz e fits all" permit requirement. The language of this section should be modified to recommend the reduced stabilization times for areas that discharged to impaired waters, but allow flexibility of this period to be based on consideration of site and project conditions that would be addressed in the SWPPP.

Response Refer to Response 4.1.



# Comment ID 0107

- A2.001.009

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 4.2.2.2 Special stabilization deadlines that apply to conditions outlined in section 2.2.1.3(ii) should also apply if the permittee discharges to a water that is impaired (for any parameter) and the discharge is likely to include the impaired parameter. To determine if the discharge is likely to include an impaired parameter a reasonable potential analysis should be conducted. Or alternatively and perhaps more simply these more protective timelines should apply to all dischargers to an impaired stream unless a reasonable potential an alysis shows that there is not likely to be a discharge of the impaired parameter.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.023

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2.2 EPA requires that where the discharge is to a water impaired for sediment or nutrients, the discharger must immediately initiate stabilization in exposed areas if earth

- disturbing activities are temporarily or permanently suspended, and then complete certain stabilization activities (including activities related to vegetative cover) within three work days of initiating stabilization. This requirement raises a couple of concerns.

First, it addresses possible impacts after construction has been discontinued, and therefore falls into the realm of "post

- construction" discharges. The Chamber does not believe that post

- construction discharges are properly regulated under the CGP. The intent of the CGP is to address discharges that occur during construction activities.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

718 Second, the Chamber does not believe it makes sense to apply these requirements to temporary suspensions. In the Draft Permit, a temporary suspension can be for as few as eight days. So a construction operator could have an eight

- day "break" in activities that would trigger this requirement, mea ning that it would have to immediately start stabilization activities, and within three days, would have to have completed soil conditioning, seeding, watering and mulching. But five days later, the operator would resume cons truction in that area, and all of those activities would have been a waste of time, resources, and materials. Any stabilization requirements that are imposed should not apply in that situation.

Response Refer to Response 4.1.



# Comment ID 0131

- A1.001.010

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.2 As a related item, Part 4.2.2.2 allows only 3 days to complete stabilization for projects that discharge to an impaired water body. This requirement is too restrictive and will also limit the size of a project that can effectively be developed at one time. This requirement will have a significant and adverse effect on an owner or operator's ability to economically develop property. Potential exte nsions of construction periods in some cases with limited construction windows to address endangered species issues will be especially problematic.

Rather than setting a time limit for the completion of stabilization without knowing the design of a project or how much area an operator wi ll be stabilizing at one time, LBA recommends that EPA allow each project to set a project specific time frame that considers the sensitivity of the receiving waters, the seasonal periods where there would be unstabilized conditions, the a rea(s) of

unsta bilized ground, slopes, and local weather patterns as part of the development of the SWPPP to implement stabilization activit y and require the work be completed expeditiously, during normal business hours, and in a timely manner. One avenue for the set ting of deadlines for stabilization would be through the TMDL process where local conditions could be considered vs. a broad national requirement. For example, in some geographic areas allowing a longer set of deadlines during the dry season to encourage good construction timing would be appropriate.

Response Refer to Response 4.1.



# Comment ID 0131

- A1.001.023

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.2 • Stabilization Requirements. - The need for stabilization is best addressed by the engineer during the design process and should allow for factors such as season, climate, soils, site erosion risk, discharge flow paths and proximity and connectivity to resource areas to dictate the timing of stabili zation. There are many cases where longer periods are appropriate and others where stabilization should be initiated and completed over shorter time frames.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

719 Response Refer to Response 4.1.



# Comment ID 0145

- A2.001.020

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 4.2.2.2 The time frame suggested in the draft permit for stabilization of earth

- disturbing activities is reasonable. Similarly, the time frame for completion of specific stabilization tasks is reasonable. The prescribed work is very important in avoiding stormwater runoff problems and should be required.

Response Refer to Response 4.1.



# Comment ID 0153

- A1.001.040

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 4.2.2.2 The stabilization requirements throughout the permit should be consistent at 14 days. Shortening the time period only makes the stabilization process more confusion and less standard. Shortening the time period to 7 days will pr ovide no significant benefit.

Response Refer to Response 4.1.



# 4.2.2.3 SITE INSPECTION REQUIREMENTS

Comment ID 0037

- A1.001.041

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.3 Daily visual examination as proposed in the permit is not practicable. Depending on the project, the phase of the project, and/or the weather (is it the dry season , is the ground frozen, or does snow cover all of the stormwater controls), stormwater controls often do not require any maintenance or do not need to be replaced or repaired even on a weekly basis. Weekly inspections would be sufficient.
Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

720 

# Comment ID 0037

- A1.001.042

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 4.2.2.3 Furthermore, unless the daily visual examination is documented in a report, EPA will have no way to determine if they are bei ng conducted. If the daily visual examinations must be recorded, this will add to the time it takes to comply with this requirement as well as to the cost of permit compliance. With all of the other permit requirements, i.e., inspections (site inspections every 7 c alendar days and within 24 hours of a storm event of 0.25 inches or greater), benchmark moni toring, potentially turbidity sampling, etc., the administrative costs of the permit will be very high.

Response Refer to Response 4.1.



# Comment ID 0038

- A1.001.016

Author Name: Minervini W. Organization: Issue Category: 4.2.2.3 The phrase "working as intended to remove sediment prior to discharge" may be too narrow, and it may be unclear whether this phrase limits the scope of all of Part 4.2.2.3.b.1. At a minimum, consider changing this phrase to "working as intended to minimize sediment discharge," so that the phrase includes control measures, such as site stabilization and avoiding sensitive areas, that minimize sediment discharge at least in part by minimizing erosion rather than by "removing" sediment. (If, however, the purpose of every eleme nt of Part 4.2.2.3.b.1 is to minimize pollutant discharge, then the phrase "to remove sediment prior to discharge" should be deleted.)

Response Refer to Response 4.1.



# Comment ID 0038

- A1.001.017

Author Name: Minervini W. Organization: Issue Category: 4.2.2.3 In addition, if minimizing sediment discharge (including nutrients in sediment) is the sole purpose of every element of Part 4.2.2.3.b.1, then this provision should be reworded as follows [emphasis added]:

"Check whether all stormwater controls intended to minimize sediment discharge are installed, appear to be operational, and are working as intended. Determine if any such stormwater controls need to be replaced, repaired, or maintained. As necessary, in itiate corrective action under Part 6.2.1; and

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

721 

# Comment ID 0040

- A1.001.011

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 4.2.2.3 Further, although EPA has acknowledged regional variation, its approach to conditions in the arid west may not be adequate to protect permittees operating under arid conditions. For example, Section 5.1.3.2, which allows for reduction in frequency of inspecti ons in arid
and semi

- arid areas, appears to contradict the Section 4.2.2.3 requirement of daily inspections of BMPs.

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.032

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.3 Clause 4.2.2.3 b. states: "of certain portions of your site". Please defi ne the term "certain portions".

Response Refer to Response 4.1.



# Comment ID 0061

- A1.001.016

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 4.2.2.3 As described in Section III(B)(1) above, and for the same reasons that the EHSCP believes that inspections at LCPs should be focused on the area in which trenching operations are actively occurring, we believe that the daily visual monitoring requirement sho uld be similarly focused. We req uest that this Part be amended to reflect that intent.

(See comment 0061.004)

Response Refer to Response 4.1.



# Comment ID 0066

- A1.001.036

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 4.2.2.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

722 Discussion: It takes at least 0.5 inches of rainfall to cause enough damage to stabilization devices to necessitate a correct ive action. Inspections following minor rain events (0.25 inches) would be time consuming and unnecessary.

Suggestion: The minimu m amount of rainfall from a storm event should be 0.5 inches rather than the proposed 0.25 inches.

Response Refer to Response 4.1.



# Comment ID 0067

- A1.001.014

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 4.2.2.3
The draft CGP contains a provision for site inspections that requires daily visual inspections of siltation/erosion controls and weekly inspection of laydown areas. These are in addition to the formal biweekly inspection requirements. There is language in thi s section of the CGP that removes flexibility for linear projects to be inspected on representative sections rather than the entire projec t. If promulgated as written, the entire length of a linear project must be inspected on the proposed schedule. As noted, due to the extreme terrain some transmission lines span, inspection of the entire line route can be very onerous. Entergy requests that all requ ired documented inspections be included in the scope of the formal biweekly inspections and that allowance for inspection of representative areas of linear projects be retained in the revised CGP.

Response Refer to Response 4.1.



# Comment ID 0071

- A3.001.035

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 4.2.2.3 •Part 4.2.2.3 Site Inspection Requirements. CDOT agrees that daily exams are achievable and are important near TMDLs.

Response Refer to Response 4.1.



# Comment ID 0072

- A2.001.016

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 4.2.2.3 MoDOT believes the requirement for post

- discharge inspections (storm event or snowmelt) should be lengthened from 24 hours to 48 hours to afford the inspection team a broader window to complete the required inspection . MoDOT erosion and sediment control inspections are done by trained construction inspectors who are charged with inspecting all aspects of a job, which include n ot onlyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

723 erosion and sediment control, but also, soil grading and compaction, construction mate rials, concrete and/or asphalt paving, and many others. With so much to inspect per job, it would be difficult to assure inspection of the erosion and sediment control devic es within 24 hours of the discharge event, but more reasonable to expect inspection within 48 hours.

Response Refer to Response 4.1.



# Comment ID 0087

- A1.001.041

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 4.2.2.3 The CGP says that "you must conduct a site inspection once every 14 calendar days and within 24 hours of the end of a storm event of 0.25 inches or greater and within 24 hours of a discharge generated by snowmelt." Section 5.1.2. More frequent inspections ar e required for sites discharging to sediment - and/or nutrient

- impaired wate rs. Section 4.2.2.3. First, the 0.25 inch rainfall threshold for site inspections is too low and should either be increased to 0.75 inches or left to the various EPA regions for identificati on based on the rainfall patterns within their respective jurisdic tions. Furthermore, EPA offers no relief from these inspection requirements for linear utility projects; however, relief is clearly needed. Safe access to project areas may not be available during and/or i mmediately following a storm event. It would be inf easible to inspect the entire length of a linear utility project at any frequency, let alone once every 14 days. Moreover, it could take days to complete such an inspection over tens or hundreds of miles of steep, natural t errain. For this reason, it is im perative that EPA provide reasonable alternative inspection requirements for linear utility projects. In response to EPA's request for comment, we support the idea of representative inspections at or near access points for areas of soil

- disturbance. We
do not agree with EPA that this would "stand as an impediment to the proper upkeep of stormwater controls" because those control s are independently mandated and enforceable under the CGP.

Response Refer to Response 4.1.



# Comment ID 0093

- A2.001.082

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 4.2.2.3 Daily visual inspections are not appropriate. This Part would obligate an site operator to a full

- time inspection/reporting/maintenance job, which adds undue complexity to the permit and is unreasonable.

Response Refer to Response 4.1.



# Comment ID 0096

- A1.001.068

Author Name: Asmus SusanRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

724 Organization: National Association of Homebuilders Issue Category: 4.2.2.3 EPA is requesting comment on the appropriateness of daily visual examinations. In dry climates and during dry seasons, it is not necessary to conduct a daily visual examination. It would be impractical and too costly and time consuming to conduct such inspections. EPA should consider requiring a visual examination prior to a predicted storm event only. Otherwise, a daily visual examination is a duplication of effort because weekly inspections are already conducted. There is no real difference between the specified scope of the daily and weekly inspections. They both require inspection to ensure all BMPs are installed, maintained and in operational condition and require documentation of maintenance and other problems requiring corrective action. The requiremen ts placed on visual inspections obligate an operator to what is essentially full time inspection/reporting/maintenance which adds undue complexity to the permit and is unreasonable. The only time such an inspection is warranted is if there is an impending storm or after a

storm event

.

Response Refer to Response 4.1.



# Comment ID 0100

- A2.001.014

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 4.2.2.3 Section 4.2.2.2 discusses the timeframes for stabilization and the practicability of conducting daily visual examinations. USEPA should clarify who is responsible for doing these daily visual examinations and how this is to be reported.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.013

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.3 7. Site Inspection Requirements for Sediment and Nutrient

- Impaired Waters (Section 4.2.2.3): EPA requires that for discharges to waters that are impaired for sediment or n utrients, site inspections must be conducted at least weekly, and within 24 hours of a storm event (if 0.25 inches or greater) or a discharge caused by snowmelt. Also, daily visual examinations must be conducted to ensure that stormwater controls are working and to check for the presence of deposited sediment. While we generally believe that site/visual inspections are a very effective means to assess effectiveness of controls, we do have some concerns about this proposed set of requirements. First, a "snowmelt" trigger has not been included in previous permits, and it is not clear how it would work. How would one determine that there is a discharge caused by snowmelt? Also, there does not appear to be any magnitude threshold on that particular requirement, so it would seem to apply if there is even a tiny amount of discharge that one believes was due to snow melting. Second, we do not think that visual inspections are needed on a daily basis. Wet

- weather events do not occur every day, and on dry days that ar e not right after a storm, it is not clear how one would assess whether stormwater controls are "working as intended." ItRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

725 makes more sense for each discharger to determine, and specify in their Storm Water Pollution Prevention Plan (SWPPP), the sp ecific
fr equency and location of visual inspections that is appropriate for their particular operations.

Response Refer to Response 4.1.



# Comment ID 0127

- A2.001.009

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 4.2.2.3
Section 4.2.2.3.a

Proposed Language

You must conduct site inspections once every 7 calendar days at a minimum, and within 24 hours of a storm event of 0.25 inche s or greater or within 24 hours of a discharge caused by snowmelt, instead of the f requency specified in Part 5.1.2.

Concern
Compliance with the requirement is over

‐ burdensome. A snowmelt could occur daily, requiring daily inspections.
Suggested Correction
Revise the inspection schedule to once every 7 calendar days at a minimum with no additional requirements for storm events.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.024

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.2.3 EPA requires that for discharges to waters that are impaired for sediment or nutrients, site inspections must be conducted at least weekly, and within 24 hours of a storm event (if 0.25 inches or greater) or a discharge caused by snowmelt. Also, daily visua l examinations must be conducted to ensure that stormwater controls are working and to check for the presence of deposited sediment. While the Chamber generally believes site/visual inspections are a very effective means to assess effectiveness of controls, we do have some concerns about this proposed set of requirements. First, a "snowmelt" trigger has not been included in previous permits. The
Chamber believes a magnitude threshold should be identified. A trickle of runoff due to snowmelt should not trigger a need for a daily inspection. Second, the Chamb er does not believe visual inspections are needed on a daily basis. Wet

- weather events do not occur every day, and on dry days following a storm event. It is not clear how one would assess whether stormwater controls are "wor king as
intended." It makes mor e sense for each discharger to determine, and specify in their Storm Water Pollution Prevention Plan (SWPPP), the specific frequency and location of visual inspections that is appropriate for their particular operations.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

726 Response Refer to Response 4.1.



# Comment ID 0131

- A1.001.024

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.3 • Site Inspection Requirements. - Daily visual examinations are an undue burden at many remote sites, particularly during periods where little construction activity is ongoing at the site.

Response Refer to Response 4.1.



# Comment ID 0133

- A2.001.031

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 4.2.2.3 The proposed inspection frequencies are overly burdensome and not practicable, especially in instances where active construction is complete. MDT recommends reducing these proposed inspection frequencies, with provisions for greater reductions during winter
months when the ground is frozen and discharges are unlikely to occur, as well as periods when active construction has ended and temporary or final stabilization measures have been implemented.

Response Refer to Response 4.1.



# Comment ID 0141

- A2.001.006

Author Na me: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: 4.2.2.3 3. Site Inspection Requirements for Sediment and Nutrient

- Impaired Water (Section 4.2.2.3): EPA requires that for dischargers to waters that are impaired for sediment or nutrients, site inspections must be conducted at least weekly, and within 24 hours of a storm
event of 0.25 inches or greater or a discharge caused by snowmelt. Daily visual site inspections are also required. While the City generally agrees that site/visual inspections are a very appropriate means to assess effectiveness of BMPs, we do have some concerns about this proposed set of requirements. A "snowmelt" trigger had not been included in previous permits, and it is not clear how it
would work. How is it determined that there is a discharge caused by snowmelt? Second we do not think that visual inspections shoul d be required on a daily basis since wet

- weather events usually do not occur every day. It would seem appropriate to provide specif ic information pertaining to inspection frequency and location of visual inspections in site specific Storm Water Pollution Prev ention Plans (SWPPP).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

727 Response Refer to Response 4.1.



# 4.2.2.3Q DAILY VISUAL EXAMINATIONS

Comment ID 0007

- A1.001.006

Author Nam e: Morris Stacey Organization: ETI Corporation Issue Category: 4.2.2.3Q Comment: It would be far better to provide for inspections something like twice per week, at least 72 hours apart. Inspecting a site
within 24 hours of a storm even of 0.25 inches or g reater does not work well. What usually happens is that the event happens on say a Thursday or Friday, the inspection is done on a Friday or Saturday, then no repairs are undertaken until sometime the next we ek. It is much more practical to have regularly scheduled times when inspections are performed so that arrangements can be made to have appropriate personnel and equipment on site and available to make any repairs noted. Also, the inspector can consult with the personnel on site to be sure the site personnel understand exactly what needs to be done and where.

Response Refer to Response 4.1.



# Comment ID 0015

- A2.001.018

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 4.2.2.3Q Q 19. Daily inspections - Agree. 24 hour time frames are reasonable.

Response Refer to Response 4.1.



# Comment ID 0025

- A1.001.036

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 4.2.2.3Q Response to EPA's request for comment: During the Arizona dry season, it truly is not necessary to conduct a daily visual examination. Furthermore, it would be impractical on a very large construction project. As an alternative, the EPA could require a visual examination prior to predi cted storm events.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

728 Response Refer to Response 4.1.



# Comment ID 0040

- A1.001.022

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 4.2.2.3Q
The 24

- hour inspection requirement may not be feasible along a long linear project. Section 4.2.2.3.a. For example, for linear projects with 10 or more acres within an impaired watershed, it will take more than one day to complete a visual inspection of the area. Rather than the seven day and 24

- hour triggering events, a b etter trigger might be precipitation events where the National Weather Service has a probability of precipitation of greater than 50%. Also, we recommend keeping an allowance for spot checking representative
locations within 24 hours of a storm event for a ll linear projects

Response Refer to Response 4.1.



# Comment ID 0053

- A2.001.031

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 4.2.2.3Q The language in clauses 4.2.2.3 a. and b. indicate a site inspection every 7 cale ndar days and daily visual inspections. The only difference between Weekly site inspections and Daily visual examinations are record keeping. Please elaborate on the term "da ily". Is the term "daily" defined as a "working day" as in Part 4.2.2.2.b., or construction days i.e. Monday through Friday, or every day of the week regardless of activity on the project. Daily visual examination would involve a person attending the site, or being stationed at the site 7 days a week. If so, what is the purpose of the W eekly site inspection?

Some sites are not active weekends, holidays, or in a stabilization/shutdown phase for extended periods of time, and may be i n remote locations adding onerous conditions and exorbitant cost for no conditional site change/inspection findings.

Consider revising this language, or at least defining the intent of the term "daily".

Response Refer to Response 4.1.



# Comment ID 0062

- A1.001.052

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 4.2.2.3Q Such as what macrobenthics? Very impractical. Nutrient sampling is time consuming and requires specialized personnel.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

729 Response Refer to Response 4.1.



# Comment ID 0064

- A1.001.036

Author Name: Dees Richard Organization: City of Meridian Issue Category: 4.2.2.3Q Section 4.2.2.3.b, page 43 - Full "Daily visual examination" section

•Likely overly burdensome to Contractor. Consider tying this specific requirement to projects that meet criteria in Section 2 .2.1.3.

Response Refer to Response 4.1.



# Comment ID 0066

- A1.001.037

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 4.2.2.3Q Discussion: Daily inspections would overburden our workforce, who must focus more of their attention on items during construction that will ultimately affect the life and safety of the travelling public.

Suggestion: Site inspectors innately look for items that need to be repaired. Maintaining BMPs in good working condition is p art of
what helps ensure a project site maintains adequate drainage during storm events. This gets done on what might end up being a dail y basis, but this should not be a requirement of the permit.

Response Refer to Response 4.1.



# Comment ID 0069

- A1.001.013

Author Name: Cramer M. Organization: Issue Category: 4.2.2.3Q 11. Part 4.2.2.3.b. of the draft EPA CGP discusses the appropriateness of daily visual examinations. The EPA CGP requires wee kly site inspections and daily visual inspections. The daily requirem ent should be for working days only, not weekends or when the
construction crew is not working due to weather. During the EPA CGP's May 23, 2011 webcast, EPA officials stated that this would be the case; however, the rule must be made more specific to addr ess this issue.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

730 Response Refer to Response 4.1.



# Comment ID 0072

- A2.001.017

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 4.2.2.3Q Also, under Part 4.2.2.3, MoDOT does not agree that "daily visual examinations" is an efficient and justifiable use of resources and believes the weekly and/or post

- discharge inspections are sufficient to adequately address potential site inadequacies.

Response Refer to Response 4.1.



# Comment ID 0074

- A2.001.022

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 4.2.2.3Q We feel requirements for daily visual examination are too stringent. Weekly site inspections are appropriate as proposed in t he permit - at a minimum, once every 7 calendar days and within 24 hours of a storm event of 0.5 inches or greater or within 24 hours of a discharge caused by snowmelt.

Response Refer to Response 4.1.



# Comment ID 0075

- A2.001.031

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 4.2.2.3Q What happens when the event occurs during a period of non

- work (i.e. during a weekend)? Daily inspections and 7 day inspections will also require additional personnel.

Response Refer to Response 4.1.



# Comment ID 0077

- A1.001.011

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 4.2.2.3QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

731 It should be the contractor's responsibility to conduct daily inspections of installed erosion control measures.

Response Refer to Response 4.1.



# Comment ID 0080

- A2.001.029

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 4.2.2.3Q Partner Response: The Partners feel these inspection frequencies are reasonable for active construction sites.

For sites where active construction has ceased and the owner or site operator is awaiting final stabilization and termination of the CGP, a monthly or quarterly inspection frequency is more appropriate.

The Pa rtners have previously presented their comments and concerns in response to stabilization timeframes and the inherent difficulties of stabilization in arid areas such as the Albuquerque metropolitan area.

Response Refer to Response 4.1.



# Comment ID 0085

- A2.001.021

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 4.2.2.3Q Daily visual inspections are entirely appropriate and should be required on all sites, regardless of site size or the conditi on of the receiving wa ter body. Daily visual inspection by operators is the only way to ensure all practices are properly maintained and functioning

Response Refer to Response 4.1.



# Comment ID 0086

- A1.001.023

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 4.2.2.3Q Linear projects of 10 or more acres within an impaired watershed, will take more than one day to complete for just a visual i nspection of the area. EPA should replace the seven day and 24

- hour trigger ing events with a trigger based on precipitation events where the National Weather Service has forecast a probability of precipitation of greater than 50%. TriState also supports retaining an allowance for spot checking representative locati ons within 24 hours of a stonn event for all linear projects.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

732 Response Refer to Response 4.1.



# Comment ID 0090

- A1.001.036

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 4.2.2.3Q Likewise, the daily visual examinations provision of Part 4.2.2.3. are impractical and unnecessary in periods of inactivity on the site, given the unique scope and extent of the excavation operation. AGA believes that weekly inspections continue to provide adequ ate monitoring, and that linear pr ojects should be exempted from any benchmarking requirements.

Response Refer to Response 4.1.



# Comment ID 0091

- A2.001.013

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 4.2.2.3Q
13. Faet Sheet Item 19. Part 4.2.2.3: Requiring that all stormwater controls be installed at the beginning of the project and requiring daily inspections of all the controls will create a significant burden on larger projects. Inspection should not be required for storm water
controls either downstream of undisturbed areas or downstream of stabilized areas.

Response Refer to Response 4.1.



# Comment ID 0097

- A1.001.016

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 4.2.2.3Q 19. I agree with daily inspections. See # 7 [See Comment ID 0097

- A1.001.006] for comment on time frame.

Response Refer to Response 4.1.



# Comment ID 0103

- A3.001.016

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

733 Issue Category: 4.2.2.3Q
In Part 4.2.2.3 Site Inspection Requirements, EPA suggests daily visual inspection for portions of the sites discharging to water bod ies that are impaired for sediment or nutrients.

TCEQ recommends a less frequent inspection frequency such as is required in the existing permit (once per week or once every two weeks plus after every rainfall event). Daily visual inspections may not be practical or feasible in many cases.

Response Refer to Response 4.1.



# Comment ID 0117

- A1.001.011

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 4.2.2.3Q It should be the contractor's responsibility to conduct daily inspections of installed erosion control measures.

Response Refer to Response 4.1.



# Comment ID 0131

- A1.001.021

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.3Q Visual inspection serves as one of the critical tools available to construction management personnel for evaluating the effec tiveness of field controls and in general. LBA is highly supportive of the requirement to conduct visual inspections. However, there are a number of practical construction

- related issues that make required daily inspections impractical and costly without clear benefits to the environment including:

• At many sites there are extended periods of time where activities at the site do not require field personnel on a daily bas is and weather conditions (e.g. arid west summer period) present little or no risk of discharge.

• Daily inspections are parti cularly challenging at remote sites where travel times are significant.

• Utilization of controls which are well suited for extended deployment and that require decreased maintenance are more likel y to be
used at remote sites or those that are not typically visited daily. Required daily inspections and on

- site personnel visits could be a potential disincentive to utilizing these more robust methods.

LBA recommends that the frequency of inspections should be variable to account for the above as well as differences in geographic weather patterns. For example, in much of the arid west there is little to no precipitation for months. Requiring daily inspe ctions inRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

734 these areas would not make sense. The SWPPP should be to tool for setting the appropria te frequency of visual inspections that must be documented based upon the local conditions and factors.

Response Refer to Response 4.1.



# Comment ID 0137

- A2.001.018

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 4.2.2.3Q Daily visual examination is impractical. Some large, irregularly shaped sites may have extremely long perimeters. Inspection should take place after rain events, not on a daily basis.

Response Refer to Response 4.1.



# Comment ID 0145

- A2.001.021

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 4.2.2.3Q Our experience with development projects that were largely successful in their construction stormwater management efforts ind icates that those successful projects consistently had staff dedicated specifically to that effort. Daily inspections were routine a nd the stormwater management efforts benefitted from that level of attention. Since all development projects do not necessarily un dertake such a daily visual inspection, and since the benefits of doing so are significant, we encourage EPA to require daily visual inspections.

Response Refer to Response 4.1.



# Comment ID 0153

- A1.001.033

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 4.2.2.3Q Daily visual inspections are excessive and provide no more benefit than the regular prescribed inspections based on time and rainfall

events.
Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

735 

# Comment ID 0159

- A1.001.015

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 4.2.2.3Q Daily visual examination is impractical. Some large, irregularly shaped sites may have extremely long perimeters. Inspection should take place after rain events not on a daily basis.

Response Refer to Response 4.1.



# Comment ID 0170

- A2.001.010

Author Name: Davis Scott Organization: Arizona Public Service Company (APS) Issue Category: 4.2.2.3Q The requirement to conduct daily inspections at sites near impaired waters should be removed from the permit. APS frequently constructs facilities in remote areas where a full day is required to reach the sites and perform stormwater inspections. As a practical matter, these types of proj ects would need to have a stormwater "qualified person" on site full time in order to conduct daily inspections. This is an excessive requirement which will result in very little, if any, environmental benefit, yet will result in significant
costs to the o perator. Furthermore, EPA has recognized elsewhere in the permit that arid and semi

- arid climates are unique and warrant special consideration. This "special consideration" should be extended to Part 4.2.2.3. Daily stormwater inspections in a reg ion that

r eceives eight inches of rain per year is an excessive requirement that will yield no additional environmental benefit beyond the requirements in Part 5.1.

Response Refer to Response 4.1.



# 4.2.3 REQUIREMENTS FOR DISCHARGES TO WATERS IMPAIRED FOR OTHER P OLLUTANTS.

Comment ID 0024

- A2.001.012

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2.3 Additionally, we support the more frequent inspection requirements, Part 4.2.3, as a means of improving the permittee's ability to find and correct problems before a discharge occurs.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

736 

# Comment ID 0119

- A2.001.014

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.3
8. Requirements for Waters Impaired for Other Pollutants (Section 4.2.3): For discharges to waters that are impaired for polluta nts other than sediment or nutrients, EPA provides that the Agency will inform the discharger of any additional required limits o r controls that are needed to meet water quality standards or to comply with a TMDL. The FWQC generally supports that approach, which ensures that the discharger has adequate notice of new requirements, which will be developed on a discharge

- specific basis.[ FN 8] EPA should clarify, though, that it will not simply "inform" the discharge of new requirements; the regulated party needs to have an opportunity to review and comment on the new requirements before they are imposed.

[FN 8] EPA asks for comment on w hether the requirement for sediment or nutrient impairments should be expanded to cover biological impairments that are "attributable to either sediment or nutrients." We do not think that this expansion of the nutrient/sediment provisions would be appropr iate. If EPA or the State believe that an impairment is "attributable" to sediment or nutrients, and want to impose controls on those pollutants, then they should first amend the State's list of impaired waters to make it clear that the waterbody is listed for sediment or nutrient impairments. A subjective judgment that a listed biological impairment is "attributable" to sediment or nutrients is not an acceptable substitute for a clear listing decision as to a particular pollu tant.

Response Refer to Respo nse 4.1.



# Comment ID 0128

- A2.001.025

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.2.3 For discharges to waters that are impaired for pollutants other than sediment or nutrients, EPA provides that the Agency will inform the discharger of any additional required limits or controls that are needed to meet water quality standards or to comply with a TMDL. The Chamber supports that approach, which ensures that the discharger has adequate notice of new requirements , which will be developed on a discharge

- specific basis.

Response Refer to Response 4.1.



# Comment ID 0130

- A2.001.023

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 4.2.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

737 21. INSPECTION REQUIREMENTS. Part 4.2.2.3 requires daily visual examinations for sites discharging to a sediment or nutrient impaired water body. There are several concerns:

a. This requirement conflicts with Part 5 that requires inspections only required during normal business hours.

b. Daily visual examinations are unnecessary and ineffective when there has been no precipitation. An inspector is unable to accurately or effectively determine if the project controls are functioning during dry weather.

c. Due to the often remote locati ons of our project sites, daily visual examinations would add a considerable resource burden to projects with what appears to be minimal risk reduction to water quality impacts.

d. The required weekly inspections and post rain event inspections are suffi cient to ensure proper functioning of stormwater controls.

Response Refer to Response 4.1.



# 4.3 DISCHARGES TO WATERS IDENTIFIED AS TIER 2, TIER 2.5, OR TIER 3

Comment ID 0094

- A1.001.005

Author Name: Oppenheimer Jonathan Organization: Idaho Conservation League Issue Category: 4.3 Second, the Idaho Conservation League is concerned that approval of CGPs in high quality waters of the state may impair benef icial uses and conflict with Idaho[s Antidegradation Policy. The Clean Water Act requ ires the State of Idaho to protect existing uses of all state waters and to protect high quality waters from degradation and to develop an Antidegradation Implementation Plan. Simil ar to the concerns listed above with regards to water quality impaired stream segments, we are concerned that CGPs may be approved that could degrade high quality waters without necessary levels of public disclosure and comment, review and consideration. We do not fe el that it is appropriate or feasible to conduct Antidegradation review at the scale of a Nationwide CGP. Antidegradation reviews must be completed for each specific action in each unique Tier II water. Further, the State of Idaho and EPA are in the process of considering an Antidegradation Implementation Plan, and until the time that the US Environmental Protection Agency (EPA) certifies and approves that plan, no degradation of Idaho water bodies can occur without direct approval from the EPA.

In general, we are concerned that the lack of site

- specific analysis that results from the consideration and approval of CGPs has the real potential to cause or contribute to water quality standard exceedances in Idaho without appropriate levels of review, disclos ure, public comment and administrative appeal opportunities. Indeed, in June 2008 the Idaho Department of Environmental Quality (DEQ), which has authority to review NPDES permits and issue water quality certification decisions, issued a blanket certification for CGP s. This certification was subject to state administ rative appeal proceedings for 35 days after its issuance, whereas its application continued for 3 years since. As a result, in cases where site

- specific information indicated violation of state Water Quailty Standards, the Antidegradation Policy, or TMDLs, no recourse was available to provide for administrative relief. While we appreciate that site

-Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

738 specific NPDES certification can still be conducted by the DEQ in certain circumstances, DEQ has not expressly reserved the r ight to develop site

- specific NPDES certification in circumstances where conditions warrant such review. Indeed, permitees must only notify the Regional DEQ office where activities are proposed on impaired waters, and the DEQ 2008 certification states that if "perm ittees comply with the term s and conditions...then there is reasonable assurance the discharges will comply with...the Clean Water Act." The blanket certification does not even advise permittees to contact the appropriate regional DEQ office to determine if the project is in compliance with an existing TMDL, as it does with some other Nationwide Permits. As a result, there is no mechanism to ensure that
CGP

- approved projects are being conducted consistent with TMDLs and/or Idaho Water Quality Standards.

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.015

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.3 9. Discharges to Tier 2, Tier 2.5 and Tier 3 Waters (Section 4.3): EPA provides that dischargers to Tier 2, 2.5 or 3 waters must meet the stabilization and inspection requirements that apply to sources on sediment or nutrient

- impaired waters, and may be notified by EPA that additional requirements will be needed. We generally agree with the last part of that provision - that ad ditional controls will be imposed if EPA determines that they are necessary (subject, again, to the condition that before making a determination, EP A will provide an opportunity to comment on the proposed new requirement). But we have several concerns and questions about application of stabilization and inspection requirements to these situations

Response Refer to Response 4.1.



# Comment ID 0119

- A2.001.016

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.3 First, EPA states that "Tiers 2, 2.5 and 3 refer to waters either identified by the state as high quality waters or Outstanding National Resource Waters .... " Technically, Tier 2.5 waters are those identified by the state as needing more protection than Tier 2 waters, but less than ONRWs. As noted above, we do not believe that EPA should address Tier 2.5 issues in this Permit, since Tier 2.5 is entirely a State issue.[FN 9]

[FN 9] To the extent that Tier 2.5 is referenced, EPA should clarify that Tier 2.5 waters are subject to the same requirements as Tier 2 waters under EPA regulations.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

739 

# Comment ID 0119

- A2.001.017

Author Name: Andes Fredric Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.3 Second, we do not see what basis EPA has for imposing these extra requirements in situations where the waters are not impaire d. As noted above, the anti degradation requirements for Tier 2 waters do not prohibit all increases, and do not impose blanket con trol requirements on those increases. The specific anti degradation provisions are determined on a State

- by

- State basis. Therefore, it makes the most sense to continue the practice that EPA adopted in the prior CGP and the MSGP: a general provision requiri ng that the discharger must comply with applicable antidegradation requirements.

The Tier 212.5/3 requirements proposed here by EPA are of particular concern because they could apply to virtually every disc harge. In most States, antidegradation tiers are determined on a pollutant

- by

- pollutant basis. Since no waterbody violates standards for every single pollutant, every waterbody is "high quality" (Tier 2) for some pollutants. And the proposed Section 4.3 is not limited to waters that are high quality f or sediment or nutrients; it seems to apply if the water is high quality for any parameter. That would, then, apply the inspection and stabilization requirements everywhere. There is simply no basis for that broad imposition of these new con trol provisions

.

Response Refer to Response 4.1.



# Comment ID 0153

- A1.001.034

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 4.3 What is the basis of this requirement? This was not part of the EGLs?

Response
Refer to Response 4.1.



# 4.3.1 IDENTIFICATION OF DISCHARGES TO A TIER 2, TIER 2.5, OR TIER 3 WATER.

Comment ID 0128

- A2.001.027

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.3.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

740 First, EPA states that "Tiers 2, 2.5 and 3 refer to waters either identified by the state as high quality waters or Outstanding National Resource Waters..." Technically, Tier 2.5 waters are those identified by the state as needing more protection than Tier 2 wat ers, but
less than ONRWs. As no ted above, we do not believe that EPA should address Tier 2.5 issues in this Permit, since Tier 2.5 is entirely a
State issue.

Response Refer to Response 4.1.



# 4.3.2 REQUIREMENTS FOR NEW SOURCES DISCHARGING TO TIER 2, TIER 2.5, OR TIER 3 WATERS.

Comment ID 0107

- A2.001.013

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: 4.3.2 Additional requirements should be added for discharges to Tier 2.5 and Tier 3 (Outstanding National Resource Waters). While i deally it would be most helpf ul to water quality to have comprehensive benchmark monitoring for a broad range of parameters for discharges into these special waters, a less proscriptive step of requiring individual 401 certification for each proposed NOI for disch arges to Tier
2.5 and 3 streams would at least provide some additional protections. If individual 401 certifications were required in specially protected waters, state water quality officials who have a good sense of on the ground water quality issues could determine i f
additi onal benchmark monitoring is required. Here in New Mexico, where most of our streams are small and do not provide much dilution, even the smallest discharge has the potential to degrade water quality in the receiving waterbody. Therefore added protections for ONRW streams are essential to ensure that these streams are not being degraded and the Clean Water Act is not being viola ted.

Response Refer to Response 4.1.



# Comment ID 0128

- A2.001.026

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.3.2 EPA provides that dischargers to Tier 2, 2.5 or 3 waters must meet the stabilization and inspection requirements that apply t o sources on sediment or nutrient

- impaired waters, and may be notified by EPA that additional requi rements will be needed. We generally agree with the last part of that requirement - that additional controls will be imposed if EPA determines that they are necessary. But we have several concerns and questions about application of stabilization and inspec tion requirements to these situations.

Response Refer to Response 4.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

741 

# Comment ID 0128

- A2.001.028

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.3.2 Second, the Chamber does not understand what basis EPA has for imposing these extra requirements in situations where the waters are not impaired. As noted above, the antidegradation requirements for Tier 2 waters do not prohibit all increases, and do not im pose blanket control requirements on those increases. The specific antidegradation provisions are determined on a State

- by

- State basis. Therefore, it makes the most sense to continue the practice that EPA adopted in the prior CGP and the MSGP: a general provisi on requiring that the discharger must comply with app licable antidegradation requirements.

The Tier 2/2.5/3 requirements proposed by EPA are of particular concern because they could apply to virtually every discharge . In most States, antidegradation tiers are determined on a pollutant

- by

- pollutant basis. S ince no waterbody violates standards for every single pollutant, every waterbody is "high quality" (Tier 2) for some pollutants. And the proposed Section 4.3 is not limited to waters that are high quality for sediment or nutrients; it seems to apply if the water is high quality for any parameter. Essentially that would apply the inspection and stabilization requirements everywhere. There is simply no basis for that broad imposition of these n ew control provisions.

Response Refer to Response 4.1.



# Comment ID 0130

- A2.001.025

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 4.3.2 23. ANTIDEGRADATION. Part 4.3.2. The proposed permit states that EPA reserves the right to notify the applicant that addition al analyses, stormwater controls, or other permit conditions are necessary to comply with the applicable antidegradation require ments, or notify that an individual permit application is necessary. This would be a significant adverse impact to state government business.

The state DOT must remove schedule and cost risks prior to award of the contract. With few exceptions, we require projects to have permits in place prior to construction. It is crucial to have any antidegradation review and conditions occur du ring planning and design. Additional requirements by EPA made during construction would leave the state vulnerable to contractor claims for time and mo ney.

Antidegradation policy development and implementation is generally a state level function. The sta te agency (IDEQ) is charged with the administration of the antidegradation program. ITD questions the appropriateness of this provision in a federally issued permit. Furthermore, degradation of water quality is allowed under antidegradation if there is soc ial and economical benefit justifying the degradation. Transportation projects have an inherent social and economical benefit. ITD believes that Part 1.3.4 adequately deals with antidegradation and Part 4.3.2 could be removed from the permit completely.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

5 . Inspections

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

742 

# 5 INSPECTIONS

Comment ID 0055

- A1.001.016

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 5 Representative inspections should continue to be allowed similar to the 2008 CGP. Continued flexibility should be considered for linear projects; so that valuable resources are focused in critical areas of construction. Daily inspections on all portions of a long linear project may not be practicable.

Response Refer to Response 5.1.



# Comment ID 0090

- A1.001.025

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 5 The Draft Permit's proposed inspection requirements create various compliance burdens for linear projects in ROWs. Linear construction pipeline projects operate alongs ide other permitted and non

- permitted entities in the same ROW. But the proposed inspection requirements do not delineate clear lines of responsibility among the various entities conducting improvements on the roadway. Instead, natural gas pipelines and ut ilities subject to the Draft Permit would have to incur unreasonable costs to coordinate more management and labor resources to continually document events caused by a larger group of operators. AGA thus requests t hat EPA reconsider its visual and post

- pre cipitation inspection requirements to account for these disparate post

- event reporting burdens on linear pipeline construction.

Response Refer to Response 5.1.



# Comment ID 0130

- A2.001.018

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 5 17. INSPECTION REQUIREMENTS. Part 2.3.2 requires weekly inspections for all Pollution Prevention Standards. Part 4.2.2.3 indicates weekly inspections, plus daily visual examinations of some components of a project. Part 5 indicates inspections requirements every 14 days. Part 5 also requires post rain event inspections, and inspections within 24 hours of a snow melt discharge event. These differing inspection frequency requirements, based on different circumstances, will c omplicate inspection tracking and records management. The inspection requirements need to be streamlined and simplified so that there is more consistency acros s the spectrum of scenarios which trigger inspections.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

743 Response Refer to Response 5.1.



# 5.1 S ITE INSPECTIONS
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 5.1.1 PERSON(S) RESPONSIBLE FOR INSPECTING SITE

Comment ID 0076

- A1.001.031

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 5.1.1 Target requests further clarification on the significance of 0.25 inches as the trigger for storm event inspections. Target a lso believes that the requirements specified in 5.1.1. are overly complicated. Target suggests simplifying permit requirement s by using measurable discharge as the trigger for site inspections during a storm event. This requirement suggestion would fit more soundly with m onitoring requirements.

Target would also like to inquire why the EPA does not have language limiting inspection frequency during frozen soil conditions. Target suggests that the EPA limit inspections to once per month during frozen conditions.

Response Refer to Response 5.1.



# Comment ID 0090

- A1.001.027

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 5.1.1 AGA is also concerned about reporting accountability concerns for event

- based inspection requirements proposed in Part 5. For roadway projects, utilities obtain their own stormwater permits to relocate onto areas whe re there is ongoing work by non

- permit and permit holders. AGA suggests that EPA should include some language demonstrating the extent of reporting required for pipelin e projects on public rights of way and other shared spaces to distinguish those events c aused by non

- permit holders.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

744 

# Comment ID 0091

- A2.001.025

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 5.1.1 25. Part 5.1.1: Some states and municipalities have certifications for construction storm water inspectors. Could the permitee identify one of these programs as the mechanism to ensure qualified persons are on staff? Note: adopting any particular state certific ation requirement would be up to the permitee. There is no requirement to adopt the certification for the state where the project is located.

Response Refer to Response 5.1.



# Comment ID 0133

- A2.001.032

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 5.1.1 MDT supports the proposed definition for "qualified" personnel. Existing certification programs have not been standardized and are not readily available in all states. As such, flexibility is necessary for permit compliance.

Response Refer to Response 5.1.



# 5.1.2 FREQUENCY OF INSPECTIONS

Comment ID 0015

- A2.001.038

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 5.1.2 5.1.2 After storm event inspections should occur within 12 hours, even if it means reporting on weekends. Permittees should be held responsible for discharges from their sites regardless of site work hours. The proposed language would not require action at a water logged, discharging site over a weekend.

Response Refer to Response 5.1.



# Comment ID 0017

- A1.001.022

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 5.1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

745 20) 5.1.2 - EPA is proposing a longer duration between stormwater inspections during dry periods (14 calendar days), after a precipitati on event of 0.25" or more, and within 24

‐ hours of a snowmelt. The inspection frequency of within 0.25" or within 24

‐ hours
of a snow melt is excessive. With regards to snow melt, the proposed rule will require daily inspections whenever temperatures e xceed
32° and you will still not be able to see the melting snow under the large snow banks and drifts that build up during winter. Red ucing the trigger point to 0.25" of precipitation will more than double the frequency of inspections from rain events. The prop osed rule does not provide information to support the logic for the changes in inspection frequency (what benefit will increased inspections provide to waters of the US?). It is preferred that the inspection frequency be kept at existing levels of once per week and within 24

‐ hours of a
0.5" precipitation event.

Response Refer to Response 5.1.



# Comment ID 0021

- A1.001.002

Author Name: Unrein Terrance Organization: Tepa Issue Category: 5.1.2 2. What is your reasoning for changing the Frequency of Inspections requirements outlined in Section 5.1.2? Why was the once per 7 day option in lieu of the 14 day in conjunction with a given storm event option removed?

Response Refer to Response 5.1.



# Comment ID 0021

- A1.001.012

Author Name: Unrein Terrance Organization: Tepa Issue Category: 5.1.2 2. In Section X.1.2 of the Proposed CGP factsheet, new guidance is provided for the inspection frequencies and the new requir ements are proposing inspections are to be performed every 14 days and within 24 hours an y storm event greater than 0.25 inches. The change
from 0.5" to 0.25" is not a major issue in my mind. But where the EPA states that having a choice between the 2 inspection frequen cies from the 2008 CGP is both confusing and challenging to enforce is inco rrect in my mind. Having a choice provides us more flexibility that provides us an option for what would best serve a site during different stages of construction. Being able to choose the 7 day option with no requirements for post

‐ storm event inspection i s preferred in most cases since it is easier for inspectors to schedule their time and plan accordingly. Here in Colorado, the weather forecasts are often unreliable and storms can come out of nowhere. So under
the new requirements inspectors would not be able to plan their schedule and be forced to break prior commitments after a storm event. They would virtually have to be on "stand by" during rainy periods of the year.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

746 

# Comment ID 0030

- A2.001.028

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 5.1.2 Section 5.1.2., page 45 Where a numeric trigger is necessary, we recommend maintaining use of 0.5 inch for a rain event. 0.25 inches of precipitation will frequently result in no runoff (and, hence, no erosion) in many locations, depending on the characteristics of the site and the antecedent moisture conditions. Also, there are many days with snowmelt with relatively no potential for erosion (such as when snow melt s off
the sno w pack, but there are still several feet of snow remaining). As an alternative example, the State of Colorado triggers inspec tion when there is a potential for erosion due to a precipitation event (including snowmelt). We recommend using this type of lang u age for
snowmelt events.

Response Refer to Response 5.1.



# Comment ID 0037

- A1.001.043

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 5.1.2 The Permit states "If there is a discharge from your site on multiple days, you are required to conduct an inspection within 24 hours of the end of the storm." Is this requirement in addition to the requirement to conduct an inspection when a discharge is occurr ing?

Response Refer to Response 5.1.



# Comment ID 00 38

- A1.001.015

Author Name: Minervini W. Organization: Issue Category: 5.1.2 Because the draft CGP does not expressly require the permittee to record (for each storm event) the amount of rainfall at the permittee's site, it is unclear how the requirements to conduct site inspections within 24 hours of "a storm event of 0.25 inches or greater" will be administered. Will permittees be allowed to use rainfall data from nearby offsite rain gauges (or similar devices), as Part 3.1.2.1 allows for different purposes? (My comments above on Part 3.1.2.1 also apply to Parts 4.2.2.3.a, 5.12, and 8.2.12.1.b.) USEPA should allow permittees to use radar estimates of rainfall at the permittee's site, and make it simple for permittees n ationwide
to obtain such estimates at no cost where available.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

747 

# Comment ID 0046

- A1.001.024

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 5.1.2 The Department believes a O.5

- inch storm event would be more appropriate to trigger inspections.

Response Refer to Response 5.1.



# Comment ID 0047

- A2.001.023

Author Name: Kilty Quinn Organization: Xcel Energy Inc. Issue Category: 5.1.2 Section 5.1.2, page 45

Many states and municipalities already require routine inspections every 7 days and after storm events that generate 0.5 inches of rain or where there is a potential for erosion due to a precipitation event (including snowmelt). 0.25 inches of precipitation will not likely result in runoff depe nding on the site conditions.

Response Refer to Response 5.1.



# Comment ID 0064

- A1.001.037

Author Name: Dees Richard Organization: City of Meridian Issue Category: 5.1.2 Section 5.1.2, page 45 - Full "Frequency of inspections" section

•This section is very confusing. Please state more succinctly. The requirement seems to suggest an inspection is required within 24 hours of a rain event of 0.25 inch or greater. Suggest removing different inspection requirements for when a site is discharg ing as this
wil l be observed during a normal inspection by permit requirement.

Response Refer to Response 5.1.



# Comment ID 0066

- A1.001.038

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 5.1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

748 Discussion: As stated in another one of our comments, the rainfall amount requiring an inspection should be 0.5 inches, and not 0.25
inches.

Suggestion: Leave number at 0.5 inches, as from the 2008 NPDES permit indicates.

Response Refer to Response 5.1.



# Comment ID 0072

- A2.001.018

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 5.1.2 MoDOT believes the requirement for post

- discharge inspections (storm event or snowmelt) should be lengthened from 24 hours to 48
h ours to aff ord the inspection team a broader window to complete the required inspection as was described in Comment 9.



# Comment ID 0072

- A2.001.019

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 5.1.2
MoDOT does commend the EPA for noting that inspections are only required during the project's normal working hours and the inspection frequency can be reduced to once per month if adequate stabilization has been achieved.

Response Refer to Response 5.1.



# Comment ID 0080

- A2.001.032

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 5.1.2 A site inspection within 24 hours of 0.25 inches of rain is much more stringent than the 0.5 inches of rainfall or gr eater criteria. It will add to the frequency of inspections, thereby increasing costs. The Partners question what the rationale is for this change as it does not apply very well to the arid west?

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

749 

# Comment ID 0085

- A2.001.002

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 5.1.2 Daily visual inspection by operators is the only way to ensure all practices are properly maintained and functioning. Even wh en no significant rain events occur, sediment control practices can fail due to destruction by construction activities, poor installation, accidents, vandalism and acts of God. Visual inspections are not time consuming, require limited personnel and will prevent o perators
from i ncurring violations for turbidity limit exceedances. Inclusion of this requirement will promote cleaner sites and cleaner wat er.

Response Refer to Response 5.1.



# Comment ID 0085

- A2.001.023

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 5.1.2
Again, Rockville believes that visual inspections by operators should be performed more frequently then every 14 calendar day s. Even when no significant rain events occur, sediment control practices can fai l due to destruction by construction activities, poor installation, accidents, vandalism, acts of god, and settling of soils. Visual inspections are not time consuming, require limited personnel and will prevent operators from incurring violations for turb idity limit exceedances.

Response Refer to Response 5.1.



# Comment ID 0086

- A1.001.021

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 5.1.2
Tri

- State believes the inspection requirements for the proposed COP are unduly burdensome and provide no added environmental benefit to protect water quality standards. The proposed COP contains provisions for daily, weekly, and biweekly site inspect ions.
Section 4.2.2.3 and 5.1.3.

Response Refer to Resp onse 5.1.



# Comment ID 0090

- A1.001.037

Author Name: Lacey Pamela Organization: American Gas Association (AGA)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

750 Issue Category: 5.1.2 Under Part 5.1.2., EPA proposes post

- rainfall monitoring requirements that are both draconian for pipeline utility project cost management and redundant with pre

- existing best practices for stormwater erosion management. EPA calls for visual assessments during any discharge

- generating rain event, followed by a full inspection within 24 hours of a 0.25 inch precipitation event. On one hand, the 24

- hour requirement is impractical because on days of expected rainfall events, site operations would not be scheduled, and if the rain event occurred on a weekend, the 24

- hour rule would require workers to be called to the site for over

- time inspection activities that fall outside the project contract budget.

Response Refer to Response 5.1.



# Comment ID 0091

- A2.001.026

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 5.1.2
26. Part 5.1.2: Recommend changing the frequency to once every two weeks or at least once every 15 calendar days. This would encourage a best management practice to complete the inspections on the first working day every two weeks. If there is a holi day on Monday the inspection cou ld be completed on Tuesday and still comply with the recommended frequency.

Response Refer to Response 5.1.



# Comment ID 0115

- A2.001.024

Author Name: Smith Timothy Organization: National Grid Issue Category: 5.1.2
5.1.2. Frequency of Inspections. The requirement to conduct a site inspection every 14 calendar days and within 24 hours of the end of a storm event of 0.25 inches or greater is a significant increase over the 14 calendar day/0.5 inch storm event optional insp ection approach in the current ge neral permit. The existing CGP also provides the option to conduct site inspections at least once every 7 calendar days and this frequency has been adequate for all of our recent construction projects. Due to the typical seasonal f requency of
0.25 inch sto rm events during spring and fall seasons in New England, a significant increase in inspections would now be required.

National Grid currently requires contractors and consultants to conduct inspections as required by the General Permit and as specified in the SWPPP for each project. We believe that the current inspection schedule is adequate, as it has proven to provide neces sary guidance to our contractors and allowed for timely response to maintenance needs and corrective actions. The increase in insp e ctions will result in increased costs with minimal benefit. National Grid's internal environmental guidance documents ensure that pr ojects are monitored and maintained as necessitated by unique site conditions (e.g., slope gradient and exposure, soil type and erodibility, presence of down

- gradient wetland and water resources, proximity to TMDL water bodies, etc.).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

751 The requirement to conduct inspections within 24 hours of the beginning of snow melt is difficult in remote utility corridors on those portions of the ROW where active construction activities are not on

- going.

Utility line construction activities rarely result in a discrete discharge because they are managed in accordance with the mo st appropriate BMPs and, due to the phased nature of activitie s, work does not occur in one location for a significant period of time. However, EPA typically recommends that even if there are no discrete discharges, a Notice of Intent (NOI) should be filed and a SWPPP should be prepared in the event that a discharge develops during construction. Therefore, National Grid routinely files an NOI and prepares a SWPPP for all projects altering over 1 acre and requires consultants to conduct the inspections and reporting (within 24 hours of inspection) even if there are no discharges to wetlands or waterways.

The increase in construction monitoring and reporting is significant and will result in significant cost increases to National Grid projects. Therefore, in submitting comments to this new requirement, we request addit ional information regarding the science or reasoning behind the increased inspection frequency.

Response Refer to Response 5.1.



# Comment ID 0121

- A2.001.019

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 5.1.2 Section 5.1.2 of the pennit requires site inspections after stonn events of greater than 0.25 inches. This will lead to very frequent and redundant inspections. A 0.5 inch stonn event would be a more reasonable trigger. EPA could also consider applying the 0.25 inch stonn event only to those construction sites that are particularly prone to erosion (i.e. those with steep slopes and highly erodible soils).

Response Refer to Response 5.1.



# Comment ID 0126

- A2.001.018

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 5.1.2 Instead of quantifying the storm event in inches, which does not account for regional variation, an inspection should occur w ithin 24 hours following a storm event that causes runoff.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

752 

# Comment ID 0127

- A2.001.010

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 5.1.2
Section 5.1.2

Proposed Language
At a minimum, you must conduct a site inspection once every 14 calendar days and within 24 hours of the end of a storm event of 0.25 inches or greater and within 24 hours of a discharge generated by snowmelt. If the storm event of 0.25 inches or greater, or snowmelt,

causes your site to discharge, within 24 hours of the end of the storm event or the beginning of the snowmelt discharge, you must conduct a site inspection when the discharge is occurring and comply with the requirements of Part 5.1.4.3. If the storm even t does not

c ause your site to discharge or if the site did not discharge within 24 hours of the end of the storm event you must conduct a site inspection that complies with the requirements of Part 5.1.4.2. If there is a discharge from your site on multiple days, you are required to conduct an inspection within 24 hours of the end of the storm. EPA notes that inspections are only required during the pro ject's normal working hours.

Concern
Compliance with the post storm event requirement is difficult when a construction project outsources the stormwater compliance inspections to an outside consultant that are required to visit every site within 24 hours of a discharge. The small size of the storm event, variable storm activity across a metropolitan area, and variable snowmelt conditions, create difficulties in compliance. Inspections on a consistence basis that are more often would alleviate the issues stated.

Suggested Correction
Revise the inspection schedule to also allow the option of inspections once every 7 calendar days at a minimum with no additional requirements for storm events.

Response Refer to Response 5.1.



# Comment ID 0130

- A2.001.026

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 5.1.2
24. SAMPLING AND INSPECTION FOR SNOWMELT. Part 5.1.2. This requirement is particularly problematic as it requires inspection within 24 hours of a discharge generated by snowmelt (during the normal project working hours). Part 3.3.1 require s sample
collection w ithin 1 hour of the beginning of a discharge resulting from snowmelt (M

- F 8

- 6). This is a new concept in this permit, and one that will clearly be difficult to comply with or enforce, especially in a state the size of Idaho. We strongly recommend the remov al of this requirement.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

753 If both these snowmelt provisions are not removed, at a minimum, the EPA should remove the requirement if a project is stabil ized (post construction but prior to filing an NOT) and unstaffed and/or inactive.

Consider a scenario of a remote project that is stabilized for the winter and snow covered. It has been reduced to monthly inspections. In February, a slight warming period results in temperatures rising to 35

- 38 degrees. There may or may not be snowmelt discharge from the pr oject depending on elevation, aspect, slope, water content of snowpack, etc. Consider also a scenario where there is constant snowmelt discharge for an extended time.

25. DEFINITION OF STORM EVENT. Part 5. The 0.25 inch rain event as an inspection trigger will significantly increase inspection requirements for rain events. Since these smaller events are significantly more frequent but also less likely to produce disc harges, we question the benefit of this increased compliance burden. We would like to see the threshold remain the same as the current permit.

Given the remote project locations in Idaho, the requirement will significantly increase inspections on sites without a disch arge. If the requirement remains, EPA needs to better define or clarif y the concept of a "storm event" inspection in this permit. A storm event is defined in Appendix A as a precipitation event that results in a discharge. Part 5.1.2 states that you must conduct a site in spection
within
24 hours of the end of a storm event o f 0.25 inches or greater. Does EPA want sites inspected after a 0.25 inch storm event, or after a discharge event, or both? Part 5.1.2 is ambiguous and requires simplification and clarification.

Additionally, EPA needs to more clearly define what they de fine as "a storm event of 0.25 inches". Is it continuous rain until 0.25 inches or more has fallen to the ground? Is it scattered showers over a calendar day period that results in an accumulation u p to 0.25 inches or more? Is it the total precipitation th at falls from the minute the first drop of moisture hits the ground for the next 23 hours 59 minutes? Is it one storm system over a 3 day period that is predominantly light and scattered showers, but ultimately results in enough
scattered showers on and of f for 3 days that 0.25 inches of precipitation ultimately accumulates? What about precipitation that comes down as snow, or a rain/snow mix? In the rocky mountain west, in both spring and fall storms often start as rain but end as s now. How
does a snow sto rm translate into a 0.25 inch storm event? Does EPA want operators to calculate the precipitation amount in a snow event based on the snow‟s moisture content? Considering the implications of a "storm event" on an operator, i.e. inspecting, sampling,

repo rting, etc., this needs to be extensively clarified and better defined in the final permit. When operators are subject to pen alties for

non

- compliance, the ambiguous language is concerning.

These are all questions we currently receive from district staff and would be unable to answer based on the permit language provided.

26. MULTIPLE DAY DISCHARGE. Part 5.1.2 states "if there is a discharge from your site on multiple days, you are required to conduct an inspection within 24 hours of the end of the storm." This issue is ambiguous and requires clarification in the final permit. In particular, it is critical this requirement is waived for stabilized projects. Ambiguities include the following:

a) There is no definition for the end of the storm, makin g this difficult for compliance and enforcement. How does an inspector know when the storm event begins or ends, and/or when the discharge from the project begins or ends?

b) Without daily inspection, how does an inspector know if the project had a multi ple day storm event and therefore a multiple day discharge event?Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

754 c) What if the storm event ends but a discharge from your project continues for more than 24 hours after it ends?

d) How does this statement relate to the requirement to inspect within t he 24 hours of the end of a storm event of 0.25 inches or greater, or within 24 hours of a discharge generated by snowmelt?

e) In mountain areas projects have significant snow accumulation that takes weeks or months to melt off. The permit states th at this requirement applies within 24 hours of the end of the storm, but does not mention snowmelt generating a multiple day discharg e. Wouldn‟t it be just as likely, if not more likely, that a multiple day discharge would result from a snow melt event as a s torm event?

Response Refer to Response 5.1.



# Comment ID 0133

- A2.001.033

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 5.1.2 As discussed above, MDT does not believe the proposed inspection frequencies are practicable, especially in instances where active construction is complete. inspections within 24 hours of a discharge generated by snowmelt would be overly burdensome in Mont ana. Daily inspections would be required for months at a time in order to ens ure compliance with this condition. The proposed inspection frequencies should be reduced.

Response Refer to Response 5.1.



# Comment ID 0146

- A1.001.007

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 5.1.2 I recommend a revised inspection schedule of once per week for sites that do not drain to impaired waterways, and twice per w eek, for sites that do drain to impaired waterways. We have the twice per week inspection schedule in Tennessee, and the second inspection provides a great deal of feedback to the owner/operator about what repairs have been done, and what are still required.

We have a local municipal requirement to conduct inspections after 0.25" of rain. Our experience is that a quarter inch of rain has little or no impact on site conditions. This should revert to the 0.5" requirement if rain inspections are required.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

755 

# Comment ID 0146

- A1.001.010

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 5.1.2 In my opinion, the most effective erosion control inspection program is to conduct weekly, scheduled preventative inspections of every site, with discharge quality observations of every outfall. Sites that drain to impaired waterways should be inspected twice per week, with 48 to 72 minimum hours between inspections. The inspector should be required to sign a certification on each report stat ing that the results of the inspection report is being submitted within 24 hours to a permittee with authority to direct operations including ordering repairs and making corrections, at the site. Repairs should be substantially complete before the next inspection.

Response Refer to Response 5.1.



# 5.1.3 REDUCTIONS IN INSPECTION FREQUENCY

Comment ID 0021

- A1.001.013

Author Name: Unrein Terrance Organization: Tepa Issue Category: 5.1.3 Additionally, the Reduction in Inspection Frequency for Arid and Semi

‐ Arid Areas states that inspections can occur once per months
in these areas. This is not recommended. Reducing an inspection frequency to once per month due to the climate does not take int o effect many other pollution sources that commonly occur on a construction (concrete washouts, POL's, etc.). A lot c an happen in a month on a typically construction site and I as an inspector would never inspect one of my projects only once per month.

Response Refer to Response 5.1.



# Comment ID 0025

- A1.001.037

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 5.1.3 The agency applauds the reduced inspection frequency, with the exception of our two rainy months. Consider reducing inspectio ns to one month and within 24 hours of a storm event 0.25 inches or great er.



# Comment ID 0037

- A1.001.044

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 5.1.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

756 If the construction site is located in a semi

‐ arid area, is the reduction in inspection frequency to once per month in reference to the requirement in Part 5.1.2. for conducting an inspection every 14 calendar days? Are inspections still required within 24 hour s of the
end of a storm event of 0.25 inches or greater for construction sites located in arid or semi

‐ arid areas?

Response Refer to Response 5.1.



# Comment ID 0053

- A2.001.033

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 5.1.3
Clause 5.1.3.2 For arid and semi

- arid areas. The Permit states: "You may reduce the frequency of inspec tions to once per month if your site is located in an arid area (i.e., areas with an average annual rainfall of less than 10 inches) or semi

- arid area (i.e., areas with an average annual rainfall of 10 to 20 inches)."

This clause allows a permittee to also reduced frequency of the inspection language established in Page 43; Part 4.2.2.3 Site Inspection Requirements? See comment number 26 above.

Consider adding a clause clarifying conditions of each separate "Inspection" criteria in the Permit.

Response Refer to Response 5.1.



# Comment ID 0061

- A1.001.006

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 5.1.3 We request that Draft Part 5.1.3.1 be clarified to read "You may reduce the frequency of inspections to once per month in areas of your site where you have initiated vegetative stabilization to meet the criteria in Part 2.2.2.1, once you have completed the init ial seeding or planting, and provided protection with nonvegetative co ver pursuant to 2.2.2.1.c.iii, or . . .." This change in language would make clear that it is the placement of stabilization measures in accordance with Part 2.2.2.1.c.iii

-- and not the achievement of full 70% cover

-- that is the triggering event for a r eduction in inspection frequency. We believe that this change merely clarifies the Agency's original
intent for Part 5.1.3.1.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

757 

# Comment ID 0071

- A3.001.023

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 5.1.3 •Part 5.1.3. Reductions in Inspection Frequency. In this Part it is unclear if the reduction in inspection frequency would st ill require post storm inspections. CDOT thinks they should still be required in arid/s emi

- arid areas, as storm events are typically more intense when they do occur.

Response Refer to Response 5.1.



# Comment ID 0086

- A1.001.013

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 5.1.3 Section 5.1.3 .2, which allows for reduction in frequency of in spections in arid and semi

- arid areas, appears to contradict the Section 4.2.2.3 requirement ofdaily inspections ofBMPs. EPA should clarify this requirement

Response Refer to Response 5.1.



# Comment ID 0090

- A1.001.038

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 5.1.3 AGA recommends that EPA add the following provision to allow "monthly inspections during the rainy season after construction is completed in arid areas with average annual precipitation of less than 10 inches". The average annual precipitation in many m ajor metropolitan areas of Arizona, interior Southern California, Nevada and New Mexico is less than 5.0 inches. Most of this prec i pitation
occurs within a 3

- month rainy season. The average monthly precipitation during the other 9 months of the year typically is less than 0.5 inches. This precipitation pattern does not support the need for inspections during the non

- rainy season.

Re sponse Refer to Response 5.1.



# Comment ID 0090

- A1.001.040

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 5.1.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

758 Monthly inspection of six years of projects would be a burdensome task during times when there is little or no potential for erosion. AGA urges EPA to consider a less burdensome standard for linear projects, given that event

- based local permit inspections are already imposed. For example, Alabama already requires a monthly inspection, and for linear pr ojects, an inspection commencing within 24 hours after resuming construction and completed within 72 hours, after a .75 inch rainfall occurring in a 24 hours period. Th e state's higher precipitation threshold at .75 inches accounts for the fact that a .25 inch rainfall is a frequent occurrence in Alabama. By contrast, EPA's bright line trigger after a .25 inch event would present a substantially higher burden on some projects and n ot others.

Response Refer to Response 5.1.



# Comment ID 0127

- A2.001.011

Au thor Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 5.1.3
Section 5.1.3.2

Proposed Language

You may reduce the frequency of inspections to once per month if your site is located in an arid area (i.e., areas with an average annual rainfall of less than 10 inches) or semi

‐ arid area (i.e., areas with an average annual rainfall of 10 to 20 inches).

Concern
It is unclear when the frequency of inspections may be reduced to monthly in arid areas. What is the frequency of inspections for a project with a steep slope and discharging to an impaired water in an arid location?

Suggested Correction
Revise to clarify when inspection frequency is reduced for arid and semiarid areas.

Response Refer to Response 5.1.



# Comment ID 0133

- A2.001.034

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 5.1.3 MDT believes an additional provision should be included to allow for a reduction in inspection frequency during winter months when the ground is frozen and a discharge is unlikely to occur. Consider using temperature thresholds for winter months.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

759 

# 5.1.4 REQUIREMENTS FOR INSPECTIONS [REQUEST FOR COMMENT]

Comment ID 0015

- A2.001.020

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 5.1.4 Q21. Representative inspections - Agree, linear projects can generally keep the same inspection standards.

Response Refer to Response 5.1.



# 5.1.4.1 AREAS THAT NEED TO BE INSPECTED

Comment ID 0040

- A1.001.023

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 5.1.4.1 Areas that are cleared for overhead utility construction often do not meet the defi nition of land disturbance. Clearing a right

- of

- way easement for overhead utility construction involves cutting the trees and woody shrubs at their base, leaving and treating th e stumps in place, and windrowing the material at the edge of the right

- of

- way easement or mulching the material. This type of clearing does not disturb the root zone of the right

- of

- way easement. This type of cleared area should be excluded from the inspected areas by refining the wording in Section 5.1.4.1.a.

Response
Refer to Response 5.1.



# Comment ID 0086

- A1.001.024

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 5.1.4.1 Areas that are cleared for overhead utility construction often do not meet the defi nition of land disturbance. Clearing a right

- of

- way easement for overhead utility construction involves cutting the trees and woody sh rubs at their base, leaving and treating the stumps in place, and windrowing the material at the edge of the right

- of

- way easement or mulching the material. This type of clearing does not disturb the root zone of the right

- of

- way easement. Tri

- state believes that the proposed CGP should exempt these types of cleared areas from inspection by refining the language in Section 5.IA.I.a to state that all areas that have been cleared and grubbed, graded, or excavated need to be inspected.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

760 Response Refer to Response 5.1.



# Comment ID 0088

- A1.001.016

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 5.1.4.1 Among the unrealistic requirements are:

--

areas that are cleared for overhead utility construction often do not meet the definition of land disturbance. Clearing a rig ht

- of

- way easement for overhead utility construction involves cutting the trees and woody shrubs at their base, leaving and treating the stumps in place, and windrowing the material at the edge of the right

- of

- way easement or mulching the material. This type of clearing does not disturb the root zone of the right

- of

- way easement

R esponse Refer to Response 5.1.



# 5.1.4.2 INSPECTION REQUIREMENTS WHEN NO DISCHARGE IS OCCURING

Comment ID 0025

- A1.001.038

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 5.1.4.2
" ... that is deposited in sufficient quantities ... " Please consider removing this phrase as the use of the word "sufficient" is quite subjective and will likely become a point of contention.

Response Refer to Response 5.1.



# Comment ID 0038

- A1.001.018

Author Name: Minervini W. Organization: Issue Category: 5.1.4.2 The phrase "working as intended to remove pollutants prior to discharge" is too narrow. Change this phrase to "working as intended to minimize pollutant discharge," so that the phrase includes control measures, such as site stabilization and avoiding sensitive areas, that minimize pollutant discharge at least in part by minimizing pollutant exposure to stormwater rather than by "removing" pollut ants. SeeRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

761 the broad Appendix A definitions of "Sto rmwater Controls" and "Control Measure," which are not limited to methods that "remove" pollutants.

Response Refer to Response 5.1.



# Comment ID 0064

- A1.001.038

Author Name: Dees Richard Organization: City of Meridian Issue Category: 5.1.4.2
Section 5.1.4.2.d, page 46 - "Describe areas of visible erosion that have occurred in any portion of the site, at points of discharge, and on the banks of any waters of the U.S. flowing within your property boundaries or immediately adjacent to your property..."

•This appears to be a subjective requirement. This will also be addressed in action items sections of the inspection report. Suggest removing as this would be addressed in following paragraph e requirements.

Response Refer to Response 5.1.



# Comment ID 0093

- A2.001.084

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 5.1.4.2 According to the Draft, during site inspection, the site operator would be required at a minimum to "[c]heck for the presence of sediment that is deposited in sufficient quantities and in locations on the site ... if left there, would likely be discharged ... [and] ... initiate corrective action." AGC is concerned that the phrase "sufficient quantities" is too subjective and will lead to inconsistent
enforcement determinations.

Response Refer to Response 5.1.



# 5.1.4.3 INSPECTION REQUIREMENTS DURING DISCHARGE CONDITIONS

Comment ID 0037

- A1.001.046

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth FundRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

762 Issue Category: 5.1.4.3 With respect to the requirement to inspect during discharge conditions (Part 5.1.4.3), it may be very challenging to observe and document the visual quality of the discharge at every discharge point depending on the length of the linear project, the number of discharge points, and the number of access points. This will be very challenging in the southwest during the monsoon season w here thunderstorms can be high intensity but of short duration. It may be difficult to reach all the discharge points prior to the end of the discharge for some projects. EPA should consider a waiver for linear projects where it is infeasible or at least allow a sing le representative sample location for more than one discharge point similar to the turbidity sampling location requirement for linear projects in Part 3.3.3.4.

Response Refer to Response 5.1.



# Comment ID 0037

- A1.001.047

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 5.1.4.3
It is not clear in Part 5.1.4.3 if the discharge from each outfall must be observed and the visual quality documented. It is requested that EPA clarify if the discharge of each outfall must be observed or if representative outfall(s) can be observed.

Response
Refer to Response 5.1.



# Comment ID 0037

- A1.001.048

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 5.1.4.3 If an operator has to comply with the numeric turbidity limit, the operator may need more than one person to c onduct the inspection required during discharging conditions, perform visual assessments of the quality of the discharges, and collect turbidity sa mples depending on the number of outfalls and the duration of the rain/runoff event. Did the EPA take into co nsideration the costs associated with the increase in inspection and sampling requirements from the 2008 CGP?

Response Refer to Response 5.1.



# Comment ID 0064

- A1.001.039

Author Name: Dees Richard Organization: City of Meridian Issue Category: 5.1.4.3
Section 5.1.4.3.a

- c, page 46 - Full "Inspection requirements during discharge conditions" sectionRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

763 •Suggest combining this into Section 5.1.4.2 rather than having separate inspection requirements for discharging events.

Response Refer to Response 5.1.



# Comment ID 0071

- A3.001.011

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 5.1.4.3 •Part 5.1.4.3 Inspection Requirements during discharge conditions. CDOT agrees that all discharge points within disturbed areas should be inspected, provided the frequency of inspections is reduced for stabilized areas.

Response Refer to Response 5.1.



# Comment ID 0130

- A2.001.039

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 5.1.4.3 Part 5.1.4.3 describes the inspectiolll requirements during a discharge event, and states that ~yo u are required, in addition to Part 5.1.4.1 above to :". However, Part 5.1.4.1 describes areas that need to be inspected and has no c ontent that links it to discharge conditions. This requires correction and clarification

Response EPA clarifies that the reference should have referred to proposed Part 5.1.4.1.



# Comment ID 0146

- A1.001.008

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 5.1.4.3 I agree that identifying all points where there is a discharge (outfalls) should be required on the SWPPP and on the inspecti on report. However, there is no need to describe discharge quality if outfall sampling is required after every rain event.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

764 

# Comment ID 0158

- A1.001.019

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 5.1.4.3 The CGP contains provisions for daily, weekly, and biweekly site inspection requirements. Section 4.2.2.3 and 5.1.3. There is language in the CGP that removes flexibility for linear projects to be inspected on representative sections rather than the entire pro ject. Section 5.1.4.3. If promulgated as written, the entire length of a linear project must be inspected. The 24

- hour inspection requirement may not be feasible along a long linear project. Section 4.2.2.3.a. For example, for linear projects with 10 or more acres with in an impaired watershed, it will take more than one day to complete a visual inspection of the area. Rather than the seven day and 24

- hour triggering events, a better trigger might be precipitation events where the National Weather Service has a probabili ty of precipitation of greater
than 50%. Also, we recommend keeping an allowance for spot checking representative locations within 24 hours of a storm event for all linear projects.

Areas that are cleared for overhead utility construction often do not meet the definition of land disturbance. Clearing a right

- of

- way easement for overhead utility construction involves cutting the trees and woody shrubs at their base, leaving and treating th e stumps in place, and windrowing the material at the edge of the ri ght

- of

- way easement or mulching the material. This type of clearing does not disturb the root zone of the right

- of

- way easement. This type of cleared area should be excluded from the inspected areas by refining the wording in Section 5.1.4.1.a to state tha t all areas that have been cleared and grubbed, graded, or excavated need to be inspected

Response Refer to Response 5.1.



# 5.1.4.3Q LINEAR INSPECTION REQUIREMENTS

Comment ID 0037

- A1.001.045

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 5.1.4.3Q For linear projects located in arid or semi

‐ arid regions, stabilization may need to be postponed following the permanent cessation of
construction activities until climactic conditions are favorable. Therefore, EPA's assumption that linear construction projects are completed in phases, and therefore regular inspections of the area of disturbance is both feasible and reasonable, is not app ropriate for linear projects in the southwest that have limited a ccess. However, the rationale supporting the allowance for representative inspections for linear projects by the 2008 CGP was faulty. Depending on the linear project and the change in topography along its length , the results of the inspection of controls a long the linear project for 0.25 mile above and below each access point were not necessarily representative of the condition of controls at other locations. An operator should be aware of locations along their linear p roject which
are or will be more susce ptible to erosion and/or sedimentation issues. It would be more reasonable for EPA to require inspection of those locations that have or are likely to have erosion and/or sedimentation issues.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

765 Response Refer to Response 5.1.



# Comment ID 0040

- A1.001.021

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 5.1.4.3Q The CGP contains provisions for daily, weekly, and biweekly site inspection requirements. Section 4.2.2.3 and 5.1.3. There is language
in the CGP that removes flexibility for linear projects to be inspected on representative sections rather than the entire project. Section 5.1.4.3. If promulgated as written, the entire length of a linear project must be inspected.

Response Refer to Response 5.1.



# Comment ID 0061

- A1.001.004

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 5.1.4.3Q Draft Permit Part 5.1.4 specifies the areas generally required to be inspected on sites. Because there is no disturbance in advance of the location of the trenching operation in LCPs and because stormwater controls are not installed significantly ahead of that ope ration, we wish to confirm as correct our understanding that the Draft Permit would not require ins pections of areas not yet affected by the trenching operation.

We also wish to confirm as correct our understanding that areas to the rear of active trenching also need not be subjected to inspection provided that they have met the stabilization completion requirements of Draft Permit Part 2.2.1.2. We believe that this is appropriate because, as noted in the preamble to the ELG quoted above, accessing recently stabilized areas for the purpose either of moni toring or inspection will inevitably disrupt the very stabilization efforts that the ELG and the permit seek to foster.

We ask that the Agency confirm, then, that inspections of LCPs are to be conducted only in the area where trenching activities are underway and in any area to the rear of that where the stabilization activities enumerated in Draft Permit Part 2.2.1.2 have not yet been completed.

Response Refer to Response 5.1.



# Comment ID 0064

- A1.001.040

Author Name: Dees Richard Organization: City of Meridian Issue Category: 5.1.4.3Q
Section 5.1.4.3, page 47 - Full "Request for Comment" sectionRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

766 •Adding language that inspections will be conducted on the entire site "where feasible" could help alleviate the sometimes ch allenging nature of inspecting the entire site of a long, linear construction project.

Response Refer to Response 5.1.



# Comment ID 0071

- A3.001.036

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 5.1.4.3Q •Part 5.1.4 Requirements for Inspections. CDOT disagrees with the change for linear projects because EPAs assumption that construction projects are phased is not entirely correct. Transportation projects are phased when practicable, but linear projects face several unique challenges that interfere with the ability to phase a project. These include complex traffic and safety issues, restrictive boundaries and ROW issues, geographical constraints, etc.

Response Refer to Response 5.1.



# Comment ID 0074

- A2.001.024

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 5.1.4.3Q We agree that the same inspection requirements that apply to other types of construction projects should also apply to linear projects as
well.

Response Refer to Response 5.1.



# Comment ID 0080

- A2.001.031

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 5.1.4.3Q Partner Response: The inspection frequency for linear transportation projects and all other construction projects requiring coverage on the CGP should occur at the same frequency.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

767 

# Comment ID 0086

- A1.001.022

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 5.1.4.3Q There is also language in the CGP that removes flexibili ty for inspecting linear projects at representative sections and req uires in spection of the entire project. Section 5.104.3. Tri

- State believes that it is inappropriate for the entire length of a linear project to be regularly inspected. The 24

- hour inspection requirement may not be feasible along a long linear project. Section 4.2.2.3 .a.

Response Refer to Response 5.1.



# Comment ID 0087

- A1.001.049

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 5.1.4.3Q Section 5.1.4 (inspections) – Requiring inspection of every discharge point for large linear projects is infeasible and may be further limited by access issues within a given corr idor. While it is true that trenched utility construction is often phased in such a way that the disturbed portion of the site is a contiguous piece, this is not the case for overhead utility construction. In overhead cons truction, work is phased so that a ll the tree cutting is done first, borings for footings are completed second, footings are put in, poles are put in, and lines are pulled through the length of the right of way. Easement negotiations also affect when and how access to the properties occur.
This means that overhead utility construction necessarily has small discreet disturbance areas separated by long undisturbed areas strung out over the length of the project (30 to 100 miles are typical lengths). It could take days to complete an inspectio n of all disturbed areas along the length of the project. While it may be possible (though not practical) to complete an inspection at 14 day intervals, it is unreasonable to think that an inspection of all disturbed areas could take place within 24 hours of a rain or snowmelt event. For these reasons, we recommend keeping an allowance for spot checking representative areas within 24 hours of a storm event for linear projects.

Response Refer to Response 5.1.



# Comment ID 0087

- A1.001.050

Author Name: Smit h Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 5.1.4.3Q Section 6.3.2 (deadlines for corrective action) – Some corrective actions will take longer to implement (e.g., design, purchase, install) than the prescriptive deadlines assigned by EPA. UWAG urges EPA to allow relief from these deadlines where necessary to properly implement the corrective actions. Otherwise, the burden of the deadlines may inspire “band aid” fixes as opposed to more holi stic

ones.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

768 Response
Refer to Response 6.



# Comment ID 0088

- A1.001.015

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 5.1.4.3Q Among the unrealistic requirements are:

-- if promulgated as written, the entire length of a linear (line) project must be inspected. The 24 - hour inspection requirement would not be feasible along a long linear project. For example, for a line project with 10 or more acres within an impaired watersh ed, it would take more than one day to complete a visual inspection

Response Refer to Response 5.1.



# Comment ID 0093

- A2.001.083

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 5.1.4.3Q In past versions of the CGP, representative inspections were allowed for linear construction projects at or near access points where a roadway, undisturbed right

- of

- way, or other similar feature intersected the construction site. See Part 4.G of the 2008 CGP. After revisiting this requirement, EPA is of the opinion that site inspectio ns at linear sites should be performed at the same frequency and should include the same requirements as any other construction site.AGC recommends that EPA continue to allow representative inspections for linear projects. EPA is incorrect in its assumptio n that linear project phasing reduces the amount of disturbed area. Clearing and grubbing of corridors is typically conducted in a manner to minimize the number of mobilizations of a clearing contractor. Most commonly, clearing is conducted for the entire project corridor with one mobilization with mass grading to balance cut and fill project

- wide shortly thereafter. Phasing typically occurs later in the project in the areas of constructing drainage, structures, etc. While it is true, large linear projects are segmented and managed as blocks of work during construction; it is most common for work within segments to be performed concurrently. Representative inspection/sampling is justified for linear proj ects due to the length of these projects and the higher number of discharge points along their alignment.

Response Refer to Response 5.1.



# Comment ID 0100

- A2.001.015

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 5.1.4.3QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

769 Section 5.1.4.3 describes USEPA's understanding that most linear construction projects are completed in phases and therefore regular inspections of the area of the disturbance is both feasible and reasonable. It should be made clear that many linear construc tion projects
are NOT co mpleted in phases.

Response Refer to Response 5.1.



# Comment ID 0115

- A2.001.025

Author Name: Smith Timothy Organization: National Grid Issue Category: 5.1.4.3Q Response to Request for Comment: With respect to EPA's Request for Comment relative to representative inspections for linear construction projects, we have the following response: National Grid agrees that inspections should be conducted along active or disturbed portions of the ROW, not only at representative areas easily accessible from in tersecting roads. At present National Grid mandates that compliance inspections be conducted for all active and unstable portions of their projects.

Response Refer to Response 5.1.



# Comment ID 0133

- A2.001.035

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 5.1.4.3Q MDT believes representative inspections should be allowedfor linear transportation projects, which can involve storms that on ly affect a portion of the site. Requiring inspections of the e ntire site is not always feasible or reasonable.

Response Refer to Response 5.1.



# Comment ID 0145

- A2.001.022

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 5.1.4.3Q We support ending representative inspections. The variability of soils, their distribution, topographical differences, differences in construction/development activities at specific locations, and differences in choice and maintenance of stormwater control ef forts are probably too large to appropriately a ssume representative monitoring will provide a reasonable estimate of the impacts of stormwater discharges. Moreover, in our state, the regular lack of successful stormwater controls on most linear projects suggests that representative monitoring should no t be continued.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

770 Project phasing is very important in managing stormwater runoff. With increased adoption of project phasing, representative monitoring and inspections may become less important in facilitating linear projects.

Response Refer to Response 5.1.



# Comment ID 0153

- A1.001.035

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 5.1.4.3Q 1. Recommend that linear jobs being inspected once every 7 calendar days and not require a rainfall event or flow r equirement.

2. Recommend inspections once every 7 calendar days and remove the rainfall requirement or the flow requirement. This way you can ensure that the site is being inspected every 7 days, no matter what and it allows the inspector to set a schedule to perform consistent inspections.

Response Refer to Response 5.1.



# 5.1.5 RECORDKEEPING REQUIREMENTS

Comment ID 0091

- A2.001.027

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 5.1.5
27. Part 5.1.5.1: Many contractors prefer to maintain records electronically on a central off

- site network. There may be periods when the records may not be immediately available due to various connectivity issues. Is this storage method acceptable or is onsi te storage
of t he records required. Recommend that records over 6 months old could be stored electronically off

- site if the records could be accessedwithin 24 hours of an EPA request.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

771 

# 5.2 INSPECTION REQUIREMENTS FOR SITES DISCHARGING TO IMPAIRED WATERS

Comment ID 0061

- A1.001.005

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 5.2 We believe that there should not be an increase in inspection frequency from once every 14 days to once every 7 days where an LCP discharges to impaired waters. Draft Permit at Parts 5.2 and 4.2.2.3. As described above, discharges from LCPs serve extremel y small "basins" and thus are unlikely to be the source of significant sediment or other pollutant loadings to individual streams, when compared with discharge points from traditional construction projects. Moreover, the Agency has already recognized that the act of ins pecting linear project would disturb the area and add to sediment transport to sensitive streams. [FN 8] Therefore, more frequent inspection in sensitive basins would be especially counter

- productive in the context of LCPs. Added to this is the fact that the ongoing uncertainty about what constitutes a jurisdictional water under the Clean Water Act multiplies the complexity and potential liability associated with cataloguing the first point of contact with waters of the United States at dozens of stream crossings [FN 9] and the con fusion that will be engendered by toggling between 14

- day and 7

- day inspection frequencies as the project moves from stream to stream. All of
these factors militate in favor of a uniform 14

- day inspection frequency for LCP.

[FN 8] See 74 Fed. Reg. at 63049, col. 1 and 2.

[FN 9] This risk could be alle viated by a definitive declaration in the permit that stream characterization using the tools provided by EPA under this permit is dispositive of stream's jurisdictional status. We suspect, however, that the Agency would rightfully not be
comfortable makin g such categorical statements about what are and what are not jurisdictional waters in the context of a general permit.

Response Refer to Response 5.1.



# Comment ID 0153

- A1.001.036

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 5.2 Remove Section, all inspection requirements should be the same.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

772 

# 5.3 INSPECTIONS BY EPA OR APPLICABLE LOCAL GOVERNMENT AUTHORITY

Comment ID 0053

- A2.001.034

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 5.3 Clause 5.3.1. of the Permit states: "You must allow an authorized representative of the EPA, or other federal, state, or loca l agency, to enter onto your premises, at reasonable times, where a regulated construction activity is being conducted (or has been temporarily ceased), or where records are kept under the conditions of this permit; ... "

This effectively grants permission to any number of persons/entities to enter where records are kept. Sh ould records be kept at a private/public office, record review may not be welcomed and/or legally granted.

What constitutes a representative of a "local agency"? Does identification need to be provided?

Is any coordination by a "representative" required to review private records?

This sentence can be read as the EPA representative will be authorized, but other federal, state, or local agency representat ives do not have to be authorized. Consider changing the titles to "with stormwater management responsib ilities in the jurisdiction of your project".

The EPA can grant this authority to representatives of EPA as they are the agency responsible for the Permit and the grantor of permit coverage. A blanket granting of this authority to other unnamed members o f any other agency may not be within the power of EPA.

Response Refer to Response 5.1.



# Comment ID 0115

- A2.001.026

Author Name: Smith Timothy Organization: National Grid Issue Category: 5.3 5.1.5 Recordkeeping Requirements. National Grid is in support of the use of a downloadable file.

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

773 

# Comment ID 0115

- A2.001.027

Author Name: Smith Timothy Organization: National Grid Issue Category: 5.3 National Grid has no comment on any of the language included in this part, however, there must be an understanding that an inspector must contact the appropriate person named in the NOI and must have appropriate safety training and PPE for access on utility line
ROWs

Response Refer to Response 5.1.



# Comment ID 0130

- A2.001.027

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 5.3
27. EPA INSPECTIONS AND ACCESS. Parts 5.3.1

- 5.3.4 all use the phrase "at reasonable times". We recommend the ambiguous language be revised to conform to othe r related language used in the permit such as "during normal business hours", "during projects normal working hours" or "during the hours of operation specified in your SWPPP".

Response Refer to Response 5.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

6. Correction Actions

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

774 

# 6 CORRECTIVE ACTIONS

Comment ID 0068

- A1.001.031

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6 Proposed CGP Part 6 would establish new and unnecessary implementation, recordkeeping, and reporting requirements. However, t he 2008 CGP already addresses the conditions described in Proposed CGP Part 6 within the more appropriate parts dedicated to the issue at hand. In other words, the 2008 CGP includes corrective action requirements within the sections on responding to spills, performing maintenance, and other similar activities. The corrective action portion of the Proposed CGP creates unnecessary additional r egulatory burdens on permittees to describe and report certain conditions as triggering corrective actions, when the res ponse to such conditions is prescribed and addressed already in other parts of the permit.

Response Refer to Response 6.2.



# Comment ID 0086

- A1.001.003

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 6 In 2000, the Utility Water Act Group (UWAG) appealed provisions in EPA's MSGP that subjected permittees to the threat of perm it revocation and enforcement action (without any opportunity for cure) based on a determination that the permittee was causing or contributing to an excursion of a water quality standard, even i(the permittee was in compliance with the permit terms and co nditions. This appeal was resolved th rough a March 2005 Settlement Agreement between the Federal Water Qu ality Coalition, UWAG, and
EPA.

The settlement agreement was largely implemented by EPA in the 2008 MSGP which limits the risk of lost permit coverage and enforcement, and provides permittees with a step

- wise and iterative approach to revising/enhanci ng their Best Management Practices (BMPs) to meet water quality expectations.

The new draft CGP resurrects the issues that were resolved by the 2008 MSGP, violating the spirit of the settlement agreement. Section 6.2.2.3 of the CGP requires a permittee to undertake corrective actions upon discovery that the "storm water controls you have installed and are maintaining are not effective enough for the discharge to meet applicable water quality standards .... " Se ction 6.5, then follows that "[fthe condition i dentified in this Part constitutes a permit violation (e.g., a[nJ ... exceedance of an applicable water quality standard), correcting it does not remove the original violation" (emphasis added). These proposed CGP provisions crea te an
immediate enforcement situation for permittees when water quality standards are exceeded, even if the permittee is in compliance with the CGP. EPA should follow the process established in the 2008 MSGP that was agreed to in the 2005 settlement agreement for implementing water quality stand ards to avoid recreating issues that were previously resolved.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

775 Response Refer to Response 6.3.



# Comment ID 0088

- A1.001.003

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 6 With respect to water quality standards (WQS) issues, the current language with respect to an excursion of a WQS is poorly written and may result in an enforcement action even if corrected. If a condition is identified that is considered to constitute a pe rmit violation (an exc eedance of an applicable WQS), correcting it may not remove the original violation. These proposed CGP provisions (as currently written) would expose the permittee to immediate enforcement for excursions of WQS, without opportunity for cure, e ven if they a re otherwise compliant with the CGP.

Response Refer to Response 6.3.



# Comment ID 0109

- A2.001.010

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: 6
The Permit must be enforced in order to be effective. We support the inclusion of bright

- line requirements describing what site operators must do, as well as inspections, monitoring and verification by site operators to ensure they carry out their storm water plans, and that the plans work.

Response Refer to Response 6.1. See also section X of the 2012 CGP Fact Sheet for a discussion on permit requirements related to corre ctive
actions.



# Comment ID 0130

- A2.001.028

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 6 28. CORRECTIVE ACTION RECORDS. In general, this part was ambiguous, conflicting, redundant and confusing. It will be difficul t to comply with or enforce. ITD believes Part 6.4 is redundant of Part 6.3.1 and 6.3.2 and should be deleted to prevent confusion. Per
Part 6.3.1 and 6.3.2, when Condition A or B require that the correction or modification to a control is required, you have 7 days to complete the required correction. If the correction requires modification of the SWPPP, you are req uired to modify or update your
SWPPP within 7 days of completing the action. Inspection reports and the SWPPP provide adequate record of the corrective action. Further record is unnecessary.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

776 Response Refer to Response 6.1, Response 6.2, and Response 6.10.



# 6.1 CORRECTIVE ACTION DEFINED

Comment ID 0015

- A2.001.039

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 6.1 6.1. Cleanup of materials should not only occur onsite, but also off site if the materials were discharged from a permitted site. Add language to the second bullet.

Response Refer to Response 6.4.



# Comment ID 0068

- A1.001.032

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.1
The proposed definition of "corrective actions" in Part 6.1 should be deleted for several reasons. First, the proposed definition does not match the site conditions delineated in Part 6.2 as triggering corrective action and, therefore,it creates confusion rega rding what the language in Part 6.1 actually means in the context of the Proposed CGP, including in the context of the applicable deadlines and recordkeeping requirements in proposed Parts 6.3 and 6.4. Second, any actions take to repair, modify, or replace any stormwater control at a construction site should not be characterized as "corrective actions" but should be recognized as ongoing maintenance that is inherent in developing and implementing stormwater controls required at a construction site. Finally, the clean up of spills, releases, or other deposits found on the site may not have any real relation to potential stormwater discharges depending on the locati on of the spill, release or other deposit at the site. Some portions of construction sites are f ound in areas that simply have no potential to discharge to U.S. waters.

Response Refer to Response 6.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

777 

# 6.2 SITE CONDITIONS REQUIRING CORRECTIVE ACTION

Comment ID 0037

- A1.001.049

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 6.2 The difference between Condition A and the third triggering condition for Condition B, i.e., Part 6.2.2.3. is not clear as de scribed in the Fact Sheet. Some of the specific conditions listed for Condition A are very similar to what are listed as easily fixed problems for Condition B ("accumulated sediment on roads not swept up, perimeter controls knocked down, piles of graded or discarded soil left unstabilized or uncontained") in Part 6.3.2 Deadline for Correcting Condition. For example, what is the difference between the specific condition of sediment or other pollutants that have been tracked out onto roadways or parking lots(see Part 6.2.1.4) which is listed under Condition A and the easily fixed problem of accumulated sed iment on roads not swept up listed as a Condition B (see Part 6.3.2.2)? Or, what is the difference between the specific condition regarding a stormwater control that has not been maintain ed in effective operating condition listed under Condition A (see Par t 6.2.1.3) and the easily fixed problem of perimeter controls knocked down listed under Condition B (see Part 6.3.2.2)? Since the operator is required to specify in the Corrective Action Record w hat condition, A or B, was triggered, it would be helpful if EPA provided additional clarification as to how to differentiate between the two
conditions.

Response Refer to Response 6.1, Response 6.7, and Response 6.10.



# 6.2.1 CONDITION A

Comment ID 0068

- A1.001.033

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.1 EPA should limit the requirement to conduct corrective action to instances in which "unauthorized discharge" to U.S. waters h as occurred and such event can reasonably be expected to impact water quality. For the reasons discussed below, all of the proposed conditions identified in Part 6.2.1 as triggering corrective action should be removed from Part 6.

Response Refer to Response 6.1.



# Comment ID 0068

- A1.001.034

Author Name: Longsworth JeffreyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

778 Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.1 The corrective action approach in Part 6 appears to have been copied from EPA's 2008 MSGP. Facilities implementing EPA's 2008 MSGP have noted that it is often unclear what specific condition actually triggers corrective action requirements under the 2008 MSGP and this has created substantial confusion. For instance, Part 3.1 of the 2008 MSGP (similar to Part 6.2.1.3 of the Prop osed CGP), which requires a permittee to conduct corrective action in the event that control measures are found to not be properly operated and/or maintained, has been entirely unworkable. Precisely when such a requirement would be "triggered" is unclear and virtua lly impossible to implement. For instance, if one control measure is determined during a routine inspection to need maintenance (yet still be working in a diminished, but perhaps still fully protective manner), would such a finding trigger corrective action (inclu ding all the associated reporting obligat ions) or would the permittee simply need to perform the necessary maintenance? EPA must more clearly distinguish the difference between routine maintenance and a more significant diminishing of a control measure - only the latter should trigger corrective action.

Response Refer to Response 6.1.



# Comment ID 0068

- A1.001.035

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.1 Proposed Parts 6.2.1.2 and 6.2.1.3 state that if a stormwater control is malfunctioning orrequires maintenance or repair, such a condition would trigger corrective action. However, Part 2.1.3.3(a) already provides that the permittee must ensure that al l stormwater controls remain in effective operating condition. Consequent ly, these parts are redundant of existing requirements to maintain stormwater controls and should be removed. Otherwise, the permit creates redundant and burdensome requirements, including increased reporting, recordkeeping, and other burdens, exposing p ermittees to unnecessary liabilities.

Response Refer to Response 6.1 and Response 6.2.



# Comment ID 0068

- A1.001.036

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.1 Proposed Part 6.2.1.4 would tri gger corrective action for certain "track

- out" conditions or sediment accumulations. Such conditions are already addressed in great detail in Proposed Part 2 of the permit.

Response Refer to Response 6.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

779 

# Comment ID 0068

- A1.001.037

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.1 Proposed Part 6.2.1.5 would trigger corrective action if stormwater discharges appear excessively muddy or cloudy. It is unclear how this subjective standard can be used to trigger corrective action. In addition, the appearance of a stormwater discharge varies according to soil types and, even what appears to be cloudy stormwater may not have any negative impact on receiving streams that are more muddy or cloudy

.

Response Refer to Response 6.5.



# Comment ID 0082

- A2.001.002

Author Name: Wray Susan Organization: HaloSource, Inc. Issue Category: 6.2.1 DELETE: IIlf you are using a treatment chemical that contains chitosan, residual testing detects chitosan in your discharge; or"

AND REPLACE WITH: 116.2.1.6 If you are using a chemical treatment that acts as a flocculant, residual testing for the presenc e of that flocculant at level lOx below the NOEC for that flocculant, or"

Response Refer to Response 6.9 on chitosan. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the permit requirements
related to the use of treatment chemicals.



# Comment ID 0131

- A1.001.007

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 6.2.1 Additionally, LBA suggests that the inclusion of track out as a permit violation should be removed from part 6.5 of the Propo sed CGP. Currently part 6.5 includes "evidence of tracked out sediment" as an example of a permit violation. As stated above, LBA does not agree that evidence of track out should be a permit violation as long as it is minimized in accordance with the requirements in the Proposed CGP. The following parts of the Proposed CGP already include adequate measures for managing sediment track out from a
construction site:

1. Part 2.1.3.7 (a) as amended above already requires that sediment from construction entrances/exits be minimized.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

780 2. Part 2.1.3.4 of the Proposed CGP titled "Good housekeeping requirements," includes a requirement to sweep shovel or vacuum track out by the end of the same work day it is discovered and includes several other methods to remove and dispose of deposited se diment
in the event it is tracked out.

3. Part 8.2.11.2 requires the SWPPP to include procedures for the clean up of sediment including sweeping or removal of sediment tracked or deposited onto streets and other paved surfaces.

Response Refer to Response 6.1. See Part 2.1.2.3 for the permit requirements on minimizing sediment trac k- out and section VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the requirements.



# 6.2.2 CONDITION B

Comment ID 0066

- A1.001.039

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 6.2.2 Discussion: The documentation and staff work load required to complete the corrective active actions and measures in some cas es will require more time to complete than the actual corrective action. Also, excessive documentation requirements introduce the o pportunity for accidental errors that have no bearing on the quality of storm water discharges.

Suggestion: Streamline the documentation requirements for taking corrective actions.

Response Refer to Response 6.12.



# Comment ID 0068

- A1.001.038

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.2 Part 6.2.2.1 of the Proposed CGP would trigger corrective action if one of the prohibited discharges in Part 2.3.1 is occurri ng. However, as noted above in the comments on Part 2.3, the list of prohibited discharges is not consistent with the C&D ELG proposal and should be further limited by removing any reference to the overly broad limitation in Part 2.3.1.6.

Response See section VII.3.1 in the 2012 CGP Fact Sheet for a discussion on the prohibited discharges provisions of the permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

781 

# Comment ID 0068

- A1.001.039

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.2.2 Proposed Part 6.2.2.2 would require corrective action if the numeric turbidity limit in Part 3.2 has been exceeded. Again, this requirement should be removed because there is no "final" C&D ELG and the Proposed CGP should not attempt to create requireme nts based on a requirement that has not even been proposed and publicly vetted.

Response Refer to Response 6.6.



# Comment ID 0076

- A1.001.024

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 6.2.2 Exceedance of Numeric Limit Target believes that corrective actions of numeric limit exceedances should not be referenced in 6.2.2. but detailed in 3.3.8. It is difficult and burdensome for Permittees to jump from section to section of the permit.

Target also requests that language of immediate, 24 hour and 7 day response to corrective actions be removed. If sampling of snowmelt it may not be feasible to make structural changes until soil becomes unfrozen. If storm events cause unsafe site con ditions which would prohibit entry into area, corrective actions would not be feasible in the timeframes detailed.

Target believes a better approach would be to incorporate language which claims that responding to corrective actions as soon as site conditions allow would be more appropriate. Additionally, that if major structural changes are required, that time be allotted but a clear
schedule of these activities be detailed in site SWPPP.

Response Refer to Response 6.6 for the comment on numeric limits, Response 6.8 on residual testing, and Response 6.10 on deadlines for comple ting corrective action.



# 6.3 REQUIRED CORRECTIVE ACTIONS AND APPLICABLE DEADLINES

Comment ID 0021

- A1.001.005

Author Name: Unrein Terrance Organization: Tepa Issue Category: 6.3 5. What your objective definition of "easy fix" as stated in the Corrective Action requirements?Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

782 Response Refer to Response 6.7.



# Comment ID 0040

- A1.001.019

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 6.3 Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines from compliance. See
Section 6.3. For example, corrective actions in the summer in an arid environment could take longer than during the winter.

Response Refer to Response 6.10.



# Comment ID 0086

- A1.001.019

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: 6.3 Corrective action requirements in the proposed COP should recognize seasonal variations in the deadlines for compliance. See Section
6.3. For example, corrective actions in the summer in an arid environment could take longer than during the winter. EPA should provide alternatives for compliance deadlines in the proposed COP for seasonal variations.

Response Refer to Response 6.10.



# Comment ID 0087

- A1.001.032

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 6.3 Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines for compliance. See Section
6.3. For example, corrective actions in the summer in an arid environment could take longer than in the winter. Additionally, Section 6.3.2.1 requires the discharger to "Make every effort to minimize the prohibited discharge" (emphasis added) which sets an im possib le standard. This requirement should be revised to "...every feasible effort...". In addition, as discussed further below, 7 days to complete a new stormwater control system is simply unrealistic.

Response Refer to Response 6.10. See section VII.3.1 of the 2012 CGP Fact Sheet for a discussion on the permit requirements related to prohibited discharges. EPA notes that the permit does not include the phrase "make every effort."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

783 

# Comment ID 0130

- A2.001.029

Author Name: Sullivan Sue Organization: Idaho Transpo rtation Department (ITD) Issue Category: 6.3 This section does not make allowances for completing the correction after 7 days. Exceptions should be allowed for adverse co nditions (saturated soils, inclement weather, etc) when correcting the deficiencies is infeasible and will create more damage to the project or
harm to the environment.

Response Refer to Response 6.10.



# Comment ID 0158

- A1.001.017

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 6.3 Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines for compliance. See Section 6.3. For example, corrective actions in the summer in an arid environment could take longer than during the winter

Response Refer to Response 6.10.



# 6.3.1 DEADLINES FOR CORRECTING CONDITION A [REQUEST FOR COMMENT]

Comment ID 0015

- A2.001.021

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 6.3.1 Q22. Chitosan residual. We have no proposal for a residual monitoring trigger.

Response Refer to Response 6.8 on residual testing and Response 6,9 and chitosan.



# Comment ID 0025

- A1.001.039

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

784 Issue Category: 6.3.1 Depending on the size of the stormwater control and/or its availability on

- site, it may not be feasible to complete the work in a single, full workday.

Response Refer to Response 6.10.



# Comment ID 0053

- A2.001.035

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 6.3.1 Clause 6.3.1.1. of the Permit states: "If condition A occurs at your site, you must: Initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work day, if the problem can be easily fixed through a quick repair or the performance of regular maintenance of the stormwater control or pollution prevention measure;"

Consider removing the word "full" from the sentence. A permittee may not have a "full" work day for 6 months.

Response The 2012 CGP reflects the suggested change.



# Comment ID 0064

- A1.001.041

Author Name: Dees Richard Organization: City of Meridian Issue Category: 6.3.1 Section 6.3.1.1, page 49 - "Initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work day, if the problem can be easily fixed through a quick repair or the performance of regular m aintenance of the storm water control or pollution prevention measure..."

•Suggest deleting this requirement as it begins to impede on Contractor's "ways and means" of work. If problem can be "easily fixed," then issue is likely not significant and can w ait to be completed at the Contractor's convenience during the following week. Also, "easily fixed" is a subjective statement and does not provide clear enough guidance on a potentially burdensome requirement.

Response Refer to Response 6.7. See also Response 6.10.



# Comment ID 0072

- A2.001.020

Author Name: Muenks Nate Organization: Missouri Department of TransportationRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

785 Issue Category: 6.3.1 It is MoDOT's opinion that an allowance for the 7Mday corrective action deadline should be granted if inclement weather should occur either before or during the 7Mday window, which would preclude the contractor from completing the work. The contractor would then have to assure the corrective action is initiated once the weather clears and the site dries sufficiently. The reason for this allowance is because of the potential to create more erosive conditions from rutting or other equipment damage if the corrective actions were carried out during wet site conditions.

Response Refer to Response 6.10.



# Comment ID 009 3- A2.001.085

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 6.3.1 This part of the Draft states that if your stormwater controls are not designed, installed, and/or maintained as required by the permit, you must "[i]nitiate work to fix the problem immediately after discovering the problem, and complete such work by the close o f the next full work day," if "repair" or "regular maintenance of the stormwater control or pollution prevention measure" w ould fix the problem. AGC maintains that it often would not be feasible to complete the work in a single, full work day. Relevant factors include the size of the stormwater control and its accessibility on the jobsite.

Response Refer to Response 6.1 and Response 6.10.



# Comment ID 0127

- A2.001.012

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 6.3.1
Section 6.3.1.1

Proposed Language
Initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work day, if the problem can be easily fixed through a quick repair or the performance of regular maintenance of the stormwater co ntrol or pollution prevention measure;

Concern
Compliance wil l be difficult to achieve if the proper equipment or staff are unavailable to complete the work by the close of the next full work day, regardless if it is a quick repair.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

786 Suggested Correction
Revise to initiate work to fix the problem immediately after discovering the problem, and complete the work as soon as feasible and
before the next storm event.

Response Refer to Response 6.10.



# Comment ID 0146

- A1.001.009

Author Name: Matthews Jean Organization: Water Quality & Erosion Control of Tennessee Issue Category: 6.3.1 These requirements fail to take into account the variation in circumstances, and the availability of personnel, equipment, an d materials during construction. When weather is consistently wet, an immediate repair can do more harm than good. Please see my comments
below.

Response Refer to Response 6.10.



# 6.3.1Q IMMEDIATE NOTIFICATION FOR EXTREMELY HIGH TURBIDITY LEVELS

Comment ID 0007

- A1.001.007

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 6.3.1Q Comment: Allowing toxic chemicals to be used on a construction site near sensitive waters will be a mistake. Better uncontami nated sediment than toxic chemicals. This type of requirement can work well in a setting such as a water treatment plant where trai ned and experienced personnel are performing the activities and monitoring. It will not work well on a typical construction site.

Response Refer to Response 6.6 on numeric turbidity limits and Response 6.9 on the use of chitosan.



# Comment ID 0065

- A1.001.027

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 6.3.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

787 EPA included a placeholder in Section 6.3.1.3 proposing that notice be given to EPA within 24 hours if chitosan is detected i n a disch arge and requiring testing until the discharge ends. EPA requested comment on whether there is a level of chitosan residual b elow which the proposed corrective action would not be necessary. The table for maximum allowable chitosan levels has not yet been established. When establishing this level below which correction action would not be required, EPA should carefully consider that chitosan is a good tool for filtering sediment and is ecologically friendly. According to the International Erosion Control A s sociation, one case study carried out by Natural Site Solutions, LLC., in Redmond, Washington, monitored the performance of one 500 gpm CESF system operating between March 2003 and March 2004 on an 80

- acre mixed residential construction project located in Redmond, Washington, called Lakeside Estates. A total of 17,300,000 gallons of turbid stormwater was treated.

Over the monitoring period the treatment system reduced turbidity, on average, by 98.4 percent with a standard deviation of 1 .29 percent and a c oefficient of variation of 0.013. The average starting turbidity was 248 NTU with a high of 917 NTU and a low of 42.3 NTU. The average effluent turbidity was 2.98 NTU with a high of 5.18 NTU and a low of 0.58 NTU (standard deviation of 1.04 NT U
and coeffic ient of variation of 0.348). All of the 1050 effluent samples tested met the state discharge standard of #10 NTU and all
whole

- effluent aquatic toxicity tests (rainbow trout and Daphnia magna) passed, demonstrating that the treated effluent was non

- toxic

a nd safe to discharge.

Response Refer to Response 6.9.



# Comment ID 0070

- A1.001.011

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 6.3.1Q i. Residual Chitosan Testing - Alcoa is concerned with the frequency of testing required should residual chitosan be detected. Is it feasible to obtain accurate analytical results in the proposed timeframes? Is there an accurate test method or procedure fo r the field testing of chitosan currently available?

Response Refer to Response 6.9.



# Comment ID 0072

- A2.001.021

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 6.3.1Q Also under this Part, it is MoDOT's opinion that if a universal numeric turbidity limit is set, regard less of region or soil type, there may be many instances when the use of polymers or flocculants would be necessary to achieve that limit. MoDOT believes that i f residual testing is required, and if a positive test for residuum is rendered, it is not necessary to contact the EPA (or state regulatory authority) to report this positive test. As previously mentioned in Comment 7, these water clarifying agents can be costly, and ifit is discovered that dosage is too high, then any permittees would take it upon themselves to cut back the dosage and balance the system inRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

788 order to save product and ultimately save on project cost. Also, a positive residual test does not implicate that toxic or harmful residual
levels have been measured since most residual test kits can detect these floccu lants at very low levels.

Response Refer to Response 6.6 and Response 6.8.



# Comment ID 0074

- A2.001.025

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 6.3.1Q The DEQ believes a corrective action would be necessary regardless of the condition of Chitosan residual level.

Response Refer to Response 6.9.



# Comment ID 0080

- A2.001.034

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al.
Issue Ca tegory: 6.3.1Q Partner Response: Many states and territories throughout the United States do not allow the addition of chemicals or bio

- polymers to water quality ponds or detention ponds for the purposes of treating stormwater runoff. It is unclear as to whether the State of New Mexico will prohibit the use of chitosan for this purpose. The Partners question the appropriateness of including this prescr iptive language in the proposed CGP.

Response Refer to Response 6.6.



# Comment ID 0082

- A2.001.001

Author Name: Wray Susan Organization: HaloSource, Inc. Issue Category: 6.3.1Q EPA in its draft construction general permit (I/CGPII) specifically calls out for extra caution in using chitosan without add ressing other real concerns. On page 22890 ofthe Apri l 29, 2011 Federal Register notice, EPA states:

"22. Residual chitosan testing - Request for comment on whether there is a level of chitosan residual below which corrective action would not be necessary. Part 6.3.1.3."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

789 As our comments below demonstrate, this extra caution with chitosan only is unwarranted and misses the mark in protecting the environment from stormwater discharges from construction activities. Residual testing of chemicals should be required equally across all chemical treatm ents.

COMMENTS

1. Traditional BMPs without the use of chemistry fail to solve the problem that fine particulate causes in our waterways. The EPA in the Effluent limitation Guidelines, published in 2009, addressed the economic cost of sedimentation. Add itionally, numerous studies as summarized in Newcombe, 1994 (Reference included as an endnote}i, show the toxicity of sediment on various aquatic species. Thus by keeping the status quo of using traditional BMPs which use mechanical separation and settli ng alone, the EPAs regulations will fail
to meet the Clean Water Act.

2. Many compounds and formulations can be toxic if too much is added. In the case of flocculants that have been subjected to toxicity testing, concentrations of concern are known and w ell

- defined. Yet, the tests are always conducted with clean, lab

- generated water and represent the absolute worst case scenario. In the presence of sediment most flocculant chemistries are going to be less toxi c. The key is to determine proper dosing to ob tain the needed results without overdosing. Systems need to be designed with layers of safety in place to provide needed feedback to those operating the treatments, and with enough scope, to deal with field conditions that are variable. Preoperation dose d etermination should be standard procedure, followed by measurable outcomes that include turbidity, pH and residual flocculant determination by testing. By having a field test for residual flocculant, all parties

--- engineer, contractor, regulator or the ge neral public

--- have the tools and information necessary to ensure compliance and make informed decisions. It is a checks and balance system that our nation knows well.

3. Not all cationic coagulants/flocculants have the same ecotoxicity thresholds. Nichols, 2011, (copy attached with this submittal), makes it clear that primary amines have lower toxicities than quaternary amines, and are thus, in general, safer to use based on a toxicity:dose ratio. Similarly, anionic polymers have an eco

- toxicity pro file of equal concern if the dose rate is greater than the No Observed Effect Concentration (NOEC). Self

- regulation within the construction stormwater market only works if the personnel deploying or building BMPs have simple easy

- to

- use guidelines and mode ls. The regulations need to be consistent. The recommendation in Comment 5, below, creates a level playing field for all flocculant manufacturers, but also makes it easy fo r the contractors to understand and comply with. In Nichols, 2011 states: " ... othe r studies examining a polyacrylamidecontaining thickening agent under artificial environmental conditions reported that polyacrylamide may degrade to the acrylamide monomer ." Additionally Nichols points out "due to the highly toxic nature of this monomer combined with its high water solubility and lack of adsorptive properties to sediment, the concern regarding release of acrylamide into surface water is prudent." The conclusion based on this and other evidence is inescapable: field residual testing of all chemical types is needed to ensure safety levels for all parties.

4. Illustrated in the attached is an account of a standard matting and wattle check dam in semi

- passive deployment mode aided by biopolymer treatment. The testing was organized and supervised by Harris County Flood Control District. Turbidity reduction was achieved easily and with minimal added cost for biopolymer deployment. A key factor in the implementation was that a field re sidual test was completed (taking no more than ten minu tes) with results showing no residual biopolymer at a detection level more than lOx below the NOEC. This provides a powerful case in point that residual testing is neither too expensive nor too complicated to be achievable by construction site personnel as a routine component of compliance.

5. Here is a proposal that is fair to all companies that seek to offer products for solving the sediment problem:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

790 a. Dosing at rates lower than the No Observed Effects Concentration (NOEC) should not require residual testing because, by definition, the dose is below effect levels.

b. If dosing at rates higher than the NOEC is required to obtain the needed results, then residual testing for flocculant is required on the effluent at the same time turbidity and pH are being measured. The residual flocculant test needs to have a level of safety built in, so a detection limit lOx lower than the NOEC is required.

c. c. If a company does not have residual testing capability for its products then batch treatment instead of flow through is required, and the water must be held on property until a Whole Effluent Toxicity (WET) test can be completed showing safe discharge levels.

This tiered approach takes the need for refereeing out ofthe regulatory bodies' hands and properl y puts the responsibility for safety and compliance on the participating parties

Response Refer to Response 6.6 on numeric turbidity limits, Response 6.8 on residual testing, and Response 6.9 on chitosan. See also P art
VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the requirements related to the use of treatment chemicals.



# Comment ID 0082

- A2.001.003

Author Name: Wray Susan Organization: HaloSource, Inc. Issue Category: 6.3.1Q DELETE: "[PLACEHOLDER: If residual chitosan testing detects the presence of chitosan in your discharge, report the positive test to EPA within 24 hours of learning of the results, and immediately take action to reduce residual levels in the discharge. You m ust continue to conduct residual testing once per hour until re sidual levels are below the detection level ofthe residual test, at which point testing must be conducted once every 2 hours during normal working hours until the discharge ends.]"

AND REPLACE WITH: "6.3.1.3 If residual flocculant testing detects the pre sence of flocculant in your discharge at a level higher than the NOEC, report the positive test to EPA within 24 hours of learning of the results, and immediately take action to red uce residual levels in the discharge. You must continue to conduct residual testing once per hour until residual levels are below the NOEC detection level, at which point testing must be conducted once every 2 hours during normal working hours until the discharge ends.

Where your corrective actions result in changes to any of the stormwater controls or procedures documented in your SWPPP, you must modify your SWPPP accordingly within 7 days of completing corrective action work."

Response Refer to Response 6.8. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on permit requirements related to the use
of treatment chemicals.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

791 

# Comment ID 0093

- A2.001.086

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 6.3.1Q The proposal for residual chitosan testing does not have any foundation and runs counter to EPA's justification in the C&D ELG that chitosan is a safe natural product. During the public comment process on the C&D ELG proposal, industry raised several concer ns with the use of chemicals, including th e toxicity of such chemicals. EPA responded to concerns about the potential toxicity of chitosan by stating that the only documented case of possible toxicity or adverse effect was due to mismanagement and/or misuse of the polymer. Specifically, in the preamble to the final EPA rule, EPA states: "EPA has determined that when properly used, environmental impacts from polymers or flocculants should not occur through the use of passive treatment systems. Based on the information in the record EPA has determined that when polymers are properly applied the risks of toxicity to aquatic life or adverse effects to the receiving water are minimal." See 74 Fed. Reg. at 63,008.

AGC is very concerned that EPA is now considering a requirement to monitor for chitosan as well as to employ additional measures even from the mere detection of any chitosan: including 24

- hour notification, immediate corrective action, and the measurement of
chitosan every two hours until the discharge ends. What is more, EPA has not provided a ny justification for selecting chitosan for residual testing.

Response Refer to Response 6.9 and Response 6.8.



# Comment ID 0102

- A2.001.008

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 6.3.1Q a. Why focus on chitosan? What about other chemicals?

b. Data is available on morbidity rates for various aquatic species - the acceptable level of chitosan (or any other chemical treatment) should be tied to the aquatic species that is most likely to be impacted by th e release, as opposed to ANY level of chitosan (or other chemical).

Response Refer to Response 6.9. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on permit requirements related to the use
of treatment chemicals.



# Comment ID 0105

- A2.001.011

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: 6.3.1QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

792 In addition, CLF strongly recommends EPA add a requirement in the Final CGP that operators demonstrate that non

- chemical

treatment me thods are infeasible prior to using chemical treatment for stabilization. CLF supports a requirement for testing of chitosan residual (Part 2.1.4.5) and strongly recommends this be included in the Final CGP. CLF urges EPA to retain in the final CGP t he

req uirement at Part 8.2.10.1(d) that operators disclose all chemicals used in erosion control. In addition, the portion of the N OI form requiring disclosure whether chemicals will be used for erosion control, and the requirement to include similar information in the SWPPP, should be retained

Response Refer to Response 6.9. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on permit requirements related to the use
of treatment chemicals.



# Comment ID 0126

- A2.001.019

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 6.3.1Q Colorado state law prohibits chemical additions due to water rights issues.

Response EPA acknowledges the comment.



# Comment ID 0153

- A1.001.037

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 6.3.1Q This should be based on what level residual chitosan (in ppm) is considered to be toxic based on acute and chronic toxicity t esting results and then compare this to what is detected. If it is not toxic, then no corrective action is necessary.

Response Refer to Response 6.9.



# 6.3.2 DEADLINES FOR CORRECTING CONDITION B [REQUEST FOR COMMENT]

Comment ID 0037

- A1.001.052

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth FundRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

793 Issue Category: 6.3.2 There should be an exception to the requirement to install the new or modified control, and make it operational, by no later than 7 days from the time of the discovery that a new stormwater control is needed, or an existing pollution prevention measure requires significant redesign and reconstruction or replacement at your site in the event that 1) a storm event occurred during the 7

‐ day deadline period
which prevented the installation activities from taking place, 2) soil conditions due to an earlier storm event are too wet for completing
the installation, or 3) the soil was frozen during this period precluding any further installation activities at that time. If an y of these events were to occur, EPA could require t hat installation activities should be initiated as soon as practicable and that immediate action is taken to temporarily control stormwater discharges in the area until a permanent control or measure can be installed.

Response Refer to Response 6.10.



# Co mment ID 0159

- A1.001.018

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 6.3.2 6.3.2.4 Neither the inspectors nor the contractors in some counties are allowed to revise sediment controls without the appro val of the SWPPP approving authority (PGSCD). Although PGSCD is great on turn

- around time, 7 days could be too fast even for a red line revision depending on the repair. It does take time to evaluate the situation, survey if necessary, design a solution, subm it to the local authority, receive approval and finally construct the revision. However it does depend on the reason that a sediment control needs to be repaired reconstructed or replaced. For example if there is a breach in an earth dike, fixing the earth dike immediately can be done but the remedial confirmation of why the earth dike failed (i.e. was it a construction issue for the earth dike, improper design, improper construction of directed area to the earth dike, etc.) goes into evaluating how long it takes to determine a remedial action. We would suggest providing some guidance to the local authority to require actions within in a certain time frame, based on the nature of the problem.

Response Refer to Response 6.10.



# 6.3.2Q ALLOWANCES FOR QUARTERLY REPORTING (RATHER THAN MONTHLY)

Comment ID 0015

- A2.001.022

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 6.3.2Q Q23. 7

- day BMP installation - Disagree. There are many BMPs that are quickly replaced or installed and should not be allowed 7 days
for installation. The 7

- day time period should be limited to more structural or excavation oriented control measures such as dikes, soilRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

794 berms, traps, basins, wheel washes, etc. BMPs such as si lt fence, inlet protection, mulch application, etc should have installation within
24 hours.

Response Refer to Response 6.10 on deadlines for completing corrective action.



# Comment ID 0021

- A1.001.021

Author Name: Unrein Terrance Organization: Tepa
Issu e Category: 6.3.2Q 10. CGP section 6.3.2 requests comment on the 7 day deadline for corrections of Condition B. This is not feasible in many sit uations where new BMP material needs to be ordered that has a lead time longer than 7 days. Also, financial approvals are often required to procure additional materials and this combined with the procurement and installation in 7 days is not practicable with most b usinesses. It is of my opinion that additional verbiage needs to be incorporated stating 7 days or befo re the next anticipated storm event. Material procurement is often times out of the operators control and we should not be held liable for these situations if we can provide proper documentation proving such.

Response Refer to Response 6.10 on deadlines for completing corrective action.



# Comment ID 0046

- A1.001.025

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 6.3.2Q The Department agrees that 7 days is sufficient to correct deficiencies. However, there may not be technology available to effectively control turbidity in all cases. Reinstalling ineffective BMPs is extremely wasteful and may cause further environmental damag e. There may need to be a provision (BMP), which allows the Contractor to quickly finish his work and stabilize the problem area, even though there may be a short

- term discharge violation.

Response Refer to Response 6.6.



# Comment ID 0053

- A2.001.036

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 6.3.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

795 If during construction, a 400 foot long, 20 foot tall concrete

- block retaining wall catastrophically fails it will not be fully re

- installed and operational by 7 days from the time of discovery. Legal ramifications and/or lawsuits ma y prevent even cleaning up a location until insurance adjusters, lawyers, and government entities have surveyed the site. Add to it injury of personnel or accident al death.

Consider adding a large

- scale failure clause with a required notice to EPA.

Re sponse Refer to Response 6.10.



# Comment ID 0066

- A1.001.040

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 6.3.2Q Discussion: There are times when seven days to re

- install a BMP device is not practicable due to personnel or materials not being immediately available.

Suggestion: Add in the wording, as in other sections, "unless not practicable" or "as soon as practicable". Provide some othe r revised wording that would allow for these issues to be resolved in a timely manner, but not penalize the applicant for not complying within the seven day timeframe, especially (but not only) if an outside sourcing agent (sub

- contractor) is being utilized for compliance measure upkeep.

Response Refer to Response 6.1 0.



# Comment ID 0071

- A3.001.012

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 6.3.2Q •Part 6.3.1. Deadline for Correcting Condition A. 1. and Part 6.3.2. Deadlines for Correcting Condition B. 2. The deadline outlined is too restrictive. In many cases it is not possible to mobilize a contractor immediately.

Response Refer to Response 6.10.



# Comment ID 0071

- A3.001.013

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

796 Issue Category: 6.3.2Q •Part 6.3.1. Deadlines for Condition A. 2. and 6.3.2. Deadlines for Condition B. 4. These requirements are too restrictive in certain instances. There should be extensions allowed for the installation of temporary sediment bas ins and other major repairs requiring hydraulic calculations and engineering input. This is especially true for linear projects with limited ROW. For example, if i t is found that a pond were undersized, but there was not enough room to enlarge it, then in addition to required calculations relocation would be necessary. On a site with utility, geographic or ROW restrictions it might be necessary to move a staging area, or adjust pha sing. In these situations the suggested alternative would be to update the SW PPP to reflect why the correction could not occur in 7 days and provide and support an alternate deadline. In addition, document interim benchmarks, such as design completion, could be added to demonstrate progress.

Response Refer to Response 6.10.



# Co mment ID 0074

- A2.001.026

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 6.3.2Q The 7 day timeframe is too stringent and no alternative timeframes are suggested. Provisions should be made for circumstances when corrective actions cannot be completed within the deadline due to site

- specific conditions, such as flooding, drought, or other extreme
conditions.

Response Refer to Response 6.10.



# Comment ID 0080

- A2.001.035

Author Name: Verhage Kat hy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 6.3.2Q Partner Response: The Partners suggest that seven days is not feasible since often times BMP materials need to be procured and are not readily available on site. To ensure compliance with the 7

- day deadline the owner or site operator would need to purchase and over stock these materials and store them on or near the site. This is a significant additional cost born by the project. These ad ditional BMP
material s may never be used. However, their purchase would remain a real and unnecessary cost to the project.

Response Refer to Response 6.10.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

797 

# Comment ID 0085

- A2.001.024

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 6.3.2 Q EPA should consider tailoring this requirement to match the amount of time it actually takes to implement the necessary corre ctive actions. For example, repairing silt fences and other minor corrective actions take very little time and can prevent signif icant discharges of sediment from construction sites. Site operators should not be given such a lengthy time to implement correctiv e actions if there is an ongoing sediment discharge from the site or significant rainfalls are forecast in the coming days. O n the other hand, Rockville can imagine significant issues requiring a redesign of sediment BMPs which may require more than seven days.

Response Refer to Response 6.10.



# Comment ID 0091

- A2.001.015

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 6.3.2Q 15. Fact Sheet Item 23. Part 6.3.2.4: Temporary repairs of diversion structures should be allowed if stormwater control equip ment can't be made operational within 7 days (working day or calendar days?) Specialized treatment equipment, pumps, or custom machined gates or valves might not be available within 7 days. Severe weather conditions could also delay the delivery of specialty pa rts.

Response Refer to Response 6.10.



# Comment ID 0093

- A2.001.087

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 6.3.2Q
AGC maintains that a seven

- day period to install and make operational corrective action sotrmwater controls is not reasonable. First, corrective action may require engineering design to meet EPA's proposed two

- year storm criteria and turbidity standards. Seven days is inadequate to design, procure materials and install corrective actions beyond rudimentary controls such as silt fencing. Seco nd, operators often contract out stormwater compliance to a stormwater management sub

- contractor. These sub

- contractors typically inspect, install, and maintain BMPs for multiple customers and perform this service effectively by scheduling inspections and maintenance on specific days for each project. Requiring corrective action seven days after discovery as opposed to following the established weekly inspection schedule will result in sub

- contractors having to limit their customer base to provide for the added burden, or mor e likely for operators to self

- perform this work. EPA must consider the fiscal impact to small business when contemplating these requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

798 The seven

- day deadline may also be problematic because it would not give the construction site operator suffici ent time to seek assurance of compensation from the owner of the project for changed conditions.

Response Refer to Response 6.10.



# Comment ID 0096

- A1.001.070

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 6.3.2Q EPA should provide additional time for corrective action. There are cases where it is not reasonable to make corrective actio n within 7 days. After a singular storm event, there may be many active construction sites in the area that require corrective action. Appropriate personnel and equipment may not be available onsite and available to make repairs right away. Often after a major event, the erosion and sediment control personnel will all be busy making repairs at the same time and may not be able to make repairs to all systems within 7 days (this includes both personnel who are employed by the owner/operator and third party consultants, as they will likely have several clients). There may also be a need to order new erosion and sediment control dev ices, which may not be available within 7 days. EPA should state that corrective action should take place as soon as practicable and allow more time in cases that ha ve limited opportunity take corrective action within 7 days.

Response Refer to Response 6.10.



# Comment ID 0097

- A1.001.017

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 6.3.2Q 24. The time frames seem reasonable provided an electronic receipt is provided for electronic reporting.

Response Refer to Response 6.13.



# Comment ID 0103

- A3.001.017

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 6.3.2Q In Part 6.3.2.4, EPA proposes that, if an inspection has shown that a new storm water control is needed or an existing one needs to be modified, the new control must be installed and made operational no later than 7 days from the time of discovery.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

799 TCEQ believes that this requirement might not be feasible to implement within a 7 day period, and recommends providing 14 days
instead.

Response Refer to Response 6.10.



# Comment ID 0121

- A2.001.020

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: 6.3.2Q Section 6.3.2.4 requires pennittees to take corrective action within 7 days when discharges are not in compliance with the turbidity limits or discharge do not meet water quality standards. In some cases, meeting the turbidity limits or water quality standar ds may be
infeasible. F urthennore, re

- constructing and installing new BMPs may be less protective than ensuring existing BMPs are as effective as possible and rapidly completing the construction and restabilizing the soils. The pennit should provide allowances for the se situatio ns.

Response Refer to Response 6.10.



# Comment ID 0126

- A2.001.020

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 6.3.2Q CSC appreciates the realistic approach of allowing up to 7 days to make a new BMP operational.

Response Refer to Response 6.10.



# Comment ID 0137

- A2.001.019

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 6.3.2Q Neither the inspectors nor the contractors in many of our jurisdictions are allowed to revise sediment controls without the approval of the SWPPP approving authority. 7 days is inadequate for a red line revision depending on the repair. It does take time to eva luate the situation, survey if necessary, design a so lution, submit to the local authority, receive approval and finally construct the revision. The time required depends on the reason that a sediment control needs to be repaired reconstructed or replaced. For example if there is a breach in an earth dike, fixing the earth dike immediately can be done, but the remedial confirmation of why the earth dike failed (i.e.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

800 was it a construction issue for the earth dike, improper design, improper construction of directed area to the earth dike, et c.) contributes

to t he time needed to determine a remedial action. We suggest providing some guidance to the local authority to require actions w ithin in a certain time frame, based on the nature of the problem.

Response Refer to Response 6.10.



# Comment ID 0153

- A1.001.038

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 6.3.2Q
The 7

- day timeframe may not be feasible for the construction of new sediment basins, or may not be feasible for the complete clean out of an existing sed iment basin if site conditions (too wet) do not allow.

Response Refer to Response 6.10.



# Comment ID 0171

- A1.001.015

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: 6.3.2Q Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines for compliance.

Response Refer to Response 6.10.



# 6.4 CORRECTIVE ACTION RECORDS

Comment ID 0012

- A1.001.008

Author Name: Dillard J. Organization: Joyce Dillard
Issue Cat egory: 6.4
Part 6.4.2 - Added the following language: "If you conclude that, based on further analysis of the site conditions, the source of the problem or violation is unrelated to your construction activity, you must document this fact and the reasons su pporting your
conclusion."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

801 This is to open for misreporting. Qualified opinions should only be considered and the permitting agency should review and ap prove the exception. Permittee liability issues need to be addressed as it crosses into Municipalities responsibility and liability for CEQA monitoring and mitigation issues.

Response Refer to Response 6.12.



# Comment ID 0034

- A1.001.011

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 6.4
11. Corrective Action Records

Proposed Requirement/Section Addressed: CGP Section 6.4.2, Requirements for each new record of a triggering condition and any updates to these records for corrective actions taken be signed by and certified in accordance with Appendix L.

Comment: The requ irement to recertify the SWPPP for each triggering condition and corrective action will be overly burdensome. Discussion: Since the list of triggering conditions is extensive and they all must be addressed by corrective actions, it will be
burdensome for t he SWPPP to be signed and certified in accordance with Appendix L each time a triggering condition occurs and a corrective action is implemented.

Recommendation: Recommend that the requirement to recertify the SWPPP after triggering conditions and corrective actions be narrowed to include only condition 6.2.1.7 or to allow recertification on a periodic basis such as quarterly

Response Refer to Response 6.11.



# Comment ID 0064

- A1.001.042

Author Name: Dees Richard Organization: City of Meridian Issue Category: 6.4 Section 6.4, pages 50

- 51 - Full "Corrective Action Records" section

•This requirement is redundant to the inspection form requirement (5.1.4.2) to document corrective actions. This creates addi tional paperwork that seems unnecessary a nd redundant. It would be more efficient to keep all stormwater inspection results and required action items on one form. From an operator perspective, "action items" on an inspection form are synonymous with "corrective action." Suggest deleting this sect ion or simply equating action items and corrective actions as one in the same.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

802 Response Refer to Response 6.2.



# Comment ID 0130

- A2.001.030

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 6.4
Part 6.4.1.2 and Part 6.4.2.1 both state that you are required to record "the nature of the condition identified". Delete one part. One is saying you have to record the nature of the condition of your site within 24 hours of discovery, one is saying you have to re cord the nature of the condition of your site within 14 days of discovery. This is a redundant requirement.

Response EPA has clarified the recordkeeping requirements. See section X.4.4 of the 2012 CGP Fact Sheet for a discussion on the permit recordkeeping re quirements.



# 6.5 COMPLIANCE IMPLICATIONS OF CORRECTIVE ACTIONS

Comment ID 0040

- A1.001.002

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 6.5 In 2000, UWAG appealed provisions in EPA's MSGP that would have subjected permittees to the threat of lost permit coverage and enforcement (without any opportunity for cure) based on a determination that the permittee was causing or contributing to an excursion of applicable water quality standards, even if the pe rmittee was otherwise compliant with the permit. This appeal was subsequently resolved through a settlement, which provided:

"At any time after authorization, the Director may determine that your storm water discharges may cause, have the reasonable pote ntial to cause, or contribute to an excursion above any applicable water quality standard. If such a determination is made, the Director may require you within a specified time period to:

A. Develop and implement a supplemental BMP action plan describing SWPPP modification ... to address adequately the identified water quality concerns;

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the recei ving water is attaining water quality standards; or

C. Submit an individual permit application...." (Section 3.3 of the March 2005 Settlement Agreement between the Federal WaterRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

803 Quality Coalition, UWAG, and EPA resolving the 2000 MSGP appeal).

This settlement is largely reflected in EPA's mo st recent MSGP

- 2008, which limits the risk of lost coverage and enforcement and provides permittees with a more step

- wise and iterative approach to revising/enhancing its BMPs to meet water quality expectations.

Unfortunately, the new draft CGP revives th e issues that UWAG appealed and were resolved in the MSGP. Section 6.2.2.3 of the CGP requires a permittee to undertake corrective actions upon discovery that the "stormwater controls you have installed and are maintaining are not effective enough for the discharge to meet applicable water quality standards...." Section 6.5 then follows that "If the condition identified in this Part constitutes a permit violation (e.g., a[n] ... exceedance of an applicable water quality standard), correcting it does not remove the original violation" (emphasis added). These proposed CGP provisions would have the effect of exposing permittees to immediate enforcement for excursions of WQS, without opportunity for cure, even if they are otherwise compliant with the CGP.

Response Refer to Response 6.1 on general corrective action issues and Response 6.3 on water quality standards.



# Comment ID 0068

- A1.001.040

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.5 The proposed language in Part 6.5 that suggests that a violation of the non

- existent numeric turbidity limit, evidence of tracked out sediment, or an excessively muddy discharge would constitute a permit violation should be removed. As noted above, there is n o "final" C&D ELG or any applicable numeric turbidity limit. Further, basing a permit violation on the presence of an excessively muddy discharge, even when the permittee has implemented appropriate stormwater controls, is unreasonable. With respect to "t rack

out" o f sediment, the standard should simply be that the permittee should minimize off

- site vehicle tracking of sediments similar to the language in the 2008 CGP. The simple evidence of tracked out sediment should not be deemed a permit violation. Such an approa ch is inconsistent with the 2009 C&D ELG, which does not impose an absolute no

- discharge standard.

Response Refer to Response 6.6 for the comment on numeric turbidity limit, Response 6.1 for the comment on trackout out sediment, and Response 6.5 for the comment on muddy discharge.



# Comment ID 0068

- A1.001.041

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 6.5 Finally, there is language in Proposed Part 6.5 that appears to be inconsistent with the water

- quality approach set forth in Part 4.1 regarding compliance with the permit providing a presumption of compliance with water quality standards and Proposed Part 6.2 regarding corrective actions if a permittee determines possible contributions to wate r quality concerns. Proposed Part 6.5 citesRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

804 examples of permit violations, including an "exceedance of an applicable water quality standard." That example should be dele ted, because it does not accurately reflect the structure of the water quality conditio ns in the rest of the Proposed CGP.

Response
Refer to Response 6.3.



# Comment ID 0087

- A1.001.006

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 6.5 The CGP incorporates requirements to meet both the technology - and water quality

- based mandates of the Clean Water Act. In turn, compliance with the CGP should equate to compliance with the Act, consistent with the permit shield set forth in Section 402( k). However, the CGP is written in a manner that violates this shiel d. Specifically, Section 6.5 provides that the exceedance of an applicable water quality standard constitutes a permit violation, and correcting it does not remove the original violation. I n other words, an exceedance is independently and directly enforcea ble as a violation, even if the permittee is otherwise compliant with the CGP and has implemented all appropriate corrective action to address the exceedance. This approach is fundamentally inconsist ent with EPA's approach to this precise issue in other stormwater general permits - an approach that has been proven through litigation and
settlement.

In 2000, UWAG appealed provisions in EPA's industrial general permit that would have subjected permittees to the threat of lo st permit coverage and enforcement (without any opportunity for redress) based on a determination that the permittee was causing or contributing to an excursion of applicable water quality standards, even if the permittee was otherwise compliant with the pe rmit. This appeal was subsequently resolved through a settlement, which provided in relevant part:

At any time after authorization, the Director may determine that your storm water discharges may cause, have the reasonable p otential to cause, or contribute to an excursion above any applicable water quality standard. If such a determination is made, the Director may require you within a specified time period to:

A. Develop and implement a supplemental BMP action plan describing SWPPP modification ... to address adequately the identified

w ater quality concerns;

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the recei ving water is attaining water quality standards; or

C. Submit an individual permit application....

Section 3.3 of the March 2005 Settlement Agreement between the Federal Water Quality Coalition, UWAG, and EPA resolving the 2000 MSGP appeal.

This settlement was incorporated into EPA's most recent MSGP

- 2008, which protects permittees from the threat of precipitous enforcement or lost coverage, and provides a step

- wise and iterative approach to meeting water quality expectations. The draft CGP,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

805 by contrast, would expose permittees to the threat of precipitous enforcement, even if they do everything requir ed of them under the CGP. UWAG urges EPA to modify its two permits to be consistent with each other, and with the earlier settlement. To do so, EP A should strike the reference to "exceedance of an applicable water quality standard" in Section 6.5 of the CG P (or that section in its entirety), and rely on the mechanisms already set forth in Section 4.1, which generally track EPA's approach in MSGP

- 2008.

Response Refer to Response 6.3.



# 6.6 REPORTING TO EPA

Comment ID 0091

- A2.001.028

Author Name: Burris Marti n Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 6.6
Comment - Reporting all prohibited discharge to EPA is very stringent. Reporting thresholds should be established. An alternative would be if corrective action deadlines are not met reporting to EPA is required. Spill Notification are listed in section 2.3.3. If a spill was reported per 2.3.3 is an additional notification to EPA per 6.6 required. Is reporting required if the discharge leaves t he site, but does not reach a receiving water. Some sites drain to MS4 systems and may receive treatment prior to discharge to the receiving waters. In the case where flow is routed to an offsile treatment facility would the compliance location be at the discharge o f the facility? Should the off

- site convey ance and facility be defined as part of the site for the purpose of permit coverage? Is there a design storm requirement for the sizing of facilities to capture prohibited discharges?

Response Refer to Response 6.13.



# 6.6Q WHETHER REPORTING DEADLINE IS RE SONABLE

Comment ID 0015

- A2.001.023

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 6.6Q Q24. EPA reporting - Agree, seems reasonable.

Response Refer to Response 6.13.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

806 

# Comment ID 0037

- A1.001.053

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 6.6Q The Southern Ute Growth Fund agrees that the deadline of notifying the applicable EPA Regional Office of an occurrence of a Condition B by the end of the nex t full work day after discovering the condition is reasonable. This requirement is similar to the reporting requirements for occurrences of noncompliance for other types of National Pollution Discharge Elimination System (NPDES) discharge permits administe red by EPA.

Response Refer to Response 6.13.



# Comment ID 0065

- A1.001.028

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 6.6Q Section 6.6 requires that the EPA Regional Office be notified by the end of the next full work day after discovering detection of chitosan in the discharge or a condition described in Part 6.2.2. EPA requested comment on whether this proposed deadline is
reasonable. This deadline is not workable. The deadline should be more flexible to accommodate scenarios in which a construction project may be short

- staffed, making it difficult to report such conditions by the end of the next full work day (e.g., when key personnel are away for scheduled time

- off). The 24 - hour deadline should be a recommendation and not a strict requirement.

Response Refer to Response 6.9.



# Comment ID 0070

- A1.001.012

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 6.6Q j. Reporting to EPA - As stated above, Alcoa does not believe there is a need to include additional notification requirements other than those that are currently a part of the NPDES permitting program found at 40 CFR 122.

Response Refer to Response 6.13.



# Comment ID 0074

- A2.001.027

Author Name: Thompson StevenRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

807 Organizatio n: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 6.6Q See Items 15 and 16 (see comment ID 0074.018 and 0074.019).

Response Refer to Response 6.6 and Response 6.13.



# Comment ID 0075

- A2.001.032

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 6.6Q 1 day notification may be a challenge. Suggest at least 2 days.

Response Refer to Response 6.13.



# Comment ID 0080

- A2.001.036

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: 6.6Q Partner Response: The time required and cost of submitting these notifications to the EPA does not seem justified or useful. What will the EPA do with this information if reported within the timeframe beyond populating a database for an ill

- defined purpose. The EPA should clarify why collecting this information within these tight time frames is beneficial in justifying the additional burd en.

Response Refer to Response 6.12.



# Comment ID 0085

- A2.001.025

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 6.6Q This deadline is reasonable. EPA should also consider requiring Condition A events be reported in this timeframe as well. The se events should be reported so that site inspectors can assess whether an operator has taken appropriate corrective actions within the required timeframe. Otherwise, these timeframes and required corrective actions will be difficult to enforce.

Response Refer to Response 6. 10 and Response 6.13.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

808 

# Comment ID 0153

- A1.001.039

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 6.6Q Reporting by the next work day should only be required if the condition is considered hazardous to human health and well being. If it is not, the reporting deadline should be 7 calendar days.

Response Refer to Response 6.13.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

7

. Staff Training Requirements

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

809 

# 7 STAFF TRAINING REQUIREMENTS

Comment ID 0053

- A2.001.037

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 7 General Comment: No requirements of persons performing training have been established in the permit. Consider including requirements of such a person i.e. Certified Professional in Erosion and Sediment Control (CPESC), Certified Erosion, Sediment and Storm Water Inspector (CESSWI), Certified Municipal Separate Storm Sewer System Specialist (CMS4S), or a Certified Profession al in Storm Water Quality (CPSWQ).

Response Refer to Response 7.1.



# Comment ID 0064 -A1 .001.002

Author Name: Dees Richard Organization: City of Meridian Issue Category: 7 •Concern that there will not be enough develop, deliver, and implement training that will be required to achieve compliance w ith the permit. EPA has given a date when the n ew permit would become effective; however, there is no date indicating when the finalized new permit will be released to allow training programs to develop. Will EPA consider an implementation phase which will allow sufficient time for operators to prepare for the finalized permit?

Response Refer to Response 7.1.



# Comment ID 0066

- A1.001.041

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 7 Suggestion: EPA should have and maintain free online or training that can be obtained to train project site staff to your level of expectation. Until a standard is set, it is very difficult to require training for all construction site staff to an undefined level.

Response Refer to Response 7.1.



# Comment ID 0096 -A1 .001.071

Author Name: Asmus Susan Organization: National Association of HomebuildersRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

810 Issue Category: 7 EPA is proposing that permit holders make sure that all members of the stormwater team (SWPPP writers, BMP designers/installe rs, inspectors, those taking corrective actions, and samplers) receive the necessary training to ensure they understand the requirements of the permit and their specific responsibilities with respect to their requirements. While NAHB believes that all personnel inv olved in

stormwater control should have knowledge of the program and its requirements, NAHB strongly believes that any formal training requirements should only apply to those individuals who are working on larger projects, such as those that are covered by the numeric
turbid ity limit (e.g., those that disturb 20 or more or 10 or more acres of land area at one time). EPA should also exempt those ho lding

stormwater

- related professional designations or certifications from the training requirements and further clarify what the tr aining must entail. Finally, in lieu of mandatory training requirements, NAHB submits that EPA can realize greater benefit by establishin g qualifications for SWPPP preparers who are working on large sites.

eLearning activities that can provide training o n the varied subtopics that comprise the NPDES program including (but not limited to) construction inspection techniques, Effluent Guidelines and Field Sampling and Analysis for Turbidity.

Response Refer to Response 7.1.



# Comment ID 0130

- A2.001.031

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 7 29. TRAINING. The CGP indicates that training is required, but leaves a great deal of room for interpretation on what is adequate to meet permit training requirements in Part 7. Many stormwater tools are „reinvented‟ by each city, county and state. We invest significant funds in training. Per Part 7.3, has the EPA considered developing a short but interactive web based training tha t individuals
could take t o satisfy the minimum intended training requirements for the stormwater team? An individual could then print out a certificate to document that they have met at least the basic training requirements under the CGP. An organization such as ou rs could then invest funds in developing more advanced training, which is another (often unfunded) need.

Response Refer to Response 7.1.



# 7.1 PERSON(S) REQUIRING TRAINING

Comment ID 0091

- A2.001.029

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 7.1 The individual preparing the SWPPP is often times not part of the Stormwater Team during construction. If the SWPPP preparer is not part of the active construction project, requiring them to be trained seems inappropriate (Section 7.1.1.). This would apply to individuals designing the stormwater controls as well. Stormwater control design is often times completed months before activ eRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

811 construction by an individual that will not be part of the Stormwater Team during active constructio n (Section 7.1.2.). Documenting
that the offsite personnel were "qualified" at the time the SWPPP was prepared may be a better approach.

Response Refer to Response 7.1.



# Comment ID 0096

- A1.001.072

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 7.1 There are many qualified stormwater professionals who already have targeted experience and expertise in designing constructio n projects to minimize and control stormwater discharges, utilize green infrastructure, install and maintain BMPs, and conduct site inspections and stormwater sampling. Most of these individuals also are knowledgeable about the NPDES and other permit requirements, site reassessment and redesign, and the penalties associated with noncompl iance. As such, NAHB strongly recommends that EPA exempt these professionals from the staff training requirements.

At a minimum, the following individuals must be exempt from EPA's training requirements: a. A registered professional civil engineer.
b. A registered professional geologist or engineering geologist. c. A registered landscape architect. d. A professional hydrologist registered through the American Institute of Hydrology.
e. A Certified Professional in Erosion and Sediment Control or Storm Wate r Quality registered through EnviroCert International Inc., or g. A Certified Professional in Erosion and Sediment Control registered through the National Institute for Certification in Engineering Technologies.

Likewise, experienced builders and develop ers who have been using appropriate stormwater controls over time should not be required to be retrained. For example, any individual who can document that he/she has: 1) Obtained appropriate instruction (2

- 4 hour course) regarding construction site stormwater management pollution prevention practices and inspection responsibilities; 2) Obtained a "Certification" from a state agency as a Stormwater Inspector, or a certification such as Certified Erosion, Sediment and Sto rmwater Inspector (CESSWI), Certified Inspector of Sediment and Erosion Control (CISEC) from a recognized third party; or 3) Obtained equivalent training and/or experience in the principles of sediment and erosion controls and stormwater management through on

- the

job exposure, should be consi dered adequately trained.

Response Refer to Response 7.1.



# Comment ID 0168

- A1.001.015

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 7.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

812 -- Quantification of minimum requirements for becoming a "qualified person" is recommended. The permit training requirements go beyond the typical "tailgate

- training" or Outreach classes, and may merit consideration of other qualifications for "qualified persons" such as being a registered Professional Engineer, Professional Soil Scientist, or Ce rtified Professional in Erosion and Sediment Control.If personnel with the above qualifications are delegated with the activities listed under Section 7.1, then additiona l training may not be required. We suggest providing an option for documenting prior t raining, experience and education that would pre

- qualify members of the stormwater team to perform required activities under this permit.

Response Refer to Response 7.1.



# Comment ID 0168

- A1.001.016

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 7.1

-- Stormwater team personnel without prior documented education and experience in soil erosion, sediment transport, water treatm ent processes and site stabilization may require fairly specialized training (eg beyond the typical Construction Outreach class). Clarification on how to document thorough understanding of required topics is requested. The qualifications of the person(s) providing the training should also be documented.

Response Refer to Response 7.1.



# 7.2 WHEN TRAINING IS REQUIRED
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 7.3 WHAT TRAINING MUST INCLUDE

Comment ID 0045

- A1.001.013

Author Name: Epstein Lee
Organization: Chesapeake Bay Foundation Issue Category: 7.3
7.3 - The staff training requirements outlined here are inadequate. There is nothing in this proposal concerning the training of staff as to how to actually construct and maintain various controls and practices, nor to understand the range of controls and practic es and their purposes and uses on a construction site. Without this level of training, staff taking charge of construction sediment and er osion control
at a construction site are ill

- equipped to fully understand how these practices should function.

Response Refer to Response 7.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

813 

# Comment ID 0091

- A2.001.030

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 7.3 The permitee requirement to provide training on reporting violations and submitting reports to EPA may not be appropriate. For this new permit the operator/permit holder staff would not have individuals familiar in this process. Recommend EPA provide traini ng program for this requirement. Recommend that EPA post training resources on the internet.

Response
Refer to Response 7.1.



# Comment ID 0096

- A1.001.073

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 7.3 While NAHB appreciates the flexibility EPA has built into the training by providing few details of what exactly the training must entail, we are concerned that the vagueness and openendedness of the requirements could be problematic when it comes to demonstrating compliance. Further, because each person's training will differ depending on the role that individual is playing (e.g., the person conducting the grading activities will have different needs than the one preparing the SWPP or conducting inspections) , EPA needs to be clear about what must be covered or included in each person's training for it to be acceptable. For example, EPA could reference materials that are available on its website as being acceptable baseline information for inspectors and permittees, such as its webcasts on developing SWPPPs and stormwater management programs, its national menu of best management practices [FN 83,84]. EPA must also clarify that the required training can be provided using any medium the operator sees fit (paper materials, ele ctronic media, live training) and can be obtained from various places, including the permittee, th ird

- party trainers, state or local governments, or through self

- study. Indeed, NAHB can envision multiple scenarios where the training would take place on site while walking the property. As an alternative, EPA can specify that it will rely on the permitte e's best professional judgment to develop and conduct the necessary training and clearly state that the as long as the content of the training is consistent with the NPDES program, it will be deemed acceptable.

[FN 83] EPA, 2008. National Pollution Discharge Elimination System (NPDES). Accessed July 6, 2011. Available at: http://cfpub.epa.gov/npdes/stormwater/swppp.cfm. [FN 84] EPA 2011. Construction and Development: Related Links. Ac cessed July 6, 2011. Available at: http://water.epa.gov/scitech/wastetech/guide/construction/links.cfm.

Response Refer to Response 7.1.



# 7.4 TRAINING DOCUMENTATION

Comment ID 0053

- A2.001.038Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

814 Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 7.4 Consider including names and titles of persons providing training.

Response Refer to Response 7.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

8. Stormwater Pollution Prevention Plan (SWPPP)

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

815 

# 8 STORMWATER POLLUTION PREVENTION PLAN (SWPPP)

Comment ID 0096

- A1.001.074

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 8 NAHB submits, that as an alternative to mandatory training, EPA require those preparing SWPPPs for sites that disturb 10 acres or more to meet some minimal qualification. Several states already require that a licensed professional engineer or a trained er osion and sediment control (ESC) professional sign the SWPPP, certifying that it incorporates accepted best management practice, and meets local and regional recommended BMPs. NAHB asserts that such a requirement "raises the bar," while allowing sufficient flexibi lity to continue to use BMPs that are most appropriate to particular climate, soil, and topography conditions at the site. Qualified personnel have targeted experience and expertise in the design, installation, and maintenance protocols for BMPs. They also are knowled geable about the NPDES and other permit requirements, reassessment and redesign, if necessary, and the penalties associated with noncompliance. NAHB believes that such mandatory involvement will improve environmental protection and increase compliance without further complicating the permitting process for small businesses.
a. All SWPPPs fo r sites with disturbed areas over 10 acres must be reviewed and signed by a licensed PE or qualified Erosion and Sediment Control professional prior to submission to the regulatory authority. The SWPPP must contain all of the current prov isions in
the EPA CGP (or any applicable State CGP), including an inspection schedule that assesses whether the SWPPP has been and is continuing to be correctly implemented.

b. The SWPPP should designate all known discharge points, either from required sediment ponds (dra inage of 10 acres or more to a common point) or other constructed or natural water conveyances.

c. The SWPPP should designate responsible personnel and ensure they understand the requirements of this permit and their spec ific responsibilities with respect to those requirements.

d. The certification verifies that the stormwater plan will adequately address those conditions expected to be encountered at the site, and that the plan meets all of the requirements of the applicable CGP and local requirements. Once certified, the SWPPP becomes part of the stormwater permit for the site.

Response Refer to Response 8.1.



# Comment ID 0130

- A2.001.006

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 8
5. SWPPP TEMPLATE. The SWPPP requirements section (Section 8) in the proposed permit is 9 pages compared to 5.5 pages in the 2008 CGP. This reflects a substantial increase in SWPPP requirements and expectations under the proposed permit. Will EPA pub lishRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

816 a revised SWPPP template similar to the template provided for the 2003 and 2008 CGP? A template could provide reporting consistency and be useful to operators, given increased expectations by EPA.

Response Refer to Response 8.1.



# 8.1 GENERAL REQUIREMENTS

Comment ID 0056

- A2.001.012
Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: 8.1 It is the DER's experience that proactive restoration and revitalization projects often move fo rward with limited budgets comprised mostly of public funds. Aspects of the planning, permitting and implementation process remain complex and require significant information and effort. Applications under sections 401 and 404 of the CWA results in thoroug h review by federal and state agencies and approval under these regulations include detailed requirements and restrictions imposed by the reviewing agencies. In Massachusetts there is further review under state law, (MA Wetland & River Protection Act). Pre paration of a SWPPP often proves redundant to the requirements imposed through sections 401, 404 and MA regulations. The DER requests the EPA consider making an exception for pro

- active restoration projects from the preparation of a full SWPPP if other per mits, certificates and/or permissions required to undertake the project cover the intent of a SWPPP.

Response Refer to Response 8.1.



# 8.1.1 REQUIREMENT TO DEVELOP SWPPP

Comment ID 0025

- A1.001.040
Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 8.1.1 The statement "The SWPPP does not contain narrative or numeric effluent limits" is unclear. Please clarify.

Response Refer to Response 8.1.



# Comment ID 0064

- A1.001.043

Author Name: Dees Richard Organization: City of MeridianRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

817 Issue Category: 8.1.1 Section 8.1.1, page 53 - "The SWPPP does not contain narrative or numeric effluent limits."
•Sentence seems out of place and meaning is unclear. Suggest deleting or clarifying this statement.

Response Refer to Response 8.1.



# Comment ID 0168

- A1.001.020

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 8.1.1

-- The last paragraph of Section 8.1.1 indicates "the SWPPP does not include narrative or numeric limits'. This should be chan ged and
SWPPP should include narrative or numeric limits. Please revise.

Response Refer to Response 8.1.



# 8.1.2 PERSON(S) RESPONSIBLE FOR DEVELOPING SWPPP [REQUEST FOR COMMENT]

Comment ID 0045

- A1.001.014

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: 8.1.2
8 - Who is responsible for developing the SWPPP? The landowner where the construction takes place is certainly one possibility, b ut there are others: the master developerlbuilder/general contractor, or any similar party with direct control over day

- to

- day construction operations and results. Without fixing this responsibility, or at least identifying appropriate entities and requiring that o ne of them be so designated, it is not cllear who will create the Plan or undertake to implement it.

Response Refer to Response 8.1.



# Comment ID 0053

- A2.001.039

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.1.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

818 8.1.2. Person(s) Responsible for Developing SWPPP. The Request for Com ment in this section of the Permit states: "During the development of this proposed permit, EPA was asked to consider modifying the SWPPP requirements to require that, where there are multiple operators associated with the same construction activity, the p arty who possesses the title of the land where the construction activity will take place and has operational control over construction plans and specifications, typically the property owner, be responsible for developing the SWPPP."

Property ownership can be in contention even with temporary construction easements (TCEs) in place for construction. The ability of a contracted entity to determine who possesses the title of the land may not be an obtainable task, nor should EPA insert a con tracted

company in between sparing land owners.Alternatively, a property owner may be covered under their own NPDES Permit and require a contracted construction company to obtain their own coverage and draft their own SWPPP in an effort to impart environmental responsibil ity to the contractor.

Response Refer to Response 8.1.



# Comment ID 0098

- A1.001.019

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 8.1.2 We support the approach of the Draft Permit that enables parties to different kinds of development to determine among themselves who is in the best position to develop a SWPPP while still requiring all permit holders either to develop or to adopt a SWPPP

.

We would oppose any new or different requirement that would make the property owner responsible for SWPPP preparation. Property owners often are not involved in or knowledgeable about the construction process.

Response Refer to Response 8.1.



# Comment ID 0148

- A1.001.001

Author Name: Esparza J. Organization: USACE

- Sacreme nto Issue Category: 8.1.2 Body: 1. Part 8.1.2. The 'owner' (titled land owner) requirement for the federal government can be problematic as the agency that holds title may not be the same as the agency operating the construction project. Also, as a federal agency our construction projects we operate can often cross many title land owners land (work along levees).

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

819 

# Comment ID 0168

- A1.001.018

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 8.1.2

-- We support the approach taken in the CGP that does not specify which party is responsible for developing the SWPPP in multi

operator situations. The City may or may not have day

- today operational control over construction. The City has experienced challenges related to multiple operators using the same SWPPP, multiple operators working on the same site with independent SWPPPs, and challenges related to being the Owner, working with a contracted Construction Manager that controls day

- io

- day activities including the SWPPP and site expenses, but who is not the property owner.

Response Refer to Response 8.1.



# Comment ID 0168

- A1.001.019

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 8.1.2

-- In general, we concur with the comments by the General Contractors that indicate that selecting the low

- bid may result in a project that has been bid without sufficient regard or resources allotted towards stormwater management. Because the phasing and site control
methods outlined in the SWPPP can dic tate project implementation and site operation, the SWPPP can have a significant bearing on how the project is implemented and the associated construction costs. This is true for both municipal public works, and resid ential construction. For this reason, w e prefer that the General Contractor serve as the primary operator, and develop the SWPPP, with others

as co

- signers. However, we believe that the Owners should have the flexibility to decide who will develop the SWPPP.

Response Refer to Response 8.1.



# 8. 1.2Q WHETHER OWNER OF SITE SHOULD DEVELOP SWPPP

Comment ID 0015

- A2.001.024

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: 8.1.2Q Q25. SWMP Development - Partially Agree. EPA should consider the owner responsible for development of at least one SWMP, but that site operators are responsible for modifying the SWMP if they are not following owner SWMP directions and specifications . For City capital projects we develop the Erosion Control Plan and Permit submittal, then allow hired contractors to modify such plans and permits once the project is awarded.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

820 Response Refer to Response 8.1.



# Comment ID 0019

- A1.001.002

Author Name: Owens Kelly Organization: Bureau of Land Management (BLM) Issue Category: 8.1.2Q

2.Paragraph 8.1.2 "Request for Comment" a.I think that the responsibility of developing the SWPPP should not fall upon the la nd owner. In the case of construction on public lands; I'm assuming that the appropriate land managing agency (Bureau of Lan d Management or Forrest Service) would then be responsible for developing the SWPPP when they approve any SWPPP requiring activity on public land. With all the energy development that currently occurs on public land; it would not be feasible for l and

manag ement agencies to dedicate sufficient man hours to developing appropriate, site specific SWPPPs for all surface disturbing activities that occur within their jurisdiction. Also, if land management agencies dictated what specific mitigation measures industry must use on public land and those mitigation measures fail, then the federal government could be held responsible for reclama tion of resource impacts caused by industry. It is for these reasons that I do not think that land owners should be responsible f or developing
SWPPPs.

Response Refer to Response 8.1.



# Comment ID 0021

- A1.001.022

Author Name: Unrein Terrance Organization: Tepa Issue Category: 8.1.2Q 11. CGP Section 8.1.2 requests comment on the recommendation that the owner be responsible for SWPPP development. This may be beneficial in circumstances of multiple operators on a single site as stated in the Request for Comment but this would not be effective in many circumstances. The operator of the site, which is commonly the prime contractor, has the best working knowledge of its conditions, future construction activities, construction sequencing, and how to be proactive with SWPPP maintenance and administration. SWPPP development and administration requires direct coordination and communicatio n with the subcontractors performing the work, Designer of Records (depending on design build vs. design bid build and other contract formats), 3rd par ty designers, consultants, etc. and the owner is not legally able to perform this coordination. Also, operators use numerous different types of tools and software programs for environmental compliance and site inspections and we should be able to choose which system we wish to implement if it fulfills the requirements of the CGP. It is of my opinion that SWPP Ps developed by the owners, in most cases, would fail to be executed effectively in the field and would not be an efficient way to stay in compliance with the permit. T he operator of the site needs to develop the SWPPP that they are going to utilize for CG P compliance. And this operator is commonly the prime

contractor.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

821 

# Comment ID 0025

- A1.001.041

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 8.1.2Q Response to EPA's request for comment: ADOT currently requires the contractor to prepare the SWPPP. The agency has not experienced the issues described in the request. For ADOT (and likely other agencies), the budgets for design and constructio n may come from different sou rces (for example, the design may be paid with state funds while construction may be paid with federal funds). Therefore, it would be preferable to continue to allow the flexibility for the owner to determine whether the SWPPP will be p repared by them or b y the contractor.

Response Refer to Response 8.1.



# Comment ID 0034

- A1.001.012

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: 8.1.2Q 12. Persons Responsible for Developing Stormwater Pollution Prevent Plan (SWPPP)

Proposed Requirement/Section Addressed: CGP Section 8.1.2, Developing a SWPPP

Comment: EPA requested comment regarding modifying the SWPPP requirements to require that, where there are multiple operators associated with the same construction activity, the party who possesses the title of the land where the construction activity will take place and has operational control over construction plans and specifications, be responsible for developing the SWPPP.

Discussion: DoD construction projects typically req uire that the contractor develop and implement the project SWPPP. DoD signs the SWPPP and obtains permit coverage as a co

- permittee. Requiring the construction contractor to develop and implement the SWPPP as a performance based requirement is the most flexible and effective means of maintaining stormwater compliance. The contractor is also in position to determine the most cost effective methods of meeting the pollution prevention requirements. Furthermore, details required in the SWPPP such as start date and estimated duration for each phase of construction are only known by the construction contractor. If erosion and sediment control measures contained in the contractor developed SWPPP prove to be inadequate the contractor is currently obligated to make needed changes. If the SWPPP were the owner's (DoD) responsibility as proposed by EPA, it would be developed as part of the design and then bid upon by the construction contractor. Any changes to the SWPPP would the n amount to contract changes, which would require negotiation with the contractor and additional funding. This would be a costly, unwieldy process that would increase response times to address sediment and erosion control problems.

Recommendation: Recommend that EPA retain the flexibility in the current permit which allows any operator on the site to be responsible for SWPPP developmentRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

822 Response Refer to Response 8.1.



# Comment ID 0037

- A1.001.054

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 8.1.2Q The Southern Ute Growth Fund supports retaining the current requirements in Part 8.1.2 of the proposed permit.

Response Refer to Response 8.1.



# Comment ID 0046

- A1.001.026

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 8.1.2Q The Department does not support the "land owner" developing the SWPPP. The Contracting community in New Hampshire has clearly articulated that they should be the entities developing and implementing the SWPPP. The Department has successfully relied on our General Contractors to construct our public infrastructure in an environmentally friendly / cost effective manner for decades

.

The Department will include additional information in the bidding package to assi st the Contractors in developing SWPPPs on especially large and more challenging projects as follows:

Traffic Control Plans - These plans are essential when developing the phasing for any project. They also dictate what areas and when they will be open d uring construction and exposed to precipitation.

Construction Stormwater Analyses - This consists of an analysis of the open construction area, expected runoff volumes and sediment capture areas. This analysis also identifies prob1em areas where stormwater cannot be captured, treated to reduce turbidity and
released.

Erosion Control Plans - These plans present a graphical representation of traditional BMPs strategies to be employed during the construction phase. The strategies are tiered, employ ing the least intensive BMPs to lowest risk areas and providing more intensive BMPs to the larger more risky areas.

Water Diversion Lump Sum Items - There are certain areas that are known to be problematic prior to bidding a project. The Department identifies these areas and lets the Contracting community match the equipment, materials and expertise in construction to provide a viable solution. The Department and the state regulators have been very pleased with the results of this bid item. It provides

co st effective/ environmentally sensitive solutions to tricky construction situations.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

823 The Department believes that moving the responsibility of developing and implementing the SWPPP to the State would be an erro r. The Department would loose all buy

- in and responsibility of the contractors to control their own work. The Department is not a regulator and ultimately we cannot enforce NPDES regulation through our contracts.
Response Refer to Response 8.1.



# Comment ID 0061

- A1.001.017

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 8.1.2Q EPA solicits comments on who should be responsible for preparation of the SWPPP, the landowner or the project operator. In th e context of the existing permit, EPA holds the "operator" responsible for permit compliance but includes ownership of the project as a characteristic of being an operator. The fundamental criterion currently used to define an operator is operational control of the project. The operator ca n either be the entity owning the project (and/or land being disturbed) or the entity with day

- to

- day control over the land disturbing activity. While both entities retain overall responsibility for permit compliance, typically the general cont ractor retai ns the majority of the responsibility for implementation of the permit conditions. It is because of the joint responsibility and the nature of the work that the telecommunications company, as the project owner, typically assumes responsibility for preparat ion of the SWPPP in order to ensure consistency and adequacy in implementation by the operator (typically a contractor).

The EHSCP member companies typically design and contract for the LCP work and therefore are in the best position to ensure developmen t of the SWPPP that governs that activity. In no case should land owners, whose involvement often is limited to providing an easement and whose knowledge of and control over the project is negligible, be required to develop the SWPPPs for LCPs.

Response Refer to Response 8.1.



# Comment ID 0064

- A1.001.044

Author Name: Dees Richard Organization: City of Meridian Issue Category: 8.1.2Q Section 8.1, page 53 - Full "Request for Comment" section

•If Owner or Contractor are truly co

- permittees, both should have input in the development of final SWPPP. Perhaps require the Owner to develop an initial Draft SWPPP for review and comment by Contractor in between Notice of Award and Notice to Proceed

. Many BMPs will be left to the Contractor based on their ways an d means of conducting the work. This method allows Owner to establish expectations and Contractor to execute and modify as required.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

824 

# Comment ID 0065

- A1.001.029

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 8.1.2Q Section 8.1.2 proposes that the operator of a site be responsible for developing a SWPPP. EPA requested comment on who should be responsible for submitting a SWPPP where there are multiple operators associat ed with the same construction activity and whether in such a situation the owner who has title to the land should be responsible for developing the SWPPP. CCWC conditionally suppo rts making the owner of the property responsible for developing the SWPPP, as long the CGP makes clear that the owner is the responsible party and includes guidelines regarding the scope of the situations where the owner bears this responsibility. The contract should clearly reflect that the owner bears this responsibility. In addition to situations where there are multiple operators, there are other scenarios where the owner should be responsible for preparing the SWPPP. For example, if the contractor is bidding a pr oject in a very sensitive environmental wetland area where endange red birds are part of the habitat and the contractor knows very little about the area, the owner of the land should be responsible for preparing the SWPPP, which would ensure that all potential sensitiv e areas will be adequately covered in the bid request.

Response Refer to Response 8.1.



# Comment ID 0066

- A1.001.042

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 8.1.2Q EPA solicits comments on whether EPA should add a requirement that, where there are multiple operators at a single site, the party "who possesses the title of the land where the construction activity will take place and has operational control over construction plans and specifications" would be the party responsible for "developing" the SWPPP. TxDOT is opposed to adding this requirement.

First, the party possessing title to the land is not always the party with operational control over construction plans and sp ecifications. Consider, for example, a situation in which a property owner le ases land to a developer.

Second, where multiple operators are jointly and severally responsible for complying with all aspects of the CGP, including t he requirement to develop a compliant SWPPP, it would be overreaching for EPA to specify which of them must develop the SWPPP, which is a business decision that should be made by and between the multiple operators. A better approach is to allow the mul tiple operators to work out amongst themselves which is responsible for developing the SWPPP on a given pro ject, and then specify in the SWPPP the respective roles and responsibilities of each operator under that SWPPP.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

825 

# Comment ID 0071

- A3.001.037

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 8.1.2Q • Part 8.1.2 Person(s) Responsible for Developing SWPPP. CDOT or a design consultant usually prepares the SWMP (SWPPP equivalent) and we put in the contract that it is the construction contractor's responsibility to update and maintain the SWMP so it matches site plans, schedules and conditions.

Response Refer to Response 8.1.



# Comment ID 0074

- A2.001.028

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 8.1.2Q
It is not necessary to require a primary owner/operator to be responsible for SWPPP development in multiple owners/operators cas es. We believe the proposed permit, as well as the 2008 CGP does allow a primary owner/operator to develop a SWPPP to cover the
who le project based on the agreement between this primary owner/operator and others.

Response Refer to Response 8.1.



# Comment ID 0080

- A2.001.037

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al.
Issue Cat egory: 8.1.2Q Partner Response: The owner of the property or their designated agent is ultimately responsible for developing the SWPPP. For EPA to further clarify roles and responsibilities under the CGP is beneficial. On COA projects, the site operator who controls the construction activities occurring at the site is the entity that develops the SWPPP. This is appropriate since the site operator or prime contractor is accountable for CGP compliance as a result of his daily activities in the field.

Response Refer to Response 8.1.



# Comment ID 0085

- A2.001.026

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 8.1.2QRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

826 Rockville supports the use of the Minnesota CGP as a model for managing multi

- operator situations if EPA believes this will encourage the consideration of the SWPPP during the site design process.

Response Refer to Response 8.1.



# Comment ID 0087

- A1.001.051

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 8.1.2Q
Section 8.1.2 (persons responsible for developing SWPPPs) – Requiring property owners to prepare the SWPPP for projects with multiple operators would not work for utility companies (e.g., gas, electric, communication) that conduct construction activi ties pursuant to leases, licenses, agreements, franchises, and other approvals. In such cases, the company conducting the construction typically will not own the land, and multiple owners may be involved over the entire length of the project.

Response Refer to Respons e 8.1.



# Comment ID 0090

- A1.001.028

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 8.1.2Q AGA encourages EPA to consider in reference to Part 8.1.2. of the Draft Permit, that where multiple operators work within the same construction side, working under one SWPPP may create greater cohesion and uniformity in on

- site erosion control. To this end, AGA asks EPA to modify its proposed requirement for secondary operators to be able to work under a primary operator's SWPPP , to include government contracts and projects like those of the Department of Transportation.

Response Refer to Response 8.1.



# Comment ID 0091

- A2.001.016

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 8.1.2Q
16. Fact Sheet Item 25. Part 8.1.2: Recommend the permit remain flexible. In many cases it is appropriate for the site contractor /s to develop the SWPPP. The site contractor will establish the construction activities and phases for earth work. If the contracto r develops and implements the SWPPP, the document should match the actual construction process to be utilized. The SWPPP is a dynamic document and must be changed for changing site conditions. As the site changes the SWPPP should change. Failing stormwater controls must be replaced as required. A flexible approach allows contractors, designers, or owners to develop the SWPPP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

827 Response Refer to Response 8.1.



# Comment ID 0091

- A2.001.031

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 8.1.2Q Under the current permit many times the engineering firm on the project will develop the SWPPP for the operator. Could you ve rify whether this would still be allowed? Perhaps it would be better to require a SWPPP review by the Stormw ater Team prior to any land disturbance, document this review in the training records and provide any updates or changes to the SWPPP that the team deems appropriate.

Response Refer to Response 8.1.



# Comment ID 0093

- A2.001.088

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 8.1.2Q The owner should develop the SWPPP. Likewise, the owner should have the responsibility to modify the plan though out project construction to completion so as to ensure compliance to turbidity limits and other regulatory requirements.

EPA is correct in its conclusion that on large transportation and commercial construction projects, where the contract is awa rded to the lowest bid, and the site design may have been developed without sufficient regard for storm water management and CGP compliance, it is very difficult to then later develop a SWPPP that complies with the permit, due to potential conflicts with the site pl ans. The result
of these conflicts can be that t he owner and the general contractor are forced to negotiate changes to the site plan, which arguably should have been part of the original design.

In addition, by making the owner responsible for providing the initial SWPPP, it would force the owner and architect / engineer to address stormwater compliance during the planning stage in a holistic manner. It also insures that all contractors are inform ed up front as to what will be required of them to properly implement the SWPPP. This stipulation would remove all ambiguities as to what is required and would insure that project owners take an active role in insuring that contractors are complying with the SWPPP.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

828 

# Comment ID 0097

- A1.001.018

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: 8.1.2Q 25. On large commercial projects, the Owner, or designated Developer, should be responsible fro the SWPPP. This will assure participation by the design team in the development of an appropriate plan. On residential projects, there is typically a single general contractor responsible for the project and so can be responsible for the SWPPP.

Response Refer to Response 8.1.



# Comment ID 0100

- A2.001.016

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 8.1.2Q Section 8.1.2 describes the person(s) responsible for developing the SWPPP. The City does agree with the recommendation to re quire that the owner be responsible for the SWPPP development. While this approach may sufficient in some instances, it not always the
most favored.

Response Refer to Response 8.1.



# Comment ID 0103

- A3.001.018

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 8.1.2Q In Part 8.1.2 Persons Responsible for Developing SWPPP, EPA requests comments for who should be responsible for developing a SWPPP in situations with multiple operators. EPA was asked to propose that the party who possesses the title of the land, and has operational control over the construction plans and specifications, typically the owner, be the one responsible.

TCEQ believes that in many situations, a general contractor may be better equipped to be the operator responsible for the sit e's SWPPP, and suggests providing flexibility for this to be determined on a site by site basis.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

829 

# Comment ID 0112

- A2.001.003

Author Name: Karimi Hamid Organization: DC Dept of Environment Issue Category: 8.1.2Q Section 8.1.2: Person(s) Responsible for Developing SWPPP

The preparation of the SWPPP should be the sole responsibility of the developer or property owner since it is the developer/p roperty owner who directly or indirectly finances the project. The responsibility of the site operator should be the implementation of the tasks outlined in the SWPPP in accordance with the developer/owners instructions.
Response Refer to Response 8.1.



# Comment ID 0115

- A2.001.028

Author Name: Smith Timothy Organization: National Grid Issue Category: 8.1.2Q 8.1.2 Person(s) responsible for Developing SWPPP. The EPA has requested comments regarding who should be responsible for development of the SWPPP. National Grid always develops its own SWPPPs, even if not the "party who possesses the title of the land where the construction activity will take place". In some instances the ROWs are held as a form of easement, as opposed to be ing owned in fee. National Grid then takes the responsibility to train all operators that may be working on a project. National Grid has the operational control over construction plans and specifications.

Response Refer to Response 8.1.



# Comment ID 0127

- A2.001.013

Author Name: Brogan Elizabeth Organization: Brogan Land Development Group, LLC Issue Category: 8.1.2Q
Section 8.1.2

Proposed Language
Any operator who seeks coverage under this permit must develop a SWPPP. Note that you have the option of developing a group SWPPP where you are one of several operators who will be engaged in construction activities at your site. For instance, if the construction site has a "primary operator" and at least one "secondary operator" (see Part 1.5.3), the primary operator may be the party responsible for SWPPP development, and the secondary operator(s) can choose to use this same SWPPP, as long as the SWPPP addresses all of the secondary operator(s) scope of construction work.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

830 Concern

When two operators are co

‐ permittees on a project and one operator is a government or a quasi

‐ government agency, only one SWPPP
should be developed by the operator that has day

‐ to

‐ day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g. they are authorized to direct workers at the site to carry out activities require d by the permit).

Suggested Correction

The operator that has day

‐ to

‐ day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g. they are authorized to direct workers at the site to car ry out activities required by the permit) should be the operator responsible for developing and maintaining the SWPPP. The operator that has operational control over construction pl ans and specifications, including the ability to make modifications should oversee the work, but should not create a SWPPP.

Response Refer to Response 8.1.



# Comment ID 0131

- A1.001.026

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 8.1.2Q LBA supports leaving the language proposed in Part 8.1.2 as is, and, opposes mandating that the owner of the property develop the
SWPPP.

Because there are different operational models throughout the industry, there should be regulatory flexibility regarding who will develop the SWPPP. Determining who develops the SWPPP should be a decision that is made based on decisions between the owners/operators on who the most appropriate party to develop the SWPPP (i.e. who is going to conduct the activities on the p roject) and not on regulation.

There are significant legal implications, fines and penalties that could be assessed if a SWPPP is non

- compliant with the terms and conditions of the permit. If the SWPPP is written by an owner of a common plan development and the permit mandates that the
SWPPP be used by secondary permittees, what guarantee does the secondary permittee have that the SWPPP is compliant with the requirements of the permit or appropriate for the specific acreage that the secondary permittee will be developing? What reco urse will
the s econdary owner/operator have against the primary operator if the SWPPP is non compliant?

As an example, one member purchased a property in a common plan development where the owner of the development developed a SWPPP for the entire common plan development. The member had hoped that the SWPPP would be adequate and that it could be used for the member's construction site. After review by the member, the SWPPP did not contain all the elements required by the pe rmit. The member who purchased property in the common plan development had to amend the SWPPP so significantly that it might as well have developed its own SWPPP. If the member was required to use the SWPPP developed by the owner of the common plan development and if it was inspected and enforced upon by a regulatory agency, the member would be subject to severe fines and penalties even though it did not develop the SWPPP and had no control over the content. Additionally, consistent with LBA'sRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

831 comments in section I, above, regarding the potential impl ications of the Proposed CGP's joint and several compliance responsibility provisions, this illustrates the significant concerns associated with requiring an operator's compliance with a SWPPP develop ed without consideration of the specific portion of a la rger development.

EPA's request for comment recognizes that there are differences in the way homebuilders and other types of construction entit ies operate their businesses in multiple operator situations. This supports the fact that construction is not "one size fits all."

The Proposed CGP should establish the criteria that are to be included in the SWPPP and leave the decision of who develops th e SWPPP up to the operator that is actually going to develop the land.

Response Refer to Response 8.1.



# Comment ID 0133

- A2.001.036

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 8.1.2Q MDT does not believe it is appropriate to designate property owners as responsible for developing the SWPPP. As discussed above, MDT's ability to dictate construction methodologies, sequencing, equipment, etc., which are necessary elements of the SWPPP, is limited. As such, the CGP should not specifY which party is responsible for SWPPP development in multiple operator situat ions.

Response Refer to Response 8.1.



# 8.1.3 REQUIREMENT TO DEVELOP SWPPP PRIOR TO SUBMITTING YOUR NOI

Comment ID 0019

- A1.001.003

Author Name: Owens Kelly Organization: Bureau of Land Management (BLM) Issue Category: 8.1.3 3.Paragraph 8.1.3 Requirement to Develop SWPPP Prior to submitting Your NOI a.It needs to be specified when the SWPPP needs to be submitted. 30 days before NOI? 90 days before NOI? In the case of construction on public land; it would be helpful if the SWPPP were developed i n time to include it in the Proposed Action section of a NEPA analysis. Currently industry is often resistant to disclosing stormwater BMPs that they plan to use on public lands with land management agencies. This makes it difficult for l and management agencies to do a thorough NEPA analysis.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

832 Response Refer to Response 8.1.



# 8.2 SWPPP CONTENTS

Comment ID 0024

- A2.001.005
Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 8.2 Accordingly, EPA should revise the 2011 CGP to require that permittees include a comprehensive and enforceable plan for
post

- construction management in their stormwater pollution prevention plans ("SWPPPs"). To achieve adequate control of
post

- construction stormwater runoff, the permit sho uld specifically require that the post

- construction hydro graph of a site should match the preconstruction hydro graph to the maximum extent practicable.

Response Refer to Response 8.1.



# 8.2.1 STORMWATER TEAM

Comment ID 0021

- A1.001.023
Author Name: Unrein Terrance Organization: Tepa Issue Category: 8.2.1 12. CGP Section 8.2.1 describes requirements for a Stormwater Team. Is it completely up to the permit holder's discretion as to how many members are part of this team and what their roles are?

Response Refer to Response 8.1.



# Comment ID 0053

- A2.001.040

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.2.1 The term "team" connotes multiple individuals. Many instances of small construction activities will not have the financial means, or require a "team" of trained individuals. Consider revising the language to include an individual SWPPP person for smaller pro jects.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

833 

# Comment ID 0066

- A1.001.043

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 8.2.1 Discussion: The proposed rules state that the SWPPP must be developed prior to submitting the NOI, and as part of the SWPPP p ermit holders must name all members of the stormwater team. It is possible that at the time of NOI submittal state DOTs may not know all
members of the team.

Suggestion: We suggest that permit holders be allowed to submit NOI without naming all members of the team. As team members a re added then their name s and positions should be added to the SWPPP.

Response Refer to Response 8.1.



# Comment ID 0093

- A2.001.089

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 8.2.1 The term "team" connotes multiple individuals. Many instances of small construction activities will not have the financial means, or require a "team" of trained individuals. Consider revising the language to include an individual SWPPP person for smallerroje cts.

Response Refer to Respons e 8.1.



# Comment ID 0168

- A1.001.023

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 8.2.1

-- Please coordinate the requirements of Section 7, Training, with Section 8, SWPPP, so that documentation of Stormwater Team qualifications and training are included in the SWPPP.

Response Refer to Response 8.1.



# 8.2.2 NATURE OF CONSTRUCTION ACTIVITIES

Comment ID 0098

- A1.001.020
Author Name: Davis RichardRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

834 Organization: Beveridge & Diamond, P.C. Issue Category: 8.2.2 If it is EPA's position that off

- site borrow/fill areas are a part of the common plan of development of a project and, thus, are a part of the project required to be authorized by a permit it should state that position clearly in the permit. In some cases, the ope rator of the pri ncipal construction site has no operational control over an off

- site borrow/fill area that supports the site. EPA should carefully consider the alternative contracting arrangements under which borrow/fill capacity is provided in the industry and revise the Draft
Permit to ensure that the permitting of off

- site facilities is required of, and only of, the "operators" of those sites as that term is defined in the permit.

To the extent that such an area does not qualify as a part of the permitted construction project that it serves, the final permit should make clear that coverage under a separate permit may be required of the operator of that site.

As to off

- site staging and equipment storage areas, we believe that such areas do not satisfy the definition of "storm water associated with industrial activity" (40 C.F.R. 122.26(b)(14)(x)) and, thus, cannot lawfully be subject to permitting simply because they "support" an otherwise permittable construction project.

Response Refer to Response 8.1.



# 8.2.3 IDENTI FICATION OF OTHER SITE OPERATORS

Comment ID 0137

- A2.001.020

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: 8.2.3 It appears that all operators both primary and secondary need to be noted on the SWPPP (Erosion and Sediment Control Plan). We believe that this requirement will cause much legal confusion as to who is responsible and the primary operator will be unrea sonably liable even if they did not create the problem. In some circums tances the primary operator may not have the legal of physical ability to prevent the problem.

Response Refer to Response 8.1.



# Comment ID 0159

- A1.001.008

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 8.2.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

835 It appears that all operators both primary and secondary need to be noted on the SWPPP (Erosion and Sediment Control Plan). T his will require multiple plans in our jurisdiction as they want all parties responsible for the plan to take responsibility for what is on the plan. We believe that this requirement will cause much legal confusion as to who is responsible if the information is on one plan as they will point fingers at each other and the primary operator will be left resolving the problem even i f they did not create the problem. This should be carefully thought through to make sure the correct party is held responsible for their lack of activity without involving
others.

Response Refer to Response 8.1.



# 8.2.4 SEQUENCE AND ESTIMATED DATES OF C ONSTRUCTION ACTIVITIES

Comment ID 0025

- A1.001.042

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 8.2.4 For clarity's sake, "dates" should be "estimated dates"

Response Refer to Response 8.1.



# Comment ID 0053

- A2.001.041

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.2.4
The Permit states: "Flagging or marking off of no disturbance areas, including all steep slope areas (see Part 2.1.1.1) and buffers (see
Part 2.1.2), and of setbacks for pollutantgenerating activities (see Part 2.3.2);"

Consider revising the language to remove "steep slope areas". Typical linear transportation projects span great lengths and w ill have a majority of 3:1 slopes (33%) over the length of the project. This condition is onerous with no real benefit. (See comment number 2 above).

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

836 

# Comment ID 0131

- A1.001.032

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Categ ory: 8.2.4 8.2.4.) This Part requires the SWPPP to include the intended sequence, start dates and durations of several activities that will take place during construction. Providing the sequence of construction activity is achievable; however, it will be difficult if not impossible for the SWPPP writer or operator to estimate dates and durations for the following activities:

• 8.2.4.4 If applicable, dates when total disturbances occurring at one time will require compliance with the numeric turbidi ty lim it in Part 3.2;

• 8.2.4.5 Cessation, temporarily or permanently, of construction activities on the site, or in designated portions of the sit e;

• 8.2.4.6 Final or temporary stabilization of areas of exposed soil. The dates for stabilization must reflec t the applicable deadlines to which you are subject in Part 2.2.1.3 or Part 2.2.1.4; and

• 8.2.4.7 Removal of temporary stormwater conveyances/channels and other stormwater control measures, removal of construction equipment and vehicles, and cessation of any pollutant

- generating activities.

LBA does not really see a purpose or value in including such detailed site specific information as start dates and durations for these items. Many of the requested dates will be complete unknowns at the time the SWPPP is developed and will only be able to be supplied as a "guestimate" that will need to be amended during the course of construction.

The SWPPP should be a guidance document to guide the construction team on when to install BMPs that correspond to each construction activity. Asking for the anticipated start dates, stabilization dates and durations for the items in 8.2.4, othe r than 8.2.4.3, is asking for insignificant information that is difficult to determine in advance, and that has little relevan ce to minimizing the discharge of pollutants from a construction site. These requirements should be removed from the Proposed CGP.

Response Refer to Response 8.1.



# 8.2.5 SITE MAP

Comment ID 0019

- A1.001.004

Author Name: Owens Kelly Organization: Bureau of Land Management (BLM) Issue Category: 8.2.5 4.Paragraph 8.2.5.7 Locations of stormwater control measures a.I think this is a very good requirement to have. It ensures th at the operator has really planned out what they are going to do to control s tormwater and not allowing them to just say "we will control it."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

837 Response Refer to Response 8.1.



# Comment ID 0053

- A2.001.042

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.2.5
The Permit currently states: "Topography of the site, existing vegetative cover (e.g., forest, pasture, pavement, structures), and drainage pattern(s) of stormwater and authorized non

- stormwater flow onto, over, and from the site property before and after major grading activities;"

Consider removing the criteria to indicate stormwater flow onto, over, and from the site property after major grading activit ies. A SWPPP is a living document and is required to be updated to reflect site conditions as the project progresses. This layer of stormwater flow to reflect post construction flows will not be accurate, has potential to add a layer of confusion for operators, and wo uld be best represented in a separate series of maps. There is no benefit to this additional layer until ground

- truthin g of the project is nearing completion and the SWPPP detail sheets are updated to reflect actual conditions and flows. See Section 8.4. REQUIRED SWPPP
MODIFICATIONS of the Permit.

Response Refer to Response 8.1.



# Comment ID 0064

- A1.001.045

Author Name: Dees Richard Organization: City of Meridian Issue Category: 8.2.5 Section 8.2.5.2, page 55 - "Locations of all waters of the U.S., including wetlands that exist within or in the immediate vicinity of your
site."

•Please define "immediate vicinity."

Response Refer to Response 8.1.



# Comment ID 0091

- A2.001.032

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 8.2.5Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

838 32. Part 8.2.5.5.a Inlets to the sanitary sewer and on

- site stormwater management features which might be impacted by the project should be included on the site map.

Response Refer to Response 8.1.



# Comment ID 0115

- A2.001.029

Author Name: Smith Timothy Organization: National Grid Issue Category: 8.2.5
8.2.5 Site Map. Some of the requirements in the list provided in this part do not apply to linear utility projects. For example, National Grid very rarely collects topographic information as linear projects typically do not alter the topography along a ROW. We re commend that language be included that provid es flexibility for linear utility projects.

Response Refer to Response 8.1.



# Comment ID 0130

- A2.001.032

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 8.2.5 30. MAPPING. In 8.2.5.2, site mapping requirements, how does EPA define "within the immediate vicinity of your site"? 100 yards from the project limits, 0.25 miles, 1 mile? A more definitive expectation should be included in the permit.

Response Refer to Response 8.1.



# 8.2.6 SITE PLANNING DOC UMENTATION

Comment ID 0053

- A2.001.043

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.2.6 38. Page 56; Part 8.2.6.1 Steep slope disturbances. The Permit states: "If avoiding disturbance to such steep slopes is consi dere d infeasible, or inconsistent with the requirements of the project, you must document how you intend to comply with the Part 2. 1.4.2 requirements applicable to steep slope disturbances."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

839 Compliance with Part 2.1.4.2 is not attainable. In Part 2.1.4.2.c the Permit states that installation or application of all non

- vegetative measures be complete within 3 working days of stabilization initiation for the greater than 15% slope areas and/or vegetation establishment. No plant can be established, meaning indep endently viable, within 3 days. It can be planted, or installed. Consider changing the word "established".

Typical linear transportation projects span great lengths and will have a majority of 3:1 slopes (33%) over the length of the project. In
the arid southwest, initiation of vegetative cover or even non

- vegetative cover within 3 working days will prove to be unachievable. Consider including provisions for linear transportation projects and more consideration for the arid southwest should be take n into
consideration.

Response Refer to Response 8.1.



# Comment ID 0053

- A2.001.045

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.2.6 The Permit states: "If disturbance to native topsoil is necessary, you must document how you intend to comply with the Part 2.1.3.5 requirements applicable to stockpiling and reapplication of the removed native topsoil."

In referenced Part 2.1.3.5, the Permit States: "Where disturbance to native topsoil will occur at your site, unless infea sible, you should stockpile and reuse it in areas that will be stabilized with vegetation if applicable."

No permittee will claim stockpiling of topsoil to be feasible and therefore never adhere to this clause. Furthermore, the direction to stockpile use s the words "should" and "if applicable". These words are neither regulatory, nor legally binding.

Consider revising the language in this clause to replace the phrase: ", unless infeasible, you should stockpile and reuse it in areas that will be stabilized with vegetation if applicable." with: When topsoil is present at the site, stockpile and reuse it in areas that will be stabilized with vegetation.

Response Refer to Response 8.1.



# Comment ID 0115

- A2.001.030

Author Name: Smith Timothy Organization: National Grid Issue Category: 8.2.6 8.2.6 Site Planning Documentation. National Grid currently requires compliance with this part as part of its internal environ mental guidance. National Grid is in support of this part.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

840 Response Refer to Response 8.1.



# 8.2.7 COMPLIANCE WITH IMPAIRED WATERS AND ANTIDEGRADATION REQUIREMENTS
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.2.8 CONSTRUCTION SITE POLLUTANTS

Comment ID 0062

- A1.001.053

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 8.2.8 Brevard County Comment: Listing all activities that could potentially produce pollutants may be impractical, or at least inac curate in noting potential pollutants. Perh aps EPA could supply a check box list of activities of concern such as exterior painting, on site fueling.... To provide a better indication.

Response Refer to Response 8.1.



# 8.2.9 NON

- STORMWATER DISCHARGES
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.2.10 DESCRIPTION OF STORMWATER CONTROL MEASURES

Comment ID 0025

- A1.001.043
Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 8.2.10 Some agencies may have specifications that are more prescriptive, consider adding "Any manufacturer's or owner's specifications ... "?

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

841 

# Comment ID 0037

- A1.001.055

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 8.2.10 Part 8.2.10.g requires that the operator must include any manufacturer's specifications for installation or maintenance of an y stormwater control measure that is used. There are situations where the operator may prefer to install and maintain a stormwater control measure according to the industry standard and good engineering practice rather than the manufacturer's installation specifications. Some stormwater control measures, e.g., earthen berm, sediment trap, or stormwater detention ponds, are constructed on
site and not pre
‐ manufactured. It is recommended that this requirement is revised as follows: "Specifications for installation and
maintenance based on the industry standard and good engineering practice including manufacturer's specifications where appropriate."

Response Refer to Response 8.1.



# Comment ID 0168

- A1.001.022

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 8.2.10

-- Include requirements for documenting any chemical additives used, including the dosages used, applicable Material Data Safety Sheets (MSDS), manufacturer's application instructions and subsequent monitoring results.

Response Refer to Response 8.1.



# 8.2.11 POLLUTION PREVENTION PROCEDURES
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.2.11.1 SPILL PREVENTION AND RESPONSE PROCEDURES
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.2.11.2 PROCEDURES FOR THE CLEAN

- UP OF SEDIMENT

Comment ID 0053

- A2.001.046
Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 8.2.11.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

842 Part a. of the Permit states: "Sweeping or removal of sediment and other debris that has been tracked or deposited onto stree ts and other paved surfaces;"

Many sites have streets or paved surfaces within project boundaries with proper BMPs adequately preventing pollution from the site. Is it the intent of EPA to require all slabs and old parking lots within construction/demolition project boundaries be clean ed?

Consider revising the language to read: Sweeping or removal of sediment and other debris that has been tracked or deposited o nto publicly accessible streets and other paved surfaces unrelated and external to your project site.

Response
Refer to Res ponse 8.1.



# 8.2.11.3 WASTE MANAGEMENT PROCEDURES
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.2.12 PROCEDURES FOR INSPECTION, MAINTENANCE, CORRECTIVE ACTION, AND MONITORING.

Comment ID 0037

- A1.001.056

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 8.2.12 This Part requires the operator to provide schedules for conducting inspections "including any higher frequency inspections c onsistent with Parts 2.1.4.2c and 4.2.2.2." However, the Parts listed do not address inspections or inspection frequency. EPA should verify that the correct Parts of the permit are being referenced.

Response Refer to Response 8.1.



# 8.2.13 TRAINING

Comment ID 0093

- A2.001.090

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 8.2.13Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

843 This section should be removed. It is redundant and just causes more paper work. The staff training requirements are already covered
in Part 7.

AGC recommends that all EPA inspectors be required to successfully complete training programs with instruction in constructio n applications. AGC members report that many field inspectors are greatly lacking in practical field applications.

Response Refer to Response 8.1.



# 8.2.14 DOCUMENTATION TO SUPPORT ELIGIBILITY CONSIDERATIONS UNDER OTHER FEDERAL LAWS.

Comment ID 0075

- A2.001.033

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 8.2.14
See comments under Part 1.5.1 - NEPA documents already exist in public record on federal highway projects as to threatened and endangered species and historic properties, why repeat this determination?

[See comment ID 0075

- A2.001.002.]

Response Refer to Response 8.1

.



# 8.2.15 SWPPP CERTIFICATION.
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.2.16 POST

- AUTHORIZATION ADDITIONS TO SWPPP
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.3 ON

- SITE AVAILABILITY OF YOUR SWPPP

Comment ID 0019

- A1.001.005
Author Name: Owens Kelly Organization: Bureau of Land Management (BLM) Issue Category: 8.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

844 5.Paragraph 8.3 On

- Site Availability of Your SWPPP a.I recommend also requiring (if applicable) a representative of the appropriate land management agency to have access to the SWPPP and relative monitoring records. This could possibly aid land management agencies to plan resource monitoring and not overlap with work that is already being done.

Response Refer to Response 8.1.



# Comment ID 0025

- A1.001.044

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 8.3 "If an onsite location is unavailable ... notice of the plan's location must be posted .... " Is not the sign required in Section 1.6 sufficient for this purpose?

Response Refer to Response 8.1.



# Comment ID 0064

- A1.001.046

Author Name: Dees Richard Organization: City of Meridian Issue Category: 8.3 Section 8.3, page 60 - Full "On

- Site Availability of Your SWPPP" section

•Please confirm this suggests an electronic SWPPP is acceptable. We would support EPA's push to make SWPPPs paperless.

Response Refer to Response 8.1.



# Comment ID 0115

- A2.001.031

Author Name: Smith Timothy Organization: National Grid Issue Category: 8.3
8.3 On

- Site Availability of Your SWPPP. National Grid is in support of access to downloadable files

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

845 

# 8.3.1 PUBLIC AVAILABILITY OF SWPPP

- INCLUDE IN NOI SUBMISSION - UPDATE D SWPPPS SHOULD BE MADE PUBLICLY AVAILABLE

Comment ID 0012

- A1.001.003

Author Name: Dillard J. Organization: Joyce Dillard Issue Category: 8.3.1 Stormwater Pollution Prevention Plans SWPPPs should be submitted to the permitting authority and available for the public to view. Regular inspection reports and reporting releases of reportable quantities of hazardous substances. are a public health and safety issues and should be made public.



# Comment ID 0024

- A2.001.009

Author Name: Rogers Gilbert Organizat ion: Southern Environmental Law Center (SELC) Issue Category: 8.3.1 Finally, we support EPA's move towards electronic NOls and other changes that will increase the public's notice and opportuni ty to participate in the authorization and enforcement aspects of the COP. However, we are concerned that EPA's position on public access to SWPPPs falls short of what the Clean Water Act ("CWA") requires. As set forth in more detail below, we urge EPA to express ly provide for public access to the initial and any revi sed versions of the SWPPPs.

Response Refer to Response 8.1.



# Comment ID 0024

- A2.001.021

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 8.3.1
An all

- electronic process that makes NOIs publicly accessible through EPA's website will serve the Clean Water Act goal of furthering public participation. As EPA has stated in the proposed 20 I I fact sheet, during the extended 30

- day waiting period, the public will have an opportunity to review the NOIs, to request to review the SWPPPs, and to provide feedback to EPA. [FN 2] These are positive changes that will greatly improve the opportunity for public participation in implementing and enforcing the CGP

. However, we believe additional changes are necessa ry to sufficiently comply with the CW A requirements governing public participation. Specifically, EPA should expressly require permittees to submit their initial SWPPPs to EPA along with their N OIs so that the public can review the SWPPPs without having t o file a request. Additionally, EPA should require permittees to make any updated SWPPPs publicly available.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

846 Public participation in the issuance and enforcement ofNPDES permits is a critical component of the CWA. See Castle v. Pac. L egal Found., 445 U. S. 198,216 (1980) (noting the "general policy of encouraging public participation is applicable to the administration of the NPDES permit program."); Waterkeeper Alliance, Inc. v. United States EPA, 399 F.3d 486, 503 (2d Cir. 2005) ("Congress cle arly
inten ded to guarantee the public a meaningful role in the implementation of the Clean Water Act."). As provided by the very first
section of the Act:

Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator, or any State under this chapter shall be provided for, encouraged, and assisted by the Admi nistrator
and the States.

CWA, § 101(e), 33 U.S.C. § l251(e). Consistent with this broad policy of provid ing for and encouraging public participation, the Act authorizes "any citizen" to bring a civil suit for violations of the Act. 33 U.S.C. § 1365(a).

EPA's draft 201 I CGP allows the public to request to review the initial SWPPPs, see EPA 20 II Fact Sheet at 26, but does not expressly state that it will allow public access to the initial or any subsequent versions of the SWPPP, see id. at 29. [FN 3] By failing to expressly provide for public access to SWPPPs, the draft 2011 CGP deprives the public of i ts right to assist in the "'development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by [EPA]" under the Act. 33 U.S.C. § 1251(e) (emphasis added); see Waterkeeper Alliance, 399 F.3d at 503

- 04 (h olding EPA's NPDES general permit program governing combined animal feeding operations violated 33 U.S.C. § l251(e) by failing to provide public access to the nutrient management plans required for coverage under that program)). The SWPPPs are the site

- spe cific plans describing what permittees will do to comply with the terms of the CGP. Without access to SWPPPs, the public has no ability to meaningfully participate in th e enforcement of the CGP because they have no way of determining whether the permittee is implementing its SWPPP or otherwise complying with the terms of the CGP. Accordingly, EPA must expressly make the initial and any subsequent versions of the SWPP Ps publicly accessible through its website and/or by requiring permittees to allow public ac cess onsite, during reasonable working hours.

[FN 2] EPA draft 2011 fact sheet at 26, available at http://www.epa.gov/npdes/pubs/cgn proposedfs.pdf.

[FN 3] Specifically, EPA's proposed 2011 fact sheet states: permittees are only required to provide copies of the SWPPP, upon request, to EPA; a state, tribal or local agency approving stormwater management plans; the operator of a storm sewer system receiving discharges from the site; or representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS). EPA may provide access to portions of the SWPPP to a member of the public upon request.

2011 Fact Sheet at 29 (emphasis added). We urge EPA, at the very le ast, to return to position it took with respect to public access in its 2008 fact sheet, wherein it stated: The permit does not require that the general public have access to the construction site nor does it require that copies of the plan be available or mailed to members of the public. However, EPA strongly encourages permittees to provide public access to SWPPPs at reasonable hours. Upon request, EPA intends to assist members of the public in obtaining a ccess to permitting information, including SWPPPs.

EPA 2008 fact sheet at 44 (emphasis added), available at http://www.epa.gov/npdes/pubs/cgn2008 fmalfactsheet.pdf.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

847 

# Comment ID 0112

- A2.001.004

Author Name: Karimi Hamid Organization: DC Dept of Environment Issue Category: 8.3.1
Section 8.3: On

- Site Availability of Your SWPPP

The District stormwater regulations will require construction site operators to keep the SWPPP on the site. However, EPA shou ld make

a vailable from its website an electronic copy of the SWPPP submitted by the permittees that can be easily retrieved by the pub lic and stakeholders.

Response Refer to Response 8.1.



# 8.4 REQUIRED SWPPP MODIFICATIONS

Comment ID 0071

- A3.001.024
Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 8.4 •Part 8.4. Required SWPPP modifications. 1.3. Clarify... "inspections or investigations by site staff," to read, "inspections o r investigations by the site's Stormwater Team, as identified in the SWPPP..." This clarification will insure that the SWPPP is not modified by unqualified staff.

Response Refer to Response 8.1.



# 8.4.1 YOU MUST MODIFY YOUR SWPPP, INCLUDING THE SITE MAP(S), IN RESPONSE TO ANY OF THE F OLLOWING CONDITIONS:
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.4.2 LOG OF SWPPP MODIFICATIONS

Comment ID 0071

- A3.001.025
Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 8.4.2 •Part 8.4.2 Log of SWPPP Modifications. Do modifications include any changes to the site map? Modifications to the site map will usually occur daily and are already dated and initialed. This will be a lot of tracking changes and see ms redundant.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

848 Response Refer to Response 8.1.



# Comment ID 0098

- A1.001.021

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 8.4.2 We suggest that EPA use the term "record" instead of "log" in this Part so that the requirement is not construed to require entry of data into some specific "log book," but simply the recordation of the data in a written document of some kind.

Response Refer to Response 8.1.



# 8.4.3 DEADLINES FOR SWPPP MODIFICATIONS
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 8.4.4 REQUIRED NOTICE OF OTHER OPERATORS

Comment ID 0064

- A1.001.047 Author Name: Dees Richard Organization: City of Meridian Issue Category: 8.4.4 Section 8.4.4, page 61 - "Upon determining that a modification to your SWPPP is required, if there are multiple operators covered under this permit, you must immediately notify any operators who may be impacted by the change to the SWPPP."

•This requirement seems subjective. If multiple operators are on a project, they will all sign the weekly or biweekly inspection form indicating Action Items/Corrective Actions and corresponding changes to SWPPP. This signature requirement seems sufficient as an effective means of notifying ope rators of SWPPP modifications.

Response Refer to Response 8.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

9

. How to Terminate Permit Coverage

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

849 

# 9 HOW TO TERMINATE COVERAGE
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 9.1 MINIMUM INFORMATION REQUIRED IN NOT

Comment ID 0038

- A1.001.019
Author Name: Minervini W. Organization: Issue Category: 9.1 Change "MINIMINUM INFORMATION REQUIRED IN NOT" to "MINIMUM INFORMATION REQUIRED IN NOT." (emphasis added)

Response EPA appreciates the suggestion and has edited the permit accordingly. See Part 8.1 of the final permit.



# 9.2 CONDITIONS FOR TERMINATING PERMIT COVERAGE

Comment ID 0037

- A1.001.057

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 9.2
Part 9.2.1 references Part 1.1 with respect to permitted construction support activities. Part 1.1 does not address construction support activities; however, Part 1.4.1.3 does. EPA should verify that the correct part of the permit is being referenced

Response EPA appreciates the suggestion and has edited the permit accordingly. See Part 8.2.1 of the final permit.



# Comment ID 0098

- A1.001.022

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 9.2 Please clarify if the word "who" as used in this Part refers to a person's name, a position title, a company entity or a maintenance contractor. If any of these is acceptable, please clarify that. In addition, we believe that requiring an individual's name o r that of a contractor raises the possibility that t he information will become stale when personnel or contractors change and, as a result, impose an unnecessary burden on permittees to update their records every time a change of that nature occurs.

Response Refer to Response 1.6.7Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

850 

# Comment ID 0130

- A2.001.033

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 9.2 31. NOT FILING. Part 9.2.1.5 indicates "you must identify who is responsible for ongoing maintenance of any SW controls left on the
site for long

- term use following your termination of permit coverage". There is nowhere on the NOT form to make this identification. Is it the EPA‟s intent that this information be placed in the project SWPPP and not on the NOT itself?

Response Refer to Response 1.6.7.



# Comment ID 0133

- A2.001.037

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 9.2 Section 9.2.1.3 of the CGP requires removal of all stormwater controls that were installed and maintained during construction, except those that are intended for long

- term use. MDT would like clarification as to what constitutes "long

- term" use. Additionally, provisions should be included to allow biodegradable controls to be left in place.

Response Refer to Respon se 1.6.7.



# 9.3 SUBMIT NOTS THROUGH ENOI SYSTEM
No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.



# 9.4 DEADLINES FOR SUBMITTING NOTS

Comment ID 0133

- A2.001.038
Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 9.4 The proposed permit condition requires submittal of an Notice of Termination (NOT) within 30 days of any trigger event listed in the permit being realized. This timeframe is not always practicable for MDT forces, nor does it seem necessary to force permit termination within a specified timeframe. As such, MDT does not believe a deadline should be specified for submitting NOTs.

Response Refer to Response 1.6.8.



# 9.5 EFFECTIVE DATE OF TERMINATION OF COVERAGE

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

10. Permit Conditions Applicable to Specific States, Indian Country Lands, or Territories

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

851 

# 10 PERMIT CONDITIONS APPLICABLE TO SPECIFIC STATES, INDIAN COUNTRY LANDS, OR TERRITORIES

Comment ID 0011

- A2.001.003

Author Name: Colón

- Zavala Emilio Organiz ation: ECZ Group, Inc. Issue Category: 10 This will allow EPA, with the participation of affected shareholders, such as PRHA members to develop CGP permit conditions t hat, while protecting the quality of Commonwealth waters in a cost effective manner, will permit the introduction of streamlining measures, advocated by the NAHB and the PRHA, such as the Single Lot Permit and the Qualifying Local Program (QLP). The PRHA is particularly interested, and has commenced efforts in that direction, of securing local agency backing to the implementation a QLP
in Puerto Rico.

Response Refer to Response 13.1.



# Comment ID 0103

- A2.001.002

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 10 In Texas, the NPDES program, including the authority for the construction storm water program (except oil and gas), is delegated to the TCEQ. As the permitting authority, TCEQ has the authority to issues NPDES permits consistent with federal rules. EPA's pr oposed
CGP contains many prescriptive requirements that go well beyond the requirements of federal rule and which may not be appropriate for Texas. In reissuing Texas' Construction General Permit, the TCEQ may elect to maintain the flexibility for choosing best management pr actices or propose different best management practices that will meet the requirements of federal rules.

Response Refer to Response 2.1.1.



# Comment ID 0103

- A3.001.002

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 10 In Texas, the NPDES program, including the authority for the construction storm water program (except oil and gas), is delega ted to the TCEQ. As the permitting authority, TCEQ has the authority to issues NPDES permits consistent w ith federal rules. EPA's proposed CGP contains many prescriptive requirements that go well beyond the requirements of federal rule and which may not be appropr iate for Texas. In reissuing Texas' Construction General Permit, the TCEQ may elect to maintain t he flexibility for choosing best management practices or propose different best management practices that will meet the requirements of federal rules.

Response Refer to Response 2.1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

APP. Appendices

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

852 

# APP.A DEFINITIONS AND ACRONYMS

Comment ID 0018

- A2.001.003

Author Name: Pollock Dr. Organization: Ocean County Soil Conservation District (OCSCD) Issue Category: APP.A
Definition of the Term "Minimize" - important to provide this clarification. The 2003 CGP did not include a definition of the term "minimize." However, that permit used the term frequently, in addition to the terms "eliminate or reduce" and "prevent." The permit also used phrases such as "where practicable" and "to the extent feasible," without providing a consistent definition of tho se terms. In response to comments, EPA determined that it was beneficial to use these terms consistently, especially where the Agency inte nded
that these words be used inter

- changeably. Consistent with the control level requirements of the CWA, in this final permit EPA is clarifying that the term "minimize" means to reduce and/or eliminate to the extent achievable using control measures (includi ng best management practices) that are technologically available and economically achievable and practicable in li ght of best industry practice. Therefore, wherever this term is used in Part 3, the permittee now has a consistent definition for what EPA intends by this r equirement.

Response Refer to Response 9.1.



# Comment ID 0038

- A1.001.020

Author Name: Minervini W. Organization: Issue Category: APP.A "Action Area" At the beginning of the fifth bulleted item, insert "areas" immediately after "The".

Response Refer to Response 9.1.



# Comment ID 0038

- A1.001.021

Author Name: Minervini W. Organization: Issue Category: APP.A "Impervious Surface" Does this term include (for purposes of the CGP) porous pavement (e.g., on roads, sidewalks, or parking lots) or vegetated rooftops, if such pavement or rooftops are designed to have high capacity for soil infiltration?



# Commen t ID 0038

- A1.001.022

Author Name: Minervini W. Organization:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

853 Issue Category: APP.A "Linear Project" Expand this definition to include construction of railroads and pedestrian or bicycle trails.

Response Refer to Response 9.1.



# Comment ID 0038

- A1.001.023

Author Name: Minervini W. Organization: Issue Category: APP.A "Perennial Stream" The second sentence should begin "In most perennial streams". In some perennial streams, dry weather flow is maintained by other sources such as reservoir releases, wastewater effluent, or melting snowpacks or glaciers.

Response Refer to Response 9.1.



# Comment ID 0062

- A1.001.054

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: APP.A
"Prohibited Discharges"

- discharges that are not allowed under this permit, including:

1 Wastewater from washout of concrete; 2 Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds and other construction materials ; 3 Fuels, oils , or other pollutants used in vehicle and equipment operation and maintenance; 4 Soaps or solvents used in vehicle and equipment washing; 5 Toxic or hazardous substances from a spill or other release; and waste, garbage, floatable debris, construction debris, and sanitary waste from pollutant

- generating activities.

Brevard County Comment: If vehicle and equipment wash water is prohibited from being discharged then the use of soaps and sol vents
is irrelevant.

Response Refer to Response 9.1.



# Comment ID 0066

- A1.001.005

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: APP.ARes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

854 The definition of "Operator" in Appendix A does not match the definition of "Operator" in Part 1.2. Whereas Part 1.2 defines an "operator" to include the party that "has operational control over construction plans and specifications, including the abili ty to make modifications to those plans and specifications," Appendix A defines an "operator" to include the party that "possesses the title of the land where the construction activity will take place and has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications." The addition of the underlined phr ase in the Appendix A definition is unjustified and not explained. Possession of title to land is, traditionally, neither required nor sufficient for an entit y to qualify as an "operator" for purposes of NPDES permit coverage. For these reasons, the underl ined phrase should be deleted from the definition in Appendix A.

Response Refer to Response 9.1.



# Comment ID 0067

- A1.001.006

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: APP.A B. Verbiage in the draft regarding the person responsible for filing the NOI/Storm Water Pollution Prevention Plan suggests that the person holding title to the property could be held accountable for compliance, even though a right

- of

- way operator (for example) is the applicant for and holder o f the CGP. To the contrary, most electric utility linear projects are constructed and maintained on servitudes or easements. The landowners are typically not involved in the design or details of the construction project or in regulatory compliance
issues.

Response Refer to Response 9.1.



# Comment ID 0091

- A2.001.022

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: APP.A 22. Part 2.3.2.5 b.ii: Appendix A indicates that Toxic Waste is Hazardous Waste. Hazardous Waste in de fined in the Resource Conservation and Recovery Act (RCRA). I am not aware of a regulatory definition of Toxic Waste. A regulatory definition shoul d be provided. Labeling a container Hazardous/Toxic Waste is not consistent with the container marking requir ements in 40 CFR 262.32, or 49 CFR part 172. Permitees should not be directed to violate the law.

Response Refer to Response 9.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

855 

# Comment ID 0098

- A1.001.023

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.A
We suggest that the definition of "Earth disturbing activities" be expanded to include activities such as filling.

Response EPA agrees. See Appendix A.



# Comment ID 0098

- A1.001.024

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.A Definition of this term should be expanded to include well point dewatering and draining of any impoundments such as ponds or lakes

Response Refer to Response 9.1.



# Comment ID 0098

- A1.001.025

Author Name: Davis Richard Organizati on: Beveridge & Diamond, P.C. Issue Category: APP.A In the construction industry the term "footprint" typically refers to the boundaries of a building pad. Because the intent he re is to identify the "limits of disturbance," we suggest that this latter phrase be substituted for the term "footprint."

Response Refer to Response 9.1.



# Comment ID 0098

- A1.001.026

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.A We suggest rewording this definition to read: "A structure placed at or below grade used to collect stormwater runoff for conveyance purposes."

Response Refer to Response 9.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

856 

# Comment ID 0098

- A1.001.027

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.A We suggest adding the term "BMP" to the list of acronyms.

Response Refer to Response 9.1.



# Comment ID 0100

- A2.001.005

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: APP.A The USEPA should define "immediately."

Response Refer to Response 9.1.



# Comment ID 0130

- A2.001.041

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: APP.A In the definition of Benchmark Monitoring in Appendix A, it states "As used in this permit, the benchmark monitoring requirement only applies to sites with disturbances of 10 or more acres that discharge to sediment and/or nutrient

- impaired waters without an EPA

approved or established TMDL." In Permit Part 4.2.2, it states "if you discharge to an impaired water that is impaired for sediment or a
sediment

- related parameter ... .... .... , including impaired waters for which a TMDL has been approved or established for the impairment, you are required to comply with the following stormwater control re quiremenls .... _ .... Those controls being benchmark monitoring. These seem to be contradictory statements and require clarification or correction.

Response EPA notes that the 2012 CGP does not define benchmark monitoring.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

857 

# APP.B PERMIT AREAS ELIGIBLE FOR COVERAGE

Comment ID 0025

- A1.001.045

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: APP.B In the 2008 permit, the White Mountain Apache Tribe required a copy of the NO!. Has that changed with this proposed permit?

Response Refer to Response 9.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

858 

# APP.C SMALL CONSTRUCTION WAIVERS AND INSTRUCTIONS

Comment ID 0025

- A1.001.046

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: APP.C " ... and retain a copy of the revised waiver as a part of your SWPPP." Ifthe contractor has a waiver, they will not have a S WPPP. Perhaps they should just keep a copy of the revised waiver on

- site?

Response Refer to Response 9.3.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

859 

# APP.D ENDANGERED SPECIES ACT REQUIREMENTS

Comment ID 0009.001.001

Author Name: Anonymous Anonymous Organization: Issue Category: APP.D Appendix D is unworkable and EPA is shirking its Endangered Species Act responsibilities by not pr oviding clear guidance on the type of stormwater discharges and their effects to a variety of different endangered species. The EPA should do a programmati c consultation under Section 7 of the ESA with the USFWS to identity which species may be adversely a ffected and to what extent. In this way, the agencies could identify measures to reduce the impacts to endangered species and their habitats. The current si tuation of having each construction agent responsible for a development contact each USFWS office is inefficient, and does not result in any measurable conservation benefit as would having more definitive guidance on the type of activities during construction, how t hey may affect federally listed species and how those activities can be curtailed to minimize effects. The current process neglects EPA's section 7(a)(1) responsibilities and does not meet the needs and requirements under section 7(a)(2). The EPA has not updated its anal ysis during this time frame with changes in species and their habitats. Impacts from construction such as erosion and sedimentation have not been identified with best management practices such that improvements can be tracked or analyzed, and the requirements fo r contact by the applicants instead of EPA skirts the requirements un der the ESA. The frustration experienced by the applicants under this permit is monumental and likely expensive to legitimate business and government operations. With a system of endangered species act consultation in this permit that is so disfunctional a nd broken, it is unreasonable to continue it for even 2 more years. The EPA should evaluate the effectiveness of the conservation benefit provided to listed species by implementation of Appendix D methods versus the benefit provided by formal consultation with the USFWS and generation of a biological opinion and guidance
document that works. Joel

Response Refer to Response 9.4.



# Comment ID 0034

- A1.001.013

Author Name: Schregardus Donald Organization: Dept of the Navy Issue Category: APP.D 13. Endangered Species Act Requirements
Proposed Requirement/Section Addressed: CGP Appendix D, Endangered Species Act Requirements
Comment: Ensure that eligibility criteria receive public review.
Discussion: It is not clear if the eligibility criteria mentioned in the Appendix will be promulgated for public review after EPA completes its consultation with USFWS and NMFS. The text notes that the eligibility criteria are draft and subject to change. Since the criteria are subject to change EPA is not, in a substantive way providing an opportunity to review and comment. This is an important issue to DoD as eligibility has been declined in the past causing uncertainty in efficient construction project progress whic h can impact
schedule and cost.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

860 Recommendation: Recomme nd that EPA promulgate the final eligibility criteria after consultation with USFWS and NMFS is complete to allow for public review and comment.

Response Refer to Response 9.4.



# Comment ID 0168

- A1.001.021

Author Name: Jordan Jill Organization: City of Dallas Issue Category: APP.D

-- Please remove the requirements for listing endangered species and historical properties. There are irrelevant to Stormwater Management.

Response Refer to Response 9.4.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

861 

# APP.E HISTORIC PROPERTIES REQUIREMENTS

Comment ID 0048

- A1.001.001

Author Name: State Brona Organization: Massachusetts Historical Commission (MHC) Issue Category: APP.E The draft Appendix E, "Historic Properties Requirements" is not consistent with the Advisory Council on Historic Preservation's regulations 36 CFR 800 that implement Section 106 of the National Historic Preservation Act of 1966 as amended.

Appendix E has applicants or their consultants make critical decisions and determinations about the presence of or effects on h istoric properties, and requires them to enter into consultations and agreements to mitigate or avoid adverse effects with the SHPO w ithout the participation of the EPA.

Under 36 CFR 800, however, these are EPA's responsibilities to meet the requirements of Section 106 of the National Historic Preservation Act. While the EPA may formally delegate some initial steps in the process (36 CFR 800.2(a)(3) and 800.2(c)(4)), EPA remains legally responsible for all findings and determinations. The responsibilities to make determinations of adverse effect, to participate in consultation, and to enter into agreement documents cannot be wholly delegated to applicants or their consulta nts (36
CFR 800.2(a), and 800.3 to 800.6).

Appendix E can be shortened, written in plain language, and made consistent with the steps in 36 CFR 800. MHC suggests that the following text be substituted for Appendix E:

Section 106 of the National Historic Preservation Act of 1966 as amended (16 USC 470f) requires the EPA to take into acc ount the, direct or indirect effects to historic properties from undertakings (projects) for which EPA provides funding or issues permi ts. The federal regulations that implement Section 106 are "Protection of Historic Properties 36 CFR 800" (available at w ww.achp.gov). The EPA has determined that activities carried out under this EPA program are projects that require review and consideration to b e in compliance with the federal historic preservation law and regulations.

Applicants or their consultant need to answer the question and follow the procedures below to assist EPA in compliance with 36 CFR
800.

Does the project involve new construction, or the demolition or rehabilitation of existing buildings or other structures or f acilities?

If no, then the app licant should certify that fact in writing and file the statement with the EPA. Based on that statement, EPA will document that the project has "no potential to cause effects" (36 CFR 800.3(a)(1)). EPA has no further obligations under the Section
106 regulations.

If yes, then the applicant or their consultant should submit project information to the State Historic Preservation Officer (SHPO) that
consists of:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

862 • The project name; project location / address; complete contact information for the project proponent and for the person submitting the information;

• A list of all federal and state permits and funding required for the project;

• A narrative description of the project including a description of any proposed demolition or rehabilitation of any structure(s) with a description of the structure(s);

• USGS map section with the actual project location and boundaries clearly indicated;

• Scaled project plans showing existing and proposed conditions; and

• Current photographs of the project a rea keyed to the plans.

(1) Mail or deliver your submittal to the State Historic Preservation Officer. See http://www.ncshpo.org for address.

(2) Provide a copy of your submittal to the EPA.

(3) Provide a copy of your submittal to the town or city government historical commission, and for projects within "local historic districts" also provide a copy of your submittal to the town or city government local historic district commission. The conta ct addresses
for loca l historical and historic district commissions are at the town or city hall.

The SHPO will comment within thirty days of receipt of complete submittals, and may ask for additional information. The EPA w ill consult with the SHPO and other consulting parties (which includes the applicant) and EPA will proceed with the steps in the federal regulations (36 CFR 800.2 to 800.6, etc.), as may be necessary for the undertaking.

Response Refer to Response 9.5.



# Comment ID 0115

- A2.001.002

Author Name: Smith Timothy Organization: National Grid Issue Category: APP.E
1.3.1.6 Determination of no adverse affect to historic properties. National Grid supports Appendix E, which sets forth proced ures to certify that a Notice of Intent meets one of the necessary criteria. National Grid is pleased to see that Criterion D is in place. In our experience, response time from some of the Tribal Historic Preservation Officer's is much longer than 30 days, and sometimes not at
all.

Response Refer to Response 9.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

863 

# APP.G NOTICE OF INTENT (NOI) FORM AND INSTRUCTIONS

Comment ID 0098

- A1.001.028

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.G
The NOI form requires estimation of the total area of the property to the nearest .25 acre. We proposed that EPA substitute "site" or "project" for the term "property" on NOI form (Section 3

-- Project/Site). This is consistent with instructions for completing EPA
3510

- X.

Also, we request that Section III of the NOI form link to the primary permittee's project tracking number in order to avoid the obligation to develop multiple, duplicative SWPPPs.

Response Refer to Response 1.6.



# Comment ID 0130

- A2.001.040

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: APP.G
On the NOI Form 3S10

- X in Appendix G, the ESA Reference to Appendix C is incorrect in Section VIII. The reference should be to Appendix 0 in the statement "If you selected criterion E from Appendix Co

Response EPA appreciates the comment and has revised the form consistent with the suggestion.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

864 

# APP.H COMPLIANCE WITH THE C

- FACTOR STABILIZATION CRITERIA

Comment ID 0046

- A1.001.027

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: APP.H This whole section appears to be too complicated and could be simplified by providing specific BMPs for a variety of situatio ns. EP A is relying on a large

- scale agricultural model to determine BMP effectiveness in a micro

- scale engineering environment.

Response Refer to Response 2.46.



# Comment ID 0110

- A1.001.014

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: APP.H This section says "protocols" in plural, what other protocols are allowed or were examined besides ASTM D6459? There is only one commercial laboratory in the US that can run ASTM D6459 and the ASTM D18.25.02 committee is currently making serious revision s to this standard. Other labor atories commonly used are Texas Transportation Institute, Utah Water Research Lab, San Diego State University. The studies that are references come from various sources other than ASTM D6459 and are therefore not comparabl e. Further, many of the referenc ed studies are based on information that is over 30 years old. The industry and the technologies used for erosion control have evolved considerably in the last 30 years and more recent data should be utilized. I would be happy to provide
additional ref erences and materials that is more current for review.

Response Refer to Response 2.46.



# Comment ID 0110

- A1.001.015

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: APP.H
Table H

- 1 should be removed all together or made to list only products techniques that are scientifically comparable, otherwise the reported C

- Factor values shown give the impression that they are all comparable when they were performed under different testing/protocol conditions.

For channel stabiliza tion, there is no table of products and associated shear stress values, so the slope technologies ought to be the same or you should have consistent channel shear stress tables with products/technologies.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

865 Response Refer to Response 2.46.



# Comment ID 0110

- A1.001.016

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: APP.H
The C

- Factor values of 0.1 for slopes less than 15% and 0.3 for slopes greater than 15% appear to be backwards. With a steeper sl ope, you would want a lower C- Factor requirement as more sediment would likely be eroding. To follow up with my previous suggestion for slopes:

Mild: < 15% - C- Factor of 0.3 or less
Moderate: 15 - 30 % - C- Factor of 0.1 or less Steep: 30 - 60 % - C- Factor of 0.05 or less
Severe: > 60 % - C- Factor of 0.05 or less

The C

- Factor values as stated before, should all be normalized to account for differences in testing facilities/field locations. I have developed an equation that allows for this to happen and would be happy to discuss this further. Using the reported C

- Factors from various laboratory/field conditions in their current form does not provide for a proper comparison and will lead to non

- conservative
results.

Response Refer to Response 2.46.



# Comment ID 0110

- A1.001.017

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: APP.H
Table H

- 1 clearly indicates that blown Straw with Tack can be used on all sites to achieve the desired EPA requirements and that
blown straw alone will meet the EPA requirements for nearly all conditions. Since these two techniques are considered to be the cheapest out in the marketplace, why would the end user pick anything other than this? In the field, blown straw and blown straw with tack do not get us ed on all slopes, especially slopes greater than 30% and this is because they have been found/observed to not work well under these conditions, yet the table above clearly indicates that these would be fine on slopes greater than 15%, which implies
that th ey could be used for slopes up to 60% or higher. This is why I suggested the following earlier in the text comments:

Mild: < 15% - C- Factor of 0.3 or less
Moderate: 15 - 30 % - C- Factor of 0.1 or less Steep: 30 - 60 % - C- Factor of 0.05 or less
S evere: > 60 % - C- Factor of 0.05 or lessRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

866 Using references for blow straw from 1978 and 1979 is not very thorough as I am aware of quite a few recent studies, one in p articular performed via ASTM D6459 that showed that blown straw has a C

- Factor much hi gher than what is reported above.

As I mentioned earlier, either this table should be much more thoroughly developed with consistent and comparable data or rem oved entirely as it will lead to serious confusion and problems.

Response Refer to Response 2.46.



# Comment ID 0110

- A1.001.019

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: APP.H In environmentally sensitive areas, the use of plastic nettings should not be used. Instead, a leno weave natural fiber netti ng should be required.

If Table H

- 1 is to be included, a much more comprehensive listing of the advanced hydraulic matrices should be included, such as Bonded Fiber Matrices, Flexible Growth Mediums and Stabilized Mulch Matrices. A good reference for these type s of products can be found in the attached published paper.

Response Refer to Response 2.46.



# Comment ID 0110

- A1.001.020

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: APP.H Page H

- 7, top - A much more comprehensive listing of the advanced hydraulic matrices should be included, such as Bonded Fiber Matrices, Flexible Growth Mediums and Stabilized Mulch Matrices. A good reference for these types of products can be found in the attached published paper.

Response
Ref er to Response 2.46.



# Comment ID 0139

- A2.001.005

Author Name: Aho Andrew Organization: Geosynthetic Materials Association (GMA) Issue Category: APP.HRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

867 C Factor calculations for synthetic (Turf Reinforcement Mats) TRMs vegetated and un

- vegetated should be included as acceptable
stabilization methods -

• In addition, there needs to be a differentiation among the various TRMs in the industry today. While all may provide the same C Factor on the first day of installation, the variation in the C Factor throu gh the duration of the project or until a final accepted vegetative cover of 70% is achieved will change drastically if the wrong product is used for the application.

• To expand upon the above, hard requirements need to be made for UV stabilization of the TRM (the industry standard ASTM 4355 percent of tensile strength retained at 500 hours is a geotextile specification and needs to be modified to 5000 hours for TR Ms that could be exposed to the sun for long periods). UV compromised TRMs' C Factor will be diminished.

• Tensile Strength Requirements need to be made to differentiate TRMs. A TRM that is damaged during construction or mainten ance due to low tensile strength will have its C Factor diminished as well. A simple calculation shows that on a 3:1 slope, a typical tractor type highway mower can exert 1800 #/ft of force in the direction perpendicular to face of the slope. So a TRM with less tha n 3000 #/ft of tensile strength should not be used under wheel loading.

• There are other things pertinent to the selection of a TRM besides the C Factor and the new guidelines need to address this. The guidelines need to take the next step and consider the application in which the TRM is to be used and then use material perfo rmance propertie s and hydraulic performance properties to help the designer make the appropriate TRM selection.

Response Refer to Response 2.46.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

868 

# APP.I 2

- YEAR, 24

- HOUR STORM FREQUENCIES

Comment ID 0115

- A2.001.007

Author Name: Smith Timothy Organization: National Grid Issue Category: APP.I Further, with respect to Appendix I, the reference to the Cornell Method needs to be clarified. The Cornell method requires a conversion from a "one calendar day" to a 24

- hour storm event. The numbers shown on Map 1 from the Atlas of Precipitation Extremes for the Northeastern United States and Southeastern Canada would need to be multiplied by 1.13 to be equivalent to a 24

- hour storm. EPA should specify which design storm should be used, as they are not one and the same.

Response See Response 2.9.



# Comment ID 0121

- A2.001.003

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: APP.I The draft language refers to the Cornell Method (see Appendix I). The Cornell method requires a conversion from a "one calendar day" to a 24

- hour storm event. The numbers shown on Map 1 from the Atlas of Precipitation Extremes for the Northeastern United
States and Southeastern Canada would need to be m ultiplied by 1.13 to be equivalent to a 24

- hour storm. EPA should specify which design storm should be used, as they are not one and the same.

Response See Response 2.9.



# Comment ID 0133

- A2.001.039

Author Name: Martin Tom Organization: Montana Departme nt of Transportation (MDT) Issue Category: APP.I Appendix I specifies national standards for rainfall intensity at specified frequencies and durations. MDT's hydraulics analy ses often includes more refined, site

- specific data. MDT requests clarification on the acceptability of using our own data.

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

869 

# Comment ID 0137

- A2.001.021

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: APP.I Appendix I

‐ The permit references technical paper number 40 published in 1961. This document is no longer applicable for many
parts of the country per the referenced link.

http://www.ncdc. noaa.gov/oa/documentlibrary/rainfall.html#atlas14

This has been superseded by a statistical evaluation and establishment of rainfall events by NOAA. Since it is interactive an d online this should be the reference document not Technical Paper 40. See the link below for the State of Maryland. This information updates
the 1961 data by adding over 40 years of new rainfall data to better define the various storm events. http://hdsc.nws.no aa.gov/hdsc/pfds/orb/md_pfds.html

Response See Response 2.9.



# Comment ID 0159

- A1.001.019

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: APP.I In the Appendix I, the permit references the technical paper number 40 published in 1961. This document is no longer applicable for many parts of the country per the referenced link.

http://www.ncdc.noaa.gov/oa/documentlibra ry/rainfall.html#atlas14

This has been superseded by a statistical evaluation and establishment of rainfall events by NOAA. Since it is interactive an d online this should be the reference document not Technical Paper 40. See the link below for the State of Maryland. This information updates
the 1961 data by adding over 40 years of new rainfall data to better define the various storm events. http://hdsc.nws.noaa.gov/hdsc/pfds/orb/md_pfd s.html

Response See Response 2.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

870 

# APP.J IMPAIRED WATER REQUIREMENTS

Comment ID 0015

- A2.001.025

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: APP.J Q26. Turbidity NTU Level. We have no proposal on the turbidity NTU limit.

Response Refer to Response 9.6.



# Comment ID 0021

- A1.001.007

Author Name: Unrein Terrance Organization: Tepa Issue Category: APP.J 7. Will Tables for Water Quality Impaired Waters be provided for Colorado (Federal Facilities in Colorado, Permit Number COR10000F).

Response Refer to Response 9.6.



# Comment ID 0026

- A1.001.008

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: APP.J However, it is not clear that the metrics employed by the Agency to develop the draft CGP's technical provisions, particularly those in Appendix J, Section 4, were created using procedures that are consistent with these requirements. Quite simply, more administ rative transparency is needed and app ropriate.

Response Refer to Response 9.6.



# Comment ID 0037

- A1.001.058

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: APP.JRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

871 In Appendix J, EPA proposes the benchmark monitoring levels that must be met if ap plicable to a site. Each level is based on the underlying water quality criteria that apply to the receiving water. If the water quality criteria for a receiving water is expressed as an incremental value above "natural background" levels of the pollutant in the receiving water (e.g., 10 NTUs above background levels of turbidity), EPA has proposed that the benchmark is set at the value that is specified in the criterion (e.g., in the example, the benchmark would be 10 NTU). The Southern Ute Growth Fund does not support assigning the incremental value used in water quality criteria as the benchmark since assigning a value of 0 to the natural background levels for turbidity in many rivers and streams in the s outhwest is unrealistic and very stringent. The Sout hern Ute Growth Fund believes it is more appropriate to collect a receiving water sample at a location upstream of the farthest upstream stormwater outfall for the project during the rain event and use this natural back ground level
to determine the benchma rk level.

Response Refer to Response 9.6.



# Comment ID 0045

- A1.001.009

Author Name: Epstein Lee Organization: Chesapeake Bay Foundation Issue Category: APP.J Second, with respect to benchmark levels set out in Appendix J, we note that the District of Columbia's impaired waters are not anywhere displayed in Appendix J - although the Anacostia River is impaired (inter alia) for sediment and nutrients, Kingman Lake is impaired for TSS, and Watts Branch is also impaired for TSS; and dozens of other water bodies and watersegments are currently listed or have TMDLs. We urge EPA to include the District in the Appendix and to factor in the District's unique and compact geograp hical status (as compared to the few states which will be subject to this rule) when d etermining and designating thresholds and benchmarks.

Response Refer to Response 9.6.



# Comment ID 0051

- A2.001.011

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: APP.J Concerning the methods of benchmark monitoring, MRWC supports the suggestion to require permittees to conduct a pre

- construction discharge sample in order to determine possible natural background values, so that a specific benchmark level could be assign ed (Appendix J, Part 2). Whi le this would admittedly require an extra step of work and consideration for the permittee, the additional efforts are merited by the potential to significantly improve the established benchmark monitoring system by tailoring the cr itical values to the spe cific water of concern. This would hopefully serve the dual purpose of setting reasonable and attainable standards for operators and of protecting impaired waters from significant increases of pollutants above a natural level.

Response Refer to Response 9.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

872 

# Comment ID 0068

- A1.001.030

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: APP.J In light of the comments above, EPA's proposed Appendix J should be removed from the Proposed CGP. The 2008 CGP provides sufficient guidance and has proven successful at implementing water quality standards obligations of the CWA. Proposed Append ix J, recognizing EPA intended efforts to help permittees, is more likely to create confusion and significant cost, with no demonstration that any additional benefits will be derived in comparison to the more simplified and streamlined approach of the 2008 CGP.

Response Refer to Response 9.6.



# Comment ID 0074

- A2.001.029

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: APP.J The DEQ does not believe it is workable to require permittees to conduct a preconstruction discharge sample in order to deter mine possible natural background values.

Response
Refer to Response 9.6.



# Comment ID 0093

- A2.001.011

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: APP.J Other provisions of the Draft - Part 4.2 through Appendix J - lead AGC to fear that EPA is seeking to establish unrealistic performance standards for permittees. These provisions wrongly assume that the natural background level of dirt and other pollutants in s tormwater is zero. See Appendix J at J

- 5. Thus, the starting point for the agency's primary perf ormance metric in this comprehensive and critical scheme also rests on the assumption that, in a pure natural setting, rain never causes dirt to move. This assumption infects all of the pollutant concentrations levels (i.e., the "benchmark" values) that wi ll, if exceeded, become a water quality concern.

Appendix J of the Draft states that EPA interpreted state

- specific water quality criteria to establish the benchmarks included in the Draft. One problem with this approach is that theinconsistency in the way the states express such criteria has yielded both inconsistent and unverifiable results (e.g., "some criteria for turbidity are expressed as a single limit, such as 25 NTU, whereas other criteria are expressed as a certain amount above background level s of turbidity"). The second problem is the one to which AGC has already pointed out: EPA did not have access to established natural background levels for each of the impaired waters. Thus, the agen cy failed to correlate benchmark levels to natural backgro und pollutant levels (i.e., failed to account for natural variability in stormwater discharges). By assigning a value of "0" to the natural background level of each pollutant, EPA set very stringent and probab lyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

873 unachievable benchmarks. A third problem is that the specific benchmarks in Appendix J are based on low

- flow conditions rather
than conditions likely to be present during a rain event. Finally, AGC is concerned that the use of nitrogen or phosphorous fertilizer to establish the required vegetative cover for stabilization would impact the ability to achieve benchmark levels.

Response Refer to Response 9.6.



# Comment ID 0096

- A1.001.063

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: APP.J Nearly all of the values in TMDL limits are based on an in

- stream turbidity increase from upstream values. This requires upstream and downstream sampling, not sampling of the discharge from the construction site. If EPA means to apply these benchmarks to the
constructio n discharge, they are not achievable. Most of the TMDL turbidity increases listed in Appendix J are 5 or 50 NTU (above upstream values). For most locations and soil types, it would be virtually impossible to meet either of these limits directly on a consis tent basis. There would be frequent exceedences of the benchmark, which would require constant corrective actions that would not improve the discharge.

The actual discharge from a construction site should not have to be as low as the benchmark value, in part because the discharge would be diluted by the receiving stream, and in part because the upstream turbidity would be elevated during rain events. In fact, most TMDL requirements are a differential turbidity value. Therefore, applying these limits directly to the discharge is unreasonable. The operator will be required to take repeated corrective action as a result of the low benchmark values. These costs could be ve ry significant without improving stormwater discharge. We believe the best way to achieve TMDL goals is to provide localized BMP solutions based on the specific requirements of the TMDL.

EPA's Appendix J benchmark values are intended to be compared to permitted entities construction site discharge. However, the data in this appendix does not indicate what might be a reasonable turbidity benchmark for the discharge from a construction site. The footnotes to the turbidity limits (with a few exceptions) all appear to be limits to the increase over upstream background co ncentrations in the streams, not of actual construction site discharge. Here are two example footnotes in the Idaho TMDL turbidity limits:

Idaho TMDLs' 50 NTU increase standard:

"IDAPA 58.01.02.250 - Surface Water Quality Criteria for Aquatic Life Use Designations.

a. Section 250.02.e - Cold Water - Turbidity, below any applicable mixing zone set by the Department, shall not exceed background turbidity by more than fifty (50) NTU instantaneously or more than twenty

- five (25) NTU for more than ten (10) consecutive days.

And for lower turbidity limits of no more than a 5.0 NTU increase at locations measured at a public water supply intake: "IDAPA
58.01.02.252 - Surface Water Quality Criteria for Water Supply Use Designations.

a. Section 252.01.b.ii - Domestic - Turbidity as me asured at the public water intake shall not be: 1) Increased by more than 5 NTU
aboveRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

874 natural background, measured at a location upstream from or not influenced by any human induced nonpoint source activity, whe n background turbidity is 50 NTU or less; 2) Increased by more than 10% above natural background, measured at a location upstream form or not influenced by any human induced nonpoint source activity, not to exceed 25 NTU when background turbidity is great er than 50 NTU."

Response Refer to Response 9.6.



# Comment ID 0115

- A2.001.023

Author Name: Smith Timothy Organization: National Grid Issue Category: APP.J With respect to Appendix J regarding impaired waters and benchmark limits, National Grid recommends that if, in the future,
benchmark limits are proposed for Massachusetts that there be an opportunity to provide input and comment.



# Comment ID 0121

- A2.001.015

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: APP.J
While the tool described in Appendix J that is being developed by EPA to help identify discharges to impaired waters is likely to b e useful for permittees, it will lead to many false positives. Within a given catchment area there are likely to be numerous ar eas that are waters of the U.S. Therefore, it is likely that many discharges from locations within the catchment will drain to other water s of the U.S. before the impaired segment in the catchment. In addition, it is possible that the discharge would be downst ream of the impaired segment. Neither of these cases should be considered a discharge to an impaired water. This should be emphasized in the langu age in Appendix J.

Response Refer to Response 9.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

875 

# APP.JQ ADDRESSING NATURAL BACKGROUND IN BENCHMARK

Comme nt ID 0026

- A1.001.010

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: APP.JQ 3. Draft CGP § 4.2, through Appendix J, imposes unrealistic and scientifically unsupportable performance requirements on owne rs and developers. For purposes of setting applicable permit requirements, the EPA assumes that the natural background level of dirt and
other pollutants in stormwater is zero. See Appendix J at J

- 5, http://w ww.epa.gov/npdes/pubs/cgp_appendixj.pdf (accessed June 17, 2011). In other words, the Agency's primary performance metric in this comprehensive and critical regulatory regime rests on the assumption that dirt never moves in a rainfall.

Notwithstanding th e self

- evident absurdity of this assumption, the Agency notes only that this "will result in a very stringent benchmark level." The Agency requests comments on the zero background level and asks whether "commenters believe it is [inste ad] workable to requi re permittees to conduct a pre

- construction discharge sample in order to determine possible natural background values, so that the benchmark level could be assigned based on this sample." See id. However, the Agency states that the fina l regulatory require ment will be "a benchmark that is reasonably correlated to criteria that are established in reference to natural background pollutant levels" in all cases. Id.

The Chamber believes that the Agency lacks the legal authority to impose a zero benchmark leve l, or any other level, without first complying with 33 U.S.C. § 1314(b)(1)(B) and the RFA. The direct and indirect costs of this irrational and scientifically uns ound approach could be substantial and should be calculated and accounted for. Furthermore, there is absolutely no evidence that the Agency has considered, much less demonstrated, whether there are demonstrable environmental benefits to offset the potentiall y huge employment and economic costs this provision may impose on property owners, developer s, builders and consumers. In the absence of such a demonstration, the EPA's action is not justified.

Response Refer to Response 9.6.



# Comment ID 0026

- A1.001.018

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: APP.JQ G. The EPA ought to demonstrate that zero dirt or "natural background" benchmark is scientifically justified and has been dev eloped in compliance with all IQA and statutory requirements. Also, it should cite the controlling legal authority that authorizes such a
benchmark.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

876 Response Refer to Response 9.6.



# Comment ID 0064

- A1.001.048

Author Name: Dees Richard Organization: City of Meridian Issue Category: APP.JQ Appendix J, Part 2, page J

- 5 - Second paragraph of "Request for Comment" under "Determining Your Benchmark Monitoring Level"

•Conducting a pre

- construction discharge sample would be helpful in establishing background conditions. However, for projects with a long duration, background water quality can change significantly throughout a calendar y ear. Suggest this be accounted for by suggesting quarterly background monitoring.

Response Refer to Response 9.6.



# Comment ID 0097

- A1.001.019

Author Name: Knutsson John Organization: Daniel Corporation Issue Category: APP.JQ 26. Due to natural variation (seasonal, hydrologic, etc) in the background values, I do not understand how the benchmark value will be
of benefit.

Response Refer to Response 9.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

877 

# APP.L STANDARD PERMIT CONDITIONS

Comment ID 0024

- A2.001.006

Author Name: R ogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: APP.L Additionally, because EPA is in the process of revising the national post

- construction requirements for areas of new development and redevelopment, with an expected final rule in 2012, [FN 1] EPA should include a reopener clause in the 2011 CGP so that those requirements can be incorporated into the CGP at that time.

[FN I] EPA, Office of Water, Stormwater Rulemaking Listening Sessions Presentation (3 Feb. 2010), av ailable at http://www.epa.gov/npdes/pubs/sw rule listening sessions presentation.pdf.

Response Refer to Response 9.7.



# Comment ID 0098

- A1.001.029

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.L The language of the certification is inappropriate where used to certify a SWPPP. Where a contractor had no involvement in developing a SWPPP, as may be the case with many secondary permittees, it is a misstatement to execute a certification stating that the SWPPP was prepared under the contractor's direction or supervision. There may be alternate approaches to resolving this inconsistency, but one proposed suggestion appears below:

DRAFT ALTERNATIVE LANGUAGE FOR SWPPP CERTIFICATIONS (CHANGES IN ALL

- CAPS):

I certify under penalty of law that this document and all attachments were prepared under my direction and supervision in acc ordance with a system designed to assure that qualified personnel properly gathered and ev aluated the information contained therein OR HAVE BEEN REVIEWED BY ME IN ACCORDANCE WITH A SYSTEM DESIGNED TO ASSURE THAT QUALIFIED PERSONNEL PROPERLY EVALUATED THE INFORMATION CONTAINED THEREIN. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information contained is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false info rmatio n, including the possibility of fine and imprisonment for knowing violations.

Response Refer to Response 9.7.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

878 

# APP.M BUFFER GUIDANCE

Comment ID 0021

- A1.001.001

Author Name: Unrein Terrance Organization: Tepa Issue Category: APP.M
1. Will there be an Appendix M Table provided for Colorado (Federal Facilities in Colorado, Permit Number COR10000F).

Response EPA notes that it has made available sediment removal efficiencys for the major geographic areas of permit coverage, but due to limited resources, did not do this analysis for all covered areas, such as covered federal facilities and tribal areas. EPA w ould allow permittees in areas not included in the tables to either choose the a geographic area that most closely matches their si te, or do a site

specific calculation to get the 50

- foot sediment removal equivalency.



# Comment ID 0030

- A2.001.007

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: APP.M Appendix M, Tables 1 -8
These tables do not adequately convey the amount of variation in sediment removal rates among buffers. These tables also include not only the anticipated sediment removal of the buffer but also a silt fence. Although we are in complete agreement that a perim eter
control sh ould be used between a construction area and a vegetated buffer, including this sediment removal rate as part of the buffer does not seem appropriate. If these tables are going to be used, they should only include an estimate of the sediment removal of the buffer, since this is what you are trying to replace.

Response See Response 2.3.9.



# Comment ID 0030

- A2.001.009

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: APP.M Appendix M, M -8
Charts and models are often reliable and appropriate tools, however, they are only as reliable as the input data. Most sediment removal data has been generated by laboratories and manufacturer of BMP products; limited field data has been collected on sediment r emoval rates by construction BMPs. Furthermore, the data that has been collected is highly variable and depends a great deal on site
conditions.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

879 Due to the uncertainty surrounding these charts and models, a toolbox approach for the design and selection of appropriate BM Ps to manage and control construction stormwater discharges would meet EPA's intent to protect waters of the U.S.

Response See Response 2.3.9.



# Comment ID 0038

- A1.001.006

Author Name: Minervini W. Organization: Issue Category: APP.M In discussing what "waters of the United States" are, Appendix M of the draft CGP does nothing more than quote the 40 CFR § 122.2 definition of "waters of the United States." Notwithstanding that definition, identifying whether particular streams, tributa ries, wetlands, ditc hes, or other water

- related areas (or portions thereof), are legally "waters of the U.S." is not necessarily simple. See the proposed USEPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act
discussed i n the May 2, 2011 Federal Register (76 Fed. Reg. 24479), and available at http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4

- 2011.pdf.

Response See Response 2.3.4.



# Comment ID 0049

- A1.001.040

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M While detailed information provided by EPA on buffer strips is excellent, mandating the use of such systems is not advisable.
• Buffer strips are only effective when they are able to accept sheet flows.
• Construction sites nearly always result in concentrated flow conditions.

Response See Response 2.3.3.



# Comment ID 0049

- A1.001.041

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M EPA emphasis on using results found in Table 1 through Table 8 is not advisable.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

880 • No information has been provided that justifies "estimated % sediment removal" values are bas ed upon actual field research.
• No information has been provided that illustrates how performance values change as numerous runoff events discharge over th e buffer strips throughout one year.

• No information has been provided about the height and mass of vegetation necessary to achieve the reported values.
• No information has been provided about the limitations of buffer strips.
• All values listed assume construction site sheet flow conditions, which rarely occur.

Response See Response 2.3.9.



# Comment ID 0049

- A1.001.042

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M Using the results of RUSLE2 to create absolute predictive results should not occur.

• The model has limitations on the amount of contributing area allowing runoff to flow onto buffer strips.

• Erosion protection by the establishment of vegetation represents a combined effect of interrelated cover and management var iables. Thus, erosion rates are calculated using the time necessary to achieve permanent stabilization. It is for this reason that RUSLE2 no longer incorporates static C

- Factor values.

• Sediment control is represented by a combined effect of support practices and management variables. The model assumes
effectiveness of sediment control measures (e.g., straw bales, silt fences, sediment basins, etc.) function in "idealized" conditions. For example, fiber roll barriers never fail; sediment basins always remove most of the suspended particles entering the structure ), and s o forth.

• Fiber rolls and silt fence barriers will always fail while construction activities occur. Thus, modeling results must be vi ewed as assessing possible alternatives under idealized conditions.

• RUSLE2 results should never be relied upon as be ing "absolute"

--- only as providing a comparison. Even the author of RUSLE2 (George Foster) specifically warns users of the model that soil loss values are to be viewed as a ". . . guide rather than be ing considered
absolute."

Response See Response 2.3.9.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

881 

# Comment ID 0049

- A1.001.043

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M • Using RUSLE2 to provide absolute annual erosion rates from a 100

- foot long denuded slope does not even begin to represent
constructi on site conditions. Items associated with slope steepness, total contributing areas, individual storm events, and so forth mu st be part of any assessment. Results of RUSLE2 modeling only provide an idealized comparison of annual loading.

• In the first example on Page 207, it appears EPA assumes that for all runoff events, a 50 foot wide buffer strip in MA will reduce sediment from runoff by 96%. This is a ludicrous assumption!

Response See Respones 2.3.9.



# Comment ID 0049

- A1.001.044

Author Name: Fif ield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M EPA must provide data from field research studies (throughout an entire construction season) that substantiate 96% reduction of sediment by buffer strips. EPA is advocating that a 5 0- foot wide strip of vegetation is more effective than capturing polymer treated runoff waters entering a professionally designed SCS. Such a conclusion is incorrect and very misleading!

Response See Response 2.3.9.



# Comment ID 0049

- A1.001.045

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M • For the second example on Page 208, EPA assumes a perimeter silt fence exists immediately upstream of the vegetative buffer strip.
The RUSLE2 model assumes silt fe nce barriers have been installed correctly and never fail. Also, it appears the model assumes runoff will discharge through the geosynthetic material after depositing sediment. Finally, it appears flows discharging onto the fi ber roll barrier (which also never fails) that always provides filtration before discharging onto the vegetative buffer strip. This second example is idealistic and will never occur on a construction site. First, silt fence barriers will likely fail for concentrated flow conditions.
S econd, a typical silt fence barrier constructed out of woven polypropylene material will discharges very little water. Third, the fiber roll material will eventually become clogged with soil material and provide little reduction of sediment from runoff wat ers. In summary, the second EPA scenario is also not realistic.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

882 • EPA must proceed with utmost caution about the effectiveness of buffer strips. I cannot find any scientific data or publica tions that
substantiate EPA's conclusions about the effectiveness of buffer strips.

• If the EPA values have been obtained from published data for the scientific community to review and assess, then this data must be made available for review and confirmation by the scientific community.

EPA assumes construction sit es have relatively uniform slopes without topographic features. • Construction sites do not have uniform slopes and topographic features are the norm.

EPA assumes a smooth soil surface exists on the construction site. • Construction sites usually consist of highly disturbed soils.

Response See Response 2.3.9.



# Comment ID 0051

- A2.001.005

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: APP.M MRWC supports the material in Appendix M

- Buffer Guidance which recognizes that buffer quality and maintenance is an important aspect of potential sediment and runoff control. We encourage making the language in this section stronger to imply that rest oring vegetation, leaving woody debris or biomass, and replac ing invasive species with native plants is a responsibility, not an option, for the operator. To facilitate the use of native vegetation, we suggest providing resources about species native to each particular area. This will also serve as a valuable resource for the creation of buffers and natural alternatives (Part 2.1.2).

Response See Response 2.3.3.EPA also notes that it doesn't feel that it is the role of the Agency to mandate what vegetation is in the natural buffer and what vegetation. However, EPA agrees native vegetation is better environmentally than invasive vegetation, and therefore EPA has retained the language encouraging that native vegetation be preserved and/or restored.



# Comment ID 0053

- A2.001.047

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: APP.M The Permit states: "If it is infeasible to provide an undisturbed naturally vegetated buffer of any size between the disturbe d portion of your site and any waters of the U.S., implement sediment and erosion controls that achieve the equivalent sediment load reduction as an undisturbed naturally vegetated, 50

- foot buffer."Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

883 No permittee will claim they are able to provide an undisturbed naturally vegetated buffer to be feasible and therefore never adhere to this clause. Consider replacing the word "infeasible" with "not possible"

Response See Response 2.3.1.



# Comment ID 0053

- A2.001.048

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: APP.M The Permit states: "Development of a site where no buffer area exists due to prior disturbances. For example, sites where all vegetation in the buffer area has been removed and replaced with impervious surfaces as a result of prior development are not subject to the buffer requirement at all."

In many areas of the arid southwest, no buffer area exists naturally. The first sentence alludes to a buffer area not being e xistent only in the case of prior disturbance and therefore excluding such cases of vegetation being absent for natural reasons.

Consider revising the language in the first sentence to include naturally denuded areas, or remove the portion stating "due t o prior
disturbances".

Response See Response 2.3.5.



# Comment ID 0053

- A2.001.049

Author Name: Boesch Kevin Organizati on: Logan Simpson Design, Inc. Issue Category: APP.M The Permit requires permittees to design treatment equivalent sediment removal of a 50 foot vegetative buffer and refers user s to the performance charts starting on page M

- 10. The performance charts are very general and do not reflect situations, vegetation, soils, and
therefore accurate sediment removals for all areas. Consider revising language/charts to refer permittees to determine soil characteristics and vegetation types at the project l ocation.

Again the Permit uses the term "infeasible" and "feasible". Consider replacing this soft language throughout the Permit.

Response See Response 2.3.9 and 2.3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

884 

# Comment ID 0089

- A1.001.002

Author Name: Keenum Michael Organization: City of Lubbock
Issue Category: APP.M Appendix M - Buffer Guidance, Section 2.A. Compliance Alternative 2.1.2.1.a: 50

- foot Naturally Vegetated Buffer discusses the Ordinary High Water Mark as a reference point to begin the buffer zone, but does this refer to any particular level? For instance, does it equate to a 100

- year 24

- hour storm event elevation that would coincide with FEMA flood zones, or is it more of an arbitrary level pool determination? There is no definition provided for Ordinary High Water Mark, so it seems to be l eft up to interpretation which makes it difficult to define and enforce. Some clarification on this definition would be helpful.

Response See Response 2.3.4.



# Comment ID 0093

- A2.001.035

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: APP.M In addition, the alternative measures provided in lieu of constructing a 50

- foot natural buffer are not practical. Tables 1 through 8 in Appendix M list very specific localized vegetation and sediment removal performance for specific states and territories covered by the EPA CGP only. These tables would not apply in other states that may choose to adopt the EPA CGP. This will place an undue bur den
on the states that have their own CGP to institute simil ar estimated removal tables for the various regions and cover vegetation typical within their state. AGC asks that EPA clarify that natural buffer sediment removal values in other states or regions within o ther states will not necessarily be equivalent to these tables, and that they are derived only for the specific localities where the EPA CGP is currently in force.

In addition, AGC believes that a majority of the sediment removal values presented in the tables in Appendix M are unrealisti cally high for many rain events. For most of these tables, the fine clay sediment is being predicted to be removed at over 80%. This is a completely impractical estimate. EPA appears not to have given any consideration as to the type of rain event intensity or du ration i n making these % removal predictions, even though these factors will have a significant impact on removal efficiencies. EPA also has acknowledged that not every vegetation, soil type, and slope condition is covered.

Response See Response 2.3.9.



# Comment ID 0098

- A1.001.030

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.MRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

885 We note that the 50

- foot buffer area is measured "horizontally" from the stream channel. We suggest replacing that term with the term "perpendicula r" to ensure that the buffer requirement is properly understood and applied.

Response See Response 2.3.4.



# Comment ID 0124

- A2.001.002

Author Name: Eubanks Kevin Organization: Clark County Regional Flood Control District Issue Category: APP.M Appendix M to the draft permit asserts that "Buffer restoration goals in arid/semi

- arid areas should be . . . the establishment of dense native vegetation . . ." (Buffer Guidance, page M

- 6). But native vegetation along dry washes is rarely dense. When a perennial fl ow was artificially established in local dry washes, some adjoining areas might develop dense riparian vegetation dominated by n on

- native plants, but others retained their sparse desert vegetation. EPA's demand for dense native vegetation is therefore unre alistic.

Response See Response 2.3.7.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

SUP . General Statement of Support

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

886 

# SUP GENERAL STATEMENT OF SUPPORT

Comment ID 0015

- A2.001.001

Author Name: Cox Kim Organization: City of Portland, Burea of Environmental Services Issue Category: SUP
1. Format. The format is much improved over the previous general permit and it is much easier to understand and track issues through
the various sections.

2. Appendices. The information in the appendices is very helpful and should be retained.
3. Applicability. The additional requirements in the applicability section are very useful and should assure some integration with other measures. We encourage EPA to consider local land use review as another eligibility requirement.

Response Refer to Response 10.1.



# Comment ID 0024

- A2.001.008

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: SUP We commend EPA for improving the structure and readability of the CGP, and for clarifying a number of specific requirements s uch
as what circumstances and deadlines apply to corrective actions. These elements are important to improving the overall ease of compliance with, and enforcement of, the CGP's terms.

Response Refer to Response 10.1.



# Comment ID 0051

- A2.001.001

Author Name: Saales Tracie Organization: Merrimack River Watershed Council, Inc. (MRWC) Issue Category: SUP MRWC strongly supports the efforts of U.S. EPA to develop and reissue a general NPDES permit that requires greater efforts on the part of permittees to ensure th at stormwater discharges from construction and development activities are managed and monitored to an appropriate extent with non

- numeric effluent limitations

Response Refer to Response 10.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

887 

# Comment ID 0074

- A2.001.001

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: SUP The Oklahoma Department of Environmental Quality (DEQ) recognizes the importance of revising the current EPA's Construction General Permit (CGP). The CGP not only applies where EPA is the permitting authority, but also serves as a model for the permits issued in the delegated states. The DEQ agrees with the overall objective of the proposed revisions which will implement the new Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (ELGs) under Part 450 of 40 CFR, which became effective on February 1, 2010. Additionally, DEQ supports the concept of requiring construction site owners/operators to meet a suite of mandatory req uirements, such as erosion and sediment controls, soil stabilization practices, pollution prevention measures, surface outlet protection and dewatering practices, along with reasonable flexibility.

Response Refer to Response 10.1.



# Comment ID 0076

- A1.001.001

Author Name: Steadman Marc Organization: Target Corporation Issue Category: SUP Target applauds the EPA's attempts to create a practical and implementable permit. We seek to provide constructive comments t hat consider a wide variety of circ umstances which will be presented nationwide at construction sites underneath this permit.

Target's comments focus on feasibility and implementation of non

- numeric effluent limits (Best Management Practices) and both the effluent limit and benchmark monitoring process and reporting. We believe that by clarifying and simplifying permit language, the EPA will maintain environmental integrity. In addition, we are hopeful that our comments will contribute to improved complian ce from industry by seeking to clearly define standards and procedures while maintaining adequate flexibility for businesses to adapt to weather events! Target makes no suggestion to decrease existing standards and supports efforts to manage stormwater discharge s during construction.

Response Refer to Response 10.1.



# Comment ID 0094

- A1.001.001

Author Name: Oppenheimer Jonathan Organization: Idaho Conservation League Issue Category: SUP
Based on a review of the proposal to reissue and amend the Construction General Permit (CGP), the Idaho Conservation League strongly supports the proposal to revise the 2008 CGP. We agree that there is a need to update the CGP to incorporate current rules,
best

- available

- science and to improve the ability of the EPA to protect and sustain one of our nationDs precious resources: clean water.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

888 

# Comment ID 0100

- A2.001.001

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: SUP In addition to the specific comments contained in the attachment, the City also offers this general comment: the City supports improving water quality and protecting waterways from erosion and sediment from construction site runoff.

Response Refer to Response 10.1.



# Comment ID 0107

- A2.001.001

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: SUP Twenty percent of New Mexico's impaired waters are impaired for sediment related reasons (2010

- 2012 State of New Mexico Clean Water Act 303(d)/305(b) Integrated Report). While it doesn't rain often in New Mex ico, when it does there is often very high intensity runoff (Gautam et al, 2010). These two facts underscore the need for strong construction stormwater regulations to ensure the protection of New Mexico's water resources. The proposed permit takes some mu ch

- needed steps to protect water quality yet still falls short in a number of areas. Section specific comments are outlined below.

Response Refer to Response 10.2.



# Comment ID 0109

- A2.001.001

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: SUP The Nashua River Watershed Association (NRWA) is writing to support the improved conditions in the proposed EPA Construction Stormwater General Permit ("Permit"); we also urge EPA to further strengthen the p ermit to require state

- of

- the

- art control measures. We encourage the EPA to issue a permit that is strongly protective of water quality

Response Refer to Response 10.3.



# Comment ID 0122

- A2.001.001

Author Name: Mackin Kerry Organization: Capitol Region Watershed District (CRWD)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

889 Issue Category: SUP

treatment practices are currently available that are cost

- effective and capable of containing pollutants on site. The Ipswich River Watershed Association (IRWA) supports the improved conditions in the proposed EPA Construction Stormwater General Permit ("Permit") and calls on EPA to further strengthen the permit to require state

- of

- the

- art control measures. As a citizen who values clean streams, lakes, and coastal areas, I/we urge EPA to issue a Permit that is strongly protective of water quality

Response Refer to Response 10.1. Refer also to Response 10.2.



# Comment ID 0123

- A2.001.001

Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: SUP CRWD generally finds the proposed permit to be an improvement to the 2008 CGP as it provides increased clarity and guidance. The most significant change to the permit is the addition of Numerical Effluent Limits and required monitoring. While CRWD supports the inclusion of this monitoring, EPA should outline how the reporting of monitoring data will be used to improve compliance with the permit and protect water quality. The data collected will be of little use if there is not a plan to review and respond to da ta indicating

non

- compliance. Also, it is difficult to provide a complete response without inclusion ofthe numerical Nephelometric Turbidity Un it (NTU) limit.

Response Refer to Response 10.1.Refer also to Response 13.1.



# Comment ID 0135

- A2.001.002

Author Name: Orel Lin da Organization: Massachusetts Association of Conservation Commissions (MACC) Issue Category: SUP Contrary to a range of other environmental issues, means to resolve this problem are reasonably available, cost

- effective and implementable on the local level. Such means, which are strongly supported by the Massachusetts Association of Conservation Commissions (MACC) are addressed in the in the proposed EPA Construction Stormwater General Permit (Permit).

Response Refer to Response 10.1.



# Comment ID 0138

- A2.001.001
Author Name: Khalsa EkOngKar Organization: Mystic River Watershed Association (MyWRA) Issue Category: SUPRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

890 Existing controls on construction sites are not doing the job of cleaning up our waterways. Meanwhile, stormwater management and

treat ment practices are currently available that are cost

- effective and capable of containing pollutants on site. We support the improved conditions in the proposed EPA Construction Stormwater General Permit ("Permit") and call on EPA to further strengthen the permit to require state

- of

- the

- art control measures. As an organization that values clean streams, lakes, and coastal areas, we urge EPA to issue a Permit that is strongly protective of water quality

Response Refer to Response 10.3.



# Comment ID 0145

- A2.001.001

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: SUP We generally support adoption of the proposed CGP. The proposed permit has many elements that will better address both construction phase and post

- construction phase stormwater problems than the prior construction general permit included.

Why Better Construction and Post

- Construction Stormwater Controls are Needed

Significantly more stringent stormwater controls are needed to address one of the most important and most challenging threats to the waters of the United States. For example, here in Alabama construction phase stormwater and post

- construction stormwater are among the Cahaba River's most serious problems. The Alabama Department of En vironmental Management's 2010 303(d) list indicates that about 109 miles of streams in the Cahaba River watershed are impaired by sources that ADEM attributes to stormwater runoff problems [FN1]. This is a clear indication of the significance of stormwater pollution in stream impairment in the Cahaba River
watershed.

Based on GIS land use change analysis, Howard, et al. 2002 [FN 2] found the "disturbed" land use category increased 8.8% from 1990

to 1998. That assessment indicated that a total of 38% of the Cahaba River watershed fell into the "disturbed land use" category by 1998. Other similar approaches have estimated the percent imperviousness of the upper Cahaba River watershed to be around 10% [FN 3].

The economic health of major portions of Jefferson, Shelby, Bibb, Perry, and Dallas counties relies on maintaining the health of the Cahaba River. For example, the drinking water supply for about one third to one half of the Birmingham Water Works Board customers is provided by the Cahaba River. Also, the Cahaba River is the last refuge for many federally listed threatened and endangered species in addition to those species that were thought to be extinct, but which have recently be rediscovered as e xtant. These vital beneficial uses are currently threatened by inadequately managed stormwater. Poorly managed stormwater is degrading the Cahaba River's water quality as well as its physical and biological integrity.

For these reasons, reversing the current degradation of water quality in the Cahaba River will require improved stormwater management and post

- construction stormwater management. EPA's draft Construction General Permit may serve a model for improved stormwater management for Alabama.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

891 [FN 1] The "Sources" column of that 303(d) list cites one of the following sources of stormwater runoff problems for the 109 impaired miles of the Cahaba River: "Urban Runoff/Storm sewers", "Land Devlopment", or "Municipal".

[FN 2] Howard, Hoke S., Bob Quinn, Morris C. Flexner, and Ronald L. Raschke. 2002. Cah aba River: Biological and Water Quality Studies, Birmingham, Alabama. March/April, September and July, 2002. U.S. Environmental Protection Agency, Region 4, Science and Ecosystem Support Division, Ecological Support Branch.

[FN 3] Jefferson County's Stormwater Management Authority, pers. comm.

Response Refer to Response 10.1 and Response 10.2.



# Comment ID 0151

- A1.001.001

Author Name: Cox Jeff Organization: Sierra Club, Central Ohio Group Issue Category: SUP Construction site runoff poses a critical threat to our nation's waterways. Pollutants in construction stormwater contaminate drinking water, impair recreation in affected water bodies, harm commercial and recreational fisheries, and make floods more frequent and severe. [FN 1] Erosion fr om a construction site can strip hundreds of tons of sediment per acre per year off of the exposed land into adjacent and downstream water bodies, fueling harmful algae blooms and smothering underwater ecosystems.[FN 2] Additionally,
construction site runo ff carries significant levels of chemicals and toxic pollutants.[FN 3] Existing controls on construction sites are not doing the job of cleaning up our waterways. Meanwhile, stormwater management and treatment practices are currently availa ble
that are cos t

‐ effective and capable of containing pollutants on site. I/we support the improved conditions in the proposed EPA
Construction Stormwater General Permit ("Permit") and call on EPA to further strengthen the permit to require state

‐ of

‐ the

‐ art control

measur es. As a citizen who values clean streams, lakes, and coastal areas, I/we urge EPA to issue a Permit that is strongly protective of water quality

[FN 1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Point Sou rce Category (the “C&D Rule”), Preamble, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009); EPA, Report to Congress on the Phase II Storm Water Regulations, EPA Pub. No. 833

‐ R

‐ 99

‐ 01 (Oct. 1999); National Research Council, Urban Stormwater Management in the United States, at 22

‐ 26, 180

‐ 182 (2008), available at http://www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf.
[FN 2] See EPA, Report to Congress on the Phase II Storm Water Regulations, EPA Pub. No. 833

‐ R

‐ 99

‐ 01, at I

‐ 4, III

‐ 2 (Oct. 1999).
[FN 3] See National Research Council, Urban Stormwater Management in the United States, at 26, 180 (2008), available at http://www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf.

Response
Re fer to Response 10.1 and Response 10.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

892 

# Comment ID 0156

- A2.001.001

Author Name: Deen David Organization: Connecticut River Watershed Council Issue Category: SUP Erosion from a construction site can strip sediment off of exposed land into adjacent and from there to downstream water bodies. The nutrients associated with sediment can fuel harmful algae blooms and smother underwater ecosystems. The Connecticut River is under enough pressure from nutrient loading all the way to Long Island Sound that has it self been declared an impaired water for nitrogen.

Response Refer to Response 10.1 and Response 10.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

OPP. General Statement of Opposition

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

893 

# OPP GENERAL STATEMENT OF OPPOSITION

Comment ID 0030

- A2.001.001

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: OPP We do have concerns with the draft CGP regarding the apparent lack of flexibility for variations in the nature of constructio n sites. For example, our experience indicates that many of the proposed requirements will be diffic ult, if not impossible, to meet for specific kinds of linear utilities or facilities located in large oil and gas fields.

Response Refer to Response 11.1.



# Comment ID 0031

- A2.001.001

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: OPP OHBA is concerned with the inclusion of monitoring provisions for the Construction and Development Industry numeric effluent limit, the inclusion of a water quality based effluent limit, the prescriptive nature of the non numeric effluent limits, and the reporting requirement after exceedances of the Numeric Effluent Limit. The cumulative impact of all the new requirements will have dele terious impacts on our members' businesses.

Response Refer to Response 11.1.



# Co mment ID 0036

- A1.001.003

Author Name: President Mike Organization: National Asphalt Pavement Association (NAPA) Issue Category: OPP NAPA appreciates the opportunity to provide comments on the EPA's proposed draft CGP. For the reasons outlined above, we are concerned that many provisions would impose unrealistic, significantly burdensome, and economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP based and flexible approach to ensure the CGP is economic al ly achievable, effective in reducing pollution from stormwater discharges, and workable on a national basis. EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit

requ irements, and proven effective in protecting water quality.

Response Refer to Response 11.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

894 

# Comment ID 0039

- A2.001.001

Author Name: Western Lennie Organization: Ames Construction, Inc. Issue Category: OPP We share EPA's goal of protecting water quality, but we are concerned that compliance with the proposed CGP would not be feasible. The cumulative impact of all the new requirements will have deleterious impacts on the business of construction.

Response Refer to Response 11.1.



# Comment ID 0039

- A2.001.003

Author Name: Western Lennie Organization: Ames Construction, Inc. Issue Category: OPP In conclusion, my company appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons outlin ed above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP

- based and flexible approach to ensure the CGP is economically achievable, effective in reducing pollution from stonn water discharges, and workable on a national basis. EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local penn it require ments, and proven effective in protecting water quality.

Response Refer to Response 11.1.



# Comment ID 0096

- A1.001.075

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: OPP NAHB urges EPA to fully consider the e conomic impact and limited environmental benefit of the proposed CGP. The proposed changes to the CGP would greatly confuse the construction industry due to its sheer size and complexity. The permit will requ ire much more paperwork and the costs associated with the additional steps would have to be borne by the construction industry. Placing
additional requirements, rather than adequately assisting with compliance with existing policies and requirements already in place, will adversely impact the industry a nd the economy as a whole.

Response Refer to Response 11.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

895 

# Comment ID 0114

- A2.001.002

Author Name: Clowser Michael Organization: Contractors Association of West Virginia (CAWV) Issue Category: OPP In conclusion, The Contractors Association of West Virginia appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons outlined above, we are concerned that many draft provisions would impose unrealistic, significantly burd ensome, and economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP

- based and flexible approach to ensure the CGP is economically achievable, effective in reducing pollution from stormwater discharges, a nd
workable on a national basis. EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit requirements, and proven effective in protecting water quality.

We encourage EPA to work closely with the commercial construction industry and the Associated General Contractors of America during the comment review process and as it continues its work on a final ELG and new CGP.

Response Refer to Response 11.1.



# Comment ID 0141

- A2.001.001

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: OPP Overall, the water quality provisions of the draft CGP are consistent with the provisions outlined in the previously issued 2 008 CGP. However, there are provisions outlined in the draft CGP that reflect changes to impose more stringent monitoring and control requirements related to water quality. Detailed below are the concerns that the City of Nampa has on these new provisions lis ted in the
draft CGP.

Response Refer to Response 11.1.



# Comment ID 0150

- A1.001.003

Author Name: Borysenko Jim Organization: REI Engineering Inc. Issue Category: OPP In conclusion, my company appreciates the opportunity to provide comments on EPA`s proposed draft CGP. For the reasons outlin ed above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP

- based and flexible approach to ensure the CGP
is e conomically achievable, effective in reducing pollution from stormwater discharges, and workable on a national basis. EPA sho uld focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local pe rmit requirements, and proven effective in protecting water quality.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

896 Response Refer to Response 11.1.



# Comment ID 0158

- A1.001.001

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: OPP As explained in the attached comments, NRECA is concerned that many of the benefits of a general permit will be lost if EPA adopts the CGP as proposed. The proposed CGP would require extensive site

- specific effort to obtain coverage and thereafter to demonstrate complianc e. The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These requirements include the 30

- day waiting period for coverage, the obligation to install all BMPs before initiating construction, t he
50

- foot buffer requirement and the numeric turbidity limit.

Response Refer to Response 11.1.



# Comment ID 0171

- A1.001.001

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: OPP
The AIEC is concerned that many of the benefits of a general permit will be lost if USEPA adopts the CGP as proposed. The proposed CGP would require extensive site

- specific effort to obtain data in order to demonstrate compliance. The draft CGP would appear to
contain new and additive requirements that collectively would make it extremely difficult to apply a permit to specific project. These requirements include, but are not limited to the 30

- day waiting period for coverage, the obligation to install all best management practi ces before initiating construction, and the 50

- foot buffer requirement and the numeric turbidity limit. All of these requirements will have significant impacts on construction and operating costs, costs that would negatively impact our members and the mem b ers of
each Illinois cooperative.

Response Refer to Response 11.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

EXT

. Request to Extend Permit/Comment
Period

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

897 

# EXT REQUEST TO EXTEND PERMIT/COMMENT PERIOD

Comment ID 0010

- A1.001.001

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: EXT
The Utility Water Act Group offers these comments in response to EPA's proposal to extend the expiration date of the above

referenced CGP from June 30, 2011, to January 31, 2012 (79 Fed. Reg. 22891, April 25, 2011). UWAG supports the proposed extension, and fu rther supports a longer one if necessary, so that EPA can proceed with separate but related administrative proceedings in a step

- wise fashion. In the pending CGP reissuance proceeding, EPA must incorporate the effluent limitations guidelines and new

source performance standards for the construction and development point source category (the "C&D Rule"). The C&D Rule was finalized on December 1, 2009, but was subsequently remanded based on appeals filed by UWAG and other parties. As part this remand, EPA mus t address and resolve concerns raised by UWAG in the original C&D rulemaking, as well as correct the numeric turbidity limit. Unless and until EPA takes these actions on remand, EPA cannot meaningfully proceed with reissuance of the C GP. To date, EPA has n ot even released a proposal on remand. Recognizing that this proposal will be followed by a public notice

- and comment period, and thereafter by a final Agency action informed by the comments received, UWAG questions whether EPA has given itself sufficient time to finalize the remanded C&D rule, then revise and ultimately finalize the CGP on or before January 31, 2012. So, while UWAG strongly supports an extension of the currently effective CGP, UWAG urges EPA to make the extension lo ng enough to accommodate the actions that need to occur, as well as to foster a meaningful public process on those actions.

Response Refer to Response 12.1.



# Comment ID 0011

- A2.001.002

Author Name: Colón

- Zavala Emilio Organization: ECZ Group, Inc. Issue Category: EXT
In view of unforeseen time requirements and delay for new CGP permit issuance resulting from "the uncertainty surrounding the er ror in calculating the 280 NTU limit and the appropriate way for EPA to address it..." [FN 4] it is obvious to all that more time i s necessary. The PRHA understands, however, that the time allotted by EPA for concluding this complex regulatory process, with potentially significant impacts for the regulated community in Puerto Rico, should result in the extension of the 2008 CGP fo r what
would be its full

- five year term, which ends on June 30, 2013.

[FN 4] 76 Fed. Reg. 22894.

Response Refer to Response 12.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

898 

# Comment ID 0013

- A1.001.002

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: EXT NAHB is concerned about the timing of this review and believes the Agency should delay the EA until both the ELG numeric rulemaking is complete and all litigation associated with the ELG has been vetted through the courts. EPA should extend the CGP permit for the full 5 year term which will give EPA enough time to develop a defensible numeric limit and comply with applica ble federal statutory requirements.

Response Refer to Response 12.1. Refer also to Response 13.1.



# Comment ID 00 13

- A1.001.006

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: EXT The EA should be initiated after the C&D numeric limit is finalized and incorporated in the CGP. EPA should extend the existi ng CGP through its full term of July 13, 2013 in order for the Seventh Circuit litigation, EPA's new C&D ELG correction rule, and ot her issues raised in the proposed CGP to be addressed.

Response Refer to Response 12.1. See Also Response 13.1.



# Comment ID 003 1- A2.001.002

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: EXT
OHBA recommends that EPA extend the 2008 CGP for its full five

- year term, which ends on June 30, 2013, to provide EPA with
much needed time and flexibility to further streamline the permits, incorporate the final Construction & Development ELG requirements, and allow the court to fully adjudicate all issues associated with the pending C&D ELG lawsuit.

The current stormwater permitting progra m is burdensome and duplicative - especially for builders who are simply building one single family home on a lot within a larger subdivision. EPA is strongly urged to take the time needed to develop provisions to stre amline the permitting process. OHBA recommends that EPA adopt a Single Lot Permit and enhance and facilitate the Qualifying Local Program (QLP) provisions within the stormwater program. Reissuing the CGP provides an obvious and timely opportunity to clarify the p ermit process and provide ways to improve overall compliance with EPA's stormwater program. A single lot permit will allow builders who construct homes on single lots to better understand their permit obligations, thereby improving their ability to implement th e necessary practices to reduce their impacts. Likewise, the QLP also simplifies the permitting process by allowing builders and developers toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

899 obtain and comply with one stormwater permit through their communities instead of multiple and duplicative permits issued at the federal, state and local levels. Not only does implementation of the QLP reduce burdens on builders, it can significantly reduce the administrative burdens of the state and local governments. The Single Lot Permit and the QLP implement necessary improvements to
the CGP that are timely and appropriate. EPA is strongly urged to incorporate these new provisions into the draft CGP and to exte nd the expiration date of the 2008 permit to June 30, 2013, so that it has sufficient time to do so.

Response Refer to Response 1 2.1.



# Comment ID 0040

- A1.001.001

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: EXT The CGP is the vehicle by which the requirements of the Construction and Development (C&D) Effluent Guidelines are implemented, 74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric utility industry argued, and the court agreed, that these final C&D effluent guidelines failed to address important concerns including the inappropriateness of the regulations when applied to li near development. See U.S. Court of Appeals of the Seventh Circuit Order in WBA, et. al. v. EPA, dated September 20, 2010. EPA issued a stay for parts o f the rule and the rule has been remanded to address the flawed numeric limit and other issues raised by utility industry through UWAG. While EPA has yet to repropose the C&D rule 10 months after remand, EPA is nonetheless proceeding to implement its original requirements by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility industry and recognized by the

courts.

Sunflower encourages EPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued in respons e to the remand and affected parties have had a chance to review the new effluent guidelines and a revised CGP.

Response Refer to Response 12.1.



# Comment ID 0054

- A2.001.001

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: EXT Issue: The proposed rule includes a placeholder reference for the final numeric limit on turbidity to allow EPA additional time to refine the calculation It is expected the revised numeric value will be public noticed prior to the expiration of the current Constr uction
General Permit (CGP) (currently January 31, 2012). U . S. Steel takes exception to the piece

- meal issuance of the proposed rule as it is difficult to comment without fully understanding the ramifications of the numeric limit in relation to the other requirements of this proposed CGP. Given the refined calcul ation will most likely be complete by the end of 2011, it would have been more practical to simply extend the expiration date of the CGP (as was done in [FRL

- 9297

- 8; EPA

- HQ

- OW - 2008

- 0238]) and then issue the proposed
CGP once the numeric limit was revised.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

900 Recommended Change: It is recommended for the EPA to extend the issuance of the proposed rule until the numeric limit is comp lete and issue the complete proposed rule for public comment to more completely evaluate the proposal.

Response
Refer to Response 12.1.



# Comment ID 0054

- A2.001.002

Author Name: Harnack Fred Organization: United States Steel Corporation (USS) Issue Category: EXT Issue: The proposed rule indicates that " ... if any state permits expire after the effective date of a final rule containing the recalculated numeric limit, those states would be required under the CWA to incorporate the new numeric effluent limit into their construc tion storm water permits." It should be noted that the final rule would also include an extension of the first phase

- in date from August 1,
2011 to a future date.

Recommended Change: USS recommends that EPA provide the additional time afforded by the extension to incorporate the new numeric effluent limits into their statespecific construction storm water permits.

Response Refer to Response 12.1.



# Comment ID 0055

- A1.001.001

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: EXT Sections of the (CGP) refer to effluent limitation guidelines. However, no current effluent limitations are determined. ODOT has concern about the permit being implemented without these limitations finalized. This makes it very difficult to assess potential impacts on erosion control budgets and ODOT's current development and planning process. We recommend postponing the proposed permit until the technical public has an opportunity to comment on these limitationguidelines.

Response Refer to Response 12.1.



# Comment ID 0074

- A2.001.002

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: EXTRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

901 However, EPA has stayed an enforceable numeric turbidity limit of 280 Nephelometric Turbidity Units (NTU) for certain larger construction sites since January 4, 2011. As a result, EPA's proposed CGP includes a placeholder for a recalculated numeric turbidity limit. It also includes corresponding permit requirements for monitoring, reporting, and the acreage threshold. DEQ's main co ncems with the proposed CGP include the unknown numeric l imit on the stormwater discharges and some overly prescriptive erosion and sediment control requirements. DEQ encourages EPA to avoid including the numeric turbidity limit or associated requirements i n the CGP until the EPA has promulgated revisions to the new regulation.

Response Refer to Response 12.1.



# Comment ID 0080

- A2.001.002

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: EXT The Partners strongly support the recommendation that the EPA delay the issuance of the proposed CGP until after the C&D numeric limit has been finalized allowing for incorporation into the CGP. To that end, the EPA should extend the existing CGP through its full term of July 13, 2013 before issuing the prop osed CGP in order to allow the C&D numeric limit to be finalized.

Response Refer to Response 12.1.



# Comment ID 0087

- A1.001.005

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: EXT We are grateful that EPA extended the currently effective CGP

- 2008 from June 30, 2011, to February 15, 2012 (pre

- publication notice
available at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm ). However, we question whether the extension is long enough. Can the Agency propose and complete the C&D rulemaking on remand, and then propose and complete a CGP that incorporates the C&D Rule, by next February? To date, EPA has not even released a C&D p roposal on remand. So, while UWAG strongly supports the extension of the currently effective CGP, UWAG urges EPA to use the extension, and to provide additional time as necessary, t o accommodate the actions that need to occur, as well as to foster a meanin gful public process on those actions.

Response Refer to Response 12.1.



# Comment ID 0093

- A2.001.017

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

902 Issue Category: EXT
EPA should extend the 2008 CGP for its full five

- year term, which ends on June 30, 2013. EPA has the authority to extend the CGP through the entire five

- year time period set forth in its NPDES regulations for such permits. See 40 CFR § 122.46. EPA needs the additional time to complete and defend its C&D ELG and to incorporate that rule's requirements into the CGP in a clear and reasonable way that will ensure the long

- term success of its effort to regulate stormwater runoff.

As of today, EPA has yet to propose any revisions to C&D ELG. If it published a proposal this month, EPA would still find it next to impossible to complete a new C&D ELG in the limited period (six to seven months) that it has already decided to extend the 20 08 CGP. And EPA would find it well beyond impossible to wrap up th e related litigation. EPA has been working on a proposal to revise the C&D ELG for nearly one year. That proposal is certain to require and/or include new analyses and assessments, and to rais e new issues (such as linear construction). Give the complexity of the anticipated proposal, any comment period of less than 90

- days would be unreasonable and unfair to the affected stakeholders (including AGC and its members).

EPA requires a substantial period of time to review the public comments on most of its pro posals, and to develop its options for a final rule. AGC knows of no reason to expect the rulemaking on the C&D ELG to be any exception. The long history of this rule sugge sts that, if anything, EPA will require more and not less than the usual amount of time. Ninety days would seem to be the minimum that the agency will require to complete those tasks. Then, the Office of Management and Budget will have another 90 days to revie w and then either approve or reject EPA's final package. EPA would be fortunate to complete its unfinished work on the C&D ELG package
in another nine months.

And then, it will need to give the Seventh Circuit whatever time the court requires to fully adjudicate all issues associated with the pending litigation. The court is holding several of the issues that industry has raised in "abeyance" until at least February 15, 2012. Many of them will bear on whether the new requirements included in the C&D ELG are consistent the Clean Water Act. These issu es must be fully litigated before E PA inserts them into a new CGP.

Response Refer to Response 12.1.



# Comment ID 0154

- A1.001.005

Author Name: Loehr Aaron Organization: Pace Construction Issue Category: EXT In addition, EPA should extend the 2008 CGP through the entire five

- year permit term allowed by law, or through July 13, 2013. This time is needed to allow public participation and input into various critical CGP terms and conditions, prior to incorporating those provisions into a new permit.

Response Refer to Response 12.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

903 

# Comm ent ID 0166

- A1.001.007

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: EXT V. EPA is not allowing itself enough time to incorporate the final C&D ELG requirements into the CGP and to develop guidance on implementing the non

- numeric BMPs required by that rule. My company suggests that EPA extend the 2008 CGP for its full five

- year term, which ends on June 30, 2013. More time also is needed to allow the 7th Circuit Court of Appeals to fully adjudicate all issues
associated with the pending C&D ELG lawsuit. Many of the issues raised could impact whether any of the new C&D ELG requirements that EPA has proposed to incorporate into the CGP are legally authorized under the Clean Water Act. These issues must be allowed to be litigated in full prior to inserting them into a new CGP and mandating compliance.

Response Refer to Response 12.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

MISC. Miscellaneous Comment

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

904 

# MISC MISCELLANEOUS COMMENT

Comment ID 0017

- A1.001.002

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: MISC In general, the proposed rule lacks flexibility for permittee's with the use of several "must", "all", and "any" statements. The rule should be revised to contain flexible options for permittee's in order to address site specific conditions. For instance, section 2.1.3.2 requires the installation of stormwater controls along all down slope areas of disturbance prior to construction starts in an y portion of
the site. It is unwarranted to install erosion controls in areas where earth disturbing activities are not occurring and then require the inspection of erosion control devices at the increased frequency identified in section 5.1.2. For a linear project which may include staged construction (depending on the length of the project), the regulations should allow for the installation of controls prior to site disturbing activities in the area construction activities will be performed.

Response Refer to Response 13.1. Refer also to Response 2.10 for the comment on down slope areas.



# Comment ID 0021

- A1.001.008

Author Name: Unrein Terrance Organization: Tepa Issue Category: MISC 8. When will the online mapping tool for Water Quality Based Effluent Limitations be available? It is important for tools like this to be available long before permit issuance to give operators and permit holders adequate time to plan.

Response Refer to Response 13.1.



# Comment ID 0021

- A1.001.025

Author Name: Unrein Terrance Organization: Tepa Issue Category: MISC When will a new SWPPP Template be provided? a. It is important that this be provided in a sufficient amount of time before permit issuance to allow operators to develop new SWPPPs.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

905 

# Comment ID 0021

- A1.001.026

Author Name: Unrein Terrance Organization: Tepa Issue Category: MISC Will the EPA be making any recommendations for Makes/Models of nephelometers along with associated training?

Response Refer to Response 13.1.



# Comment ID 0021

- A1.001.027

Author Name: Unrein Terrance Organization: Tepa Issue Category: MISC Will the EPA be providing training opportunities for this new permit before its issuance?

Response Refer to Response 13.1.



# Comment ID 0021

- A1.001.028

Author Name: Unrein Terrance Organization: Tepa Issue Category: MISC
Will the EPA be making any recommendations for SWPPP Administration Software or Site Inspection Software at any time in the
future?

Response Refer to Response 13.1.



# Comment ID 0026

- A1.001.007

Author Name: Kovacs William Organization: U.S. Chamber of Commerce
I ssue Category: MISC 1. As a threshold matter, the Chamber notes that the Congress, through the Information Quality Act, 44 U.S.C. § 3516 note ("I QA"), directed EPA to comply with the Office of Management and Budget's (OMB) information quality guidelines. S ee 44 U.S.C. § 3516 note (b); Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002); see also Prime Time v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)(discussing IQA requirements). To comply, EPA must ensure all information disseminated with respect to a listing determination meet OMB's hig h standards for objectivity, utility, and integrity before it is disseminated and to substantiate informatio n quality "through documentation or other means appropriate to the information." 67 Fed. Reg. at 8459.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

906 The EPA's draft CGP permit provisions, including buffers (Notice § III(E)(2)), design requirements (Notice § III(E)(3)), stab ilization
criteria and pollution prevention standards (Notice §§ III(E)(9), (10) and (11)), discharge sampling and quality standards (Notice §§ III(E)(12), (13), (14) and (17)), and especially requirements for discharges to "sediment or nutrient

- impaired waters" (Notice § III(E) (18) and (20)) ought to be informed by and in conformance with the IQA guidelines and the quality principles applied by Congress to risk information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, 42 U.S.C. 300g

1(b)(3)(A) & (B). The law is that the EPA must use the best available, peer

- reviewed science and supporting studies conducted in accordance with sound and objective scientific practices and data collected by accepted methods or best available methods and must specif y, to the extent standards or practices are based on risk estimates, the expected risk or central estimate of risk, each appr opriate

upper

- bound or
lower

- bound estimate of risk, each significant uncertainty identified in the process and peer

- reviewed stu dies that support, are directly relevant to, or fail to support the Agency's determinations. See 42 U.S.C. 300g

- 1(b)(3)(A) & (B).

Response Refer to Response 13.1.



# Comment ID 0026

- A1.001.017

Author Name: Kovacs William Organization: U.S. Chamber of Com merce Issue Category: MISC F. The EPA ought to demonstrate that it has complied with all applicable IQA requirements in the formulation of all of the dr aft CGP's operational provisions.

Response Refer to Response 13.1.



# Comment ID 0028

- A1.001.003

Author Name: Jones P. Organization: Issue Category: MISC This permit exploded from 87 pages for the 2008 CGP, to 210 pages for the 2011 Proposed permit; I am not sure that it is nece ssary to "design a SWPPP", why not just include a copy of the CGP, with the appropriate forms for the EPA requirements, after all, it seems the goal has shifted from preventing actual polluting activities to rendering fines for documentation deficiencies,

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

907 

# Comment ID 0030

- A2.001.029

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: MISC Throughout the CGP There are several cases of language in the proposed CGP that are "absolute" in nature and are therefore difficult to comply w ith. For

examp le, truly "eliminating" track out from vehicles is very difficult to comply with; the same is true for prohibiting the discha rge of any potential pollution. In practical terms, "minimizing" track out and the discharge of potential pollution is a more reali stic requirement to comply with. This is reflected by the fact that the proposed turbidity limit is not zero because that is not practical. This suggestion applies to much of the absolute language in the proposed CGP.

Response Refer to Response 13.1.



# Comment ID 0037

- A1.001.023

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: MISC There appears to be an error on page 66 in Section VII.2.2 of the Fact Sheet regarding Part 2.2.2.1.c Additional Requirements for Vegetative Stabilization. The Fact Sheet states "If the permittee chooses the C

‐ factor stabilization approach, he/she must also meet the following requirements:" and then proceeds to list the requirements provided in Part 2.2.2.1.c. This statement in the F act Sheet implies that the requirements listed in Part 2.2.2.1.c only apply if the permittee chooses to comply with the Cfactor criterion. However, based on our interpretation of Part 2.2.2.1.c, some of these requirements (i.e., Parts 2.2.2.1.c.ii - iv.) a pply to both the 70% cover method and
the C

‐ factor stabilization approach. Please clarify the correct interpretation of this permit requirement.

Response Refer to Response 13.1.



# Comment ID 0037

- A1.001.050

Author Name: Valdez Bruce Organization: Souther n Ute Indian Tribe Growth Fund Issue Category: MISC The last sentence on page 108 states "With respect of the second triggering condition (Part 6.2.2.3),....." Since Part 6.2.2.3 is the third triggering condition, this phrase should be changed accordingly.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

908 

# Comment ID 0037

- A1.001.051

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: MISC The first sentence on page 109 references a Part 6.2.2.4 in the proposed permit. There is no Part 6.2.2.4. Please clarify how the last sentence in the Purpose section relates to the third trigger condition in Part 6.2.2.

Response Refer to Response 13.1.



# Comment ID 0038

- A1.001.004

Author Name: Minervini W. Organization: Issue Category: MISC According to Part VII.1.2 of USEPA's Proposed Construction General Permit (CGP) - Fact Sheet, "the requirements in Part 2.1.2 implement the C&D rule's requirement to minimize the discharge of pollutants from the site by providing and maintaining ‘natu ral
b uffers around surface waters, unless infeasible.' See 40 CFR 450.21(a)(6)" [emphasis added]. This Fact Sheet did not, however
, mention that (or explain why) the draft CGP definition of "buffer" (Appendix A) uses the phrase "streams, rivers, lakes, wetl ands , or other waters of the U.S" [emphasis added] rather than "surface waters." (Appendix A of the draft CGP incorporates the 40 CFR § 122.2 definition of "waters of the United States.")

Response
EPA notes that the 2012 CGP uses the term “surface waters” in the buffer provisions. Refer to Part 2.1.2.1 of the 2012 CGP.



# Comment ID 0038

- A1.001.007

Author Name: Minervini W. Organization: Issue Category: MISC Will USEPA provide practical guidance to prospective applicants for USEPA's new CGP about how "waters of the U.S." can be identified? Will administration of that CGP include "jurisdictional determination (JD) requests" and "preliminary JDs (PJDs)" (see the discussion of JDs and PJDs in the USEPA's April 27, 2011 report, Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of Clean Water Act Jurisdiction)? Will the USEPA and/or the Army Corps of Engineers respond to JD requests made for purposes of that CGP? If States issue NPDES CGPs that provide for "buffers" aroun d "waters of the United States," will the USEPA and/or the Army Corps of Engineers respond to JD requests made for purposes of those State CGPs? If PJDs are allowed for purposes of USEPA's new CGP, will CGP applicants include those PJDs in their NOIs or ot her CGP documents?

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

909 

# Comment ID 0050

- A2.001.002

Author Name: Winn Jane Organization: Berkshire Environmental Action Team (BEAT) Issue Category: MISC The Permit should require prevention measures to prevent the spread of invasive species including truck tire washing between sites, requirement that soil, fill, or other materials that are brought in be free of invasive species and seeds.

Response Refer to Response 13.1.



# Comment ID 0053

- A2.001.050

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: MISC Consider including a sample Inspection Sheet or a link to the EPA CGP approved inspection report: http://www.epa.gov/npdes/pubs/sw_swppp_inspection_form.doc

Response Refer to Response 13.1.



# Comment ID 0056

- A2.001.001

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER)
Issue Cate gory: MISC Within this draft NPDES permit there is an indication that projects permitted under §404 of the Clean Water Act need not obta in coverage under the general construction stormwater permit. If this interpretation is correct than the DER will revise our planning and permit protocol. However if being regulated under a §404 permit does not negate the need for a general construction stormwate r permit, or there are specific instances where a permit is or is not needed,the DER would like to take this oppo rtunity during permit review to make a case for considering restoration projects a unique category of construction projects.

The DER's position is that restoration and revitalization warrant consideration of exceptions to specific sections of the general construction stormwater permit as this work strives for long term improvements to the function and values of aquatic, estuarine or coastal systems. To achieve long term ecological benefits work must be undertaken in resources areas and the DER would like to offer the following explanations to justify select exemptions to permit requirements.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

910 

# Comment ID 0060

- A1.001.001

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: MISC
1. General - The terminology "unless infeasible" is used throughout the draft general permit. This language is subjective and should be deleted because it makes it very difficult for a regulator to ensure that an owner is complying with a permit requirement. If it is not deleted, the criteria, conditions and/or scenarios that allow for a specific requirement to be considered "infeasible" must be defined in the general permit.

Response Refer to Response 13.1.



# Comment ID 0062

- A1.001.001

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: MISC 1) EPA assumes everyone has access to the internet and the technical proficiency to understand and meet all the proposed requirements, many of which w ill pose major challenges to many small scale operations with limited personnel. Many small operators and municipalities will be unable to meet the technical requirements in the proposed General Permit. The impacts to small and rural operations will also e ncourage avoidance of the proposed requirements beyond the current levels.

Response Refer to Response 13.1.



# Comment ID 0062

- A1.001.003

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: MISC 3) Most of these requirements will be ignored unless EPA ramps up enforcement. In the current climate of tight budgets where wil l EPA obtain the funds for the numerous inspectors necessary to make these proposed criteria work?

Response Refer to Response 13.1.



# Comment ID 0062

- A1.001.004

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: MISCRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

911 4) Avoid including graphs and data from outside agencies, such as NOAA, which are subject to change by thos e agencies. In particular, the rainfall statistics are being revised and the old data should NOT be allowed for use once the new data is pub lished. To allow use of the old data will induce "cherry picking" of the data by permittees.

Response
Refer to Res ponse 13.1.



# Comment ID 0062

- A1.001.005

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: MISC 5) Erosion downstream of erosion control measures may increase if the sediment load to the local channels is below the carrying capacity of the flow. Removal of 100% of the sediment is not always positive.

Response Refer to Response 13.1.



# Comment ID 0064

- A1.001.001

Author Name: Dees Richard Organization: City of Meridian Issue Category: MISC
Will EPA re

- issue Inspection Report Templates and SWPPP Templates to match new requirements?

Response Refer to Response 13.1.



# Comment ID 0064

- A1.001.003

Author Name: Dees Richard Organization: City of Meridian Issue Category: MISC •Permit title is ambiguo us about the type of discharges it addresses. Suggest adding stormwater to the permit title: "National Pollutant Discharge Elimination System General Permit for Stormwater Discharges from Construction Activities."

Response Refer to Response 13.1.



# Comment ID 0065

- A1.001.001

Author Name: Jaeger LisaRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

912 Organization: Council for Clean Water Construction (CCWC) Issue Category: MISC CCWC supports a uniform NPDES CGP for construction activities that will protect our nation's water bodies. However, the CGP m ust be within EPA's regulatory authority and rational in scope and in its requirements, including accounting for the full range o f construction activities that will be required to comply with its terms.

Response Refer to Response 13.1.



# Comment ID 0065

- A1.001.003

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: MISC Providing alternative compliance measures, as the CGP does in several areas, does not resolve the underlying lack of authorit y, because the permit term measures compliance against a baseline requirement which EPA has no authority to impose. In addition, where compliance alternatives are provided, they do not provide adequate means to ensure that construction companies will be able to adjust their activities sufficiently to meet the alternative compliance terms.

Response Refer to Response 13.1.



# Comment ID 0065

- A1.001.004

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: MISC
The CGP also fails to accommodate the full range of permitted activities, including the type of heavy construction and linear construction engaged in by CCWC members. In several areas as noted below, the CGP requirements are based on dissimilar typica l project footprin ts or layouts. Even where the CGP allows alternative means to comply with the requirements, the alternative compliance measures are based on compliance measures required for typical or average construction projects. For large infrast ructure projects of the type constructed by CCWC members, including hundreds of projects underway or in planning across the country, the terms of the CGP must be precise in their applicability to those types of projects. Permit terms that are vague or poorly fit to the permitted activity are arbitrary and arbitrarily create compliance uncertainty. Particularly because the penalties for noncompliance ar e so significant, permit terms must be clear and rationally related to the permitted activity and must establish clear lines fo r c ompliance.

Where the CGP imposes irrational or unclear compliance requirements on sources seeking permits, EPA should amend the CGP term s or provide clarity in the final CGP. CCWC would be pleased to work with EPA to develop alternative approaches that are appropriate for the heavy construction sector, and provide these specific comments on the CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

913 Response Refer to Response 13.1.



# Comment ID 0066

- A1.001.001

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: MISC We recognize that water quality concerns are a national and state priority, and the NPDES program is one of many components t o ensure that water quality is maintained Controlling sediment and other potential pollutants in storm water runoff from construction sites, and maintaining the quality of waters of the U.S. and those of the State of Texas, is also a TxDOT priority.

Our comments reflect our goal to minimize the administrative burden and encourage the development of practical, f easible, flexible and clear requirements. This would allow for the CGP to be implemented more effectively, and would therefore improve the over all quality of storm water runoff from construction sites, and maximize the environmental benefits through the implementation of this permit.

Response Refer to Response 13.1.



# Comment ID 0070

- A1.001.001

Author Name: Morton John Organization: Alcoa Inc. Issue Category: MISC
1. Alcoa is a member of both the Federal Stormwater Association and the Federal Water Quality Coalition, and endorses and incorporates by reference into these comments the comments on the CGP submitted by both organizations.

Response Refer to Response 13.1.



# Comment ID 0070

- A1.001.002

Author Name: Morton John Organization: Alcoa Inc.
Is sue Category: MISC 2. EPA requested comments on 26 specific items in the CGP. Alcoa is providing comment to a number of those specific items. In general Alcoa believes the CGP should provide flexibility wherever possible and prudent, so for those items containing alternatives Alcoa would like to have the final permit include the various alternatives.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

914 

# Comment ID 0087

- A1.001.007

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: MISC The new draft CGP is very complicated and reflects a number of new, onerous, and poorly

- defined obligations for permittees. The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to simplify and standardiz e compliance expectations along a range of activities deemed to have similar environmental impacts, the proposed CGP would requ ire
extensive site

- specific effort to obtain coverage and thereafter to demonstrate compliance. We believe this is inconsistent w ith the value and purpose of NPDES general permits, marks a departure from past EPA practice, and stymies the use and availability of the CGP for owners and operators of regulated construction sites.

Response Refer to Response 13.1.



# Comment ID 0087

- A1.001.008

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: MISC Burden of proposed CGP conditions as applied to any particular project are excessive.

The draft CGP contains new and additive requirements that co llectively render the permit nearly unusable in practice. These requirements include the obligation to obtain all CWA Part 404 dredge and fill permit(s) before being eligible for coverage, the 30

- day waiting period for coverage, the obligation to install all BMPs before initiating construction, the 50

- foot buffer requirement, the as

- yet undefined numeric turbidity limit, the obligation to collect a minimum of three samples in connection with each and every sto rm event from each and every stormwater outfall (with limited opportunity to designate representative outfalls) on each and every day of discharge, and the more stringent expectations associated with discharges to impaired waters, coupled with an often ill

- defined obligation to determine the impairment status of the receiving water body. [FN 5]

[FN 5] Section 4.2 provides that "[i]f you discharge to an impaired water that is impaired for sediment or a sediment

- related parameter, such as total suspended solids (TSS) or turbidity, and/or nutrients, including impairments for nitrogen and/or phosphorus, you are required to comply with the requirements in Part 4.2.2." This presumes a level of detail in state listing decisions that may not exist. In many states, impairment listing are tied to uses as opposed to criteria (e.g., aquatic life use impairment) and do not provide further detail on the specific parameters or stressors contributing to the use impairment. In these situations, it will be difficult if not impossible for affected permittees to determ ine if they have, in fact, triggered the requirements of Part 4.2.2.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

915 

# Comment ID 0087

- A1.001.042

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: MISC
The CGP includes a number of different "daily" requirements. See e.g., Sections 2.3.2.5.c.i.(1) (pollution prevention standards for construction and domestic waste), 2.3.2.5.c.11.(1) (pollution prevention standards for hazardous or toxic waste), and 4.2.2.3 .b (daily
visual examination for discharges to impaired waters). EPA should clarify that daily means those days on which construction activities occur (e.g., would not ordinarily include weekends and holidays).

Response Refer to Response 13.1.



# Comment ID 0090

- A1.001.008

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: MISC (3) Finally, AGA recognizes that EPA has limited direct jurisdiction to implement the Draft Permit. However, the federal Cons truction
General Permit will effectively establish a baseline for state permits, which will be expected to be at least as stringent as the federal
CGP - or more stringent. So by imposing unreasonable and unworkable requirements in the CGP, EPA will effectively move these same requirements into state permits. We understand that EPA regional offices have recently taken a heavy intervention and enforcement approach to states' permitting activities, using both its "objection authority" under the Clean Water Act and int erim guidance letters to impose NPDES standards beyond the scope of what states' permitting authorities consider feasible and practical. We describe specific instances of this intervention below.

Response Refer to Response 13.1.



# Comment ID 0090

- A1.001.042

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: MISC While EPA has limited direct NPDES permitting authority, [FN 11] AGA members are concerned that the more stringent parameters EPA proposes could make their way into states' perm itting guidelines for linear construction projects. This is primarily because EPA has not hesitated to exercise expansive oversight authority over state permitting by way of Sections 402(b)(5) and (d)(1) of the Clean Water Act. [FN 12] EPA noted in a 2010 NPDES memo, for example, that "[w]here a state is not able or willing to make progress in addressing these important issues, a region may need to act. Actions may include prioritizing the issuance of permits, object ing to permits, conducting inspections fo r a particular sector or watershed, taking direct enforcement action in a state, or acting on specific recommendations identified in permit or enforcement program reviews." [FN 13] [FN 11] Notice of Proposed Rulemaking, 76 Fed. Reg. 22890.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

916 [FN 12] These provides that states shall forward a copy of every permit application and action to the EPA, where a Regional Administrator may object to the proposed permit in writing within 90 days based upon specified grounds.

[FN 13] U.S. EPA Memorandum, "Using the R esults of the NPDES Permit and Enforcement Reviews to Address Significant Issues," October 22, 2010.

Response Refer to Response 13.1.



# Comment ID 0090

- A1.001.043

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: MISC AGA members have noticed there is an alarming trend of EPA using CWA objection authority to impose interim guidance letters o n states' NPDES permitting activities. For example, in West Virginia, EPA Region III issued two guidance letters in 2009 to th e Department of Environmental Protection (DEP), ordering compliance with federal effluent limits and imposing an independent conductivity benchmark that DEP considered unattainable. [FN 14] This prevented DEP from obtaining required NPDES permits for
its m ine reclamation activities; to make matters worse, when DEP appealed the wholly impracticable set of guidance provisions, the Fourth Circuit held that DEP had no choice in the matter until Congress stepped in. [FN 15] The Court merely concluded: "Perm it

re quirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Vir ginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states t hat move to ameliorate the problems private companies leave behind." [FN 16] Given this court's ruling, the current ability of EPA to imp ose federal standards through allegedly non

- binding guidance documents may be construed broadly. AGA requests that EPA refrain from using such an
end

- run approach to implementing more stringent stormwater permitting requirements on existing state programs, and reconsider the disproportionate impacts such requirements would have on linear construction projects.

[FN 14] Inside EPA, "EPA Mining Guidance Obstructing State Issuance of Reclamation Permits," 2010; U.S. EPA, "The Detailed Guidance: Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, an d the Environmental Justice Executive Order," 2010.

[FN 15] West Virginia Highlands Conservancy v. Huffman, No. 09

- 1474 (4th Cir. 2010), available at http://pacer.ca4.uscourts.gov/ opinion.pdf/091474.P.pdf.

[FN 16] Id. at 17.



# Comment ID 0090

- A1.001.044

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: MISCRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

917 On a similar note, AGA urges EPA to reconsider its recent position on the Phase II stormwater regulations, as strong statewide permitting is more efficient and well

- tailored to the environment cost

- benefit calculus than a myriad of local government programs. Even as under current regulations, localities do not have to duplicate MS4 requirements that the state is already performing, See 40
CFR §122.35(b), EPA has pushed to impute federal permitting guidelines that mandate local permitting in this very manner. A telli ng example comes from Alabama, where businesses are currently disputing EPA Region IV's mandate that a local permitting process regulate construction sites over and above the state's permitting program.[FN 17] The contested Alabama Phase II MS4 General permit basically incorporates federal permitting guidelines independent of those set out in the state permit - an additional burden on questionable legal footing. Essentially, the Phase I and II unfunded federal mandate as imposed in Alabama, forces local gove rnment to act on standards without affording the state an opportunity to a dequate notice and comment. Further, this scenario imputes the burden of haphazard local permitting to AGA's members, who must then manage a linear project involving multiple municipal jurisdictions. For all these reasons, AGA urges EPA to reconsider its a pproach going forward with this Draft Permit and its other NPDES rulemaking, that it support a strong, consistent, statewide approach to permitting programs and reject a one

- size

- fits all approach to the Draft Permit.

[FN 17] Business Alliance for Respon sible Development's Request for Hearing to Contest Administrative Action, In re Alabama Dept. of Environmental Management National Pollutant Discharge Elimination System Permit No. ALR040000, Alabama Environmental Management Commission, Docket ID. 11

- 05, 1 1- 06 (March 2, 2011).

Response Refer to Response 13.1.



# Comment ID 0090

- A1.001.045

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: MISC In addition to a policy of uniform state programs, AGA requests that EPA revisit its industry

- focused best practices for stormwater management rather than imposing top

- heavy regulatory regimes that require hiring, training, deploying, and supervising an army of construction stormwater inspectors. EPA should encourage the use of Qualified, Credentialed Professionals (QCPs) to develop and enforce Construction Best Management Practices Plans (CBMPPs). There is no question that the bleak fiscal picture in the stat es merits efficient allocation of their limited resources to important tasks like discretionary inspections and enforcement. Given that the professionally skilled private sector has a clear resource advantage in this area, EPA would be remiss to adopt regulations t hat reallocate responsibilities away from permittees.



# Comm ent ID 0091

- A2.001.033

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: MISC 33. General: Permit requirements are project specific based on site conditions, project features, and receiving waters. Recom mend a
table or oth er device to evaluate the project and direct the permitee to the correct requirements for the project. Guidance for the ToxicRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

918 Release Inventory includes a flow charge to determine reporting requirements. This is an example of one method to explain reg ulato ry requirements.

Response Refer to Response 13.1.



# Comment ID 0093

- A2.001.018

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: MISC Reissuing the CGP also provides an opportunity for EPA to clarify and streamline the permit process and provide ways to improve overall compliance with EPA's stormwater program. For example, introducing the Qualifying Local Program (QLP) would simplify the permitting process by allowing construction site operators to obtain and comply with one stormwater permit throughout their communities, instead of the multiple and often duplicative permits issued at the federal, state and local levels. Not only do es implementation of the QLP reduce burdens on builders, it can also significantly reduce the administrative burdens of the state and local
governments.

Response Refer to Response 13.1.



# Comment ID 0093

- A2.001.020

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: MISC The Information Quality Act, 44 U.S.C. § 3516 note ("IQA"), directs EPA to comply with the Office of Management and Budget's (OMB) information quality guidelines. See 44 U.S.C. § 3516 note (b); Guidelines for Ensuring and Maximizing th e Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. at 8,452 (Feb. 22, 2002); s ee also PrimeTime v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)(discussing IQA requirements). To comply, EPA must ensure tha t all information meets OMB's high standards for objectivity, utility, and integrity before it is disseminated and that it meets substantiate i nformation quality "through documentation or other means appropriate to the information." See 67 Fed. Reg. at 8,4 59.

The Draft, including buffers, design requirements, stabilization criteria, pollution prevention standards, discharge sampling and quality standards, and especially requirements for discharges to "sediment or nutrient

- impaired waters" ought to be infor med by and in conformance with the IQA guidelines.

The law states that EPA must use the best available, peer

- reviewed science and supporting studies conducted in accordance with sound and objective scientific practices and data collected by accepted methods or best available methods and must specify, to the extent standards or practices are based on risk estimates, the expected risk or central estimate of risk, each appropriate upper

- bound or
lower

- bound estimate of risk, each significant uncertainty identified in the process and peer

- reviewed studies that support, are directly relevant to, or fail to support the agency's determinations. See 42 U.S.C. 300g

- 1(b)(3)(A) & (B). AGC maintains that the metricsRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

919 employed by the agency to develop the draft CGP' s technical provisions, particularly those in Appendix J, Section 4, were created using procedures that are inconsistent with these requirements. Quite simply, more administrative transparency is needed and appropriate.

Response Refer to Response 13.1.



# Comment ID 0093

- A2.001.069

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: MISC In fact, as the following paragraph explains, AGC believes that EPA should expand the "no discharge" concept to the e ntire permit program. Specifically, the CWA and its NPDES permit program regulate the discharge of pollutants from point sources to waters of the U.S. In order to be subject to the Act's provisions, one must meet the two

- part test of having both a point so urce and a discharge. Conversely, if there is not a discharge, or if a discharge comes from something other than a point source, the CWA does not a pply. Section 502(12) of the Act defines "discharge of a pollutant" to mean "any addition of any pollutant to navigable waters from any point source." Nowhere does the Act mention or indicate the need to obtain permit coverage for potential discharges. In 2008, EPA recognized that certain animal feeding operations do not discharge pollutants and therefore are not subject to sections 301 and 402 of the CWA. Thus, the agency finalized a process whereby Concentrated Animal Feeding Operations (CAFO) operators may certify tha t they do not discharge or propose to discharge pollutants. See 73 Fed. Reg. at 70,418 (Nov. 20 , 2008). Because the CWA regulates actual discharges only, and, like CAFOs, all construction activities do not result in the discharge of pollutants from point sources, AGC urges EPA to adopt a similar program for construction activities.

Response
Refer to Response 13.1.



# Comment ID 0093

- A2.001.091

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: MISC

The proposed changes to the CGP would greatly increase its complexity and the cost of complying with its terms and conditions, putting site operators at a new and unprecedented level of risk of non

- compliance, including fines of up to $37,500 per day. The proposed permit would rigidly prescribe the stormwater controls that operators have to put in pl ace, require them to sample and test runoff for compliance with a new and still uncertain limit on turbidity, leave them liable for non

- compliance with that limit even if they have implemented all of the prescribed measures, and require them to self

- report any non

- compliance to a publicly accessible database within 24 hours. It would also add a heavy layer of water quality benchmarks that EPA has not the information to justify. And it would do all of this before EPA has even established its new limit on turbidity or finalized the non

- numeric provisions of the C&D ELG - all of which remain embroiled in federal litigation. What is more, EPA has neither calculated the economic and employment costs of these provisions nor disclosed or quantified their potential environmental benefits. With all due respect, AGC urges EPA to slow down,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

920 change course, and proceed in an orderly way that better reflects the enormous economic risks as well as the environmental re wards of its undertaking.

Response Refer to Response 13.1. Refer also to the economic analysis developed in support of the 2012 CGP available in the docket for the final permit.



# Comment ID 0096

- A1.001.008

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: MISC
Unde r the current regulations, residential construction activities that disturb less than an acre, but are part of a larger commo n plan of development or sale that will ultimately disturb more than one acre must get CGP coverage. In reality, this means that nearly every single lot on which a home is built within a new subdivision must have permit coverage. While NAHB recognizes that uncontroll ed discharges during active construction operations have the potential to negatively impact the environment, NAHB believ es that the burden of the current CGP requirements on single lot operations far outweighs the environmental risk, especially given the fa ct that
most of the single

- family housing construction firms are small businesses. For these small site operations, the stormwater permit process can be confusing, overwhelming, and otherwise unreasonable, particularly given that many of the requirements are no t applicable. NAHB believes there is a better approach that will achieve the same environmental protection, but eliminates many of the unnecessary and inapplicable aspects and burdens of the CGP and will promote widespread compliance.

The reissuance of the CGP is an excellent opportunity to clarify the permit process and provide ways to improve overall compl iance with EPA’s stormwater program. NAHB recommends that EPA adopt a Single Lot Permit. A single lot permit will allow builders building on single lots to comply with a streamlined permit, and improve overall compliance with the stormwater program becau se it
wi ll tailor the requirements to builders and eliminate any unnecessary mandates that apply to larger sites. This idea is not ne w. NAHB developed and submitted a proposed Single Lot Permit to EPA on November 19, 2007 (See Attachment I) [Please see Attachment I in the origional comment letter. Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0096

- A1]. Similarly, several states have adopted some version of a Single Lot Permit and feedback from builders and regulators on those permits has been positive.

The goal of the single lot permit is to authorize stormwater discharges from residential construction activities that occur on single lots (i.e., a single lot or lots within a larger subdivision). The reason NAHB drafted this permit was to clarify and simplify the permit requiremen ts and better distinguish a builder’s responsibilities from those of a developer. In short, the CGP is largely written for developers and other operators of large construction activities. Many of the components and directives are simply not applica ble to

s omeone who is constructing a single home on a single lot within a subdivision (for example, requirements to install sedimen t ponds). Because these requirements are not applicable, it makes little sense to include them in the permit, as it only creates co nfusion and uncertainty for the permittee. Further, it is obvious from construction starts statistics18 that there are thousands of home builders who would benefit from such a permit.

Over the past several years, NAHB has heard complaints from homebuilde rs regarding the difficulty in both understanding the permit requirements and complying with them. Overall, our members agree that the detail and work related to the Stormwater Pollution Prevention Plan is overwhelming, complicated, and confusing, particul arly as it relates to a single home site. We believe a single lotRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

921 permit will clearly outline the BMP and other permit requirements for single home sites and therefore, foster higher rates of compliance among small residential construction sites within sub divisions resulting in enhanced protection of the environment. In light of the added burdens associated with the incorporation of the ELG and the differing requirements for larger sites, it makes e ven more sense to adopt a simplified permitting framework for builders building on single lots as soon as possible.

NAHB urges EPA to review the attached Single Lot Permit and find a way to issue it (or a modified version) along with or as p art of the CGP. We also would welcome the opportunity to work with the A gency to further refine the Single Lot Permit, as necessary. The Single Lot permit can be updated when EPA finalizes the numeric limit in the ELG. EPA could include the single lot permit eit her as a standalone permit or a chapter within the CGP, similar to the Multi

- Sector General Permit (MSGP) which has different subparts to the main permit for different categories. The single lot permit will streamline the CGP requirements for small builders, and redu ce burdens while improving compliance. Further, if EPA declines to implement such a streamlining package, NAHB points to the recent Memorandum on Regulatory Flexibility, Small Business, and Job Creation, which states, “whenever an executive agency chooses, for reasons other than legal limitations, no t to provide such flexibility to a proposed or final rule that is likely to have a significant economic impact on a substantial nu mber of small entities, it should explicitly justify this decision not to do so in the explanation that accompanies that proposed o r final rule.” [FN 19]

[FN 18] U.S. Census Bureau and U.S. Department of Housing and Urban Development, New Residential Construction in May 2011, June 16, 2011, accessed at http://www.census.gov/const/newresconst.pdf on July 11, 2011. [FN 19] 76 Federal Register 3828 (January 21, 2011).

Response Refer to Response 13.1.



# Comment ID 0096

- A1.001.009

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: MISC On November 20, 2008, EPA finalized its Revised National Pollutant Discharge Elimination System Permit Regulation and Effluen t Limitations Guidelines for Concentrated Animal Feeding Operations (CAFO), which included a voluntary option for an unpermitted CAFO to certify to the permitting authority that the CAFO does not discharge or propose to discharge. NAHB believes the enact ment of a ‘no discharge’ certification program was a wise move to encourage the CAFO industry to eliminate discharges into waterways.

Because all land disturbing activities do not result in point source discharges, we soundly support the adoption of a similar program for
construction activities within the CGP.

The CWA and its NPDES permit program regulate the di scharge of pollutants from point sources to waters of the U.S. In order to be subjected to the Act’s provisions, one must meet the two

- part test of having both a point source and a discharge. Conversely, if there is not a discharge, or if a discharge comes from something other than a point source, the CWA does not apply. Section 502(12) of the Act defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” In 2008 , EPA recognized that certain animal feeding operations do not discharge pollutants and therefore are not subject to sections 301 and 402 of the CWA. Thus, the agency finalized a process whereby CAFO operators may certify that they do not discharge or propose toRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

922 discharge pollutants.[FN 20] B ecause the CWA regulates actual discharges only, and, like CAFOs, all construction activities do not result in the discharge of pollutants from point sources, the adoption of a similar program for construction activities makes sense.

In certain areas around the country, developers engineer their property to retain all sites, the stormwater either evaporates or is absorbed into the ground, and no discharge of stormwater into waters of the U.S. occurs. To date, however, EPA has treated th e CGP
as a land dis turbance permit rather than a discharge permit. The Agency’s position is that any person who disturbs land and has a potential to discharge stormwater needs a permit. Furthermore, EPA believes that any site with disturbed land has a potential to discharge stormwater. Therefore, according to EPA, if an operator disturbs land, he or she needs a permit. That is not what the Clean Water Act says however, and case law affirms that only “actual” discharges require permits. [FN 21] And further, EPA has no i nherent authority to regulate sources themselves, unless there is a discharge of a pollutant. [FN 22]

In Waterkeeper Alliance, the Court of Appeals for the Second Circuit made the requirement for an actual discharge perfectly c lear:
“unless there is a “discharge of any pollutant,” there is no violation of the Act, and point sources are, accordingly, neither statutorily obligated to comply with EPA regulations for point source discharges, nor are they statutorily obligated to
seek or obtain an NPDES permit . . .. [I]n the absence of an actual addition of pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, no obligation of point sources to comply with EPA regulation for point source discharges and n o statutory obligation of point sources to seek or obtain an NPDES permit . . ..23”

The Waterkeeper Alliance decision explicitly defined the differences between an actual discharge and a potential to discharge . The decision made it clear that there must be an actual discharge, not simply the potential to discharge in order to be regulated under the CWA. The court based its statement on the statute, and it therefore must apply equally to all point source discharges. It is not exclusive to CAFO’s. Contrary to the Waterkeeper Alliance decision, however, the Agency’s approach in regulatory construction activities has been to require permits if there is a potential for a discharge. [FN 24] Therefore because the Waterkeeper Alliance decision applies to
all disch arges, the agency should make a similar certification process available to construction site operators.

The process of developing a parcel of land does not guarantee the establishment of a point source or the discharge of polluta nts into
waters of the U. S. Contrary to EPA’s assumption that all construction activities that disturb one or more acres result in a point source discharge, land disturbance activities can be conducted and sites can be designed to retain all water on site. For example, b erms or bu ffers can be installed around the perimeter of a project to retain or infiltrate any water flow, while evaporation and/or infiltration devices can direct water into the air and ground. Similarly, many low impact development practices rely on using existing contours to minimize disturbance, mimic the natural hydrology, and increase opportunities to recharge ground water supplies without resulting in a discharge. In many areas of the country, builders and developers purposely plan and conduct their ground dis turbing activities during the dry season when there is less likelihood of precipitation events. In arid regions, it is not all that uncommon for a project to be completed that has never been exposed to a rainfall. Likewise, in some cases, particularly when dealing with smaller parcels in areas with little topography, there may be sheet
flow or other non

- point discharges from the site, but such discharges fail to meet the required two

- part permit test (i.e., must have both a point source and a discharge).

Despite these limitations, however, there is no mechanism in place by which a discharger may certify or otherwise notify the agency that no stormwater will exit the site. Absent a way to demonstrate this, EPA, as above, assumes everyone has or needs a perm it. To eliminate liability, permittees who have designed their projects to retain all stormwater on site are forced to obtain a permit and complyRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

923 with the permit terms to avoid future enforcement activity. Even though this is contrary to law, it seems to b e the only recourse. NAHB continues to urge the agency to adopt a process to recognize those activities for which no discharge will occur, as it has do ne for the CAFO industry. Like the CAFO option, the construction operator “no discharge” option could cer tify that the construction activity does not discharge nor does it have a potential to discharge based on an objective assessment of the project’s design, constr uction, operation and maintenance. Not only will this ensure compliance with the Act, it provid es a strong incentive for potential permittees to design their projects to retain stormwater on site. Building sites that control stormwater so that there are no discharges wo uld provide maximum environmental benefits to both the local surface watershed and underground reservoirs. The availability of a no discharge certification would provide encouragement for builders and developers to explore the potential of meeting their stormwater requirements while contributing reduced pollutant loadings and improved water supplies.

The adoption of a no discharge certification will also reduce the number of permits and administrative burdens faced by the p ermittees and the permitting authorities. EPA estimated that approximately 25 percent of the total universe of CA FOs would not discharge and thus would not need NPDES coverage under the 2008 final rule.[FN 25] Similarly, EPA posited that CAFOs that do not seek permi t coverage because they do not discharge or propose to discharge will save approximately $14 million an nually in reduced permitting costs.[FN 26] Assuming the construction industry could garner similar savings and efficiencies, such a program could garner significant benefits while still meeting its CWA obligations. Likewise, such an option would also further the Obama Administration’s goals to reduce unnecessary regulatory burdens and limit impacts on small businesses.

[FN 20] 73 Federal Register 70,418 (November 20, 2008). [FN 21] Waterkeeper Alliance v. EPA, 399 F.3d 486 (2nd Cir. 2005). [FN 22] Natural Res. Def. Counsel v. EPA, 822 F.2d 104, 128

- 29 & n.24 (D.C. Cir. 1987) (“[T]he Clean Water Act regulates the discharge of pollutants, not the construction of new sources. The Act does not prohibit construction of a new source without a permit. . . . The A ct only prohibits new sources from discharging pollutants without a permit.”). [FN 23] Water keeper Alliance, Inc. v. U.S.E.P.A., 399 F.3d 486, 504

- 5 (2nd Cir. 2005) (emphasis added). [FN 24] Applying for Coverage Under the Construction General Permit (CGP ), http://cfpub.epa.gov/npdes/stormwater/application_coverage.cfm#coverage (explaining that “[i]n general, you need to apply for coverage under the CGP if your construction site will disturb one or more acres . . .,” yet failing to recognize that a discharge is also required); NPDES General Permit for Storm Water Discharges from Construction
Activities

- Fact Sheet, p.4, http://www.epa.gov/npdes/pubs/cgp2003_fs.pdf (providing “If there is a potential for a discharge, you need to apply for coverage under this permit.”).

[FN 25] 73 Federal Register 70,469 (November 20, 2008). [FN 26] Id.

Response Refer to Response 13.1.



# Comment ID 0096

- A1.001.010

Author Name: Asmus Susan Organization: National Association of HomebuildersRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

924 Issue Category: MISC Stormwater compliance has been further complicated by the multiple layers of regulation. In addition to state - or federally

- issued NPDES permits, most construction site operators must also obtain a permit from the county and/or municipality. Filling out tw o or more sets of applications to control stormwater runoff from your project is overly burdensome, bure aucratic and hinders efforts that could be made to improve environmental protection. It also creates confusion that may result in noncompliance issues because builders might assume that compliance with a local jurisdiction’s permitting requirements also meets state or federal obligations.

Recognizing the challenges of satisfying multiple permits and their requirements, and in an attempt to minimize redundancy in the construction permit requirements, in 1999 EPA established a “Qualifying, State, Tribal or Local Programs” (QLP) option.[FN 27] This program is designed to streamline the regulatory requirements for construction site operators by incorporating the qualifying State, Tribal or local erosion and sediment control program requirements by reference in to the NPDES permit. Once completed, permittees only have one set of requirements to follow, thereby significantly reducing overlap, duplication, and confusion.

According to the regulations, a qualifying State, Tribal, or local erosion and sediment control program is one that includes: (i) Requirements for construction site operators to implement appropriate sediment and erosion control best management practi ces; (ii) Requirements for construction site operators to control waste such as discarded bui lding materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality; (iii) Requirements for construction site operators to develop and implement a stormwater pollution prevention plan (A stormwater pollution prevention plan includes a site description, descriptions of appropriate control measures, copies of approved State , Tribal or local requirements, maintenance procedures, inspection procedures, and identification of non

- stormwater discharges); and (iv) Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.[FN 28]

Because these same elements are required for both the QLP and the “Construction Site Runoff Control” measure in all Phase II municipalities, meeting these baselines should not be difficult. As a result, it would be reasonable to believe that the use of QLPs would be widespread, but that has not been the case. Unfortunately, the program is so complicated that most states have not adopted the QLP language into their permits. For example, states must include the names of the QLPs in their permits, but because the permits are only authorized once every five years, there is an unrealistically small window of time in which programs can be recognized. Likewise, the municipalities have to submit extensive documentation to the state and receive approval to be a QLP. The extra work for both states and municipalities has not created an incentive for the municipalities to participate.

EPA should revamp the QLP program to remove impediments and make it more attractive for state and local adoption. EPA also should work with the regions to educate them about the QLP and provide incentives or other enticements to increas e state adoption of this language and streamline the permitting process. As Mr. Benjamin Grumbles, former Assistant Administrator, Office of Water, U.S. EPA, recognized, “[m]ore fully utilizing the qualifying local program will increase administrative effi ciencies in the program and simplify the requirements for construction site operators.” [FN 29]

In the CGP, EPA has not included any language on the QLP and NAHB is concerned that EPA is missing an opportunity to incorporate a provision that will simplif y the permit and improve compliance. EPA should develop a process for facilitating and encouraging implementation of the QLP. The CGP should include a list of communities and associated permit language which will at least encourage more communities to be i nvolved. NAHB is willing to work with EPA and regional Home Building Association staff to assist EPA in identifying communities that could be QLPs and to develop appropriate language to be included in the CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

925 [FN 27] See 40 C.F.R. 122.44(s) and 64 Federal Register 68,777

- 68,778 (December 8, 1999). [FN 28] 40 C.F.R.122.44(s)(1). [FN 29] Memo from B. Grumbles, Assistant Administrator, Office of Water, EPA, to R. Varney, Administrator, Region I, EPA (May 8, 2006) (Qualifying Local Programs for Construc tion Site Stormwater Runoff), available at http://www.epa.gov/npdes/pubs/qlp_memo.pdf.

Response Refer to Response 13.1.



# Comment ID 0096

- A1.001.014

Author Name: Asmus Susan Organization: Nat ional Association of Homebuilders Issue Category: MISC NAHB is particularly concerned about the cost implications of the new water qualitybased effluent limitations. According to E PA’s TMDL website, roughly 40,000 impaired waters have been identified within the 50 states. More than 13,000 of those 40,000 impaired waters suffer from nutrient and/or sediment impairments, requiring any NPDES permits for construction projects that may discharge to those waterbodies to contain a requirement for reductions o f nutrients and/or sediment from the project’s stormwater discharges. In addition, to these known impaired waters, there are likely thousands of other water bodies that have not been assessed for wa ter quality due to a lack of resources at the state level, so the number of impaired waterbodies can be expected to grow. Under the proposed CGP, all developments that disturb greater than ten

- acres and discharge into an impaired waterbody must perform monitoring for the “action levels” given in the CGP. This mea ns that thousands of projects will be subject to the additional, costly water quality

- based monitoring requirement, yet the Agency has failed to consider these cost implications in its deliberations.

Response Refer to Response 13.1.



# Comment ID 0096

- A1.001.015

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: MISC Likewise, even more “waters” will likely be deemed impaired and additional monitoring will be required if the Agency finalize s the proposed “Dr aft Guidance Regarding Identification of Waters Protected by the Clean Water Act,” recently released for public comments by the EPA and the U.S. Army Corps of Engineers. The guidance, according to EPA and the Corps, will bring more water bodies under federal jurisdiction, and thus require additional assessments by the states as to whether an impairment exists in those water bodies and if so, what is the cause of the impairment. The result is more areas where new homes are bei ng constructed will have to be monitored under the CGP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

926 Response Refer to Response 13.1.



# Comment ID 0096

- A1.001.060

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: MISC Likewise, even more "waters" will likely be deemed impaired and additional monitoring will be required if the Agency finalizes the proposed "Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act," recently released for public comments by the EPA and the U.S. Army Corps of Engineers. The gui dance, according to EPA and the Corps, will bring more water bodies under federal jurisdiction, and thus require additional assessments by the states as to whether an impairment exists i n those water bodies and if so, what is the cause of the impairment. The result is more areas where new homes are being constructed will have
to be monitored under the CGP.

Response Refer to Response 13.1.



# Comment ID 0100

- A2.001.004

Author Name: Wirtz Matthew Organization: City Utillities, City of Fort Wayne, Indiana
Is sue Category: MISC The USEPA should define how compliance with this provision be enforced.

Response It is not clear from the comment letter which provision the commenter is referring to



# Comment ID 0103

- A2.001.003

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: MISC Federal storm water regulations provide flexibility in establishing best management practices to meet rule requirements. EPA' s draft NPDES general permit for storm water discharges from construction activities includes many prescriptive requirements that go well beyond the requirements of federal rules. TCEQ requests that the flexibility in the storm water rules should be preserved in EPA's general permit, allowing operators to select best management practices that are appropriate for their site. Application of prescriptive best management practices on a nation

- wide scale does not account for geographical and environmental differences.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

927 

# Comment ID 0103

- A3.001.003

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: MISC Federal storm water regulations provide flexibility in establishing best management practices to meet rule requirements. EPA's draft NPDES general permit for storm water discharges from construction activities includes many prescriptive requirements that go well beyond the requirements of federal rules. TCEQ requests that the flexibility in the storm water rule s should be preserved in EPA's general permit, allowing operators to select best management practices that are appropriate for their site. Application of pr escriptive best management practices on a nation

- wide scale does not account for geographical and environmental differences.

Response Refer to Response 13.1.



# Comment ID 0105

- A2.001.001

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: MISC
I. Stormwater Pollution from Construction Activities is a Critical Environmental Problem.

"Stormwater runoff is one of the most significant sources of pollution in the nation, ‘at times comparable to, if not greater than, contamination from industrial and sewage sources.'" See Environmental Defense Center v. Br owner, 344 F.3d 832, 840 (9th Cir. 2003), cert. denied, 124 S.Ct. 2811 (2004) (citing Richard G. Cohn

- Lee and Diane M. Cameron, Urban Stormwater Runoff Contamination of the Chesapeake Bay: Sources and Mitigation, THE ENVIRONMENTAL PROFESSIONAL, Vol. 14, at 10 (1992) and Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1295 (9th Cir. 1992)).

Stormwater pollution is one of New England's most critical environmental problems, including in the two states where the prov isions
of the Draft CGP will apply:

D In M assachusetts, approximately 75% of assessed lakes and 70% of assessed rivers are impaired, and stormwater is the single large st source of water pollution in the Commonwealth. The vast majority of impairments in Massachusetts are attributed to nutrients,
ba cteria, and metals - pollutants commonly found in stormwater runoff. See Massachusetts Integrated List of Waters, Massachusetts Department of Environmental Protection ("MassDEP") (2010), available at http://www.mass.gov/dep/water/ resources/tmdls.htm. The Lower Charles River basin, landmark and anchor of the Boston metropolitan area, routinely suffers from seasonal blooms of tox ic
blue

- green algae that can only be remedied by dramatic reduction in nutrient inputs from stormwater runoff in the watershed. See EPA and MassDEP, Final Total Maximum Daily Load Report for Phosphorus in the Lower Charles River Basin, MA (2007), available at http://w ww.mass.gov/dep/water/resources/tmdls.htm.

D In New Hampshire, stormwater pollution is a significant and ongoing threat to the state's many surface waters. Of all the w aters listed as violating water quality standards in 2008, eighty

- three percent - consisting of 23,778 acres of lakes, and 1,524 miles of river - were deemed impaired wholly or in part as a result of stormwater. N.H. Dept. of Envt'l Servs., New Hampshire Water Resources Primer, atRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

928 10

- 5 (Dec. 2008), at http://des.nh.gov/ organization/divisions/water/dwgb/wrpp/documents/water_resources_primer.pdf. There is a growing body of evidence regarding the effects of stormwater pollution in the state, such as significant chloride s- related impairments in southern New Hampshire, and major nitrogen

- related impairments in numerous water bodies that are part of the Great Bay estuary, including in ecologically critical eelgrass meadows.

As EPA and other national authorities have recog nized, stormwater pollution from construction sites has especially severe impacts and is an important target for regulatory action by EPA. Lands cleared of vegetation for construction and not otherwise stabilize d deliver
much more sediment to downstream wa ters than either the original, vegetated area or the same area restabilized with vegetative cover following construction. Pollutants in construction stormwater contaminate drinking water, impair recreation in affected water bodies,
harm commercial and recr eational fisheries, and make floods more frequent and severe. See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (the "C&D Rule"), Preamble, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009) ("Imprope r control of stormwater discharges associated with construction activity is a contributor of sediment, turbidity, nutrients and other pollutants to surface waters in the United States. Sediment (both suspended and deposited) and turbidity are
common constr uction site pollutants and are significant causes of surface water quality impairment. . . . The sediment, turbidity, and other pollutants entrained in stormwater discharges associated with construction activity contribute to aquatic ecosystem deg radation, increased drinking water treatment costs, and impairment of the recreational use and aesthetic value of impacted waters."). See also National Research Council, URBAN STORMWATER MANAGEMENT IN THE UNITED STATES, at 22, 26 (2008), available at http://www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf. Accordingly, EPA's general NPDES permit establishing limits on and requirements for such discharges has been and should continue to be a critical regulatory tool for im proving water quality.

Response Refer to Response 13.1.



# Comment ID 0105

- A2.001.018

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: MISC CLF strongly urges EPA to include performance standards in the final permit reflecting Low

- Impact Development ("LID") or "green infrastructure" stormwater management practices, and/or numeric effluent limitations that are commensurate with such standard s. As CLF has demonstrated in recent comments to EPA Region 1 rega rding proposed general permits for small municipal storm sewer systems, these practices are widely available, well proven, are generally more effective than conventional infrastructure at pollutant removal and volume reduction, and confer additional benefits to the community and environment.[FN 8] Performance standards based on LID/green infrastructure should be included as an appropriate means of compliance with the non

- numeric effluent limitations
of Part 2 of the permit. At construction and development sites, such practices should be integrated into site planning, see Draft CGP, Parts 2.1.1 and 2.1.2, and utilized in lieu of or in addition to conventional stormwater controls wherever possible, see Draft CGP, Parts 2.1.3
and 2.1.4, and deployed during st abilization activities, especially final stabilization, see Draft CGP 2.2. CLF recommends that LID/green infrastructure be required - or at least be required to be evaluated - at sites discharging to impaired or other sensitive waters. Greater adoption of LID, including in the final permit here, will benefit communities by keeping pollutants and concentrated pulses of stormwater out of our rivers, ponds and streams, generating increased green space, cooling urban areas, and relieving cost an d maintenance burdens on aging municipal stormwater infrastructure.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

929 [FN 8] See, e.g., Comments of Conservation Law Foundation on Draft General Permit for Small Municipal Storm Sewer Systems (MS4) for Massachusetts South Coastal, Merrimack, and Interstate South - Flowing Watersheds (Mar. 11, 2011), on file with EPA Region 1.

Response Refer to Response 13.1.



# Comment ID 0107

- A2.001.004

Author Name: Conn Rachel Organization: Amigos Bravos Issue Category: MISC In addition, since it is common knowledge that EPA often negotiates away fines certain components in the regulated community view violating the Clean Water Act as an acceptable business risk.

Response Refer to Response 13.1.



# Comment ID 0113

- A1.001.001

Author Name: Schroeder Marlene Organization: Parker River Clean Water Association Issue Category: MISC In the journal WETLANDS (v. 23, n. 1; March 2003), Gleason, Euliss, Hubbard, and Duffy have an article published called "Effe cts of sediment load on emergence of aquatic invertebrates and plants from wetland soil egg and seed banks."

They demonstrated experimentally that as little as 0.5 cm (0.2 or 1/5 inch) reduces invertebrate emergence from the eggs that were left by previous generations by 99.7%! The soil egg banks tested were from the prairie pothole region of Montana, N. and S. Dakota,
Minnesota and Iowa. From the controls (the soil that was not buried by sediment), ostracods (seed shrimp), copepods (copepods), and 3 families of cladocerans (Daphnia) Macrothricidae, and Chydoridae) hatched out, and in numbers - nearly 10,000 individuals. From the samples that were buried with 0.5 cm of sediment (free of pesticides), only 29 individuals emerged. Wow! The numbers from 1 cm and 2 cm sediment treatments were lower yet. Of all of their 0.5 cm treatmen ts, 84% hatched no animals at all, whereas only 14% of the 0 cm treatments(controls) hatched no animals.

Construction site without adequate sediment protection have the potential to deliver immense amounts of sediment per acre per year off of the exposed land into adjacent and downstream water bodies, damaging aquatic ecosystems as exemplified in the above mentioned research. In addition to the threat of sediment, other contaminants are also carried into the wetlands and water bo dies creating added pollut ion.

One can easily observe failed sediment and pollution controls by just randomly driving past construction sites - commercial such as in industrial parks or malls, government projects along highways, and individual home construction or large condo dev elopments. BetterRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

930 stormwater management and best practices are available to use in these cases. Parker River Clean Water Association strongly s upports the proposed EPA Construction Stormwater General Permit and believes the EPA should further strengthen th e permit to include the most effective and up to date control measures.

Response Refer to Response 13.1.



# Comment ID 0116

- A2.001.001

Author Name: Bennett Karen Organization: National Mining Association (NMA) Issue Category: MISC As explained below, NMA believes that the Environmental Protection Agency ("EPA" or "Agency") should clarify that this draft General Permit is indeed focused on the construction industry and not the mining industry. NMA previously had commented on th e EPA's November 28, 2008 Pro posed Rule on Effluent Limitations Guidelines for the Construction and Development Point Source Category on February 26, 2008, and those comments are attached and hereby incorporated by reference. See Letter from Karen Bennett, NMA, to James Hanlon, U.S. E PA (Feb. 26, 2009). NMA also commented on and supported EPA's proposed rule to stay the numeric effluent limitations and associated monitoring requirements for the Construction and Development Point Source Categor y, as published on November 5, 2010, 75 Fed. Reg. 68,305. NMA's December 6, 2010 comments are also attached and incorporated herein by reference.

EPA's draft General Permit for Stormwater Discharges from Construction Activities confirms that it is focused upon the constr uction industry sectors classified as "Building, Developing and General Contracting" (NAICS Code 233) and "Heavy Construction" (NAI CS Code 234). These construction sectors are part of the broader NAICS Code 23 for the Construction Sector. Mining is listed und er an entirely different NAICS Code, number 21. The NAICS Code appropriately describes the mining sector, in part, as follows: " The Mining Sector comprises establishments that extract naturally occurring mineral solids such as coal and ores. The term mining is used in the broad sense to include quarrying, well operations, beneficiating (e.g., crushing, screening and flotation), and other preparation customarily performed at the mine site, or as part of mining activity. . . . Mining support activities include establishments that perform exploration. . . ." See www.naics.c om/censusfiles/NDEF21.htm. In contrast, to the mining sector, the "construction sector comprises establishments primarily engaged in construction of buildings or engineering projects (e.g., highway or utility systems)." Se e www.naics.com/censusfiles/NDEF23.htm (emphasis added). These considerations indicate quite correctly that EPA does not intend to cover mining activities in this General Permit for Stormwater Discharges from Construction Activ ities.

Furthermore, EPA's draft General Permit for Stormwater Discharges from Construction Activities notes the close relationship b etween the draft General Permit and the pending rulemaking to establish numeric Effluent Limitations Guidelines ("ELG") for the new Construction and Development Point Source Category. See 76 Fed. Reg. at 22,885 (Apr. 25, 2011). Mining is not subject to the proposed Construction and Development Point Source Category, in part, because mining activity is subject to its own lon gstanding effluent limitations (e.g., 40 C.F.R. Parts 434 (Coal Mining), 436 (Mineral Mining), and 440 (Ore Mining)) and the specific m ining
sectors of the
2008 Multi

- Sector General Permit ("MSGP") for Storm Water Discharges from Industrial Activity. Nonet heless, NMA members may be indirectly and unintentionally affected by this pending rulemaking and the draft General Permit, and so we urge EPA to rec onsider and clarify the scope of this action.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

931 With the foregoing points in mind, we direct you to pertine nt parts of the President's recent Executive Order No. 13563 on "Improving Regulation and Regulatory Review," dated January 18, 2011, which states:

"Our regulatory system must protect public health, welfare, safety, and our environment while promoting ec onomic growth, innovation, competitiveness, and job creation. . . . It must ensure that regulations are accessible, consistent, written in p lain language, and easy to understand. Some sectors and industries face a significant number of regulatory requireme nts, some of which may be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, thus reducing costs and simplifying and harmonizing rules. In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization". [Emphasis added.]

Following these principles, we urge EPA to make it clear that mining activities will continue to be subject to the mining

- specific ELGs and the mining

- specific sections of the 2008 MSGP. The mining industry must not be subjected to requirements that have been developed for the construction industry and which have been designed without consideration of the unique and dynamic nature o f the large mine sites located in rural areas where stormwater discharges are heavily influenced by natural background conditions. Accordingly, EPA should clarify that the mining sectors will not be subject to the General Permit for Stormwater Discharges f ro m Construction Activities and the associated Construction and Development ELGs.

Response Refer to Response 13.1.



# Comment ID 0118

- A1.001.002

Author Name: Evans Michael Organization: Colaska, Inc. Issue Category: MISC
VI. EPA and state enforcement of existing regulations tends to be irregular and inconsistent already. This lack of regular and consistent enforcement lends itself towards a wide disparity between stormwater controls implemented by various companies. Companies tha t
work hard to achieve ful l compliance with regulatory requirements, at great cost I might add, are often under bid on construction jobs that require expensive erosion and sediment controls and inspection and sampling requirements to comply with permit requireme nts.
Contractors tha t do not adhere to these requirements are infrequently caught and punished for violations. Adding additional and expensive regulatory requirements without first addressing this issue will only widen the gap between the "good" contractors that work
to abide by regulatory requirements and those that do not.

Response Refer to Response 13.1.



# Comment ID 0124

- A2.001.001

Author Name: Eubanks Kevin Organization: Clark County Regional Flood Control District Issue Category: MISCRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

932 The Stormwater Quality Management Committee (SQMC) was formed by the stormwater dischargers in the Las Vegas Valley subsequent to issuance of their first municipal stormwater permit by NDEP in 1990. The Las Vegas Valley permittees include th e Cities of Henderson, Las Vegas, and North Las Vegas, and Clark County, Nevada with the Clark County Regional Flood Control District as Lead Agency. The SQMC has developed and implemented effective and innovative stormwater

- control programs. These programs have been remarkably successful at controlling stormwater and abating erosion through the implementation of detention basins that reduce peak flows, and erosion control structures that stabilize areas prone to erosion. Some of these programs c all for on

site requirements, consistent with the on

- site f ocus of EPA's stormwater program, but other programs provide for regional solutions, which often provide a more direct and effective response to identified stormwater issues. EPA should keep its permitting prog ram flexible enough to avoid discouraging effe ctive regional programs or promoting programs that have little effect in unique
environments.

Response Refer to Response 13.1.



# Comment ID 0124

- A2.001.004

Author Name: Eubanks Kevin Organization: Clark County Regional Flood Control District Issue Category: MISC These are just two examples. In short, EPA should provide for flexibility in permit conditions, and allow state agencies such as NDEP to work with local municipalities in the arid Southwest to develop permit requirements that are appropriate for local conditions, and that will not cause environmental harm or interfere with local programs that are environmentally beneficial.

Response Refer to Response 13.1.



# Comment ID 0129

- A2.001.001

Author Name: Lauenstein P.

Organization:
I ssue Category: MISC In 2005, the Sharon Planning Board approved construction of 51 housing units on approximately 10 acres of land. The developme nt, known at the time as Hunter's Ridge, was granted a significant density bonus in exchange for agreeing to adhere to the conditions set forth in Sharon's Conservation Subdivision Design (CSD) bylaw. Sharon's CSD bylaw states, "The landscape shall be preserved i n its natural state, insofar as practicable, by minimizing tree and soil removal."

Neverthess, the c onstruction site was stripped of all the trees right up to the property line (the Planning Board waived the 50

- foot buffer requirement), and approximately 2,800 truckoads of fill were removed to level the site for construction.

[See original comment lett er Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0129

- A2 for pictures.]Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

933 This example demonstrates the relative difficulty of enforcing a vague standard, such as "minimize" or "to the extent practic able." Federal authority is needed, as existing local ordinances and byla ws don!t provide adequate protection and are not rigorously enforced by local authorities, who often face pressure from development interests.

Clearer, objective standards are needed in the CGP as to the control measures construction site operators must implement to contain runoff and pollutants. Specified control measures must be adequate to contain the 2!!, 24

- hour storm on site, and prevent erosion.

Silt fences and hay bales are often ineffective at controlling runoff from storms of any significant size. More effective control measures are needed, especially at sites that are not flat. At a minimum, the increased requirements in the proposed CGP relating to m aintenance of silt fences are an improvement and should be kept in the final permit. I suppor t the proposed requirements that operators implement protective measures on steep slopes, avoid sensitive areas and stream crossings, establish a 50

- foot buffer zone set back, and install
truck wheel wash stations.

Response Refer to Response 13.1.



# Com ment ID 0130

- A2.001.005

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: MISC 4. TRAINING. The level of complexity and detail of the new compliance requirements (such as benchmark monitoring or the
corrective ac tion iterative process) will require a large

- scale training effort to ensure all parties are educated on the expanded permit requirements. ITD is greatly concerned about having enough time to develop, deliver, and implement the training required to a chieve permit compliance. EPA has indicated the date the new permit would become effective, however, there is no date indicating whe n the final permit will be released. ITD will require lead time to identify budget and scope necessary to implement training. For a large agency like a DOT, a significant level of effort is required to develop a new training program by January 31, 2012.

Response Refer to Response 13.1.



# Comment ID 0133

- A2.001.003

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: MISC Additionally, some of the conditions in the proposed CGP appear to duplicate and/or expand upon other federal regulations (e. g. Endangered Species Act, Spill Prevention Control and Countermeasure (SPCC) requirements, etc.). MDT questions the reasonableness of including these provisions as Clean Water Act permit conditions, especially in instances where authority is being expanded outside of the current regulatory framework. For example, if the spec requirements are not adequate to address spill prevention, those requirements should be modified separately from the cap within existing regulatory framework.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

934 Response Refer to Response 13.1.



# Comment ID 0134

- A2.001.001

Author Name: Gaines John Organization: City and County of Denver, Department of Public Works Issue Category: MISC In those cases where we have observed erosion and/or sediment transport at construction sites, it can almost invariably be traced to one
of a few common root causes: i t is the result of improper implementation of properly designed and approved Best Management Practices (BMPs), operation without permits or BMPs, the implementation of an inadequate stormwater pollution prevention plan (SWPPP) prepared by unqualified profe ssionals, or inadequately trained personnel implementing the SWPPP. None of the common problems observed at sites are the result of having inadequate regulations and permitting to control erosion, sediment, or po llutant transport, rather, they are consistently a failure on the part of the contractor/developer to follow current rules, regulations, and industry standards. Jurisdictionally, Denver has found that greater compliance with existing permitting and regulatory controls is gai ned through a combination of strict implementation of in

- field compliance assistance and escalating enforcement strategies.

Response Refer to Response 13.1.



# Comment ID 0134

- A2.001.002

Author Name: Gaines John Organization: City and County of Denver, Department of Public Works Issue Category: MISC Denver does have concerns with the draft CGP's apparent lack of flexibility for site specific conditions, regional climate an d geologic conditions, and limited consideration for the variable nature of construction. For example, our experience indicates that many of the proposed requirements will be difficult, ifnot impossible, to meet for many kinds oflinear utilities, multi

- model transportation, and in

fill development projects.

Response Refer to Response 13.1.



# Comment ID 0134

- A2.001.003

Author Name: Gaines John Organization: City and County of Denver, Department of Public Works Issue Category: MISC A third concern involves the proposed use of flocculants for treatment of stormwater runoff, which contradicts the current CG P for Stormwater Discharges Associated with Construction Activities and violates Colorado water quality regulation.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

935 Response Refer to Response 13.1.



# Comment ID 0135

- A2.001.001

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissions (MACC) Issue Category: MISC Improperly controlled stormwater runoff continues to represent a serious threat to the overall quality and function of waterw ays throughout the nation and certainly within the New England region. One maj or contributor to such damaging runoff is from construction sites. Such runoff is notorious for the introduction of particulate matter into streams and rivers, leading to t he contamination of these natural resources and associated harm to biological and ec ological integrity and loss of vital functions such as fishery management and flood control. Construction site stormwater pollutants are not limited only to particulate matter howe ver, poorly controlled construction site stormwater runoff can introduce a v ariety of other harms to natural watersheds, including but not limited to the introduction of toxic chemicals and or nutrients which can lead to water body eutrophication and possible plan t and animal life loss through resultant anaerobiosis. Indeed, construction stormwater can contaminate drinking water, impair recreation in affected water bodies, harm commercial and recreational fisheries and make floods more frequent and severe.[FN 1] It is clear that the means currently employed to address this nationwi de problem remain ineffective, and damage from construction site stormwater remains poorly

- controlled and unnecessarily detrimental.

[FN 1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (the "C&D Rule"), Preamble, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009); EPA, Report to Congress on the Phase II Storm Water Regulations , EPA Pub. No. 833 -R- 99

- 01 (Oct. 1999); National Research Council, URBAN STORMWATER MANAGEMENT IN THE UNITED STATES, at 22

- 26, 180

- 182 (2008), available at www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf.

Res ponse Refer to Response 13.1.



# Comment ID 0135

- A2.001.004

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissions (MACC) Issue Category: MISC Effective enforcement based on clear and measurable standards of performance (such as, a specific numeric limit for discharge stream turbidity) and an effective monitoring program. The possibilities for infractions for the proposed runoff management program are myriad, effective inspection and ease of enforcement are essential to its proper function and the assurance of the environmental
benefits that are achievable.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

936 

# Comment ID 0141

- A2.001.008

Author Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: MISC 5. Additional Comment: As a member of the Association of Idaho Cities, the City of Nampa would like to express support for th e comments on the draft CGP submitted by the Federal Water Quality Coalition.

Response Refer to Response 13.1.



# Comment ID 0142

- A2.001.002

Author Name: Craycroft John Organization: Cedar Swamp Conservation Trust (CSCT) Issue Category: MISC CSCT's focus is on the Upper Sudbury River Watershed, like many areas, suffers from increased development that causes increas ed pollutant loadings to the areas ground and surface waters. One would think that because many of the surface waters in this area centered around the Cedar Swamp ACEC are to be protected from water quality degradation as Outstanding Resource Waters, the
construction a ctivities would receive a higher degree of oversight. Unfortunately this is not the case as MassDEP has repeatedly ailed to adhere to existing Surface Water Quality Standards required by the Clean Water Act.

Response Refer to Response 13.1.



# Comment ID 0147

- A1.001.001

Author Name: Scott Rebecca

Organization: SECA Issue Category: MISC This new CGP contains significant challenges to those in the enforcement community, already burdened with reduced staffing an d diminished financial resources. In the interests of transparency in government, as well as supplementing dwindling resources, we recommend that the EPA establish an online information and reporting resource, available to the general public. Such a resour ce could provide mapping of active constr uction sites, as well as other pertinent information, made available to varying levels of access on a
need

- to

- know basis from the general public to local enforcement staff to government officials to the specific Primary Operators. Anyone with internet access could determine levels of compliance and problem areas. In addition, such a resource could provide the formal enforcement community with additional "boot

- on

- the

- ground" by enlisting the general public's assistance in reporting and compliance. Such a resource is currently in process being established in the state of New Jersey, and is already in ongoing use in Minneapolis, Minnesota and Southlake, Texas. Those in the construction community are well aware of the challenges to the EPA, to state Departments of Environmental Quality, and to local MS4s, in being able to adequately inspect and enforce, due to the limited resources available. The CURRENT CGP is not being adequately enforced. Given the new additional stringent requirements contai nedRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

937 in this draft Permit, SECA believes such an online public resource to be an ideal way to meet the goals of transparency, public participation, and collaboration, as well as promoting efficiency and effectiveness in government.

Response Refer to Response 13.1.



# Comme nt ID 0150

- A1.001.002

Author Name: Borysenko Jim Organization: REI Engineering Inc. Issue Category: MISC II. Since an apparatus as discussed above will likely come with expense and may be subject to maintenance issues or vandalism , I would further suggest a modeling approach to analyze the performance of BMPs. In this way, a combination of BMPs can be analyzed and verified to meet a discharge limit goal. It would additionally make sense to have a licensed professional engineer or a p erson with an approved c ertification in the field have to sign/seal the analysis.

III. In junction with the modeling approach, we would also strongly suggest that a licensed professional engineer or person with an approved certification in the field have to review the implementation of the erosion control measures in the field to verify that the measures, as designed, were implemented.

Response Refer to Response 13.1.



# Comment ID 0153

- A1.001.001

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: MISC

This proposed CGP includes many specific requirements that exceed the authority granted to EPA for implementation of a Genera l Permit for Construction. Federal Register Document VOL. 55, No. 222, Friday, November 16, 1990, Section 122.26 (b)(x) and (c) as well as Federal Register Document Vol. 64, No. 235, Wednesday, December 8, 1999, Section 122.26 (b) (15) and following, does not give authority for specific requirements to regulate land use conditions. While we know that t he authority is given to the Director in (v) in 122.26 to require what he/she determines as reasonable information from an applicant it does not allow the Director the au thority to set specific requirements such as buffer strip width, slope steepness, or o ther hard and fast specific criteria that may be best ideas but not substantiated by performance criteria. In no way shape or form does the authority extend to control of the quantity of di scharge. The only time a quantity control requirement could maybe be construed here is for the purposes of controlling erosion. Therefore, please remove all reference to specific numerical criteria referenced in the permit related to best practices.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

938 

# Comment ID 0158

- A1.001.006

Author N ame: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: MISC The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to simplify and standard ize compliance expectations for a range of activities deemed to have similar environmental impacts, the proposed CGP would require
extensive site

- specific effort to obtain coverage and thereafter to demonstrate compliance. This concern is only made worse by the new EPA/Corps Guidance on Identifying "Waters of the United States". Not only does the new permit add onerous requirements, the requirements would have to be met at many new locations on a project site because of the extremely broad scope of the new W aters of the United Sates gui dance. In sum, we believe this is inconsistent with the value and purpose of general permits, marks a departure from EPA's typical stormwater general permits program, and stymies the use and availability of the CGP for owners and operato rs of regulated con struction sites.

The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These requirements include the 30 - day waiting period for coverage, the obligation to install all BMPs before initiating construction, the
50

- foot buffer requirement, the numeric turbidity limit, the obligation to collect a minimum of three samples in connection with each and every storm event from each and every stormwater outfall (with limited opportunity to des ignate representative outfalls), and the more stringent expectations associated with discharges to impaired waters, coupled with an often ill

- defined obligation to determine the impairment status of the receiving water body.

Response Refer to Response 13 .1.



# Comment ID 0163

- A1.001.002

Author Name: Fronczak Robert Organization: Assoc. of American Railroads

Issue Category: MISC AAR supports the comments of the Federal Stormwater Association.

Response Refer to Response 13.1.



# Comment ID 0171

- A1.001.007

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: MISC General permits are normally used to simplify a permitting process and associated compliance actions. The proposed permit wou ld appear to be burdensome, unclear and will result in significant increases in costs to our members. This general permitting ef fort wouldRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

939 also appear to dovetail with other proposed guidance and rule by USEPA specifically the new Waters of the United States and obligation to determine the impairment status of a receiving water body.

Response Refer to Response 13.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

STR

. Structure of the Permit

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

940 

# STR STRUCTURE OF THE PERMIT

Comment ID 0025

- A1.001.001

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: STR Definitions contained in the body of the permit need to be consistent with those contained in Appendix A. We noted some discrepancies between the terms defined within the body of the permit and those same terms def med in Appendix A. Inconsistency will cause confusion for both compliance and enforcement.

Response: See Essay Response 14.1.



# Comment ID 0086

- A1.001.004

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc.
I ssue Category: STR The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to streamline and standa rdize compliance expectations for a range of activities deemed to have similar environmental impacts, the proposed CGP would require
extensive site

- specific effort to obtain coverage and thereafter to demonstrate compliance.

Response: See Essay Response 14.2.



# Comment ID 0086

- A1.001.006

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: STR
Tri

- State believes the approach that EPA has taken with the proposed COP is inconsistent with the value and purpose of general pe rm its, marks a departure from EPA's typical stormwater general permits prog ram, and raises unn ecessa!), challenges to the use and avai labi lity of the COP for owners and operators of regulated construction s ites.

Response: See Essay Response 19.1.



# Comment ID 0088

- A1.001.004

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

941 Issue Category: STR The proposed CGP is voluminous, burdensome, and often unclear. While intended to simplify and standardize compliance expectations for a range of activities deemed to have similar environmental impacts, t he proposed CGP would require extensive site

specific effort to obtain coverage and demonstrate compliance.

Response: See Essay Response 19.1.



# Comment ID 0088

- A1.001.006

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: STR We believe this is inconsistent with the purpose and intent of the CGP, by adding more requirements, collectively rendering the CGP nearly unusable in practice.

Response: See Essay Response 19.1.



# Comment ID 0126

- A2.001.001

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: STR A general comment is the new permit's length has more than doubled in length since the 2008 version when all the appendices a re included. Our hope is this increased infor mation doesn't overcomplicate and become so prescriptive that an Operator cannot feasibly implement the permit conditions. Increased specificity in permit language simply adds cost to the project and potential litig ation when contractors are required to im plement BMP's that may not be best way to deal with water quality concerns.

Response: See Essay Responses 19.1 and 14.2.



# Comment ID 0130

- A2.001.004

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: STR
3. FORMAT. The draft permit has sections and subsections to the sixth order heading (ex. 4.2.2.2.b.i.). The significant use of

cross

- referencing coupled with the micro

- sublevel headings make the proposed CGP less readable, more cumbersome, and more
difficult to navigate than the 2008 permit.

Response: See Essay Response 14.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

942 

# Comment ID 0131

- A1.001.028

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: STR 1. Permit Interpretation. Initially, and in regard to the Proposed CGP in its entirety, LBA is concerned that the Proposed CGP will be very difficult for the average permittee to understand and, as a result, comply with. The Proposed CGP is also very difficult to navigate as it makes many cross

- references to other CGP sections throughout the text. This is contrasted with the 2008 CGP still in effect,
which presents its requirements in a much clearer manner. LBA recommends that EPA consider the Proposed CGP's readability and
"understandability" in considering h ow it may be redrafted to be more easily interpreted.

Response: See Essay Response 14.2.



# Comment ID 0168

- A1.001.024

Author Name: Jordan Jill Organization: City of Dallas Issue Category: STR Permit Coordination and Consistency (Various): Compliance is usually better, if the regulatory requirements are relatively consistent, and easily understood. There are several sections of the draft permit that provide opportunities for coordination, clarificat ion and consistency, in order to reduce redundancy, an d to "keep it simple":

-- Requirements for sampling and reporting are included into two places in the permit (Part 3.3.1 and both copied and referenced , in Part 4.2.2.1 for sampling, and 3.3.9 and 4.2.2.1.e for reporting); this is somewhat redundant, and may lead to confusion. Suggest determining one protocol for sampling and reporting, and using it consistently.

-- Very similar site stabilization requirements are presented in Section 2.2.1, 2.4.1.2c and 4.2.2.12, with slight differences with respect

to days allowed for stabilization. Typically most contractors have one subcontractor performing site stabilization, at one time. Using one set of permit requirements for stabilization that could be applied to all sites regardless of site slope, adjacent impa ired waters, and proximity to streams is highly recommended.

-- There is an apparent cyclical reference between the third paragraph of Section 4.2, and Section 4.2.3 regarding EPA requireme nts for discharging to an impaired water by a parameter other tha n sediment or nutrients. In each case, EPA will inform the permittee if any additional limits or controls are necessary. Deleting either the referenced paragraph in 4.2, or the entire Section 4.2.3 is recommended for greater clarity.

-- The requirements for site inspection in Section 5.1.2 are not consistent with the requirements for water quality monitoring in Section 2.2.1. Both activities are dependent upon precipitation events that cause site discharge and should probably be consistent.

Response: See Essay Response 14.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

ENV ASSESSMENT

. Notice to Prepare an Environmental Assessment

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

943 

# ENV ASSESSMENT COMMENT ON NOTICE TO PREPARE AN ENVIRONMENTAL ASSESSMENT (EA)

Comment ID 0012

- A1.001.001

Author Name: Dillard J. Organization: Joyce Dillard Issue Category: ENV ASSESSMENT The EA will analyze the potential environmental impacts of both alternatives on threatened and endangered species, water quality, and historic properties.

Oceans and sea

- level rise should be included in the areas of analysis.

Response Refer to Response 15.1.



# Comment ID 00 12

- A1.001.002

Author Name: Dillard J. Organization: Joyce Dillard Issue Category: ENV ASSESSMENT The objective of this examination is to show where or to what extent the draft CGP proposes requirements that impose an incre mental increase in costs on permittees above and beyond costs that are already accounted for in the 2008 CGP or in the C&D rule requirements, which together define the baseline of costs to which these permittees are currently subject.

Costs on the taxpayer for any costs of polluted water or water supply restrictions should be included. In California, costs have been borne on the backs of the taxpayer and specifically the property owner for improper planning and execution of laws and regula tions on
all levels

- local, state and federal

.

Response Refer to Response 15.1.



# Comment ID 0012

- A1.001.004

Author Name: Dillard J. Organization: Joyce Dillard Issue Category: ENV ASSESSMENT In states like California with the California Environmental Quality Act CEQA, ongoing monitoring and mitigation is a living process past the construction activity. The Municipalities also have responsibility under the California State General Plan and its E lements environment documents for monitoring and mitigation. Though this is not a Federal issue by l egislation, CEQA documents are used inRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

944 lieu of NEPA on transportation issues making the California State CEQA requirements part of the NEPA process. Any mitigation and monitoring have a direct effect on pollution of stormwater.

(Please note that Oceans ar e not considered under CEQA.)

The incorporation of other agencies requirements must be reviews by this agency to its appropriateness in the contribution of water pollution.

Response Refer to Response 15.1.



# Comment ID 0012

- A1.001.006

Author Name: Dillard J. Organization: Joyce Dillard Issue Category: ENV ASSESSMENT Source point contamination should be addressed in the requirements of testing points. In California, some have State jurisdiction, but there are no federal testing points and no federal enforcement, other than lawsuits. The State of California does not recognize Federal lawsuits and resulting decisions as their jurisdiction under the MS4 Permits (Natural Resources Defense Council, Inc.; Santa Monica Baykeeper, v. County Of Angeles County District ETAL Opinion No. 10

- 56017, US Court of Appeals, Ninth Circuit.)

Not all basins have basin plans or are adjudicated. This presents a problem of responsibility and definition of "beneficial u se." The permittee must have that designation in place t o make polluting navigable waters a violation.

Response Refer to Response 15.1.



# Comment ID 0013

- A1.001.001

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: ENV ASSESSMENT The proposed EPA Construction General Permit is more protective that earlier versions of the CGP because it implements the requirements of the C&D ELG. It is therefore not clear why a NEPA review must be conducted. EPA has suggested in the past tha t the existing NPDES program already controls an estimated 80

- 90 percent of the sediment runoff from construction sites.[FN 1] New programs and program refinements that have taken place since 2004 have further improved this performance.

[FN 1] 69 Federal Register 22,477 (April 26, 2004).

Response Refer to Response 15.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

945 

# Comment ID 0013

- A1.001.003

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: ENV ASSESSMENT

We also strongly believe EPA should limit its review of environmental issues associated with construction site stormwater runoff to sediment only and that the only realistic action is to adopt a version of a workable CGP. Our specific comments follow.

Response Refer to Response 15.1.



# Comment ID 0013

- A1.001.004

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: ENV ASSESSMENT EPA should not initiate the NEPA scoping process until the C&D ELG is finalized and incorporated into the CGP.

Response Refer to Response 15.1.



# Comment ID 0013

- A1.001.007

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: ENV ASSESSMENT Several studies have found that sediment is the only pollutant persistently contained in stormwater runoff from construction sites. In completing this analysis, EPA must acknowledge that sediment is the key pollutant, strike references to other pollutants that are unsupported, and continue to refrain from taking action to address any pollutant other than sediment. E PA must further recognize the balance necessary to reflect natural conditions and this industry's minor contribution of sediment relative to other sources.

While EPA has broadly stated that there are a number of pollutants associated with stormwater ru noff from C&D activities, [FN 2] the Agency has failed to provide sufficient data to support such generalized conclusions. In 1984, EPA initiated NPDES permit regulations for stormwater runoff from virtually all development projects in the nation. In 1985, NAHB implemented a Stormwater Sampling Program to show that stormwater discharges from construction sites were not a significant source of pollutants. This program collected stormwater samples from construction sites to evaluate the levels of certain EP A- specified pollutants. The study found that other pollutants are generally not present in significant amounts in stormwater discharges from construction sites, and that the sediment can be controlled effectively through the use of Best Management Practices. NAHB has been intimately involved in all aspects of the federal, state, and many local stormwater programs across the country for at least the past 25 years, and has a wealth of data and information that it has shared with EPA over this time period to help EPA better understand construction stormwater issues.

For its part, EPA has provided little new information since 1985 to demonstrate that any pollutants other than sediment are c onsistently present in stormwater discharges from construction activities. While the Environmental Impact and Benefits Assessment for the C&DRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

946 ELG identifies 11 reports that describe pollutants other than sediment found in construction site discharges or at elevated l evels immediately downstream of construction sites, EPA conc ludes: "construction sites are not thought to be important sources of metals contamination;" construction activities during site development are not believed to be major contributors of [oil and grease and PAHs] contaminants to stormwater runoff;" and "con struction site activities are not believed to be major contributors to pathogen
contaminatio n of surface waters." Therefore, EPA is left with sediment and sediment alone, as the only pollutant of concern from construction site stormwater discharges.

Thes e findings meld well with the Agency's earlier conclusions. When proposing the ELGs in 2002, for example, EPA stated, "the most significant pollutant associated with construction activity at most sites is sediment." [FN 3] Similarly, EPA found that "discharges from this [construction] activity consist predominately of conventional pollutants under CWA Section 304(a) (4), in this case total suspended solids."[FN 4] In 2006, EPA reiterated its conclusions, stating that, "EPA did not identify in this [304(m)] Plan the construction industry because its discharges consist almost entirely of conventional pollutants." [FN 5] Finally, in discussi ng the considerations made when contemplating BAT during the 2004 rulemaking, EPA stated, "we do not have data indicating that these pollutants [toxic and

non

- conventional] are found in construction runoff nationwide."[FN 6] EPA is urged to rely on these statements and complete the E A to address sediment from construction sites and sediment only.

[FN 2] See, for example, De velopment Document For Proposed Effluent Guidelines and Standards for the Construction & Development Category, November 21, 2008, p. 5

- 1, 73 Federal Register 72,571, 72,583.

[FN 3] 67 Federal Register 42,654 (June 24, 2002).

[FN 4] 69 Federal Register 53,718 (Sept. 2, 2004).

[FN 5] 71 Federal Register 76,664 (Dec. 21, 2006).

[FN 6] 69 Federal Register 22480 (April 26, 2004).

Response Refer to Response 15.1.



# Comment ID 0013

- A1.001.008

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: ENV ASSESSMENT EPA has suggested that the EA will consider two alternatives - No Action, which is not issuing the permit, and the proposed action, which is issuing the proposed CGP. NAHB submits that an additional option, in the form of a modified CGP, should also be analyzed.

No Action. The No Action alternative is not a viable option. The Clean Water Act requires construction site operators who dis charge storm water during construction to obtain NPDES permits if their activities disturb 1 or more acres of land area. In just those areas where EPA is the permitting authority, this mandate results in thousands of permits - permits that could not be efficiently or effectively reviewed or issued if not for the general permit program. Furthermore, the existing CGP framework has proven to be effective andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

947 should not be compromised. Permitees are now experienced in the process and the requirements, and have adapted their planning and construction practices to adhere to the progr am. To date, EPA has provided no data to suggest otherwise.

Issuing a CGP. Issuing some version of a CGP, which has been specifically designed to provide flexibility and reduce burdens while ensuring appropriate environmental protection, is the only reas onable option. EPA's permitting scheme and its current Construction General Permit (CGP) was purposely designed to allow flexibility in the design and implementation of BMPs, reflecting the fundamental recognition that the stochastic nature of precipitation and the variability of other site attributes (such as soils type and topography) affect the transport of sediment when it rains.

The CGP allows all operators who are performing similar operations (e.g., construction) to quickly obtain permit coverage, yet includes stringent requirements to ensure water quality is not compromised. In order to be covered by EPA's baseline general permit, construction site operators must prepare a Stormwater Pollution Prevention Plan (SWPPP) and file a Notice of Intent (NO I) with EPA or the state permitting agency, then comply with the terms and conditions of the permit (i.e., install and maintain Best Mana gement Practices conduct biweekly inspections, record any plan changes, etc.). While these requirements may appear simp listic, they are quite complex and burdensome. For example, EPA's "fact sheet" for the NPDES general permit for stormwater discharges from construct ion activities is 52 pages long [FN 7] and its guidance for writing the SWPPP (Developing Your Stormwater Pollution Prevention Plan: A Guide for Construction Sites) is 50 pages long.[FN 8] In addition, each permittee must comply with a set of twelve standard c onditions that outline their duty to comply, as well as additional inspection and reporting requirements . These mandates help to ensure that the CGP does not result in unacceptable adverse environmental impacts.

The alternative to the "streamlined" general permit is an individual permit, which requires considerably more information and paperwork, yet rarel y results in any measurable environmental improvement. In addition to being more cumbersome to the permitees, individual permits must be submitted well in advance of conducting the activity (typically 90 - 180 days), may require additional inspections an d monitoring, and require more oversight by program administrators. Because thousands of construction permits must be issued each year, and appropriate protections are written into the CGP, it makes little sense, either environmentally or admi nistratively, to require the use of individual permits.

[FN 7] See http://www.epa.gov/npdes/pubs/cgp2008_finalfactsheet.pdf.

[FN 8] See http://www.epa.gov/npdes/pubs/sw_swppp_guide.pdf.

Response Refer to Response 15.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

PROCESS

. EPA Interaction with Stakehoders

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

948 

# PROCESS EPA INTERACTION WITH STAKEHOLDERS

Comment ID 0029

- A1.001.005

Author Name: Pebley Trey Organization: McAllen Construction, Inc. Issue Category: PROCESS We encourage EPA to work closely with the commercial construction industry and the Associated General Contractors of America during the comment review process and as it continues its work on a final ELG and new CGP.

Response See Response 16.



# Comment ID 0031

- A2.001.009

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: PROCESS We encourage EPA to work closely with the home building industry and NAHB during the comment review process and as it works on
the Draft COP.

Response See Response 16.



# Comment ID 0093

- A2.001.001

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: PROCESS AGC shares EPA's interest in protecting the waters of the United States, and in crafting a Construction General Permit (CGP) that will serve that purpose. At the same time, AGC has to insist on transparency, sound science and reasoned decision

- making that accounts for economic and other relevant factors. To its regret, AGC finds that many provisions included in the Draft are neither required by law nor justified by any information that EPA has provided to the public. Nor is there any explanation for much o f what EPA has proposed. If EPA has assessed the costs and benefits of the many unique features of the Draft, as required by both the Clean Water Act (see 33
U.S.C. § 1314(b)(1)(B)) and Executive Order 13563, it has yet to subject that assessment to any kind of public review. In summary, AGC urges EPA to take the time it requires to put itself on a sound and defensible course. The agency should do this in accor dance with the following comments and all relevant requirements for public participation in its de cision

- making process, for the protection of small businesses and to meet the desired objective of limitin any excessive costs of federal regulatory requirements.

Response See Response 16.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

949 

# Comment ID 0105

- A2.001.016

Author Name: Courchesne Christopher Organization: Conservation Law Foundation (CLF) Issue Category: PROCESS CLF objects to the lack of any provision in the Draft CGP allowing opportunities for public review and participation in the p ermit coverage process. The Draft CGP provides no direct advance notice of, or opportunity for the public to comment on, NOIs. This is a serious and troubling omission because the public both has a right to know about proposed stormwater discharges and may have important information of which EPA should be aware that could be a basis for denying permit coverage. At a minimum, prospective permittees should be required to notify the applicable local government that a NOI has been filed, and the final permit should specify that EPA will provide real

- time public acces s to all eNOI information submitted by permittees, including NOIs, sampling results, and other reports. As discussed above, the final permit should also require electronic posting of SWPPPs.

Response See Response 16 and 8.17.



# Comment ID 0109

- A2.001.008

Author Name: Campbell Elizabeth Organization: Nashua River Watershed Association (NRWA) Issue Category: PROCESS Public participation is a critical component of this permitting program. We call upon EPA to provide opportunity for the public to
comment when each site operator applies for coverage by filing a Notice of Intent ("NOI"). NOls should be required to be submitted electronically, and all stormwater plans and monitoring data should be required to be posted on line and made available to the public.

R esponse See Response 16.



# Comment ID 0135

- A2.001.006

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissions (MACC) Issue Category: PROCESS Public participation is an item of particular concern to MACC as our organization, comprising thousands of volunteer municipal officials, serves as the "first line of defense" for the protection of surface water and wetland resources throughout the sta te. EPA should insist on the opportunity for public comment and discussi on for any situation which meets the current criteria for the issuance of a construction stormwater permit at the stage of filing of the Notice of Intent. All stormwater permit related documentation, i ncluding plans and monitoring data should be required t o be posted on line and made available to the public.

Response See Response 16 and 8.17.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

LINEAR

. Linear Construction

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

950 

# LINEAR GENERAL COMMENTS ABOUT LINEAR CONSTRUCTION WITH DO NOT FIT UNDER ANY PERMIT SECTIONS

Comment ID 0017

- A1.001.001

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: LINEAR On April 25, 2011, a Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Construction Activities was published in the Federal Regist er. The proposed rule was evidently written to address the construction at a limited site (housing development, strip mall, etc). Unfortunately, what may make sense for a 5 acre rectan gle site does not necessarily make sense for a 60 mile utility line that crosses different topography, various soil types, and numerous landowners. As a consequence, linear utility projects would not be able to comply with multiple requirements of the proposed rules such as developing sediment basins, designating fueling areas , installing sediment barriers on all downslopes, monitoring storm water discharges, etc. The most logical solution is to have the rule exempt linear utility projects since their construction sites are completely different than the average house or store.

Response Refer to Response 17.1.



# Comment ID 0040

- A1.001.020

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: LINEAR Many of the proposed requirements raise unique challenges in association with linear utility projects in particular due to two primary factors that limit available options and decisions regarding erosion and sediment control - linear utility projects often are (i) narrow (approximately 30 to 150 feet wide, depending on the project); and (ii) constructed on easements provided by multiple landowners, rather than on purchased property. Additional unique characteristics of linear utility projects that are of significance to p roposed CGP development include: (a) typical occurrence on very narrow rights

- of

- way and are designed to minimize impacts to the environment and adjacent properties; (b) possible extension over tens or hundreds of miles over different natural terrains and watersheds ; (c) frequent construction in rolling segments, as in an as sembly line; (d) a tendency to be short

- lived; (e) rare involvement of fill, as might be expected in highway or other conventional development activities; and (f) obvious physical constraints against active trea tment systems or structural BMPs like sedimen t ponds.

Response Refer to Response 17.1.



# Comment ID 0053

- A2.001.051

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

951 Issue Category: LINEAR Consider issuing a separate NPDES General Permit for linear projects such as transportation, or power transmission.

Response Refer to Response 17.1.



# Comment ID 0061

- A1.001.001

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: LINEAR
I. SCOPE OF THESE COMMENTS
The Draft Permit was crafted, as its predecessors have been, with the construction activities of conventional commercial and indu strial builders and homebuilders primarily in mind. Such projects are characterized by controlled perimeters and a relatively small number of controlled discharge locations that serve the site as a whole or a substantial portion of the site. Although a small percenta ge of
telecommunications

- related construction is of this kind, the majority of our construction activities

-- and the ac tivities that we wish to address specifically in these comments

-- involve the installation and maintenance of linear underground conduit infrastructure independent of any conventional construction project. For the purposes of these comments we refer to such projects as "Linear Communications Projects" or ("LCPs").

LCPs differ from traditional sites in a number of important respects. Although many provisions in the Draft Permit work well for both conventional construction and for LCPs, these differences m ake other terms impractical or simply infeasible in the context of LCPs. Not surprisingly, application of these other terms to LCPs produces costs out of keeping with those that would be incurred by more traditional construction projects, while generating little if any meaningful environmental benefit.

The comments that follow first describe the activities that constitute LCPs and the factors that differentiate such projects from more traditional construction projects. They then identify the specific terms of the Draft Permit that are poorly suited to LCPs and the reasons for the misfit. Wherever possible, we also suggest alternative approaches that achieve the Agency's legitimate object ives in a manner that is consistent with the unique characteristics of LCPs.

II. CHARACTERISTICS OF LINEAR COMMUNICATIONS PROJECTS As used in these comments the term Linear Communications Projects refers to projects within the telecommunications industry that are characterized by a narrow width [FN 2] of construction over a long distance that are not a part of a larger plan of development. These LCP construction sites are significantly different from conventional perimeter

- bounded projects.

A. Project Sites are Narrow, and Disturbed Area is Even Narrower
Stand

- alone LCPs typically are legally and geographically confined to easements and other rights

- of

- way. These easements often are fifteen feet in width or less. The actual width of earth disturbance is significantly less than that of the entire easement - no more than
six to twelve feet, and sometimes as little as a foot or two, depending on the construction technique used. See Attachment A ("Photographs Illustrating Typical Easements, Construction Equipment, and Widths of Disturbed Area") [Please see Attachement A of
the original letter (Docket ID 0061

- A1.001.001)].Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

952 This limited width of disturbance is determined primarily by the action of the specialized cable

- installing equipment illustrated in Attachment A [Please see Attachement A of the original letter (Docket ID 00 61

- A1.001.001)]. The most common cable installation equipment is either a plow that directly inserts the cable or cable conduit underground and immediately backfills the trench to the original grade, or a trenching machine that cuts a narrow trench for sub sequent placement of the conduit or cable. In rare instances a backhoe might be used to dig a short section of a trench for an LCP, such as if the soil is too rocky to allow use of a plow or trencher.

Instead of plowing or digging a trench, sometimes a b oring technique known as directional drilling is used. Boring is used when it is necessary or desirable to avoid disturbances to things such as a highway, paved driveway, stream, wetland, heavily vegetated area, or steep slope. A specialized drill rig is b rought to the site, which drives a hollow tube down through the surface, along the desired path underground, and then back up to the surface at the desired location, In some cases, a specialized mud is used to assist the drilling, in which case a small pit ("bore pit") is dug by a backhoe at the entry point to contain excess drilling mud. Flexible cable conduit typically is then pulled through the hollow borepipe, which is then withdrawn. The footprint of such a drilling operation for an LCP, including a bo re pit, typically remains within the fifteen

- foot width mentioned above.

The last type of disturbance worth mentioning as a frequent component of LCPs is the placement of a "handhole" to facilitate future access to the buried cable at a certain point, such as at a splice point. Typically a small backhoe is used to excavate a small hole to allow placement of prefabricated box

- like structure, as also illustrated in Attachment A. Again, the width of disturbance for this type of operation typically remains with the fifteen

- foot width mentioned above.

B. Projects Often Run for Miles Also unlike traditional perimeter

- bound construction, a cable

- laying project can run for miles. This means that a single LCP can cross multiple political and regulatory boundaries, pass through multiple watersheds, and encounter a wide variety of soil, slope and vegetation types.

Equally important, because LCPs intersect multiple drainage features as they cross the landscape, they are characterized by a multitude
of discharge points. [FN 3] Five recent typical projects in four states had 75 crossings over 50 linear project miles, for an average of one crossing every 2/3 of a mile, or one and a half crossings per mile. Each crossing produces two discharge points, one f rom each side of the crossing. Thus, unlike discharge points from traditional perimeter

- bound construction, which typically aggregate runoff from as much of the site as possible, discharge points from an LCP serve only a tiny fraction of the disturbed area that qualifies the project for permitting.

C. Active Construction Area is Small, and Constantly Moving Forward Construction activity on an LCP occurs in a very small and moving area over the life of the project. Unlike traditional projects, where the construction activity typically creates large areas of disturbance over the entire project footprint for the life of the projec t, LCPs typically open a small trench, lay or remove cable, and close the trench as the project proceeds. [FN 4] As a result, the area of active construction moves daily, with virgin territory ahead and temporarily or permanently stabilized project lands behind. This means that only a very small fraction of the total area of the LCP is actually disturbed at any given time, and that the duration of disturbance at any point is extremely limited in comparison with traditional construction projects and in comparison with non

- communications linear projects. This limited duration of disturbance also minimizes spoil piles and returns the site to its original grade on a daily basis, limiting the potential for erosion and sediment transport.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

953 This same characteristic of a "moving site" also means that traditional notions of "entrance and exit" points do not apply ne atly to
LCPs.

The equipment that contacts disturbed soils (trenchers, backhoes, plows, directional boring machines, etc.) is transported to and removed from the site by flatbed truck or trailer and typically does not contact roadway. Instead, the off

- road equipment typically stays

on the truck or trailer while the latter pulls off the road and parks in a position parallel to the road but in the right

- of

- way. Then the off

road equipment rolls off and does its work. After that work is completed, the off

- road equipment is picked up by th e on

- road transport vehicle (usually at a different spot farther down the right

- of

- way). When the on

- road vehicle (truck or trailer) pulls off the road and onto the right

- of

- way, typically it does not thereby contact the disturbed portion of the constructi on site (i.e., the trench and sidecast materials). Therefore, soil tracking offsite by any of these vehicles typically does not occur.

Photographs illustrating typical deployments are included in Attachment A, Section 5 [Please see Attachement A of the original letter (Docket ID 0061

- A1.001.001)]. Because of the moving nature of the construction activity in a LCP, the scene in those photos may be

re

- enacted many times in the course of a job, but only once or twice at each location, as the off

- road equipment is dropped off and later picked up. So the transport truck or trailer entering and leaving the right

- of

- way once or twice per location typically does not substantially disturb the surface.

The moving site also typically has no fixed bulk fuel and other storage facilities to which conventional pollution prevention measures, such as berming or covering, could be applied.

D. Little or No Capacity to Control Stormwater Run

- On There is at least one other critical difference between traditional perimet er

- bound construction and LCPs. On traditional sites,

stormwater run

- on typically is controlled, either by conducting it through the site in a way that isolates it from construction runoff or by redirecting run

- on and passing it around the construction sit e. In contrast, operators of linear construction sites have very little ability to control storm water running onto and across their sites. As opposed to conventional projects with grading to estab lish, manipulate, and control storm water flows, LCPs consi st of an excavated trench, typically placed in a right

- of

- way easement or other right

- of

- way, with no change to existing grades within the LCP easement.

As a result, the operator of an LCP typically has little or no ability to control the constituents or volume of stormwater run

- on entering the site from existing off

- site sources. Traditional barrier

- type run

- on and runoff controls are not feasible, practicable, or safe when attempting to control flows across the entire right

- of

- way. Indeed, isolation, by grading, berming or silt fencing along the length of an LCP trench or plow track would actually hugely increase the footprint of earth disturbance of each project, and thus have a net effect opposite to the Agency's policy goals. Moreover, in the common s cenario of installing cable in or near a drainage: swale paralleling a road, [FN 5] installing a line of BMPs in order to prevent run

- on would preclude drainage into the swale, thus frustrating the design purpose of the swale and possibly causing flooding of the road or adjacent land. Such disruption of previously engineered drainage may also violate the terms of the easement.

One important consequence of the inability of the LCP operator to control stormwater run

- on is the inability to reliably collect s ite discharge samples that characterize only the runoff from the area of the LCP land disturbance. Again taking the familiar exam ple of construction along a roadside, all area storm water flows into a common roadside drainage ditch. The discharge from that ditch, therefore, includes stormwater originating throughout the watershed, including from the road and from other areas upslope of the telecommunications excavation, in addition to runoff from the LCP's narrow and temporary trench area itself. A single LCP several miles in length could have run

- on from a great number of separate properties immediately adjacent to the LCP.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

954 E. Little or No Capacity to Control Stormwater Run

- off The operator of an LCP typically also has limited ability to control stormwater run

- off. For instance, an LCP operator theoretically could install a line of BMPs paralleling the line of buried cable, which could contain the flow. However, doing so would crea te a sluiceway that would increase the erosive action of the stormwater thereby forced to run along the length of the plow line or filled trench. The LCP operator typically would be precluded by the limited width of the easement from installing a retention pond a dequate to handle the problem largely created by such line o f BMPs.

Whenever the cable line lies near or in a roadside swale that eventually discharges to a stream crossing, the LCP operator ha s limited ability to capture or control the stormwater discharged there (most of which of course was drained from areas o utside the LCP). Again, that is because the LCP operator's rights under the easement typically do not include the right to change the contours of the drainage way or to install a retention pond at the point of discharge.

F. Limited Potential to Contribut e to Sediment Loading Fortunately, the typical LCP has very limited potential to contribute to sediment loading, again due to its distinctive geome try and other factors specific to LCPs. Consider the classic case of an LCP in or near a roadside drainage swale. The disturbed area is typically returned to its original contours promptly, by the plow itself or by re

- filling and compacting a trench and thus eliminating loose side

cast soil. Until that strip is revegetated, theoretically there is some increased p otential for erosion. However, the potential for erosion is limited by the following factors: (1) the disturbed soil consists of a narrow strip; (2) the time of exposure of disturbed areas prior to initiation of stabilization measures is very short; (3) pr e- existing contours are not changed; (4) runoff from the narrow strip of disturbance typically proceeds via sheet flow down the side of the swale, which typically is vegetated and has a modest slope , toward the center of the swale, and (5) as the runoff then passes down the length of the swale, it typically is again passing over a vegetated surface of modest slope.

* * * * * * * * * * * * We stand ready to provide further documentation of the differences between (A) traditional perimeter

- bound constructio n and (B) LCPs of the kind routinely conducted by the telecommunications industry. We hope, meanwhile, that this brief synopsis of the key differences is useful to the Agency and provides a background against which to understand the following specific comm ents.

[FN 2] Telecommunications trenches are typically less than I

- foot in width, with ancillary disturbance from sidecast excavated soil and equipment footprint disturbance.

[FN 3] One need only consider the number of culverts that convey creeks and streams under roadways to have a sense of the short distance between discharge points in LCPs.

[FN 4] A typical LCP in an undeveloped area will progress at a rate of at least 500 feet per day, and up to 4,000 feet per_da y in some situations._Installed cable is covered as the project proceeds, to ensure the integrity of the installed infrastructure, to avoid unnecessary flooding of an excavation, and to protect against vandalism.

[FN 5] An LCP typically must be conducted within an easement no more than 15 feet wide. Standard practice is to place buried cable next to a roadside ditch or swale rather than inside the swale, if the easement space will allow. In a situation where the ea sement is not wide enough to allow this type of placement, standard practice is to place buried cable on the upper slope of the swale, rather than inRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

955 the lowest point of the swale. In the relatively rare instance when the cable must be placed in the lowest point of the swale, an d/or if the swale is steeply sloped, a "check dam" or "ditch check" may be installed across the swale, to reduce the velocity of the flow and prevent erosion of the ditch. Ditch lines that have been disturbed are also restored and quickly stabilized (usually the same day) after placement.

Response
Refer to Response 17.1 and Response 1.3.



# Comment ID 0061

- A1.001.019

Author Name: Bond Grif Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: LINEAR Finally, we ask that the Agency consider adding a limited exception from the permit's terms for emergency circumstances. Telecommunications not only are the foundation of our daily transactions and the infrastructure that supports our nation's economy, but
also serve as critical links with life

- and

- death consequences. Health emergencies, law enforcement emergencies, resource management emergencies, and natural disasters of all kinds convert the telecommunication lines that carry our daily traffic into literal lifelines for those in need. In order to keep their systems opera tional in anticipation of and during crisis events our members need the ability to respond to service interruptions without delay and without concern that they must choose between providing the critical servi ce and the satisfaction of permit requirements m ore appropriate to routine installation, maintenance and removal projects.

The complexity of this question is such that it would be irresponsible to attempt in these comments to catalogue all of the p otential conditions in which an emergency exception wo uld be warranted. Similarly, it would be irresponsible to seek to enumerate all of the individual obligations under the Draft Permit that could potentially delay timely service restoration. We are prepared, howev er, to work with the Agency to responsibly i dentify categories of telecommunications maintenance that reflect legitimate emergency activity, and the limited number of permit terms that would need to be modified or suspended in order to enable those activities to occur i n a timely and responsive mann er.

Response Refer to Response 17.1.



# Comment ID 0067

- A1.001.002

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: LINEAR ESI's comments primarily concern the uncertain and potentially disturbing impact of the CGP on linear projects, such as those to construct, maintain, or repair electric transmission or distribution lines. Consequently, ESI requests that EPA make several changes to the applicability of the CGP to linear, right

- of

- way

- type projects. Alternatively, EPA should develop a separate general permit that replaces this CGP and applies in a more tailored fashion to linear, right

- of

- way

- type projects

Response Refer to Response 17.1 and 2.5.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

956 

# Comment ID 0067

- A1.001.007

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: LINEAR EPA also should note that most servitude or easement documents only restrict landowner activities within the boundaries of th e ROW.
Land

- use activities hydraulically

- upgrade from the line ROW can drastically impact stormwater run

- on water quality and could negatively impact water quality at the points of discharge from the project boundaries. EPA should clarify in the CGP that cr edit or an allowance for the quality of site run

- on water can be reflected by the permitting authority in any conditions or parameters applies to site
runoff under the CGP or in actions taken to enforce the CGP conditions.

Response Refer to Response 17.1.



# Comment ID 0072

- A2.001.001

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: LINEAR When reviewing the attached comments, and finalizing the draft CGP, MoDOT encourages the EPA to consider balance, and take in to account the vastness of the transportation network, coupled with resource constraints and public expectations for the state departments of transportation.

Response Refer to Response 17.1.



# Comment ID 0072

- A2.001.022

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: LINEAR As pointed out in the comments above, linear transportation projects differ significantly from other types ofland disturbance activities

. As such, MoDOT encourages the EPA to consider developing a separate permit, specific to linear transportation projects, which is more suited to addressing the differences in construction approach from nonMlinear jobs. This permit separation proposal has already been broached, and is currently being petitioned within the MS4 program.

Response Refer to Response 17.1.



# Comment ID 0086

- A1.001.001

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

957 Issue Category: LINEAR
Tri

- State is subject to the ever increasing permitting requirements for construction and maintenance of transmission line infrastructure,

and is concerned that EPA continues to promulgate stormwater requirements that are frequently in appropriate for these types of linear construction and maintenance activities that utilities are required to perform by other state and fed er al agencies to ensure an on

- go ing supply of reliable electricity.

Response Refer to Response 17.1.



# Comment ID 0086

- A1.001.020

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: LINEAR
The proposed COP fails to recognize or provide any consideration for the unique challenges associated with linear utility project s for electric transmission service lines. Many of the proposed requirements raise unique challenges based on two primary factors t hat limit available options and decisions regarding erosion and sediment control - linear utility projects often are

(i) on very narrow rights

- of

- way by design to minimize impacts to the environment and adjacent properties (approximately 30 to 150
feet w ide) (ii) constructed on easements provided by multiple landowners, rather than on purchased property (iii) extend over tens or hundreds of miles over different natural terra ins and watersheds (iv) frequently constructed in rolling topography (v) a tenden cy to be short

- lived (vi) rarely involve the use offill material, as might be expected in highway or other conventional development activities (vii) have physical constraints against active treatment systems or structural BMPs like sediment ponds

Tri

- State believes that EPA should provide more consideration for these particularly unique characteristics specific to the elect ric utility industry.

Response Refer to Response 17.1.



# Comment ID 0087

- A1.001.003

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: LINEAR We note, as well, that a number of the requirements in the CGP stem from requirements in the C&D Rule that were specifically remanded so that EPA could address UWAG's comments and concerns related to linear utility projects. Inasmuch as it is premature to apply the original turbidity limit, it is also premature to apply the non

- numeric requirements that remain unresolved pending EPA's
final action on remand. UWAG's comments and concerns in the C&D rulema king centered on the applicability and feasibility of the following requirements in the linear context: (i) control stormwater discharges (Section 2.1.3.1.b); (ii) minimize soil compa ction,Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

958 which should (but does not) exclude access roads, equipment pads, and other similar areas on linear projects that, by design and due to their function, will be compacted and for which a variety of measures beyond those mentioned in the C&D Rule and CGP are avai lable
to deal with compaction; (iii) provide and maintain nat ural buffers (Section 2.1.2), which as discussed below is unworkable for linear projects, particularly as this requirement is proposed in the CGP; (iv) install perimeter controls (Section 2.1.3.2.b), which are not reasonable for large (i.e., long) linear u tility projects to implement along miles of linear construction and will result in hydrological barriers across miles of landscape in natural areas, would be impracticable if not unsafe on active urban streets, and would impair livestock and agricultural a ctivities in rural areas; and (v) implement measures to minimize the exposure of stormwater to building materials and certain other construction site materials (Section 2.3.2.3.c), which, as discussed below, do not make sense as applied to certain linear utility project materials that are specifically designed to be exposed to the elements.

Response Refer to Response 17.1 and 2.



# Comment ID 0087

- A1.001.033

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: LINEAR
In addition to the requirements of general concern for all utility projects (as described above), the following CGP requirements are of specific concern for linear utility projects, given their unique constraints. Linear utility projects (1) occur on narrow r ights

- of

- way over which ownership may be both limited and varied; (2) extend tens or hundreds of miles over different natural terrains and wate rsheds; (3) often are constructed in rolling segments, as in an assembly line; (4) rarely involve extensive grading, clearing or filling, as is common with highway and other more conventional construction activities; and (5) may render active treatment systems and retention/detention basins infeasible due to site limitations, public safety, and energy reliability. By way of example, the type of sediment basins that are common at residential and commercial construction sites are entirely uncommon within utility rights

- of

- way because the areas of disturbance and, in turn, the stormwater flows, tend to be isolated and disconnected; the rights

- of

- way tend to be too narrow to accommodate the installation of basins; and the proximity of basins to high voltage electric lines and towers, or to gas pipelines, raises serious safety concerns.

Linear utility construction, partic ularly overhead electric transmission lines, typically do not increase impervious surfaces or

concentrate or re

- direct stormwater. In fact, many such projects apply above

- grade vegetation removal practices (rather than more traditional clearing and grubbin g) such that the only actual disturbance occurs in the immediate vicinity of the line support structure. In short, the impacts from linear utility projects, if any, are minimal, temporary, and best controlled, where appropriate, with BMPs that are peculiar to the narrow linear setting (as compared to highways, shopping centers, or other planned commercial or residential development). [FN 9]

[FN 9] Many states further distinguish overhead transmission projects from other linear utility projects, because overhead projects do not create new flow patterns, concentrate flow, add impervious surface, or otherwise materially affect water quality. In thes e situations, attempting to install sediment and erosion control measures may actually be more disruptive than the project itself. We urge EPA to adhere to this distinction, as well.

Response Refer to Response 17.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

959 

# Comment ID 0087

- A1.001.037

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: LINEAR General design requirements should, but as proposed in the CGP, do not consider design factors for utility line construction in existing paved areas (e.g., streets) where the amount of area disturbed, and thus the exposed soil, at one time is limited. Section 2. 1.3. Also
, peak flow rates and total stormwater volume controls (Section 2.1.3.1.b) are not feasible for linear projects because the con trol over flow rate presumes an ability to retain stormwater on

- site. As noted above, linear utility projects typically are const ructed within narrow easements or rights

- of

- way (or paved streets) that make it infeasible to construct and maintain retention structures on

- site.

Response Refer to Response 17.1.



# Comment ID 0088

- A1.001.001

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: LINEAR Minnkota questions these significantly increased permitting burdens for transmission line construction activities with respect to how much real environmental improvement would occur by making addition al changes to the already existing (mature and effective) stormwater management programs. This is particularly true as EPA continues to promulgate stormwater requirements that are not appropriate for the linear construction and maintenance activities utili ties perform on transmission corridors.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.001

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR
AGA offers these comments as a real

- world, critical assessment of the Draft Permit's application to natural gas utilities' linear construction projects. While the Draft Permit's approach may fit traditional housing or shopping mall development activities, it is wholly incompatible with the narrow earth

- dist urbing activity and stabilization best practices used in linear construction projects.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.002

Author Name: Lacey Pamela Organization: American Gas Association (AGA)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

960 Issue Category: LINEAR
AGA members are directly affected by EPA's stormwater program because they construct and maintain natural gas facilities that

frequently require construction

- related stormwater permitting. However, these gas utilities are not engaged in the type of construct ion that involves installing new buildings and acres of new impervious pavement. Instead, natural gas utilities typically obtain new NPDES permits for limited, temporary storm water discharges from digging short, narrow ditches to install gas lines, or for short

- term (1

- 2 days) hydrostatic test water discharges. Thus, AGA members have substantial concerns that the Draft Permit overlooks the dist inct nature of linear construction, imposing severe compliance burdens that impede natural gas service without any appreciable environmental benefits. As currently drafted, the Draft Permit would illogically extend criteria for traditional building and housing development and redevelopment to low impact, linear natural gas pipe projects.

AGA believes that the distinct nature of pipeline installation warrants a different regulatory approach than that afforded to traditional development. Natural gas pipeline projects do not install acres of new impervious surfaces (e.g., asphalt parking lots, roads , buildings,

co ncrete sidewalks or patios) that will make permanent changes to the hydrology of a large track of land. Instead, linear excav ations take a short time and once the pipe is installed or repaired, soil is replaced and original contours restored, and the surface area is re

seeded with grass or native plants. (See Exhibits) And where existing impervious surfaces (e.g., pavement) are disturbed as p art of the gas line installation, they are typically replaced afterwards and do not cause a net increase in impervious surface area.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.003

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR (1) The Draft Permit's blanket approach to stormwater controls is unreasonably burdensome for linear construction, particularly for smaller, non

- transmission pipeline projects. As a threshold matter, the proposed controls focus on traditional "box" projects and does not provide practicable guidelines for linear projects.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.005

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR (2) A substantial number of the Draft Permit controls are unachievable for pipeline projects, simply because implementation is beyond the utilities' control. First, these projects are conducted in right

- of

- way ("ROW") areas where utilities exercise no ownership of the multiple parcels of land over which the projects take place. Second, the projects operate along side other permitted and non

- permitted entities doing road improvements in the same ROW.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

961 Response Refer to Response 17.1.


# Comment ID 0090

- A1.001.007

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR A typical pipeline installation operation spans several parcels with distinct topography, demonstrating little need for artificial stormwater controls. AGA requests that EPA remove linear construction from the purview of these monitoring and inspection standards, an d at minimum, distinguish and identify reduced reporting requirements for linear construction projects operating with other permitted and unpermitted entities working within the same ROW.

Response Refer to Response 17.1, 3, and 5.



# Comment ID 0090

- A1.001.009

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR AGA urges EPA to consider the ramifications of imposing the one

- size

- fits

- all approach of the Draft Permit to state permitting programs. As AGA notes below, statewide permitting programs are appropriate for linear construction projects because they reduce the compliance burden of coordinating a linear project across municipal lines and impose standards that accurately reflect locali zed geographic and climatic conditions.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.010

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR AGA believes that the Draft Permit focuses on technology

- based and water quality controls that have little bearing on linear construction operations. Utility projects are narrow, linear, and they are typically less than 25 feet wide. Gas service line projects are as narrow as 18 inches. Under these conditions the slope length is extremely short and hardly warrants the erosion control measures proposed in the Draft Permit. AGA recommends that EPA include language specifying that for "utility projects disturbing a nar row corridor of earth, erosion controls need only be installed in areas of concentrated flow of stormwater runoff."

Response Refer to Response 17.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

962 

# Comment ID 0090

- A1.001.023

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR

The Draft Permit is impracticable for pipeline linear projects, which mostly operate along ROWs where the utilities have no ownership over the surrounding area. Further, these projects could be conducted on roads possibly undergoing multiple improvement proje cts within the same ROW. Thus, land use regulations limit utilities' practical ability to impose the type of controls that traditional "box" projects could be expected to implement. Further, the presence of other operators conducting road improvements in the same RO W makes for a unique and disproportionate burden on linear construction projects if they must undertake reporting and inspection requirements that are clearly designed for traditional, expansive development and redevelopment projects.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.030

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR The physical circumstances of pipeline installation are incongruous with the Draft Permit's focus on controls for stormwater sheet flow
and hea vy soil erosion: these events are not a major concern in linear pipeline projects. As natural gas pipes meander over a wide m ix of landscape, they encounter numerous stormwater flow barriers, including roads, driveways, trees, flora, and elevation conto urs affecting the stormwater flow over the length of a linear project. These existing barriers make it difficult for stormwater r unoff to pick up contamination at one localized area and discharge it to another localized point. Further, a gas pipeline installa tion disturbs only a narrow width of soil, taking three to four thousand feet of linear length of pipe installation to disturb a one

- acre area. On a given day, only a fraction of the project length is disturbed and back

- filled or "buttoned up" at the end o f each work day, leaving only laydown/storage areas for minimal potential erosion exposure. Further, any stormwater accumulation discharged from exposed tr ench area would either flow naturally over a diverse landscape of mixed permeability, or if contaminated, be subject to a best practices filtering method that prevents discharge to surface waters. In contrast, stormwater discharged from a housing "box" construct ion project is localized and concentrates impacts (e.g. stormwater volume, velocity) in one area. EPA should incorporate these fundamental distinctions and modify the Draft Permit accordingly.

Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.041

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR It is clear that linear projects simply warrant a different regulatory approach and merit an exemption from the Draft Permit' s proposed
controls.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

963 Response Refer to Response 17.1.



# Comment ID 0090

- A1.001.046

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR The Draft Permit's stringent, all

- encompassing approach imposes unique and disproportionate burdens on natural gas utility construction. EPA should recognize that the Draft Permit addresses stormwater pollution concerns regarding increased impermeability from large

- scale construction impacts. Linear natural gas projects should be regulated under a different regime than traditional land development activities, and should certainly not be subject to post

- development stormwater controls. AGA strongly believes that both the regulated utilities and state/local regulators would benefit from EPA's adoption of a best practices or alternative permi tting approach that properly captures small pipeline projects' con struction footprint and operational constraints on ROW territory. AGA respectfully requests that EPA modify its approach to linear construction for the purpose of this permit and provide further guidance and rulemaking activity as it pertains to EPA's direct permitting authority and its authority to supervise states' permitting programs.

Response Refer to Response 17.1.



# Comment ID 0130

- A2.001.003

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: LINEAR
2. LINEAR CONSTRUCTION NEEDS. A number of the new requirements, such as the 50 foot buffer and construction entrance, and providing the latitude and longitude of every discharge point, are more difficult to implement on linear projects. This permi t fails to

a cknowledge the different characteristics and methods of the transportation industry, specifically DOT projects.

Response Refer to Response 17.1, 2, and 2.3.6



# Comment ID 0133

- A2.001.001

Author Name: Martin Tom Organization: Montana Department of Transp ortation (MDT) Issue Category: LINEAR As discussed in greater detail below, linear transportation projects present unique challenges to permit compliance. These pr ojects often include multiple crossings of waters of the United States, are subject to right of

- way constraints, and require that public access be maintained through the project site during active construction. Many of the comments below address proposed requirements that are often impracticable or infeasible in light of the circumstances unique t o linear facilities. in an effort to develop a more understandable and uniform COP, MDT suggests developing a separate general permit for linear transportation facilities. Doing so would helpRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

964 streamline environmental requirements and result in a more understandable and easily enforceable pennit. It would also help alleviate the undue regulatory burden placed on transportation agencies to demonstrate infeasibility in many common instances.

Response Refer to Response 17.1.



# Comment ID 0158

- A1.001.018

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: LINEAR Many of the proposed requirements raise unique challenges in association with linear utility projects in particular due to tw o primary
factors that limit available options and decisions regarding erosion and sediment control - linear utility projects often are (i) narrow (approximately 30 to 150 feet wide, depending on the project); and (ii) constructed on easements provided by multiple landown ers,

r ather than on purchased property. Additional unique characteristics of linear utility projects that are of significance to pr oposed CGP development include: (a) typical occurrence on very narrow rights

- of

- way and are designed to minimize impacts to the env ironment and adjacent properties; (b) possible extension over tens or hundreds of miles over different natural terrains and watersheds ; (c) frequent construction in rolling segments, as in an assembly line; (d) a tendency to be short

- lived; (e) rare involvement of fill, as might be expected in highway or other conventional development activities; and (f) obvious physical constraints against active trea tment systems or structural BMPs like sediment ponds.

Response Refer to Response 17.1.



# Comment ID 0171

- A1.001.002

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: LINEAR Utility transmission and distribution corridors would be considered "linear projects" for our members here in Illinois. AIEC is

co ncerned that USEPA's failure to modify the permit to cover the unique situations presented by linear projects such as constru ction and maintenance activities on utility transmission and distribution corridors would severely impact our members abilities to provide
reasonable electric rates and services.

Response Refer to Response 17.1.



# Comment ID 0171

- A1.001.016

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: LINEARRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

965 Many of the proposed requirements raise unique challenges in association with linear utility projects in particular due to factors such as numerous landowners involved and the overall narrow width of a project.

Response Refer to Response 17.1.



# Comment ID 0171

- A1.001.017

Author Name: Davis Stephen

Organization: Association of Illinois Electric Cooperatives Issue Category: LINEAR Areas that are cleared for overhead utility construction often do not meet the definition of land disturbance as much of elec tric utility rights of way are c ut with materials being windrowed. This type of clearing does not disturb the root zone of the right

- of

- way
easement.

Response Refer to Response 17.1 and 1.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

NC

. No Code, Suppl emental Information

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

966 

# NC NO CODE, SUPPLEMENTAL INFORMATION - USE FOR DATA SETS, POWERPOINT PRESENTATIONS OR ATTACHMENTS TO COMMENT LETTERS THAT PROVIDE SUPPLEMENTAL INFORMATION

Comment ID 0049

- A2.001.001

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: NC
Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0049

- A2 not coded. Su pplemental information for Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0049

- A1.

Response Refer to Response 18.1.



# Comment ID 0083

- A1.001.001

Author Name: HaloSource Frank Organization: HaloSource, Inc. Issue Category: NC
Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0083

- A1 not coded. Supplemental information for Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0082.

Response Refer to Response 18.1.



# Comment ID 0084

- A1.001.001

Author Name: HaloSource Carolyn Organization: HaloSource, Inc. Issue Category: NC
Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0084

- A1 not coded. Supplemental information for Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0082.

Response Refer to Response 18.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

CUMULATIVE

. Cumulative Impact of CGP and O ther Regulations on Industry

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

967 

# CUMULATIVE IMPACT OF CGP AND OTHER REGULATIONS ON INDUSTRY

Comment ID 0036

- A1.001.001

Author Name: President Mike Organization: National Asphalt Pavement Association (NAPA) Issue Category: CUMULATIVE We share EPA's goal of protecting water quality, but are concerned that compliance with the proposed CGP would not be feasibl e. Moreover, the cumulative impact of all the new requirements will have a detrimental impact on the construction business. As you may know, the construction industry is suffering from the worst economic downturn since the Great Depression. Millions of constru ction jobs have been lost since December 2007 as state and local governments grapple with budget deficits and the housing and commercial markets for construction declined sharply and are not expected to return to pre

- 2007 levels for years to come. Production of asphalt
has declined over 35% sin ce 2007 and as Congress continues to extend the Federal highway and aviation programs, there is very little certainty in the construction market from which construction companies can plan and invest in labor and equipment. Considerat ion of
this rule should not be conducted in a vacuum. The overall fiscal health of the industry must and should be considered by EPA in evaluating the capacity of the industry to undertake such a burdensome regulation at this point in time.

Response: See Essay Responses 19. 1 thru 19.6.



# Comment ID 0058

- A1.001.001

Author Name: Ruane T. Organization: American Road & Transportation Builders Association (ARTBA) Issue Category: CUMULATIVE As part of every project with which they are engaged, ARTBA members must participate in a clearly

- established transportation planning process. According to a report by the U.S. Government Accountability Office (GAO), as many as 200 major steps are involved in developing a transportation project from the identification of the project need to the start of construction. According to the same report, it typically takes between nine and 19 years to plan, gain approval of, and construct a new major federally fund ed highway project. This process involves dozens of overlapping state and federal laws

- inc luding dealing with stormwater issues.

A study by the U.S. Federal Highway Administration (FHWA) found the time required to process environmental documents for transportation projects has doubled over the past two decades. In the 1970s, the average time for completion of an environmental impact statement (EIS) was 2.2 years. Former U.S. Department of Transportation (U.S. DOT) Assistant Secretary for Policy Emil Frankel reported that from 1999

- 2001 the median time for completing an EIS was 4.4 years. Howev er, delays in the transportation project environmental review and approval process are not only limited to large projects requiring an EIS. While FHWA reports three percent of federally funded transportation improvement projects require an EIS, the remaini ng 97 (90.6 percent). A report conducted by the National Cooperative Highway Research Program ("NCHRP") stated:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

968 "[D]elays in completing [EA and CE] reviews are encountered frequently despite the minimal environmental impacts associated w ith such projects. Even if such project

- level delays are individually small, their cumulative impact may be significant because most transportation projects are processed as CEs or EAs.[FN 1]"

Water quality issues, including stormwater, are dealt with during the NEPA pr ocess. According to the report, 63 percent of all state DOTs responding to the survey reported environmental process delays with preparation of CEs and 81 percent reported similar d elays involving EAs. These delays triple average environmental review times for CEs

- from about eight months to just under two years

- and have more than doubled review times for EAs, from under 1.5 years to about 3.5 years.

[FN 1] Environmental Streamlining: A Report on Delays Associated with the Categorical Exclusion &
Environ mental Assessment Process, Prepared for the AASHTO Standing Committee on Highways by TransTech Management under NCHRP contract number HR 20

- 7(129) (Washington, D.C. Oct. 2000).

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0058

- A1.001.005

Author Name: Ruane T. Organization: American Road & Transportation Builders Association (ARTBA) Issue Category: CUMULATIVE In conclusion, future stormwater permitting measures affecting transportation projects should allow for the level of flexibility needed to make sure stormwater issues can be addressed in a manner suited to the individual nature of the project in question. Further, the issues of cost and liability need to be taken into account to ensure permitting measures do not result i n additional years of delay and unnecessary costs to affected projects. ARTBA looks forward to continuing to work with EPA on stormwater issues in a manner providing the necessary flexibility in order to allow the nation to balance environmental protection s with necessary transportation infrastructure improvements.

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0095

- A1.001.001

Author Name: Martaus Cecilia Organization: AT&T Inc. and its affiliates Issue Category: CUMULATIVE AT&T provides communications, information and entertainment services to households, businesses, and federal, state and local government agencies nationwide. To provide these services, AT&T operates, maintains, and continuously adds to AT&T

- owned
infrastructure that incl udes thousands of miles of underground cable. Each year, AT&T has hundreds of cable installation and relocation projects that would be subject to the terms of the Draft Permit. AT&T's concerns and recommendations regarding the Draft
Permit are included in the attached comments of the Environmental, Health & Safety Communications Panel, which AT&T endorses and hereby incorporates by referenceRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

969 Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0096

- A1.001.012

Author Name: Asmus Susan

Organization: National Association of Homebuilders Issue Category: CUMULATIVE The CGP will increase the costs of stormwater management for nearly all construction projects. EPA states that the costs for implementing the CGP have been accounted for through the ELG rulemaking [FN 30]. Given EPA’s more prescriptive requirements in the CGP for several of the non numeric ELG requirements, however, and the addition of the water quality based requirements, i t is not accurate to state that all the costs have been accounted for in the C&D ELG rulemaking. For example, the buffer requirement and steep slope provision will be more costly because the requirement in the CGP is much more stringent than the ELG. The costs will al so vary depending on the size of the project, yet EPA has not accounted for this. The water quality based requirements are new and will be costly to implement, even though they will not likely lead to measurable benefits. Implementation of the CGP will be costly to all permittees, but will have signi ficant impacts on small businesses.

[FN 30] Appendix 1: Economic Analysis for the Proposed Construction General Permit (CGP). www.regulations.gov. EPAHQ

- OW

- 2010

- 0782, Accessed July 11, 2011

Response: Se e Essay Responses 19.1 thru 19.6.



# Comment ID 0096

- A1.001.058

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: CUMULATIVE The economic impact of the proposed CGP will be significant. The CGP will increase the costs of stormwater management for nearly all construction projects. EPA states that the costs for implementing the CGP have been accounted for through the ELG rulemak ing [FN 75]. Given EPA's more prescriptive requirements in the CGP for several of the non numeric ELG requirements, however, and the addition of the water quality based requirements, it is not accurate to state that all the costs have been accounted for in t he C&D ELG rulemaking. For example, the buffer requirement and steep slope provision wi ll be more costly because the requirement in the CGP is much more stringent than the ELG. The costs will also vary depending on the size of the project, yet EPA has not accounted fo r this. The water quality based requirements are new and will be costly to implement, even though they will not likely lead to measurable benefits. Before finalizing the CGP, EPA must develop a cost benefit analysis that fully assesses the cost impacts of the dra ft CGP on the industry and small businesses, in particular, and then use that information to develop more reasonable alternatives.

[FN 75] Appendix 1: Economic Analysis for the Proposed Construction General Permit (CGP). www.regulations.gov. EPAHQ

- OW

- 2010

- 0782, Accessed July 11, 2011

Response: See Essay Responses 19.1 thru 19.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

970 

# Comment ID 0115

- A2.001.001

Author Name: Smith Timothy Organization: National Grid Issue Category: CUMULATIVE
National Grid operates electric and natural gas utility infrastructure across thousan ds of linear miles of rights

- of

- way to safely and reliably serve millions of customers. The maintenance, repair, and normal improvement of this critically

- important public
infrastructure frequently requires that we seek compliance with NPDES and other regu latory requirements.

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0137

- A2.001.002

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: CUMULATIVE We also request the basis for EPA's determination that the existing process in place is not adequately protecting waters of the U. S or the public interest as defined in Section 402 of the Clean Water Act.

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0143

- A2.001.003

Author Name: Bashel Renee Organization: Small Bus. Ombudsman/Small Bus Env Asst Prog Issue Category: CUMULATIVE We recommend that EPA conduct a more detailed review to take into account the potential financial and regulatory burden that thi s permit places on small business operators to comply with the same conditions as larger businesses. While we do not have speci fic alternatives to offer at this time, the Water Subcommittee would be available to assist EPA in developing alternatives for sm all businesses if such an opportunity arises.

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0152

- A2.001.002

Author Name: McGowen Scott Organization: Caltrans Issue Category: CUMULATIVERes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

971 We are concerned that the ELGs, as implemented through this proposed permit, will result in increased costs for BMP implementation, as well as increased exposure to enforcement for sites that have limited or no potential to impact water quality. This direct ion of effort
and resources could result in hi gh

- priority sites, including some smaller sites, not receiving appropriate management and oversight.

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0158

- A1.001.003

Author Name: Stine James Organization: Rural Electric Cooperative Associat ion (NRECA) Issue Category: CUMULATIVE Electric cooperatives own and maintain 2.5 million miles or 42 percent of the nation's electric distribution lines, covering 75 percent of the U.S. landmass. NRECA's members routinely manage stormwater discharges from construction activities on power line corridors and have done so for years in compliance with federal and state requirements. NRECA recognizes the significantly increased permitting burdens for transmission line construction activities but we question how much real environmental improvement will result by making changes to already mature and effective stormwater management programs. This is particularly true as EPA continues to promulgate stormwater requirements that are frequently inappropriate for the types of linear construction and maintenance activities utilities perform on transmission corridors.

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0160

- A1.001.001

Author Name: Kurtz John Organization: Kurtz Bros., Inc. Issue Category: CUMULATIVE
We share EPA's goal of protecting water quality, but we are concerned that compliance with the proposed CGP would not be feas ible. The cumulative impact of all the new requirements will have deleterious impacts on the business of construction. Below we identify our five main concerns with the draft permit.

Response: See Essay Responses 19.1 thru 19.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

BAC

. Background of Permit

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

972 

# BAC BACKGROUND

Comment ID 0096

- A1.001.002

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC The CWA and its implementing regulations require NPDES permits for stormwater discharges associated with most construction activities, including residential development and home building. This means that thousands of permits must be aut horized and obtained each year. To address the challenges associated with this burdensome permitting scheme EPA established a series of general permits to authorize these activities. The general permits set out a series of expectations and a purported streamlined authorization process so that the Agency could meet its permitting obligations efficiently and effectively. To date, this process has worked as evidenced b y the thousands of permits that have been issued and the thousands of construction projects t hat have been completed without adversely impacting water quality. Importantly, the general permit scheme is also designed to reduce the burdens and simplify the proce ss for permit applicants. While NAHB believes the Agency continues to stray from this goa l with today’s proposal, we remain convinced that the CGP is the only viable option.

Issuing a workable version of a CGP, which has been specifically designed to provide flexibility and reduce burdens while ens uring appropriate environmental protection, is very critical to the homebuilding industry. EPA’s permitting scheme and its current CGP were purposely designed to allow flexibility in the design and implementation of Best Management Practices (BMPs), reflecting the fundamental principle that the variable nature of precipitation and the variability of other site attributes (such as soils type and topography) affect the transport of sediment when it rains. The CGP allows all operators who are performing similar operation s (e.g., construction) to quickly obtain permit coverage, yet includes stringent requirements to ensure water quality is not compromised.

The alternative to the “streamlined” general permit is an individual permit, which requires considerably more information and paperwork, yet rarely results in any measurable environmental improvement. In addition to being more cumbersome for the permittees, individual permits must be submitted well in advance of conducting the activity (typically 90

– 180 days), may require additional inspections and mo nitoring, and require more oversight by program administrators. Because thousands of construction permits must be issued each year, and appropriate protections are written into the CGP, it makes little sense, either environmentally or admi nistratively,

to require the use of individual permits. NAHB appreciates the Agency’s planned continuation of this important permit, but suggests important streamlining and other revisions are necessary to ensure the CGP is of optimal use and effectiveness.

Response: See Essay Response 19.1 thru 19.6.



# Comment ID 0128

- A2.001.007

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: BACRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

973 In its final C&D ELG, EPA relaxed many of the proposed overly

- prescriptive erosion and sediment control practices, often stating that, for example, the "need for these controls is dictated by site

- specific considerations," because they were "not always feasible," or that "implementing the requirement would be cost

- prohibitive." See 74 Fed. Reg. at 63 ,018. Now, EPA, through its permitting authority in four states and in various parts of many other states (recognizing also that EPA's CGP "acts" as a model CGP for the other 46 states), is reverting to that type of overly

- prescriptive BMP mandates that it addressed in promulgating the final C&D ELG.

Response: See Essay Response 19.1 thru 19.6.



# Comment ID 0132

- A1.001.001

Author Name: Goodmann Peter Organization: Kentucky Division of Water (KDOW) Issue Category: BAC The Kentucky Division of Water (KDOW) appreciates the opportunity to comment on the referenced draft guidance. KDOW is the delegated National Pollutant Discharge Elimination System program agency for Kentucky. In that role, KDOW issues general and individual permits for stormwater disch arges from construction activities. KDOW has reviewed the proposed EPA General Permit for Stormwater Discharges from Construction Activities on Tribal Lands within the Southeastern United States. Our review was cond ucted with the understanding that general permits issued by EPA reflect EPA's current thinking regarding expectations of all permits issued for that sector of the NPDES program. As such KDOW's comments reflect, in part, the anticipated affects the requirements of t he proposed general permit will have on the Kentucky NPDES program and permits.

Response: No response necessary



# BAC.1 STATUTORY AND REGULATORY HISTORY - CLEAN WATER ACT (CWA)

Comment ID 0080

- A2.001.003

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: BAC.1 In addition to the concern for the new CGP ELGs, several significant changes to the 2008 CGP are now included in the prescrip tive language contained in the 2011 Draft CGP. The significant changes fro m the 2008 version, as we understand them, are summarized
below:

•Person(s) Responsible for Obtaining Permit Coverage. Where there are multiple operators associated with the same project, al l operators are required to obtain permit coverage. Once covered by a permit, all such operators are to be considered as co

- permittees if their involvement in the construction activities affects the same project site. Co

- permittees are held jointly and severally responsible forRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

974 complying with the permit. Any operator w ho seeks coverage under this permit must develop a Stormwater Pollution Prevention Plan (SWPPP). A group SWPPP may be developed where several operators will be engaged in construction activities at the site.

•Section 2.1.2

- Buffers. If any "Waters of the U.S." are located on or immediately adjacent to the site, the permittee must ensure that any discharges through the area between the disturbed portions of the site and such waters are treated through buffer

- related approaches. The permittee has the following compliance alternatives to meet these requirements:

a) Provide and maintain a 50

- foot buffer of undisturbed natural vegetation between the disturbed portions of the site and any waters of the U.S.; or

b) Provide an undisturbed, naturally vegetated buffer that is less than 50 feet but is supplemented by additional sediment and erosion controls, which in combination achieve the equivalent sediment load reduction as a 50

- foot buffer of undisturbed natural vegetation; or

c) If it is infeasible to prov ide an undisturbed, naturally vegetated buffer of any size between the disturbed portion of the site and any waters of the U.S., implement sediment and erosion controls that achieve the equivalent sediment load reduction as an undistu rbed, naturally vegeta ted 50

- foot buffer. EPA provides charts as tools to determine the efficiency of the buffer. Controls must then be designed to provide sediment removal efficiency equivalent to the buffer. EPA suggests choosing one of several models to dete rmine
which best management practices (BMPs) will provide the equivalent efficiency. There are some exemptions for preexisting conditions, utility lines, roadways, and water

- dependent structures and access

- ways such as piers, boat ramps, etc.

•Deadlines to Initiate Stabi lization and Complete Stabilization. Typically, a permittee must initiate stabilization on exposed portions of
the site where earth

- disturbing activities have permanently or temporarily ceased and will not resume for a period exceeding 14 calendar days. For the purposes of this permit, earth

- disturbing activities are considered to have temporarily ceased when clearing, grading, and excavation within any area of the construction site will not resume for a period of 14 or more days, or for a pe riod of 7 or

mo re days if there are any special circumstances such as steep slopes or if disturbed areas are within buffer areas. All stabil ization activities must be completed within 7 days of when they are initiated. There is some additional flexibility in arid or semi arid climates.

•Numeric Turbidity Limit and Sampling Requirements. For sites with total disturbed area of 10 or more acres, the site dischar ge must be sampled during any storm event or snowmelt condition that results in a discharge of stormwater from the site or when there is an
authorized non

- stormwater discharge from the site. The timetable for these requirements depends on when EPA releases the recalculated turbidity limit. Exemptions include:

a) Storms larger than the local 2

- year, 24

- hour storm are not subject to the turbidity limit.

b) Sites where the disturbed area is less than the threshold for the application of numeric turbidity limits as a result of t emporary or final stabilization.

c) Turbidity limits do not apply to Federal Energy Regula tory Commission (FERC)

- regulated pipeline projects.

d) Sites with stormwater flows that exit the site in a "non

- discernible, non

- confined and non

- discrete form."

•Section 4.2

- Discharge Limitations for Impaired Waters. A site is considered to discharge to an impaired water if the first water of the U.S. to which a site discharges is listed as impaired on the state "303 (d) List" or has an EPA

- approved Total Maximum Daily LoadRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

975 (TMDL). If a site discharges to a storm sewer system, then the receiving water for the storm sewer discharge is considered the first

water of the U.S.

Specific requirements apply for sites disturbing 10 or more acres of land at any one time that discharge to receiving waters impaired for
sediment or a sediment

- related parameter, such a s total suspended solids (TSS), turbidity, and/or nutrients (e.g., nitrogen, phosphorus). Specifically, the permittee must comply with the requirements in Part 4.2.2, which include water quality benchmark monitoring for the sediment and/or nutrient paramet er(s) for which the receiving water is impaired. Benchmark sampling can be discontinued when temporary or final stabilization criteria have been met and less than 10 acres are disturbed. Additionally, if discharges are to a receiving water impaired for sed iment or sediment

- related parameters, there are additional stabilization timelines, daily visual inspections, and weekly formal inspection requirements. EPA states that it will inform permittees if there will be any additional requirements when discharging to a receiving water impaired for a pollutant other than sediment, sediment

- related pollutants, or nutrients. There is concern for what these additional requirements might be and the additional costs for implementation.

Additional significant requiremen ts as outlined in the proposed CGP include:

•Requirement to install all stormwater controls prior to starting earthwork (not just initial BMPs). This requirement does no t apply to earth disturbances related to initial site clearing and establishing entry, exit, and access to the site, which may require that stormwater controls be installed immediately after the earth disturbance.

•Potentially requiring all sites to have 50

- foot

- long vehicle tracking controls.

•Requiring staging and storage areas to be covered or install secondary containment.

•Requiring cover or other appropriate temporary or permanent stabilization to avoid direct contact with precipitation or to p revent sediment discharges for all stockpiles containing in whole or in part sediment or soil.

•Requiring roughening for areas with furrows along the contours of the slope.

•Requiring irrigation, as needed, until seed germinates and grows.

•Removing concrete from a washout when it fills one

- half of the container.

• Providing project

- specific training and documentation of the trainings.

In summary, the 2011 draft is a much more prescriptive permit than the current 2008 CGP which the 2005 version offers a more flexible "toolbox" approach to BMP selection and permit implementat ion.

Furthermore, in response to the EPA's request for a response to specific programmatic language, the Partners offer the follow ing comment. To help facilitate our responses in a clear and concise manner, the actual permit language has been lifted from the permit as was the specific request for comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

976 The Partners then provided a concise response following each specific EPA request for comment. The Partners felt this format proved most useful in educating the various agency departments as well as helpful to those reviewing our comments at the EPA and other interested parties.

Response: See Essay Response 19.1 thru 19.6.



# Comment ID 0087

- A1.001.027

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: BAC.1 UWAG questions EPA's authority to include requirements that extend upstream of the discharge itself to activities occurring w ithin a construction site (e.g., Section 2.1.3.7.c., and Sections 2.3.2.1 through Section 2.3.2.5). We respectfully submit that EPA 's authority is limited to the discharge of "pollutants" from a "point source" into waters of the U.S." See, e.g., 33 U.S.C. 1342(a); 40 C.F. R. § 122.1(b).

Response:
Refer to administrative record for the C&D rule.



# Comment ID 0096

- A1.001.001

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.1 In 1987, Congress amended the CWA to specifically mention stormwater and directed EPA to establish requirements for controlli ng stormwater discharges (both po int and nonpoint) from virtually every source in the nation. Within its regulations, EPA clarified that stormwater discharges associated with construction activities, such as clearing, grading and excavating that result in the disturbance of at least five acres of total land area were equally significant contributors of pollutants and, thus, were to be regulated as “industrial” sources.[FN 1] In 1999, EPA decided that all small construction activities (i.e., those that disturb 1

- 5 acres), merit regulation t hrough NPDES permits “to protect water quality.” Thus, EPA has required NPDES permits for most stormwater discharges from industrial
, municipal, and construction sources since 1992.

Because EPA’s comprehensive program covers nearly every construction project across the nation, it specifically adopted a general permit approach so that these sources could be regulated efficiently and effectively. EPA issued the first general permit for stormwater discharges associated with construction activities on September 9, 1992. [FN 2] Because the existing CGP framework has proven to be effective, the Agency has reauthorized it regularly since, typically in five year increments, as federal law prohibits any NP DES to be issued for a period that exceeds five years. EPA l ast reauthorized the CGP in January 2008, but limited its applicability to only two years.[FN 3] The Agency subsequently extended the expiration date of the 2008 permit by one year so that it would expire on J une 30, 2011, [FN 4] and most recently extended it once again. [FN 5] The 2008 CGP is now due to expire on February 15, 2012.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

977 Today’s draft CGP includes new requirements that implement the technology

- based Effluent Limitation Guidelines (ELGs) and New Source Performance Standards (NSPSs), which were issued by EPA for the construction and development industry on December 1, 2009. The draft permit also includes new water quality

- based requirements for certain construction sites. EPA is proposing to issue this CGP for five (5) years. EPA is the NPDES per mitting authority, and thus, the CGP is only directly applicable in Idaho, Massachusetts, New Hampshire, New Mexico, Indian Country Lands, Puerto Rico, Washington, DC, and U.S. territories and protectorates. However
, because the delegated states’ programs must be consistent with EPA's federal requirements, and may be more stringent if the state so desires, many state permitting authorities use EPA’s CGP as a model in developing their own state permits.

[FN 1] See 40 CFR 122.26 – Industrial Facilities. Cate gory Ten: Construction Activity is included in the definition of “stormwater discharges associated with industrial activity.” [FN 2] See 57 Federal Register 11,394 (Apr. 2, 1992); 57 Federal Register 41,176 (Sept. 9, 1992). [FN 3] 73 Federal Register 40,338 (July 14, 2008). [FN 4] 75 Federal Register 4554 (January 28, 2010). [FN 5] 76 Federal Register 40,355 (July 8, 2011).

Response: No response necessary.



# Comment ID 0168

- A1.001.002

Author Name: Jordan Jill Organization: City of Dallas Issue Category: BAC.1
Synergy between this Permit, and concurrently proposed EPA/USACE Guidance concerning Clean Water Act. Several measures within this Permit may have a synergistic effect when combined with other concurrent rulemaking and guidance. In pa rticular, the proposed expansion to the base definition of Waters of the United States that may occur through the EPA/Army Corps of Enginee rs' Guidance for Clean Water Act, would affect the Permit language concerning buffers, and expand the applicability c oncerning determination of impacts to impaired waters. Between this draft permit and the other guidance currently under development, th e definition of Waters of the United States is significantly expanded to unreasonable levels. The EPA should consider the ramification to compliance with this draft permit when clarifying the definition of the Waters of the United States.

Response:
See Essay Response 19.1 thru 19.6. Regarding the commenters concerns about the definition of Waters of the U.S., these are outside the scope of this permit issuance.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

978 

# BAC.2 VACATURE OF THE CD RULE NUMERIC LIMIT AND IMPLICATIONS ON THE PERMIT - COMMENT RELATES TO THE STAY OF THE LIMIT OR SOME OTHER ASPECT OF THE CORRECTION

Comment ID 0013

- A1.001.005

Author Name: Asmus Su san Organization: National Association of Home Builders (NAHB) Issue Category: BAC.2 The C&D ELG, finalized in December 2009, includes requirements for a range of erosion and sediment control measures and pollu tion prevention practices and a numeric effluent limit of 280 NTU for larger construction sites. EPA is in the process of developing a new C&D numeric effluent limit due to petitions filed by the Small Business Administration's (SBA) Office of Advocacy and NAHB asking the agency to revise its nu meric limit because of problems with the data and modeling. NAHB also filed a lawsuit challenging the rule in the U.S. Court of Appeals for the 7th Circuit. As a result, DOJ/EPA filed a motion asking the 7th Circuit to vacate the numeric effluent limit portion of the ELGs to address flaws in the final rule. These flaws include EPA's admission that it "improperly interpreted the data" such that it can no longer support the 280 NTU limit. EPA stated in the motion that the technical natur e of the issue and number of steps required to resolve the flaws would require an 18

- month abeyance in the case, or until February 15, 2012.

There are other issues associated with the C&D ELG rulemaking that have been raised by NAHB in the Seventh Circuit litigation that

are being held in "abeyance" until at least February 15, 2012. Many of the issues raised could impact whether any of the new C&D ELG requirements EPA has proposed to incorporate into the CGP are legally authorized under the Clean Water Act. These issues must
b e allowed to be litigated in full prior to inserting them into a new CGP and mandating compliance, particularly because EPA a sked for the "abeyance" of those issues through February 15, 2012 before they would then be addressed and resolved by the court.

Response
Refer to 3.1.



# Comment ID 0021

- A1.001.024

Author Name: Unrein Terrance Organization: Tepa Issue Category: BAC.2 When will the new Turbidity Limit be established?

Response
Refer to 3.1.



# Comment ID 0024

- A2.001.001

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: BAC.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

979 We urge EPA to expedite its efforts to revise the 280 nephelometric turbidity unit ("NTU") limit that EPA stayed in 2010 so that it can be incorporated into the 2011 CGP. Requirin g numeric limits for stormwater discharges is long overdue. Indeed, the CW A requires that numeric limits be included in NPDES permits, except when they are infeasible, see 40 C.F.R. § 122.44(k), a requirement t hat until now has largely been ignored. In ad dition, requiring a numeric limit is an important tool to make both compliance and enforcement of the CGP more effective. The general permit scheme for construction stormwater relies heavily on enforcement to ensure waters receive adequate protection, yet the federal government, and many states, lack the resources necessary to properly police and enforce the CGP. Including a numeric permit limit would go a long way to address this issue.

Accordingly, we are disappointed that EPA has thus far suggested that a numeric limit may not be required in the 2011 cap. There is no question that regulating construction stormwater using a numeric limit is feasible, as EPA's rulemaking for the 280 NTU limit demonstrates. Although EPA has stayed the 280 NTU on the gro unds of alleged errors in the interpretation of the data to develop that limit, a numeric limit nevertheless remains feasible. The technology for controlling sediment through active or passive treat ment systems, and for monitoring compliance with a numeric limit, clearly exists. The only question is what the limit should be. EPA has had ample time since staying the 280 NTU limit to review the data and to propose a revised limit. We therefore urge EPA to ad opt a proposed limit as soon as possible. In the eve nt EPA fails to complete a revised NTU limit before adopting the cap, EPA should include a specific reopener provision in the cap to allow it to insert the numeric limit into the permit as soon as it is fin alized.

Response
Refer to 3.1.



# Comment ID 002 4- A2.001.016

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: BAC.2 As stated above, we support EPA's plan to revise the stayed 280 NTU turbidity limit for construction stormwater and to incorp orate
such li mit into the final 2011 CGP. Incorporating a numeric turbidity limit into the CGP will dramatically improve permit compliance and enforceability due to the clarity that numeric limits provide. Additionally, it will result in muchneeded reductions in s edime nt loading by ensuring protections against discharges of fine

- grained and slowly

- settling particles contained in stormwater, which conventional BMPs typically cannot remove effectively.

Response
Refer to 3.1.



# Comment ID 0025

- A1.001.004

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: BAC.2 It is unclear how the ELG numeric limits will be incorporated into the permit, if the limits have not been finalized, yet the permit has.

Response
Refer to 3.1

.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

980 

# Comment ID 0031

- A2.001.003

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: BAC.2 ORBA urges EPA to remove all sections of the draft permit dealing with the Numeric Effluent Limit from the permit until it has been addressed through EPA's upcoming rulemaking on the C&D ELG. There are also several issues associated with the C&D ELG rulemaking that have been raised by NARB in the Seventh Circuit litigation that are being held in "abeyance" until at least F e bruary 15, 2012. Many of the issues raised could impact whether any of the new C&D ELG requirements EPA has proposed to incorporate into the CGP are legally authorized under the Clean Water Act. These issues must be allowed to be litigated in full prior to inserting them into a new CGP and mandating compliance, particularly because EPA asked for the "abeyance" of those issues through Febru ary 15, 2012.

Therefore, EPA should postpone any proposal to update the 2008 CGP until after the C&D ELG rulemaking is completed.

Response
Refer to 3.1.



# Comment ID 0052

- A1.001.001

Author Name: Hamilton Kristopher Organization: E.S. Wagner Company Issue Category: BAC.2 EPA's attempt to implement a numeric turbidity limit and associated monitoring and reporting requirements for construction site stormwater runoff is premature. EPA should not include the numeric stormwater limit or associate provisions in its new permit until the Agency has promulgated revisions to that regulation and concluded related litigation before the 7th Circuit Court of Appeals. Any provisions included in the CGP that may be removed from the C&D ELG by the courts will only cause confusion and potential litigation down the road.

-- Recommendation - Extend the current 2008 CGP for its full five year term, which ends on June 30, 2013. This will allow the 7th Circuit Court of Appeals to fully adjudicate all issues associated with the pending C&D ELG lawsuit.

Response
Refer to 3.1.



# Comment ID 0068

- A1.001.001

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2 One of the primary objectives of EPA's Proposed CGP is to implement the Construction & Development ELG regulations originally promulgated on December 1, 2009. See 76 Fed. Reg. at 22,885. EPA asserts that once a new national standard is established pursuant to the Clean Water Act's effluent limitations guidelines provisions, they must be incorporated into subsequent NPDES permits, asRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

981 appropriate. Id. However, EPA has not truly set F INAL ELG standards for the construction and development industries. Because EPA has not finalized the C&D ELG regulations, not only is EPA not obligated to implement such regulations in the Proposed CGP, F SWA asserts that doing so is confusing, inappropria te, and may result in an unnecessary and continued string of corrective rulemakings that, to date, have plagued construction stormwater regulatory efforts.

After promulgating the final C&D ELG in December 2009, subsequent litigation revealed to EPA that the C&D ELG regulations contained significant errors. See 75 Fed. Reg. 68,215 (November 5, 2010)(EPA admitting to its errors and seeking a stay of the 280 NTU turbidity limit and other issues surrounding ongoing litigation in the Seventh Circuit Court of A ppeals in the case Wisconsin Builders Association v. EPA, Case No. 09

- 4113). In that case, EPA filed a "Motion for Partial Vacature of the Final Rule, Remand of the Record, to Vacate Briefing Schedule, and to hold Case in Abeyance" (and which that court ap proved), which identified many issues that required additional rulemaking. Those include:

• the calculation errors associated with the 280 NTU numeric limit;

• issues associated with how the ELGs would be applied to linear construction (including applic able BMPs to active construction operations); • issues associated with cold weather sites; • issues associated with small sites that are part of larger projects; and • "any other issues that reveal themselves to the Agency" during EPA's upcoming C&D ELG correction rulemaking.

(Quoting EPA's August 12, 2010 Motion at page 9).

While not bound by any judicially

- mandated deadline, EPA asserted to the 7th Circuit that it would finalize its corrections to the C&D ELG rulemaking by February 15, 2012; however, af ter almost a year in the making, EPA has failed to propose any such regulation. Not only has EPA not revealed what it hopes to propose, but obviously EPA cannot now predict what "other issues" will reveal them selves during that rulemaking.

What is evident is that EPA has identified errors in its C&D ELG rulemaking that are more significant than minor recalculations. EPA is more than capable of proposing a revised turbidity standard within a few months, let alone almost an entire year, if the o nly issues

w ere related to the mechanics of how it calculated a final limit. Obviously, EPA is reexamining more than merely the data and calculations but also perhaps the data sources and other complicating factors. Clearly, EPA is reassessing multiple aspects o f its C&D ELG rulemaking prior to proposing a revamped C&D ELG.

Hence, EPA's assertion that it must now, through the Proposed CGP, implement final ELG standards for the construction industr y is hollow and unjustified. There are no current "final" C&D ELG stand ards, even if EPA asserts that it has not stayed the entirety of the December 2009 rulemaking and that parts of that rulemaking are ripe for immediate implementation. The bottom line is that the C&D ELG can only be assessed as an entire package of non

- nume ric AND numeric effluent limits. In December 2009, EPA did not promulgate separate non

- numeric and numeric effluent limits as stand

- alone rulemakings, each with their own independent economic, benefits, or cost

- effectiveness analyses. Instead, EPA promulgated a single, unified package of non

- numeric and numeric effluent limits, including technical development document, economic analysis and other support documents that analyzed a the comprehen sive package of technology controls as a "complete rulemaking." EPA cannot now assert that the non

- numeric and numeric effluent limitations are separate efforts and that its admitted errors affecting one

- half of that complete package have no impact on implementing the comprehensive package.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

982 As a result, EPA cannot and should not be attempting to implement ANY subpart of the C&D ELG rulemaking until that entire rulemaking has been completed. Quite simply, there is no C&D ELG package to implement until the upcoming corrective rulemakin g is finished.

Response
Refer to 3.1.



# Comment ID 0068

- A1.001.002

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2

Nevertheless, even if EPA were to disagree and proceed with its Proposed CGP and implement subsections of the C&D ELG, it faces timing issues that make its effort to implement the C&D ELG inappropriate. On June 30, 2011, EPA announced that it would exte nd the current 2008 CGP only until February 15, 2012 - the same date it has set forth as the deadline for revisions to the C&D ELG ( http://cfpub.epa.gov/npdes/stormwater/cgp.cfm). EPA could have extended the 2008 CGP until June 30, 2013. In not doing so, EPA is sending a message that its primary focus is to complete work on a new CGP, especially because EPA is not likely to complete work on its C&D ELG prior to its self

- imposed deadline of February 15, 2012.

EPA has yet to propose any C&D ELG revisions. Assuming it issues a proposal this month, a final C &D ELG rule is virtually impossible to accomplish in a six - to seven

- month period. EPA has been working on a proposal for 11 months and that proposal certainly contains new provisions, analyses, cost and benefits assessments, and other issues (i.e. linear construction concerns) that will require significant review and analyses by the public during the notice and comment period. Any comment period less than 90

- days, under these circumstances would be unreasonable and unfair to the affected stakeholders (incl uding FSWA). EPA typically requires a substantive time period then to review the comments and develop options for a final rulemaking. Ninety days would seem like a n expedited time period for the Agency to accomplish those tasks. Then, the Office of Managem ent and Budget is entitled to its own 90

- day review before approving or rejecting the final regulatory package. All told and optimistically, EPA will be fortunate to promulgate the new, final C&D ELG package in nine months, let alone the seven months betwe en mid

- July (assuming a proposal is immediately forthcoming - something that FSWA has no reason to believe is likely) and mid

- February.

Response
Refer to 3.1.



# Comment ID 0068

- A1.001.003

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2 Because EPA cannot reasonably be expected to promulgate revisions to the C&D ELG by the new February 15, 2012 expiration date for the 2008 CGP, it cannot reasonably anticipate implementing those provisions through the Proposed CGP before the 2008 CGP expires. Hence, EPA should delink these two rulemaking efforts. Instead, EPA should be committing itself to promulgating a ne w CGPRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

983 absent the controversies, errors, and litigation that has surrounded the C&D ELG effort. Such an approach would greatly simplify the CGP promulgation process.

By delinking the two rulemakings, EPA should focus the new CGP on modifications and issues not embroiled in the C&D ELG. Hence, EPA should focus on water quality issues, establishing a reasonable eNOI system (if appropriate), and best management practices - but NOT those specific BMPs set forth in the C&D ELG until that rulemaking is finalized and fully litigated. In doing so, however, EPA should remove all of the C&D ELG

- related implem entation issues from the Proposed CGP. Then, EPA either could address "implementation" issues within the context of the C&D ELG rulemaking itself (as a complete package of technology requirements and possible implementation issues) OR as separate but compa nion "guidance," for which it should seek separate public notice and comment in a parallel path to the specific C&D ELG revisions rulemaking.

Response
Refer to 3.1.



# Comment ID 0068

- A1.001.004

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2 In sum, EPA has admitted last August that it made mistakes when it promulgated its C&D ELG rule in December 2009. The Agency stayed part of that regulation and promised to revise the ELG to address certain specific issues and "any other issues that reveal themselves to the Agency" during that rulemaking. EPA cannot now predict what those issues will include. Because it cannot foreshadow how to implement all of the as yet undetermined provisions in its upcomi ng C&D ELG rulemaking, EPA should not attempt to implement such provisions in its Proposed CGP. Because the entire package of C&D ELG standards is not yet final, E PA need not attempt to piecemeal its implementation, especially considering the fact that the "initial" implementation is and will be precedent setting across the country. The Agency's current attempt to do so is unnecessarily complex and confusing for the pu blic, permitted sites, and permitting authorities.

In promulgating the C&D ELG, EPA asse rted that a lengthy (18

- month) implementation process, as originally envisioned in the December 2009 rulemaking would: allow permitting authorities to develop any necessary training or certification programs. An important factor in the effectiv e implementa tion and compliance with this rule will be the permitting authority being able to digest the numeric limitation and monitoring requirements and developing guidance and outreach to the regulated community to provide assistance so the requirem ents are understood and can be effectively met by owners and operators of C&D sites. This will provide the regulated industry with the guidance, knowledge and tools necessary in order to effectively monitor their discharges in order to ensure they are meeting the
numeric limitation. 74 Fed. Reg. at 63,050.

EPA's current CGP promulgation strategy completely ignores and conflicts with this important priority associated with the C&D ELG rulemaking. By completely separating the Proposed CGP from the ongoing revised C&D ELG rulemaking, EPA can provide a more comprehensive C&D ELG rulemaking package, including guidance regarding implementation strategies, at an appropriate future da te, after it has worked its way through the APA rulemaking process and, hopefully, the 7th Circu it litigation can be fully resolved.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

984 Response
Refer to 3.1.



# Comment ID 0068

- A1.001.005

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2 To reiterate FSWA's comments above, FSWA believes that EPA should delink the C&D ELG rulemaking and new CGP promulgation efforts. The following comments continue to reflect that understanding. In other words, comments on C&D ELG implementation
issues - to the extent provided below - are premised on FSWA's positio n that the two rulemakings should be delinked and these comments in no way support a position that presumptive C&D ELG implementation is appropriate or supported by FSWA through any interpretation of the following comments.

Response
Refer to 3.1.



# Comment ID 0068

- A1.001.027

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2 Until EPA finalizes a revised C&D ELG with a numeric limit, it is entirely premature to comment on Part 3 of the Proposed C GP. There simply is no basis from which to judge what monitoring requirements will be appropriate, what outfalls might require monitoring, or what the final standard (if any) will necessitate in terms of compliance. EPA should delink the Proposed CGP f rom the C&D ELG rulemaking process. It should first promulgate and defend its ELG standards before proceeding with a notice

- and

- comment procedure to develop implementation guidance and a revised CGP, a process that will help to ensure the most efficient and ef fective monitoring protocols/requirements.

While EPA may have stated a prior intent to finalize a numeric effluent limit for turbidity in a revised C&D ELG, it is entir ely possible that EPA will not promulgate or be able to defend such a limit. EPA may settle for a "benchmark" or "action level" type approach for a final turbidity or total suspended solids threshold. Because we cannot predict what EPA can or will do, these issues should b e removed from the Proposed or Final CGP and used in a proposed C&D ELG

- related guidance document at a future time.

Response
Refer to 3.1.



# Comment ID 0068

- A1.001.043

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

985 Alternatively, the Proposed CGP is ripe with inefficiencies and prospective implementation problems. EPA's attempt to implement the C&D ELG before that regulation is fully completed has resulted in a Proposed CGP that is based more on guesswork than a "reas oned determination" that "imposes the least burden on society," which can only be crafted when all of the variables are known in advance. The Proposed CGP goes too far beyond merely setting forth specific "performance objectives" and, in fact, dictates specific " manners of compliance" that all const ruction operators must adopt, even when site

- specific circumstances may dictate otherwise. In short, until EPA has completed work on the C&D ELG rulemaking, EPA's most efficient and effective path forward for the Proposed CGP is to tweak and make necessary minor adjustments to the 2008 CGP and refocus its efforts on implementing the C&D ELG at an appropriate future date when the contents of that regulation are fully understood. EPA recognized the benefits of such an approach in December 2009 when it espouse d the benefits of an 18

- month implementation period to allow the regulated community and state regulators with sufficient time to consider efficient implementation strategies. A comparable time should be applied to the C &D ELG when it is completed, perhaps sometime in 2012.

Response
Refer to 3.1.



# Comment ID 0080

- A2.001.001

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3, et al. Issue Category: BAC.2 The Partners have reviewed the draft CGP and have serious concerns, in particular, where EPA is proposing stringent MS4 permittee implementation requirements as a result of the new technology

- based effluent limitations guidelines (ELGs) for turbidity. The draft CGP includes a placeholder for the new ELGs. The dra ft CGP states EPA is preparing to issue a proposed rule in the near future that will have a recalculated turbidity limit and a 1

- year extension to the first phase

- in date for complying with the numeric limits. Assuming the recalculated numeric limit is promulgated prior to the CGP issuance, the uncertainty of what the effluent limitations will ultimately be, the difficulty in meeting any proposed limit, and the considerable cost of obtaining statistically reliable samples resulting from the new ELGs are problematic for the regulated community. Permitted agencies, particularly in the arid southwest, where small, infrequent runoff producing storms occur will find the Construction & Development (C&D) ELG particularly burdensome.

Response
Refer to 3.1.



# Comm ent ID 0086

- A1.001.002

Author Name: Walz Barbara Organization: Tri

- State Generation & Transmission Association, Inc. Issue Category: BAC.2 The CGP is the vehicle by which the requirements of the C&D Efnu ent Guidelines are implemented, 74 Fed. Reg. 62,996 (Dec. 1,2009). The electric utility indu stry argued, and the court agreed, that these final C&D efnuent gu ide lines fa iled to ad dress important concerns, including the inappropriateness of the regulations when applied to linear development. (WBA, el. oJ . v. EPA, September 20, 2010) EPA issued a stay for parts of the rule and the rule has been remanded to address the flawed numeric limi t and other issues raised by the utility industry. It appears that EPA is proceeding to implement its original requiremen ts by issuing the draftRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

986 CGP, ignoring many of the concems raised by the utility industry and recognized by the courts. The C&D rule was remanded to E PA over 10 months ago, and EPA should take action to issue the rev ised C&D effluent guidelines before it f inalizes the CGP.

Tri

- State encourages EPA to finalize the C&D effluent guidelines in response to the remand, and allow the affected parties an ade quate opportunity to review the new effluent guidelines before finalizing any CGP.

Response
Refer to 3.1.



# Comment ID 0087

- A1.001.001

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: BAC.2 EPA cannot proceed with the CGP until it completes the C&D rulemaking on remand.

The CGP serves as the permitting vehicle to implement the C&D Rule. However, the C&D Rule has been remanded to correct the numeric turbidity limit (which EPA conceded was flawed), as well as to address comments and concerns that UWAG raised regardi ng applicability of the C&D Rule to linear utility projects (which EPA admitted it had failed to address as part of the original rulemaking). EPA cannot legitimately proceed with the CGP, at least as applied to linear projects and turbidity limit, until the remanded C&D rulemaking is complete.

Nor can EPA simply leave a placeholder in the draft CGP for the results of its remanded C&D rulemaking. EPA already has signaled its intent to interpret other aspects of the C&D Rule through the CGP. For example, the C&D Rule includes a general requireme nt to "[p]rov ide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration, unless infeasible." 40 C.F.R. § 450.21(a)(6). The proposed CGP goes well beyond this, speci fical ly requiring a 50

- foot buffer of undisturbed natural vegetation or its equivalent sediment load reduction. Section 2.1.2.1. Similarly, the general guideline for "minimizing the disturbance of steep slopes" in the C&D Rule (40 C.F.R. § 450.21(a)(4)) has bee n expanded in the proposed CGP to include a specific steepness threshold of 15% grade, as well as multiple specific stabilization requireme nts that do not appear in the C&D Rule. Section 2.1.4.2. [FN 2]

[FN 2] Other examples where EPA has interpreted the C&D Rule through the proposed CGP include the addition of requirements for removing track

- out of sediment by the end of the same work day (Section 2.1.3.4) and for stabilizing construction entrance and exit points for a minimum of 50 feet from the point o f entry/exit (Section 2.1.3.7).

Response
Refer to 3.1.



# Comment ID 0087

- A1.001.002

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG)Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

987 Issue Category: BAC.2 In a particularly significant example, in the CGP, EPA appears to be misapplying, and as are sult greatly expanding, the 2

- year, 24

- hour storm standard from the C&D Rule. In that rule, EPA used the 2

- year, 24

- hour storm standard as a threshold for applicability of the numeric turbidity limit. 40 C.F.R. § 450.22(a)

- (b). In t he CGP, EPA proposes to apply the 2

- year, 24

- hour standard as a design storm standard for stormwater controls, which would be applicable all the time to all sites equal to or greater than one acre in size.
Section 2.1.3 Request for Comment. As a matter of design, such a standard would not be feasible for linear utility projects, where flows are not collected at central points and narrow rights

- of

- way prevent the installation of retention/detention basins.[FN 3] Moreover, as a matter of process, we note that EPA's proposal would greatly expand the 2

- year, 24

- hour storm standard beyond anything contemplated - or subject to comment - in the C&D Rule. We respectfully submit that, if EPA wishes to apply the standard in this fashion, it must amend
the C&D Rule and , thereafter, apply the amendment to a future CGP [FN 4].

[FN 3] For example, detention capacity for stormwater runoff in order to add flocculants, for areas where the 2

- year 24

- hour events corresponds to a 6

- inch rain, would be approximately 163,350 gal lons per acre of watershed assuming saturated soil conditions. For a linear utility project spanning numerous watersheds, this capacity would be impossible to accomplish within normal ROW bounda ries.

[FN 4] EPA must propose any amendments to the C&D Rule using a notice

- and

- comment process, to ensure that EPA reaches a
well

- informed and reasoned result. Issues such as the application of the rule to linear facilities, the turbidity limit, and use o f the 2

- year, 24

- hour storm standard are complex and fundame ntal elements of the rule that require such due process.

Response
Refer to 3.1.



# Comment ID 0087

- A1.001.004

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: BAC.2 Because EPA already has demonstrated that the specific requirements of the C&D Rule and CGP are not, and will not be, identical, EPA must first propose its remanded C&D Rule for public notice and comment, and then take final action in the remanded procee ding in a manner that is informed by the comment s that it receives. After EPA finalizes the remanded C&D Rule, EPA must then propose what, when, and how the rule will be implemented through the CGP. A placeholder is simply inadequate to provide interested members of the public, like UWAG, with a meaning ful basis to comment on what EPA has in mind. 5 U.S.C. § 553(c); Conn. Light Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530 (D.C. Cir. 1982); Paralyzed Veterans of Am. v. DC Arena LP, 117 F.3 d 579, 586 (D.C. Cir. 1997).

Response
Refer to 3.1.



# Comment ID 0087

- A1.001.017

Author Name: Smith BrooksRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

988 Organization: Utility Water Act Group (UWAG) Issue Category: BAC.2 UWAG notes, at the outset, that some of the requirements in Section 2.1.3 of the draft CGP originate with portions of the C&D Rule that were remanded to EPA so that the Agency could address the specific comments and concerns from UWAG that the Agency previously failed to address. These include, for example, Section 2.1.3.2.b perimeter controls. Unless and until EPA takes fi nal action on remand of the C&D Rule, it would be both premature and futile for UWAG to comment on the CGP. Instead, UWAG simply cautions EPA that these requirements are not suitable or appropriate for linear utility projects.

Response
Refer to 3.1.



# Comment ID 0 088

- A1.001.002

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: BAC.2 The Construction General Permit (CGP) is the vehicle by which the requirements of the Construction and Development (C&D)
Effluent Guidelines are implemented, 74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric utility industry argued, and the court agreed, that these final C&D effluent guidelines failed to address important concerns including the inappropriateness of the regulati ons when applied to li near development (See U.S. Court of Appeals of the Seventh Circuit Order in WBA, et. 01. v. EPA, dated September 20,2010). EPA issued astay for parts of the rule and the rule has been remanded to address the flawed numeric limit and other issues raised by utility industry through UWAG. While EPA has yet to repropose the C&D rule 10 months after remand, EPA is nonetheless proceeding to implement its original requirements by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility industry and recognized by the courts. Minnkota encourages EPA to delay finalizing the proposed CGP until the final C&D effluent gUidelines are reissued in response to the remand and affected parties have had a chance to review the new effluent guidelines
and a revised CGP.

Response
Refer to 3.1.



# Comment ID 0093

- A2.001.002

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: BAC.2 EPA's first effort to set such a numeric limit was unsuccessful, and as AGC writes these comments, EPA remains far behind its original schedule for proposing - much less finalizing - a new limit. It follows that EPA is not under any immediate obligation to implement the Construction & Development Effluent Limitations Guidelin es (C&D ELG) that it promulgated on December 1, 2009. See 74 Fed. Reg. at 62,995

- 63,058 (C&D ELG final rule); See 75 Fed. Reg. at 68,215

- 68,217, Nov. 5, 2010 (direct final rule staying EPA's numeric limitation in C&D ELG); See 76 Fed. Reg. at 22,885, April 25, 2011 (notice of draft CGP).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

989 When EPA finalizes a new limit, and if that limit survives the litigation already pending in the U.S. Court of Appeals for th e Seventh Circuit, EPA will certainly have to take the steps necessary to implement the C&D ELG. To that end, EPA also will revise its CGP. But EPA has not yet reached that point, and indeed, it remains far from it.

EPA's first effort to set a strict numeric limit on the turbidity of construction stormwater runoff failed very shortly after industry mounted a legal challenge to that limit and its associated monitoring and reporting requirements. The litigation forced EPA t o reexamine its work on the C&D ELG. To its credit, however, the agency did volunteer that this process had revealed miscalcula tio ns; and the agency did agree to put the limit on hold, pending a new rulemaking. See 75 Fed. Reg. at 68,215 (Nov. 5, 2010) (EPA discussing reasons for seeking a stay of the 280 nephelometric turbidity unit (NTU) limit and other issues surrounding ongoin g l itigation in the Seventh Circuit Court of Appeals in the case Wisconsin Builders Association v. EPA, Case No. 09

- 4113). EPA originally planned to complete that rulemaking on February 15, 2012, but nearly one year later, the agency has yet to even co mplete its proposal.

In addition to the limit itself, this new rulemaking will provide an opportunity for EPA to reconsider the feasibility of meeting a numeric effluent limit on cold weather sites, small sites that are part of a common plan of development, and on linear gas and electric utility projects. EPA has already committed itself to reviewing these issues, as well as other issues that may that may come to the surface, as the new rulemaking proceeds. At this point, it is quite obviously impossible to know what those other issues might be.

Proceeding immediately to revise the CGP to the extent that EPA has proposed unnecessarily threatens great confusion. To brin g everything into alignment, AGC fears that EPA would require yet another string of extended deadlines and corrective rulemakings, much like the several that have already plagued its effort to regulate construction stormwater runoff. Indeed, even in Decemb er of 2009

- when it reached what it thought was the end of its rulemaking on a C&D ELG, and believed that all of the relevant issues had already
surfaced

- EPA recognized that implementing that ELG would be difficult, and take time and closer examination. In the preamble to the final C&D ELG rule, the agency contemplated a lengthy (18

- month) imple mentation process that would "allow permitting authorities to develop any necessary training or certification programs." See 74 Fed. Reg. at 63,050. As the agency further explained:

An important factor in the effective implementation and compliance with this rule will be the permitting authority being able to digest the numeric limitation and monitoring requirements and developing guidance and outreach to the regulated community to provide assistance so the requirements are understood and can be effective ly met by owners and operators of C&D sites. This will provide the regulated industry with the guidance, knowledge and tools necessary in order to effectively monitor their discharges in order to ensure they are meeting the numeric limitation. Id.

In Dec ember of 2009, EPA was right, and today, it is equally - and inexplicably - wrong. If EPA hopes to succeed, it must wait for all of the issues to surface, for the new rulemaking to come to a close, and for both the permitting authorities and the regulate d community to digest its unprecedented provisions. Only then should the agency undertake the difficult task of revising the CGP.

At this point, there is simply is no way to determine which monitoring requirements will be appropriate for a revised permit t o include, or which outfalls might require monitoring, or what the final limit (if any) will necessitate, in terms of compliance. EPA mu st promulgate and defend a complete C&D ELG, and give both permitting authorities and the regulated community time to as sess its requirements, before it can determine the most efficient and effective monitoring protocols and related requirements.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

990 Response
Refer to 3.1.



# Comment ID 0093

- A2.001.071

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: BAC.2 The Draft includes a placeholder for a recalculated numeric turbidity limit, stating "if you are subject to the numeric turbi dity limit, the average turbidity of any discharge for any day must not exceed the value liste d."

While EPA may intend to finalize a numeric effluent limit for turbidity in a revised C&D ELG, it is entirely possible that EP A will not promulgate or be able to defend such a limit. EPA may settle for a "benchmark" or "action level" type approach for a final turbidity or total suspended solids threshold. Because EPA cannot predict how its ELG rulemaking or related litigation will end, the agenc y should remove these provisions.

Response
Refer to 3.1.



# Comment ID 0096

- A1.001.003

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.2 EPA’s draft CGP attempts to implement its Construction & Development Effluent Limitation Guidelines (C&D ELG), published on December 1, 2009.[FN 7] EPA asserts that after it es tablishes a new effluent limitation guideline the standard must be incorporated into subsequent NPDES permits, as appropriate.[FN 8] However, the C&D ELG is not yet final. EPA is therefore not obligated to incorporate (or to include placeholders for) these provisions in the draft CGP. Doing so is not only premature, it is unwise.

[FN 7] 76 Federal Register 62,996 (December 1, 2009). [FN 8] Id.

Response
Refer to 3.1.



# Comment ID 0096

- A1.001.004

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.2 Based on administrative petitions and litigation in the Seventh Circuit challenging significant errors in the C&D ELG, EPA ha s remanded the related administrative record, stayed the numeric limit of 280 nep helometric turbidity units (NTU), and agreed to reconsider certain aspects of the rule.[FN 9] EPA filed a motion with the court promising to address the many flaws in the C& D ELGRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

991 by February 15, 2012.[FN 10] To date, EPA has not yet published any proposed or final revisions to the C&D ELG, and the delay may signal that addressing the rule’s flaws is no simple matter. Considering that the C&D ELG is not “final” and there appears to be no easy fixes to the many flaws, it is inappropriate and premature to incl ude the C&D ELG terms in the draft CGP.

Even if EPA asserts that it has not stayed the entire December 2009 rulemaking and that parts of that rule are ripe for immed iate implementation, it is still inappropriate to include those terms in the draft CGP. I n short, EPA cannot pick and choose the elements it wishes to implement now and save others for later. In December 2009, EPA did not promulgate separate non

- numeric and numeric
effluent limits as stand

- alone rulemakings, each with its own independent econo mic, benefits, or cost

- effectiveness analyses. Instead, EPA promulgated a single, unified package of non

- numeric and numeric effluent limits, including a technical development document, economic analysis, and other supporting documents that analyzed a comprehensive package of technology controls as a “complete rulemaking.” EPA cannot now assert that the non

- numeric and numeric effluent limitations are separate efforts and that its admitted errors affecting part of that complete rule package has no impact on implementing the comprehensive rule package.

[FN 9] EPA voluntarily stayed the numeric limit and remanded the administrative record to reconsider certain aspects of the r ule, such as the implementation of the numeric limit on cold weather sites, issues related to small sites, implementation in linear gas and electric utility projects, and other issues that may reveal themselves during EPA’s review. 75 Fed. Reg. 68,215 (Nov. 5, 2010); EPA’s Unopposed Motion for Partial Vacature of the Final Rule, Remand o f the Record, to Vacate Briefing Schedule, and to Hold the Case in Abeyance (“EPA’s Motion to Remand”), Wisconsin Builders Association v. EPA, No. 09

- 4113 (7th Cir. Aug. 13, 2010). [FN 10]
EPA’s Motion to Remand at 6.

Response
Refer to 3.1.



# Comment ID 0096

- A1.001.005

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.2 In addition to the numeric limit and other terms that EPA agreed to reconsider, there are several other C&D ELG provisions th at
exceed EPA’s authority under the CWA. For example, as set forth in the ongoing litigation over this rulemaking, the C&D ELG illegally imposes certain BMPs that improperly regulate internal site processes. The CWA authorizes EPA to control discharges of pollutants from point sources into navigable waters.[FN 11] Yet, the C&D ELG imposes BMPs that improperly restrict the internal processes within the C&D site that are unrelated to point source discharges. For instance, the C&D ELG requires construction site operators to “ [c]ontrol stormwater volume and velocity within the site to minimize soil erosion,”and to “[m]inimize the amount of soil exposed during construction activity." [FN 12] Exposed soil and other construction site features are not necessarily point so urces at a construction site; they are merely conditions within a construction site that may or may not contribute to a point source pol lutant discharge to U.S. waters. The Act “does not empower the agency to regulate point sources themselves; rather EPA’s [CWA] jur isdiction . . . is limited to regulating the discharge of pollutants” from a point source. [FN 13]

[FN 11] EPA cannot impose effluent limitations – numeric or otherwise – except to control “discharge[s] from point sources into navigable waters . . . .” 33 U.S.C. § 1362(11). [FN 12] 40 CFR §§ 450.21(a)(1), (3) (emphasis added); see also id. at (a)(4), (a)(7), (b).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

992 [FN 13] Natural Res. Def. Council v. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988) (emphasis added); Service Oil, Inc. v. EPA, 590 F.3d 545, 551 (8th Cir. 2009) (“the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges – not potential discharges, and certainly not the point sources themselves.”) (emphasis in original); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005) (“The Clean Water Act authorizes the EPA to regulate through the NPDES permitting system, only the discharge of pollutants.”); Am. Iron and Steel Inst. v. EPA, 115 F.3d 979, 996 (D.C. Cir. 1997) (EPA’s authority is limited to controll ing pollutant discharges from a point source, not internal processes; Congress intended to give permittees the flexibility to select their own internal control strategies).

Response
Refer to 3.1.



# Comment ID 0096

- A1.001.006

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.2 Due to admitted irregularities and other challenged aspects of the C&D ELG, EPA cannot and should not attempt to implement an y subpart of the C&D ELG rulemaking until that entire rule making is complete.[FN 14] In other words, there is no C&D ELG package to implement until the upcoming corrective rulemaking is finished. Even if EPA were to disagree and proceed with its draft CG P that implements subsections of the C&D ELG, it faces timing issues that make its effort to implement the C&D ELG inappropriate. On
June 30, 2011, EPA announced that it would extend the current 2008 CGP only until February 15, 2012 – the deadline for revisions to
the C&D ELG.15 EPA could have extended the 2008 CGP until June 30, 2013 (its full five year term) to allow time to finalize the C&D ELG and then incorporate those terms into the CGP.

The fact that EPA did not proceed in this logical manner implies that the new CGP – not the new industry standard – is the Agency’s top priority, especially because EPA is unlikely to finalize the C&D ELG before the February 15, 2012 deadline.

EPA has been reassessing the C&D ELG for nearly a year and has yet to propose any C&D ELG revisions. Even if EPA issues a proposal t his month, given the gamut of issues to be addressed, a final C&D ELG rule is virtually impossible to accomplish in a six - to

seven

- month period. EPA’s C&D ELG proposal would likely contain new provisions, analyses, cost and benefits assessments, and
other issues (e.g., linear construction concerns) that will require significant review and analyses by the public during a notice a nd comment period. Any comment period less than 90

- days, under these circumstances, would be unreasonable and unfair to the affect ed stakeholders. EPA must also set aside time to review comments and develop options for a final rulemaking. An additional 90

- day period seems insufficient to accomplish those tasks.Beyond this six

- month period, the Office of Management and Budget is entit led to
its own 90

- day review under E.O. 12866 before approving or rejecting the final regulatory package. Considering this process, it is optimistic to assume that EPA could promulgate the new, final C&D ELG package in nine months, let alone in the seven m onths
between mid

- July (assuming a proposal is immediately forthcoming) and mid

- February.

EPA cannot reasonably be expected to promulgate well

- reasoned revisions to the C&D ELG by the new February 15, 2012 expiration date for the 2008 CGP. Therefore, EPA should not attempt to implement the non

- final C&D ELG provisions in this draft CGP. Instead, EPA should promulgate a new CGP apart from the controversies, errors, and litigation that has surrounded the C&D ELG effort. InRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

993 other words, the draft CGP should focus on water quality issues, establishing a reasonable eNOI system (if appropriate), and enhanced best management practices (not including the BMPs set forth in the C&D ELG until that rulemaking is finalized and fully litig ated). A reasoned approach woul d greatly simplify the CGP promulgation process. After finalizing a CGP based on appropriate considerations,
EPA could turn its attention to finalizing the C&D ELG and then address implementation: (i) within the context of the C&D ELG rulemaking itself; or (ii) as separate but companion “guidance” document developed in parallel with the final C&D ELG with a meaningful notice and comment period. In fact, when EPA originally promulgated the C&D ELG, EPA anticipated that a full 18

- month implementation period w ould be necessary to adequately implement the program. EPA claimed that this implementation period would allow permitting authorities to: (i) “digest the numeric limitation and monitoring requirements;” (ii) “develop any nec essary training or certification programs;” and (iii) “develop guidance and outreach to the regulated community” to ensure compliance.[FN 16] EPA’s current CGP promulgation strategy completely ignores and conflicts with these important goals. By separating the dr aft CGP from the ongoing revisions to the C&D ELG, EPA can provide a more comprehensive C&D ELG rulemaking package, reduce duplicative rulemaking efforts, and allow permitting authorities time to implement programs in a manner that reduces confusio n and ensures compliance.

In su m, EPA conceded last August that it made mistakes when it promulgated its C&D ELG rule in December 2009. The Agency stayed part of that regulation and promised to revise the ELG to address certain specific issues and “any other issues that r eveal
themselve s to the Agency” during that rulemaking. Because it cannot anticipate how to implement undetermined provisions in its upcoming C&D ELG rulemaking, EPA should not attempt to implement such provisions in its draft CGP. A piecemeal approach is unnecessarily c omplex and confusing for the public, construction site operators, and permitting authorities.

[FN 14] NAHB’s opening brief in the C&D ELG litigation challenged several other aspects of the rule. See generally Brief of Petitioners Wisconsin Builders Association and NAHB, Wisconsin Builders Association v. EPA, No. 09 - 4113 (7th Cir. July 9, 2010).

[FN 15] 76 Federal Register, 40355 (July 8, 2011) [FN 16] 74 Federal Register 63,050 (December 1, 2009).

Response
Refer to 3.1.



# Comment ID 0096

- A1.001.045

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.2 To date EPA has not yet finalized a scientifically sound numeric effluent limit for the construction industry, but the Agency is keen to

not let the lack of a value stop its development of the CGP. Thus, in lieu of a numeric limit, Today’s proposed permit includes a placeholder. In every place within the permit where the numeric limit is expected to appear, EPA has indicated [placeholder f or fi nal, recalculated numeric turbidity limit - 40 CFR 450.22]. NAHB believes trying to complete a rulemaking (and garner meaningful public comment) without all of the relevant data is misguided. While it is EPA’s intention to propose and finalize a numeric effluent limit for incorporation into the CGP before the CGP is finalized, it is impossible to effectively complete a final C&D ELG rule in a si x- to

seven

- month period. Setting timing aside, quite simply, the gravity of the requirements found in the propose d CGP cannot be effectively evaluated until a final numeric limit is issued. At this point, there is simply is no way to determine which moni toringRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

994 requirements may be appropriate to include in the revised CGP, which outfalls might require monitoring and h ow often, or what BMPs or other practices the final limit (if any) will necessitate, in terms of compliance. EPA must promulgate and defend a comple te ELG for the construction industry, and give both permitting authorities and the regulated community time to assess its requirements, before it can determine not only the most efficient and effective sampling and monitoring protocols, but other related requirements nee ded for compliance with the CGP.

Response
Refer to 3.1.



# Comment ID 0103

- A2.001.001

Autho r Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: BAC.2 The EPA published a turbidity limit for construction storm water discharges that became effective on February 1, 2010. However, after
several lawsuits challenging these regulations, EPA reevaluated the limit and concluded that it was constructed in error and would need to be reissued. EPA received numerous state and public comments on this particular limit, but continued to move forward witho ut fully

ex amining the regulation to ensure that limits were soundly established and subsequently had to resent it. Now, part 3.2 of EPA 's Construction General Permit contains a placeholder for a numeric turbidity limit.
EPA has proposed to adopt a limit that does n ot yet exist, denying the public, states, and regulated community of the opportunity to provide comments. That action alone is not appropriate; however, it is particularly troubling considering EPA's previous atte mpts to implement turbidity limits. EPA should abandon any attempts to impose a turbidity limit in the CGP and allow the limit to be fully
noticed and considered as a federal rule first.

Response
Refer to 3.1.



# Comment ID 0103

- A3.001.001

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: BAC.2 The EPA published a turbidity limit for construction storm water discharges that became effective on February 1, 2010. However, after several lawsuits challenging these regulations, EPA reevaluated the limit and concluded that it was constructed in error and would need to be reissued. EPA received numerous state and public comments on this particular limit, but continued to move forward witho ut fully examining the regulation to ensure that limits were so undly established and subsequently had to resent it. Now, part 3.2 of EPA's Construction General Permit contains a placeholder for a numeric turbidity limit.

EPA has proposed to adopt a limit that does not yet exist, denying the public, states, and regulated community of the opportunity to provide comments. That action alone is not appropriate; however, it is particularly troubling considering EPA's previous atte mpts to implement turbidity limits. EPA should abandon any attempts to impose a turbidity limit in the CGP and allow the limit to be fully
noticed and considered as a federal rule first.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

995 Response
Refer to 3.1.



# Comment ID 0110

- A1.001.008

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: BAC.2
EPA admitted that it miscalculated the stormwater runoff limit published in the December 2009 Construction and Development Effluent Limitations Guidelines (C&D ELG) rule and subsequently put the limit on hold pending the completion of a new rulemak ing. EPA has yet to issue a revised turbidity limit so it does not know for certain what other issues will surface during that rulemaking. The pending C&D ELG "correction rule" is critical to amending the 2008 CGP and must be completed before the CGP is reissued in or der to avoid confusion in EPA's construction stormwater permitting program. Likewise, EPA must first promulgate and defend a numeric stormwater limit before the regulated community can assess and comment on the most efficient and effective monitoring protocols/requirem ents.

Response
Refer to 3.1.



# Comment ID 0128

- A2.001.001

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: BAC.2 EPA Should Delink its Efforts to Issue a New CGP While Simultaneously Promulgating Corrected C&D ELG Regulations.

One of the primary objectives of EPA's Proposed CGP is to implement the Construction & Development ELG regulations originally promulgated on December 1, 2009. See 76 Fed. Reg. at 22, 885. EPA asserts that once a new national standard is established pursuant to the Clean Water Act's effluent limitations guidelines provisions, they must be incorporated into subsequent NPDES permits, as appropriate. Id. However, EPA has not truly set FINAL ELG standards for the construction and development indus tries. Because EPA has not finalized the C&D ELG regulations, not only is EPA not obligated to implement such regulations in the Proposed CGP, t he Chamber asserts that doing so is confusing, inappropriate, and may result in an unnecessary and continued str ing of corrective rulemakings that, to date, have plagued construction stormwater regulatory efforts. The Chamber supports the Federal StormWat er Association comments in this regards.

Response
Refer to 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

996 

# Comment ID 0136

- A1.001.001

Author Name: Conlon Royce Organization: PDC Inc. Engineers Issue Category: BAC.2
EPA's attempt to implement a numeric turbidity limit and associated monitoring and reporting requirements for construction si te stormwater runoff is premature. Turbidity limits need to con sider natural surroundings and background levels of the receiving waters. It is not reasonable to expect construction project stormwater runoff to be far clearer than the receiving waters ... where is the value gained (cost vs benefit) to putting a few thous and gallons of super clean water into millions of gallons of very dirty water; let's put our $ where it counts. For instance the Yukon River in Alaska .... the volume runoff from a construction project adjacent to the Yukon river is negligible to the overall volume of high turbidly water that this very large river carries. However the cost and effort to clean up the comparative small volume of water from the construction project could be quite large. The one size fits all cond itions has very large cost ramifi cations. Further - EPA admitted that it miscalculated the stormwater runoff limit published in the December 2009 Construction and Development Effluent Limitations Guidelines (C&D ELG) rule and subsequently put the limit on hold pending th e completion of a new rulemaking. EPA has yet to issue a revised turbidity limit so it does not know for certain what other issues will surface during that rulemaking. The pending C&D ELG "correction rule" is critical to amending the 2008 CGP and must be comple ted
before th e CGP is reissued in order to avoid confusion in EPA's construction stormwater permitting program. Likewise, EPA must first promulgate and defend a numeric stormwater limit before the regulated community can assess and comment on the most efficient and
eff ective monitoring protocols/requirements.

Response
Refer to 3.1.



# Comment ID 0137

- A2.001.001

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Properties (MAIOP) Issue Category: BAC.2 We are especially concerned that EPA will be promulgating changes to the CGP before finalizing revisions to the ELG turbidity limits. It is difficult to provide comprehensive comments and determine the full impact of these changes without the benefit of under standing EPA's intent to establish turbidity limits.

Response
Refer to 3.1.



# Comment ID 0154

- A1.001.001

Author Name: Loehr Aaron Organization: Pace Construction Issue Category: BAC.2 Refrain from including the numeric stormwater limit or associated provisions in the CGP until the Agency has promulgated revisions to that regulation and concluded related litigation before the 7th Circuit Court of Appeals.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

997 Response
Refer to 3.1.



# Comment ID 0158

- A1.001.002

Author Name: Stine James Organization: Rural Electric Cooperative Assoc iation (NRECA) Issue Category: BAC.2 NRECA is also very concerned about EPA's failure to modify the permit to cover the unique situations presented by linear proj ects such as construction and maintenance activities on utility transmission and distribution corridors (collectively identified as "transmission" lines). Such modifications were the subject of extensive negotiations between EPA and the utility industry and are scheduled to be implemented in the forthcoming Effluent Limitation Guidelines for the Co nstruction and Development industry. Unfortunately EPA has turned the process on its head by issuing the general permit that implements the guidelines

before the guidelines themselves have been finalized. With all due respect, NRECA encourages EPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued and affected parties have had a chance to review the new effluent gu idelines
and a revised CGP.

Response
Refer to 3.1 and 17.



# Comment ID 0158

- A1.001.004

Author Name : Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: BAC.2

The CGP is the vehicle by which the requirements of the Construction and Development (C&D) Effluent Guidelines are implemente d, 74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric utility industry argued, and the court agreed, that these final C&D effluent guidelines failed to address important concerns including the inappropriateness of the regulations when applied to linear development. See U.S. Court of Appeals of the Seventh Circuit Order in WBA, et. al. v. EPA, dated September 20, 2010. EPA issued a stay for parts of the rule and the rule has been remanded to address the flawed numeric limit and other issues raised by the utility industry throu gh UWAG.
While EPA has yet to repropose the C&D rule 10 months after remand, EPA is nonetheless proceeding to implement its original requirements by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility industry and recognized by the

courts

.

NRECA encourages EPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued in response to the remand and affected parties have had a chance to review the new effluent guidelines and a revised CGP.

Response
Refer to 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

998 

# Comment ID 0159

- A1.001.001

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: BAC.2 Thank you for the opportunity to comment on the draft Construction General Permit. Although this particular permit is not likely to directly impact Maryland construction activities, we have concerns about some of the elements that may be proposed for the CG P from which Maryland permit authority is delegated. We are especially concerned that EPA will be promulgating change s to the CGP before finalizing revisions to the ELG turbidity limits. It is difficult to provide comprehensive comments and determine the full im pact of these changes without the benefit of understanding EPA's intent to establish turbidity limits. We also would request the basis for EPA's determination that the existing process in place is not adequately protecting waters of the U. S or the public interest as de fined in
Section 402 of the Clean Water Act.

Response Refer to 3.1. In response to the request for the basis for EPA's determination that the existing process in place is not adequately protecting waters of the U. S or the public interest as defined in Section 402 of the Clean Water Act, EPA notes that the new requirements in the permit primarily relate to the implementation of the C&D rule non

- numeric requirements. Other new provisions in the new permit the Agency felt were necessary to improve permit clarity and to ensure that discharges are consistent with water quality
standards.



# Comment ID 016 6- A1.001.001

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: BAC.2 I. EPA's attempt to implement a numeric turbidity limit and associated monitoring and reporting requirements for construction site stormwater runoff is premature. EPA admitted that it miscalculated the stormwater runoff limit published in the December 2009 Construction and Development Effluent Limitations Guidelines (C&D ELG) rule and subsequently put the limit on hold pending th e completion of a new rule making. EPA has yet to issue a revised turbidity limit so it does not know for certain what other issues will surface during that rulemaking. The pending C&D ELG `correction rule` is critical to amending the 2008 CGP and must be comple ted
before the CGP is reissued in order to avoid confusion in EPA`s construction stormwater permitting program. Likewise, EPA must first promulgate and defend a numeric stormwater limit before the regulated community can assess and comment on the most effi cient
and effective m onitoring protocols/requirements.

Response
Refer to 3.1.



# Comment ID 0171

- A1.001.003

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: BAC.2Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

999 It is our understanding that USEPA has chosen to put forth a general permit format before the Effluent Limitation Guidelines themselves have been finalized. AIEC believes that good public policy dictates that the Construction and Development effluent guidelines should be revisited and placed in a joint review and comment process with the CGP.

Response
Refer to 3.1.



# Comment ID 0171

- A1.001.005

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: BAC.2 USEPA continues to implement its original requirements by iss uing the draft CGP even though concerns have been raised by the utility industry and recognized by the courts.

Response
Refer to 3.1.



# Comment ID 0171

- A1.001.006

Author Name: Davis Stephen Organization: Association of Illinois Electric Cooperatives Issue Category: BAC.2 AIEC encourages USEPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued and affected parties have had a chance to review the new effluent guidelines and a revised CGP.

Response
Refer to 3.1.



# BAC.3 CD RULE - OBSERVATIONS ON ADVANTAGES/DISADVANTAGES OF ADOPTING A NUMERIC LIMIT

Comment ID 0011

- A2.001.001

Author Name: Colón

- Zavala Emilio Organization: ECZ Group, Inc. Issue Category: BAC.3 As indicated in the Notice, EPA announced the issuance of the 2008 CGP on July 14, 2008 [FN 1] and is now proposing to extend the expiration date to January 31, 2012 [FN 2] from the prior expiration date of June 30, 2011.[FN 3] The primary reason, as st ated in the Notice, for proposing the January 3 1, 2012 expiration date is to allow EPA to "incorporate for the first time new effluent limitations guidelines and new source performance standards, which EPA promulgated in December 2009 [C&D ELG]... [and] to make up forRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1000 delay in the issuance process of the new CGP due to an error discovered in the December 2009 final rule regarding the calculation of the numeric limitation on turbidity, then established as 280 NTU. Both the NAHB, before the Seventh Circuit Court of Appeals, and
the Small Business Administra tion, through the Administrative Procedure Act, had requested that EPA withdraw the 280 NTU limitation as one of impossible compliance by the affected construction industry sectors. EPA is currently in the process of proposing a
new numeric effluent limita tion for turbidity under separate rule. The PRHA has been particularly concerned with the application of turbidity limitations to streams and creeks that, in the case of Commonwealth surface waters, may commonly exceed, the propos ed limitation, because of naturally occurring background conditions.

[FN 1] 76 Fed. Reg. 22894. [FN 2] 76 Fed. Reg. 22891. [FN 3] 75 Fed. Reg. 28454.

Response
Refer to 3.1.



# Comment ID 0056

- A2.001.011

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) Issue Category: BAC.3 While it is currently rare to have a restoration project encompassing 10 or more acres, restoration is trending toward larger
, sub

- watershed scale designs to achieve larger gains in funct ionality and sustainability of altered ecosystems. Projects on this scale can involve ‘passive' disturbances such as the draining of an impoundment when a dam is removed. In these instances, restoration efforts in one part of the system leads to changes throughout the interconnected ecosystem. This may include increased turbidity in one area and deposition in another.

As mentioned previously, restoration work frequently involves allowing a dynamic natural system to find its level. This appro ach
increases the likelihood a restoration effort will be self

- sustaining in the long term. Manipulating the shifts in materials could slow this process. The DER fully supports the intent behind adopting a turbidity limit for larger construction projects but sees the va lue in assessing restoration cases differently. One option would be to defer to the approval and conditioning found in the permits a nd certificates for sections 401 and 404 of the CWA. Aquatic, estuarine and coastal restoration projects with 10 acres or mo re of disturbance would need to obtain one or both of these approvals. This approach replicates the exemption provided for intersta te gas pipelines where another agency permits the project.

Response
Refer to 3.1.



# Comment ID 0058

- A1.001.002

Author Name: Ruane T. Organization: American Road & Transportation Builders Association (ARTBA) Issue Category: BAC.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1001 ARTBA members have participated in a variety of work group meetings with EPA staff specifically concerning stormwater runoff regulations, particularly from construction projects. One area of particular concern, which has been discussed in these meetings and is also present in the proposed general permit, is the establishment of specific numeric standards for stormwater runoff. Curren tly, man y transportation projects effectively use state

- specific Best Management Practices (BMPs), as opposed to set numeric standards, to address stormwater concerns and effectively balance environmental protection without exacerbating already arduous delays. In discussing how to approach future regulation of stormwater runoff, ARTBA strongly supports allowing states to continue the us e of BMPs as opposed to more stringent "one size fits all" approached relying on such predetermined numeric standards.

BMPs allow the flexibility necessary for project sponsors to be able to select stormwater control techniques best suited to a projects particular circumstances. Every transportation project faces unique challenges based on a number of factors, including where actual construction is taking place, the size of the project and climate issues such as rainfall amounts during the time constructio n is being performed. A numeric standard applied to all projects, however, would not be able to take such differences into account . Transportation projects in areas with heavy rainfall would be held to the same effluent limitation standards as projects in dry, arid region s. Such a
"one

- size

- fits

- all" approach to stormwater permitting could constrain and/or delay transportation projects by treating them like concentrated development projects and forcing them to adhere to numeric standards designed for an entirely different type of construction activity.

In one specific instance, an ARTBA member company had a project on a fairly large site (70 to 100 acres). It started out as a $4,000,000 project. During the project, there was an "El Niño" weather cycle bringing a great deal of rain every day. The pro ject's customer could not afford to wait until all of the BMPs treated the water and needed the contractor to dry out the site as fast as possible so construction could continue. The contract granted weather days, but the water needed to be processed faster requiring the contractor to implement an Alternative Treatment System (ATS, which wo uld be required on many projects to meet numeric standards) using settlement ponds, flocking, filtering, pumping, handling, etc. The contractor agreed to do this work on an audited Time and M aterial basis. The final cost and change order resulted in over $ 1,000,000 in additional charges to the project.

The ARTBA contractor involved in this job noted most projects in that area had the same problem that summer but none of them had the ATS expense this contractor incurred. ARTBA is concerned the implementation of numeric stormwater discharge standards will add substantial additional costs by requiring expensive ATSs, which could limit competition for transportation projects due t o the high cost of purchasing equipment necessary for compliance being potentiall y prohibitive for smaller and medium

- sized contractors. Further, these additional costs are especially troublesome for transportation projects where needs vastly outweigh available resources.

Response Refer to 3.1.



# Comment ID 0058

- A1.001.003

Author Name: Ruane T. Organization: American Road & Transportation Builders Association (ARTBA) Issue Category: BAC.3 Another problem with numeric stormwater standards is the lack of availability of treatment equipment necessary to meet the st andards.
Acco rding to ARTBA contractor members, it could take years until there is enough equipment to fully implement numeric discharge standards. Meanwhile, many projects will be in limbo while waiting for this equipment to become available. Currently, there a re only aRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1002 relatively small number of vendors who sell the necessary equipment. Implementing a numeric discharge standard would essentia lly place transportation planners as well as the states and localities overseeing transportation projects at the economic mercy of this small group of treatment equipment vendors, at least in the short term.

Response
Refer to 3.1.



# Comment ID 0058

- A1.001.004

Author Name: Ruane T. Organization: American Road & Transportation Builders Association (ARTBA) Issue Category: BAC.3 Also, there are liability issues arising from the imposition of numeric standards. If a project temporarily violates a propos ed numeric standard, it could open the door for litigation. Further, it is unclear who would bear the responsibility of any such li tigation. Would the project planner be responsible, the contractor in charge of the job, or the sub

- contractor (if there is one) assigned to deal with

stormwater run

- off? Ultimately, any "one size fits all" style rule may provide another avenue for project opponents to use litigation as a means to delay and disrupt transportation improvements. As soon as there is a violation of a numeric standard, a "rush to the courthouse door" could be triggered, potentially resulting in additional years of delay to affec ted projects.

Response
Refer to 3.1.



# Comment ID 0096

- A1.001.011

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: BAC.3 In 2009, NAHB formulated and proposed to EPA an alternative approach to the ELG that adequately protects the environment and improves the current permitting framework. This approach provides a BMP

- based option combined with a numeric action level that provides additional protection for sites that pose higher risks to the environment. Becau se the CWA only requires compliance with minimum technology standards that are economically achievable on a national basis, not standards that would ensure that each and every site across the country is regulated to the extent necessary for its discharges to meet the toughest water quality standards for the most sensitive waterbodies, an alternative action level approach makes sense.

The proposed “action level approach,” which has been presented to EPA and OMB, would streamline implementation, ensure
envir onmental protection, and serve as a national baseline while recognizing the vast variability in soil type, rainfall, etc. acr oss the nation (See Attachment II) [Please see Attachment II in the origional comment letter. Docket ID EPA

- HQ

- OW

- 2010

- 0782

- 0096

- A1]. This action level approach is intended to supplant the numeric effluent limits, continues to rely on the use of BMPs and sediment ponds, but also establishes an action level for turbidity for discharges from projects disturbing 30 or more acres. This means any operator of a site discharge that exceeds the action level must revise his/her BMPs and/or take other appropriate responsive action to reduce the amount of pollutants in the stormwater discharge to below the action level.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1003 The environmental benefit of an action level approach as compared to a numeric standard (if such a standard is even achievable) is likely to be very similar due to the limited universe of expected benefits accruing from a numeric standard. Taking into acco unt both costs and benefits, the adoption of an action level approach is vastly superior to simply changing the numeric standard, which is EPA’s current plan. A more careful review of the available data leads to the conclusion that an action level approach is more appro priate
b ecause it will incentivize facilities to reduce pollutant discharges at a much lower cost than the standard

- based approach that requires facilities to install costly treatment systems to ensure regulatory compliance. An action level approach also significa ntly reduces administrative burdens. State regulators are overwhelmingly opposed to a single numeric limit, because of the increased workl oad and doubts that the numeric limit would be feasible or yield significant benefits. On the other hand, an action le vel approach as currently adopted by a few states will keep discharges low by requiring re

- evaluations of best management practices for any benchmark turbidity
exceedances and appropriate corrective actions and reporting to state agencies.

Response
Refer to Response 3.1. Additionally, EPA appreciates the suggestions; however, the Agency, as noted in Part 3.1 will not be implementing the numeric turbidity limit into this permit, and therefore, EPA does not believe that it would be appropriate t o consider

a lternative approaches to the numeric limit.



# Comment ID 0106

- A2.001.003

Author Name: Hamanishi Henry Organization: J. R. Simplot Company Issue Category: BAC.3 2. Numeric Turbidity limit and Sampling Requirements (3)

Simplot recommends if a numeric requirement for turbidity is implemented, that the numeric requirement is as a "benchmark" and not a "limit". A benchmark still requires that corrective actions are implemented, but does not cause a violation of the permit. This has been a common approach in the MSGP program and gives the opportunity of the discharger to take corrective action without the burden of the regulatory problems and paperwork associated with a violation.

Further, Simplot disagrees having a "one size fits all" specific numeric turbidity limit, especially as a surrogate for suspended solids or sediment. This is because turbidity is a measurement of water clarity; suspended solids are a measurement of the concentratio n of
solids in the water. There is no common correlation between these measurements; thus if a relationship is desired it must be determined

on

- site specific basis. Even then though, such measurements show that developing a relationship can be technically difficult to achieve.
Attached are data from a series of streams located near a mining operation that shows the variability between turbidity and total suspended solids measurements. Though a correlation can sometimes be determined for a particular waterbody or flow discharge, considerable data is needed to develop a s tatistically valid relationship between turbidity and suspended solids or sediment.

Response
Refer to 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1004 

# Comment ID 0117

- A1.001.004

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: BAC.3
The EPA has proposed a NTU discharge limitation of 280 on disturbances of 20 acres or more beginning August 1st, 2011 and 10

acres or more beginning February 2nd, 2014. This limit may not be exceeded on any given day or time regardless of pre

‐ existing
conditions of the land to be de veloped. Therefore they are imposing a higher level of standard than may currently exist prior to the development or land disturbance. This may not be achievable until stabilization of an existing area occurs. In other words you may be in violation prior t o your development occurring or at the onset of proposed development and approval of a CGP. Development will require stabilization of an existing area that has turbid runoff before disturbing the area for development and then maintain ing a turbidity level under 280 NTU's.

Response
Refer to 3.1.



# Comment ID 0121

- A2.001.007

Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: BAC.3 The nature of linear projects result in distributed impacts. Therefore, the 10 acre threshold for conducting monitoring is not appropriate for these types of projects. Instead the threshold for linear projects should be based on the acreage of area that discharges to a single water body segment.

Response
Refer to 3.1.



# Comment ID 0130

- A2.001.020

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: BAC.3 19. NUMERIC LIMITS. Like many others, we have significant concerns about the impact of the numeric turbidity lim itations. Using a placeholder does not allow us to adequately review this permit.

Response
Refer to 3.1.



# Comment ID 0132

- A1.001.002

Author Name: Goodmann Peter Organization: Kentucky Division of Water (KDOW) Issue Category: BAC.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1005 I would like to bring your attention two specific concerns that KDOW has with the proposed general permit as these concerns relate to the Kentucky NPDES program. Firstly, the proposed general permit seeks to maintain a narrative approach with regards to the e ffluent
limit for c onstruction site discharges, identifying a menu of practices necessary to protect water quality from discharges associated with construction sites. In addition, the general permit seeks to include a numeric effluent limit as part of the permit. KDO W has th e following concerns where EPA deviating from the narrative approach and incorporating:

1. The initial proposed effluent limit was subsequently recalled and it seems there is some uncertainty as to what the numeri c effluent will eventually look like.

2. Given this uncertainty, is it understood whether the industry actually comply with the eventual numeric effluent limit.

a. If a site is in compliance with the narrative aspects of the effluent limit, but fails to meet the numeric effluent limit, how a re the compliance issues to be remedied?

3. There may result secondary public health, safety and environmental issues with the implementation of a numeric effluent li mit, including the widespread use of sediment structures/ponds that the industry will em ploy. In addition, the EPA must resolve the Class V UIC permitting issues associated with Green Infrastructure technologies being employed to meet reduced and cleaner effluent f rom sites discharging stormwater from construction activities.

Response
Refer to Response 3.1. With regard to the comment about Class V UIC permitting issues, EPA notes that the comment is outside the scope of the CGP.



# Comment ID 0133

- A2.001.002

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: BAC.3 In regard to the proposed turbidity limitation, MDT acknowledges that once Effluent Limitation Guidelines and New Source Performance Standards are established, they must be incorporated into NPDES permits. However, without knowing the actual turbidity limitation proposed, it is problematic to review and adequately consider the implications of the proposed permit conditions. MDT requests that all possible legal avenues be explored to allow further public involvement o/the permit conditions related to the turbidity
effluent limitation.

Response
Refer to 3.1.



# Comment ID 0145

- A2.001.012

Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: BAC.3Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1006 We cannot over

- emphasize how important it is to have a numeric limit for turbidity. Our experience has shown that turbidity measurements of streams receiving discharges from even small construction sites frequently range above >1000 Nephelometric Turbidity Units. Unfortunately, we hear from developers and sometimes fr om environmental enforcement staff that "the BMPs are properly installed" and that is all, they assume, that is required or all that is enforceable. A numeric limitation is an objective standard that would be far more easily enforced and would help avoid problems associated with inadequately installed and maintained BMPs.

We suspect there is enormous pressure from economic interests to avoid designating a numeric turbidity limit. But such a limi t is an essential and an objective standard that holds permit tees accountable for the potential impacts of their activities. The lack of a numeric standard up to this point in time is an important reason for the failure to avoid the impacts associated with development projects that currently degrade our streams. Without that accountability, our streams will continue to be degraded. Having a numeric standard is
essential.

The size of sites for which a numeric limit should apply should not be limited to those greater than 10 or 20 acres. We have seen far

smaller site s with severe erosion 

### and sedimentation problems. We do not see an adequate justification for failing to apply a numeric to all construction and development activity.

Response
Refer to 3.1.



# Comment ID 0152

- A2.001.001

Author Name: McGowen Scott Organization: Caltrans Issue Category: BAC.3 In the California Construction General Pennit only high risk projects, Risk Level 3, are subject to numeric effluent limits ( NELs). The California permit additionally includes action levels which apply to both h igh risk and moderate risk sites (levels 2 & 3). We believe this approach better focuses on control efforts at sites with the most potential to adversely impact water qUality. These hig h- risk sites may include sites smaller than 10 acres.

Response
Refer to 3.1.



# Comment ID 0152

- A2.001.003

Author Name: McGowen Scott Organization: Caltrans Issue Category: BAC.3 Caltrans requests that the EPA consider the risk

- based approach that California has adopted for the application of numeric effluent limits and numeric action levels for turbidity. A risk

- based approach is appropriate in that acknowledges that some construction projects pose a higher environmental risk. The proposed Permit language differentiates between construction sites only through project
siz e, which will result in all sites, regardless of their potential for runoff pollution, to require extensive monitoring and assessment. The lack of discrimination in this draft Permit in relation to site potential for runoff pollution, and the sensitivity of the receiving water to pollution from a construction site will not result in an efficient life cycle cost over water quality benefit. We request tha t a risk

- basedRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1007 approach be incorporated into the EPA Permit for application of the proposed numeric efflu ent limitation. We understand that this may require a modification of the effluent limitation guidelines.

Response
Refer to 3.1.



# Comment ID 0153

- A1.001.003

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: BAC.3 Several types of effluent standards have been used for water quality standards. The primary standards that have been used for stormwater sediment are total suspended solids (TSS), settleable solids (SS), and turbidity (NTU). Each has its advantages and disadvantages, as shown below.

Total Suspended Solids: A TSS standard of 35 mg/I average has been used in the mining industry for years in some states. The pros of that standard are that there are models to predict expected TSS during a design storm and to determine the impact of BMPs. The cons are that it is time consuming to measure and results are not available for a number of days. The state of South Carolina curr ently requires 80% trapping efficiency of TSS for active construction sites for the l O- year 24 hour design storm event.

Settleable Solids: SS is defined as the amount of sediment that accumulates in the bottom of an Imhoff cone after one hour of settling. The volume of the sample is one liter and the results are reported in mill. The typ ical standard is 0.5 mill. The pros for the use of SS are that it is easy to measure and results can be available in an hour if the samples are processed at the withdrawal point. The cons are that the size particle that settles to the bottom of the cone in one hour is approximately 0.011 mm which is a medium size silt particle. A small percentage of the fine silts and clays will also settle to the bottom of the cone, but a sizeable fraction of the fine silts and clays are typically excluded from the sample. Thus, one could meet the 0.5 mill SS standard and still discharge a large mass of sediment. Unfortunately, 0.5 is the smallest value on the Imhoff cone.

Turbidity: Turbidity (TB) is a measure of the clarity of the sample. It is measured instantly and ca n be continuously monitored and recorded by using commercially available probes, thus eliminating the timing issues for sampling. Recently, procedures have b een developed at Oklahoma State University to predict turbidity from TSS and soil specific informat ion. The standard originally proposed by EPA of 13 NTUs in a 2

- year storm and the revised standard of 280 NTUs are very difficult to meet with traditional sediment control BMPs and the reduction of NTUs require the use of flocculants for most soils. With a realistic turbidity standard, it is possible to meet it in some locations with sandy or highly aggregated soils without using flocculants. Final turbidity standards have not been established. Studies at Oklahoma State University are being made to determine the effectiveness of flocculants and to develop procedures for modeling the impact of flocculants on turbidity. The results of these studies will be disclosed July 1, 2011. Flocculants require an appropriate injection system that can keep the concentrati on of the flocculent constant in the runoff. For construction sites, the system needs to be passive, or dependent on battery power. Also, a system to provide the proper turbulence to allow flocs to form and then to grow would be needed. Cons of using a tur bidity standard are that there is not a great deal of experience in designing
systems to meet a turbidity standard; and, there is not a great deal of experience in operating flocculation systems at construction sites where intense rainfall occurs on highly erodible soils. However, there is experience at mine sites and experience in New Zealand and other places. Pros include the fact that the measurement of TB is simple, instantly available, and can be continuously monito red.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1008 Recent studies at North Carolina State University and Oklahoma State University have shown that flocculation can be very effective. In addition, Galbrecht et al. (2011) and others are reporting July 1, 2011 on systems that passively inject flocculent to mai ntain a constant of flocculant in the flow and that provide the conditions necessary to allow flocs to form and grow to a size that will settle out of a baSin, and a model that will predict the growth of flocs as well as the final turbidity in effluent from construction si te sediment
BM Ps (Sonal et aI., 2011). The most important issue is developing a realistic standard. The values proposed by the EPA to date are not realistic. At the present time, based on existing information, a value in the range of 700 to 800 NTUs could be met in loca tions with sandy or highly aggregated soils without the use of flocculants. For areas with high levels of fine clays and silts, it appea rs that the use
of flocculants will allow that standard to be met.

Response
Refer to 3.1.



# Comment ID 0155

- A1.001.001

Author Name: Legnatto Paul Organization: Onondaga County, NY Issue Category: BAC.3 The EPA has proposed a NTU discharge limitation of 280 on disturbances of 20 acres or more beginning August 1st, 2011 and 10 acres or more beginning February 2nd, 2014. This limit may not be exceeded on any given day or time regardless of pre

- existing conditions of the land to be developed. Therefore they are imposing a higher level of standard than may currently exist prior to the development or land disturba nce. This may not be achievable until stabilization of an existing area occurs. In other words you may be in violation prior to your development occurring or at the onset of proposed development and approval of a CGP. Development w ill require stabilization of an existing area that has turbid runoff before disturbing the area for development and then maintaining a turbidity level under 280 NTD's.

If an effluent limitation must be applied to the development discharge it should be compared to the existing ru noff conditions. An existing base line NTU sample should be taken during a stormwater runoff event at a minimum of 120 days prior to the land disturbance. This existing NTU value or turbidity limit of 280 NTD's which ever is greater could then be used as t he comparison to the development discharge under the CGP.

Response
Refer to 3.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

ADMIN. Admin istrative

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1009 

# ADMIN ADMINISTRATIVE

Comment ID 0026

- A1.001.001

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN The Chamber supports the Agency's efforts to write an effective, scientifically sound and economically rational CGP to protect properly regulated navigable waters of the United States. However, the Agency fails to demonstrate compliance with the cost

- benefit requirement of 33 U.S.C. § 1314(b)(1)(B), Executive Order 13563 or the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. Also, it appears cert ain provisions in the draft CGP are not justified by controlling law and/or fail applicable information quality requirements. The re fore, the Chamber urges the Agency to withdraw the draft CGP and comply with all appropriate laws, guidance and Orders designed to prom ote public participation, protect small businesses, and reduce excessive regulatory costs.

Response See Essay Response 19.4.



# Comment ID 0026

- A1.001.003

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN The Notice neither demonstrates nor discusses the Agency's compliance with 33 U.S.C. § 1314(b)(1)(B), Executive Order 13563 o r the
R egulatory Flexibility Act, 5 U.S.C. § 601 et seq. The EPA's apparent failure to comply with these laws and the Order, which a re designed to promote public participation, protect small business, reduce excessive costs, and allow a congressional check, is ar bitrary, capricious, an abuse of discretion and contrary to law. Furthermore, given both the breadth of the draft CGP's coverage (all construction activities disturbing more than one acre, see 76 Fed. Reg. at 22882 - 84) and the depth of the new requiremen ts it imposes on permittees, the EPA's failure to comply is contrary to sound administrative policy and practice. Therefore, the Chamber urges the EPA to withdraw the draft CGP until after it complies with all of its statutory and Executive Order obligatio ns.

Response See Essay Response 19.3 thru 19.6.



# Comment ID 0026

- A1.001.011

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN The Chamber supports the promulgation of a scientifically sound and economically rational CGP by the EPA. The draft CGP may ultimately prove to provide a generally acceptable framework for doing so. However, the Chamber believes that the draft CGP ought to be withdrawn until the Agency demonstrates that it has been formulated in full compliance with all applicable laws, guidelines andRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1010 Executive Orders that promote public participation, protect small business, reduce excessive costs, and allow a congressional check. Specifically, the Chamber requests that the Agency take the following actions.

Response See Essay Response 19.3 thru 19.6.



# ADMIN.1 ECONOMIC IMPACTS - COSTS, NUMBER, TYPE, AND SIZE OF ENTITIES COVERED UNDER PERMI, GENERAL ECONOMIC IMPACTS, SMALL BUSINESS IMPACTS, BURDEN TO IMPLEMENT

Comment ID 0012

- A1.001.005

Author Name: Dillar d J. Organization: Joyce Dillard Issue Category: ADMIN.1 The burden of mitigation of pollutants should not be borne by the taxpayer when proper mitigation and monitoring activities a re occurring.

Response See Essay Response 19.1.



# Comment ID 0023.001.001

Author Name: Atkinson T. Organization: Public Input Issue Category: ADMIN.1 The requirements of the proposed Construction General Permit (CGP) raises two issues of concern related to the regulatory bur den and cost due to the introduction of ELGs on activity associated with one acre or greater. One acre of construction activity is approximately the size of a large residential housing lot in North Dakota. North Dakota zoning laws already require that sediment and erosi on controls, soil stabilization, pollution prevention and stormwater pollution prevention plans be approved by a city or county engineer for all new construction prior to the issuance of a building permit. EPA proposal for these items are different then the current requirem ents of the zoning laws. The proposed requirements of the EPA will add an additional burden on the average homeowner, who could face the requirement of submitting two different applications for basically the same requirement, but uses different application proce sses, different requirements and different approval authorities. I realize that the goal of t he EPA is to have the State of ND (through the ND Department of Health) manage the program, but that will not assist a homeowner who is building within city limits.

Response See Essay Response 19.1.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1011 

# Comment ID 0023.001.002

Author Name: Atkinson T.
Or ganization: Public Input Issue Category: ADMIN.1 A second issue is that the cost associated with this regulation is not identified. Executive Order (EO) 12866 establishes the guiding principles that agencies must follow when developing regulations, includi ng the use of cost

- benefit analysis, risk assessment and performance

- based standards. The EPA web page identifies an Economic Analysis for the Proposed Construction General Permit, but the document is dated Jan 1, 2008, and is based upon the previous gener al permit requirements. There is no reference to accomplishing a review of EO 12866 for the new general permit. The addition of EGLs is a major change to the previous permit and the cost ass ociated with this change needs to be identified.

Response
See Essay Response 19.3.



# Comment ID 0026

- A1.001.002

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN.1 However, the EPA has neither calculated the economic and employment costs of these provisions nor disclosed or quantified their potential environmental benefits.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0026

- A1.001.004

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN.1 A. The Agency Has Failed To Comply With The CWA. The draft CGP purportedly contains the "best practicable control technology" that the Agency has determined is needed to meet technology

- based effluent limits established under Clean Water Act § 301 (33 U.S.C. § 1311) and § 306 (33 U.S.C. § 1316) . See 76 Fed. Reg. at 22885 (citations omitted). However, there is no evidence the Agency has accounted for and "considered the total cost of the application of this technology in relation to the effluent reduction benefits to be achieved from such applica tion" as required by 33 U.S.C. § 1314(b)(1)(B). [FN 1] If the Agency promulgates a final CGP without demonstrating that it has reasonably quantified and balanced both the total costs and the effluent reduction benefits of the various control measures set forth therein, then it will contravene a direct Congressional command and violate the Clean Water Act. [FN 2]

[FN 1] 33 U.S.C. § 1314(b)(1)(B) provides in relevant part that: Factors relating to the assessment of best practicable contr ol technology

curre ntly available to comply with...section 1311 of this title shall include consideration of the total cost of application of tech nology inRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1012 relation to the effluent reduction benefits to be achieved from such application , and shall also take into account...the engineering aspects of the application of various types of control technology, process changes, non

- water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate...

[FN 2] On December 1, 2 009, 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 Fed. Reg. 62996 (Dec. 1, 2009). The C&D rule 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 act ive construction sites (see 40 CFR 450.22). The C&D rule became effective on February 1, 2010, and according to the EPA, the draft CGP "must incorporate the C&D rule requirements." See 76 Fed. Reg. at 22885. The Agency, however, has never
claimed that this obligation diminishes or excuses its duty to comply with § 1314(b)(1)(B).

Response See Essay Response 19.3 thru 19.6.



# Comment ID 0026

- A1.001.012

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN.1
A. The EPA ought to demonstrate that it has properly calculated and considered the total cost of application of technology required by the draft CGP in relation to the effluent reduction benefits to be achieved from such application and has taken into account the

eng ineering aspects of the application of various types of control technology, process changes, non

- water quality environmental impact (including energy requirements), and other appropriate factors as required under 33 U.S.C. § 1314(b)(1)(B). The relevant dra ft CGP provisions include, but are not limited to, those identified in Notice §§ III(E)(2) (buffers); (3) (design requirements); (9) , (10) and (11) stabilization criteria and pollution prevention standards); (12), (13), (14), (17) (discharge sampling and q uality standards); and (18), (20) (requirements for discharges to "sediment or nutrient

- impaired waters" including Appendix J). Alternatively, the EPA ought to cite the controlling legal authority that it believes exempts the measures in the draft CGP from cost

- benefit analysis and demonstrate how that exemption improves the CGP's quality and efficacy.

Response See Essay Response 19.3 thru 19.6.



# Comment ID 0029

- A1.001.001

Author Name: Pebley Trey Organization: McAllen Construction, Inc. Issue Category: ADMIN.1 We share EPA's goal of protecting water quality, but we are concerned that compliance with the proposed CGP would not be feas ible. The cumulative impact of all the new requirements will have deleterious impacts on the business of construction. Belo w we identify our five main concerns with the draft permit.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1013 Response See Essay Response 19.1.



# Comment ID 0029

- A1.001.003

Author Name: Pebley Trey Organization: McAllen Construction, Inc. Issue Category: ADMIN.1 In conclusion, my company appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons outlined above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devas tating requirements on construction site ope rators. We strongly urge EPA to focus on a BMP

- based and flexible approach to ensure the CGP is economically achievable, effective in reducing pollution from storm water discharges, and workable on a national basis.

Response See Essay Response 19.1.



# Co mment ID 0031

- A2.001.007

Author Name: Squillace Vincent Organization: Ohio Home Builders Association (OHBA) Issue Category: ADMIN.1 OHBA appreciates the opportunity to provide comments on EPA's proposed draft COP. The proposal raises serious concerns regarding the requirements for numeric effluent limits, Water Quality Based Effluent Limit and prescriptive BMPs. Because it imposes un realistic, significantly burdensome, and economically devastating impacts on construction site operators, OHBA strongly u rges EPA to focus on a
BMP

- based and flexible approach to ensure the COP is economically achievable, effective in reducing pollution from storm water discharges, and workable on a national basis.

Response See Essay Response 19.1.



# Comment ID 0040

- A1.001.003

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: ADMIN.1 The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to simplify and standard ize compliance expectations for a range of activities deemed to have similar environmental impacts, the proposed CGP would require
extensive site

- specific effort to obtain coverage and thereafter to demonstrate compliance. This concern is only made worse by the new EPA/Corps Guid ance on Identifying "Waters of the United States". Not only does the new permit add onerous requirements, the requirements would have to be met at many new locations on a project site because of the extremely broad scope of the new Wat ers ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1014 the United Sat es guidance. In sum, we believe this is inconsistent with the value and purpose of general permits, marks a departure from EPA's typical stormwater general permits program, and stymies the use and availability of the CGP for owners and operators of regulat ed construction sites.

The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These requirements include the 30

- day waiting period for coverage, the obligation to install all BMPs before initiating construction, the 50

- foot buffer requirement, the numeric turbidity limit, the obligation to collect a minimum of three samples in connection with each and every storm event from each and every stormwater outfall (with limited opportunity to designa te representative outfalls), and the more stringent expectations associated with discharges to impaired waters, coupled with an often ill

- defined obligation to determine the impairment status of the receiving water body.

Response See Essay Response 19.1.



# Comment ID 0042

- A2.001.001

Author Name: Mackinnon John Organization: General Contractors of Alaska (AGC) Issue Category: ADMIN.1 We are concerned that compliance with the proposed CGP is unreasonable and would not be feasible. The cumulative impact of a ll the new requirements will have deleterious impacts on the business of construction and the public in general. The estimated annua l cost of complying with the current EPA storm water regulations on Alaska construction sites is over 8% of the entire annua l highway construction program - over $50 million a year. This represents two major road projects a year we don't do. Projects that could result in safer highways and save lives or less congestion and reduce air pollution. If you did a realistic cost

- benef it analysis, you might find your stormwater efforts are counterproductive.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0062

- A1.001.002

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office
Issue Category: ADMIN.1 2) Many small sites will become uneconomical if these requirements are implemented. The effect of this permit will be increas ed costs for small site development (economies of scale will be exaggerated) and the incentive ignore permit conditions will be increased. EPA should meet with construction personnel and discuss how EPA envisions many of these requirements will be implemented.

Response See Essay Response 19.1 thru 19.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1015 

# Comment ID 0066

- A1.001.002

Author Name: Saenz Amadeo Orga nization: Texas Department of Transportation (TxDOT) Issue Category: ADMIN.1 Many of our comments on the proposed NPDES construction general permit will reflect a central theme, this being that the econ omy is something that is often unpredictable, and that many of the proposed guidelines and permit requirements will negatively impact the economy of the transportation construction industry. This is in direct opposition to what the EPA has cited in a recent document, where it is stated, "Non

- building construc tion, of which the transportation and pipelines sectors may be affected by this rule, has generally experience flatter, less cyclical growth as compared to the building construction sectors. Nevertheless, this sector has been affected by the recession due to decreased state and local government spending However, due to the federal stimulus funding, this sector is expected to see good growth in 2011, an approximately 5 percent increase in spending The increase in spending and activity effect In 2 010 is
limit ed, since the majority of the federal stimulus spending on infrastructure projects is expected to occur in 2010 and 2011." (R eed, August 2009; Global Insight, August 2009) Financial impacts should not be anticipated based on something that is "expected", b ut rather on realistic numbers. At this time, many state DOTs are struggling with financial crises, implementing these new rules and pe rmit requirements during this recession is ill timed and may cause a greater undue burden on the transportation industry, contrary to EPA's assessment based on anticipated and future positive economic benefits via federal stimulus programs.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0072

- A2.001.023

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: ADMIN.1 MoDOT is a performance

- based agency, and as such, we are concerned with projections that certain aspects of the proposed COP could significantly increase resource investment for construction projects with, at this po int, an undetermined amount of benefit to the natural environment. MoDOT requests that the EPA provide supportive documentation (i.e., a cost - benefit analysis) to the public that these increased protective measures, such as the numeric turb id ity limit, will have a significant and tangible positive benefit to waters of the U.S. beyond existing practices.

Response See Essay Response 19.1 thru 19.6, and 3.1.



# Comment ID 0088

- A1.001.021

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: ADMIN.1Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1016 In summary, this draft rule will result in adverse economic impacts on the regulated community in the form of additional cost s and increased delays. Minimal net environmental gain would be realized in comparison to the significant additional resources necessary for implementation of this draft rule.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0130

- A2.001.001

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: ADMIN.1 Financial resources for the state DOT are very constrained. It is critical funds are used efficiently and with clear benefit to the resource. EPA‟s proposed draft CGP has substantial schedule and fiscal impacts to our business opera tions

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0132

- A1.001.003

Author Name: Goodmann Peter Organization: Kentucky Division of Water (KDOW) Issue Category: ADMIN.1 In addition to the concerns regarding the effluent limit approach, the proposed general permit is substantially more complex with regards to many requirements. Anticipating that EPA will expect state permits to incorporate a similar approach, EPA must recognize t hat inspections of individual permitted construction sites will require more effort and additional resources. In that light, KDOW believes that EPA must recognize that without additional resources EPA should employ greater flexibility to states in the percentage of permitted sites discharging stormwater from constructi on activities.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0168

- A1.001.001

Author Name: Jordan Jill Organization: City of Dallas Issue Category: ADMIN.1 The EPAs' economic analyses performed in support of the C&D Rule indicates that nearly 8 0 percent of the estimated $255 million in implementation costs would be borne by local governments. Using the EPAs estimated implementation costs per site for the CGP translates to anticipated increased expenses of at least $284,000 per year for the City (about 10 percent of the existing stormwater regulatory compliance program budget).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1017 Response See Essay Response 19.1 thru 19.6.



# ADMIN.2 E.O. 12898 FEDERAL ACTIONS TO ADDRESS ENV. JUSTICE IN
MINORITY POPULATIONS AND LOW

- INCOME POPULATIONS

Comment ID 01 30

- A2.001.002

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: ADMIN.2 1. MISCELLANEOUS. We believe the draft permit needs considerable revision prior to implementation. We appreciate the EPA‟s effort to produce a more enforceable permit, however the draft permit appears significantly more difficult to implement than the current permit. It contains many special circumstances, exceptions, and scenarios. It is difficult to navigate. It will be burdensome for both t he applicant and the EPA compliance staff. The sampling, benchmark monitoring and reporting, corrective action process, multiple inspection deadlines, and snowmelt discharge represent a few additional requirements that we believe add unnecessary complexi ty to the permitting process without demonstrated benefit to water quality. The increased volume of paperwork and recordkeeping will ma ke it challenging to be successful and compliant.

Response See Essay Response 19.1 thru 19.6.



# ADMIN.3 E.O. 13175 CONSULTATION AND COORDINATION WITH
INDIAN TRIBAL GOVERNMENTS

Comment ID 0016

- A1.001.001

Author Name: Tribal Virgil Organization: Big Pine Paiute Tribe of the Owens Valley Issue Category: ADMIN.3 On January 24,2006, the EPA approved the Big Pine Tribal Wat er Quality Standards (WQS) for waters located within the boundaries of the Big Pine Indian Reservation. These water quality standards were approved by EPA under the Federal Clean Water Act which recognizes tribal authority over the "Management and protecti on of water resources ...within the borders of an Indian Reservation". The Tribe's WQS are periodically reviewed, and following a recent review, were reaffinned by the Big Pine Tribal Council in Septe mber
2009.

EPA may not issue a pennit authorizing dis charges into waters of the Big Pine Paiute Tribe of the Owens Valley (Tribe) until the Tribe has granted certification as allowed under CWA Section 401. Section X of the Tribe's WQS reads as follows:Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1018 Clean Water Act Section 401 (Water Quality Certificati on) gives the Big Pine Tribal Council extremely broad authority to review proposed activities in and/or affecting the Reservation's waters requiring certification ofstate or federal permits or licens es. The Big Pine Tribal Council can recommend to the perm itting agency that it grant, deny, or condition certification offederal and state permits or licenses that may result in a discharge to "waters ofthe United States" to achieve compliance with the Tribe's water quality standards. For
waters within the Reser vation boundaries, the Tribal Council shall have full authority to grant, deny, or condition certification.

Section 401 Cert(fication Process Applications for ~'ater quality certification within the Reservation boundaries shall be submitted to the
Tribal Council. They will be reviewed by the Tribal Environmental Office for compliance with Tribal water quality standards. After a thorough analysis, the Environmental Office shall make a recommendation to the Tribal Council who will grant, deny, or condit ion the application. The Tribal Council is the only entity which holds the authority to permit or deny water quality certification ap plications. Ifcertification is denied, the applicant may request a meeting with the Tribal Council to appeal the decision.

The Tribe's Water Quality Standards were established to protect public health and aquatic life, and to maintain or enhance water quality in relation to the beneficial uses of the water. The numerical and narrative criteria for water quality objectives of the surface waters can be found within the Big Pine Tribal WQS at Sections V and VI and Tables 1

- 11.

EPA's correspondence requested a statement of the extent to which conditions of a proposed permit can be made less stringent. This is
addressed in the Tribe 's WQS Section VII(e):

If a proposed action has the possibility to adversely affect the water quality ofBig Pine Creek, an application must be filed with the Tribal Environmental Office. The application must describe the action proposed and its effects o n the Creek, how this information was derived, and a justification for the action. Upon satisfYing these requirements, the Tribal Environmental Office will recomme nd or not recommend this proposal to be considered by the Tribal Council. Tribal Council will make a determination whether to consider the proposalfurther. If the Tribal Council wishes to consider the application further, the public participation process will take place (see paragraph VII(d)). The Tribal Council has the sole authority in permittin g degradation to Big Pine Creek. Ifthe Tribal Council makes the decision to allow degradation, they will submit their decision to the USEPA for review and approval.

It is within the discretion of the Big Pine Tribal Council to establish direction on compl iance with Tribal water quality standards. The Tribe holds the legal right and management capability to regulate water quality within the boundaries of the Big Pine Indian Reservation. The Tribal WQS Antidegradation Policy (Section VII) includes provisions for protection of existing uses, maintenance of water quality of high

- quality waters, and a prohibition against lowering water quality in outstanding resource waters which shall serve as the prim ary basis for Section 401 certification decisions.

Response See Essay Response 19.2.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1019 

# ADMIN.4 E.O 13563 IMPROVING REGULATION AND REGULATORY
REVIEW

Comment ID 0026

- A1.001.005
Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN.4 B. The Agency Has Failed To Comply With Executive Order 13563.

Executive Order 13563 provides: "Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job c reation." Regulatory action must be based on the best available science, promote predictability and reduce uncertainty, and propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs. See Executive Order 13563 at §§ 2, 5. Also, the President has commanded the EPA to tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account the costs of cumulat ive regulations, and identify and assess available alternatives to direct regulation. See id. at § (1)(b).

The Agency published Executive Order 12898 (Federal Actions to Address Environmental Justice) and 13751 (Consultation and Coordination with Indian Tribal Governments) reviews for the draft CGP. See 75 Fed. Reg. at 22890 - 91. However, it appears the Agency has chosen to ignore or avoid its obligations under Executive Order 13563. Specifically:

• There is no evidence that the EPA has made a reasoned determination that the draft CGP's environmental b enefits (if any) will justify its jobs, development and consumer cost burdens.

• There is no evidence that the EPA has tailored the draft CGP to impose the least burden on society, consistent with obtaini ng regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations affecting developers, builders and consumers.

• There is no evidence that the EPA has considered alternative approaches, much less selected the measures that maximize net economic
and environmental benefits.

• There is no evidence that the EPA has to the extent feasible used the draft CGP to specify performance objectives and not t he specific behaviors or manners of compliance that regulated entities must adopt.

• T here is no evidence that the EPA has identified and assessed available alternatives to the measures specified in the draft CG P for the purpose of drafting the least burdensome permit possible.

• There is no evidence that the EPA has considered or specifi ed metrics for determining the efficacy of the draft CGP in order to facilitate retrospective review and evaluation.

Response See Essay Response 19.3 thru 19.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1020 

# Comment ID 0026

- A1.001.013

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: ADMIN.4 B. The EPA ought to demonstrate that it has complied with President Obama's Executive Order 13563, precisely as it has demons trated compliance with Executive Orders 12898 (Federal Actions to Address Environmental Justice) and 13751 (Consultation and Coordination with Indian Tribal Governments). See 75 Fed. Reg. at 22890 - 91. Specifically:

1. The Agency should demonstrate that the draft CGP's requirements are based upon a reasoned determination that the en vironmental benefits (if any) will justify the jobs, development and consumer cost burdens.

2. The Agency should demonstrate that the provisions of the draft CGP have been tailored to impose the least burden on societ y, consistent with obtaining regulato ry objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations affecting owners, developers, builders and consumers.

3. The Agency should demonstrate that it has selected permit provisions th at maximize net economic and environmental benefits and that the EPA has to the extent feasible used the draft CGP to specify performance objectives and not the specific behaviors or man ners of compliance that regulated entities must adopt.

4. The Agenc y should demonstrate that it has identified and assessed available alternatives to the measures specified in the draft CGP fo r the purpose of drafting the least burdensome permit possible.

5. Finally, the Agency should demonstrate that it has considered or specified metrics for determining the efficacy of the measures in the draft CGP aimed at improving the quality of receiving waters, thereby facilitating retrospective review and evaluation.

6. Alternatively, the Agency ought to cite the controlling legal authority that it believes justifies its failure to fully comply with
Executive Order 13563 and also demonstrate how its non

- compliance will improve water quality while promoting the Executive Order's priorities, including promoting economic growth, in novation, competitiveness, and job creation; identifying and using the best, most innovative, and least burdensome tools for achieving regulatory ends; accounting for benefits and costs, both quantitative an d qualitative; and improving the results of resul ts of regulatory requirements. See Executive Order 13563 at §1(b).

Response See Essay Response 19.3 thru 19.6.



# Comment ID 0068

- A1.001.042

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: ADMIN.4Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1021 On Jan uary 21, 2011, President Obama issued Executive Order 13,563, Improving Regulation and Regulatory Review. See 74 Fed. Reg. 3,821. FSWA's comments above are more consistent with the President's Executive Order (EO) than EPA's Proposed CGP. The EO's
overall approach is to minimize the regulatory burdens associated with developing new regulations and facilitate a retrospective anal ysis of existing regulations that are inefficient and ineffective.

As stated above, FSWA believes that the 2008 CGP is a well

- craf ted NPDES general permit. EPA can improve it through minor tweaks and modifications that build upon the experience and collective knowledge that has been gained since 2008, but the overall st ructure and general mandates of that permit achieve an appropriate balance in terms of environmental protection benefits and costs of implementation. This is the type of regulation that is consistent with the goals of the EO, which include:

(1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify);

(2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking int o account, among other things, an d to the extent practicable, the costs of cumulative regulations;

(3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including poten tial economic, environmental, public health and safety, and othe r advantages; distributive impacts; and equity);

(4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and

(5) identify and assess available alternative s to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

Response See Essay Response 19.1 thru 19.6

.



# Comment ID 0093

- A2.001.019

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: ADMIN.4 On January 21, 2011, President Obama issued Executive Order 13563, Improving Regulation and Regulatory Review. S ee 74 Fed. Reg. at 3,821. That order provides: "Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation." It adds that regulatory agencies must (1) base their requirements on the best available science, (2) promote predictability and reduce uncertainty, and (3) propose or adopt regulatory requirements o nly upon a reasoned determination that their benefits justify their costs. See Executive Order 135 63 at §§ 2, 5. Also, the President has commanded the EPA to tailor its regulations to impose the least burden on society, consistent with obtaining its regulatory objectives, taking into account the costs of cumulative regulations, and to identify and asse ss available alternatives to direct regulation. See id. at § (1)(b).Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1022 In putting the Draft together, it appears that the agency chose to ignore or avoid its obligations under Executive Order 1356 3. Specifically:

* There is no evidence that the EPA has made a reasoned determination that the Draft's environmental benefits (if any) will justify its jobs, development and consumer cost burdens.

* There is no evidence that the EPA has tailored the Draft to impose the least burden on society, consistent wi th obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations af fecting developers, builders and consumers.

* There is no evidence that the EPA has considered alternative approaches, much less selected the measures that maximize net economic
and environmental benefits.

* There is no evidence that the EPA has, to the extent feasible, used the Draft to specify performance objectives and not the specific behaviors or manners of compliance that regulated entities must adopt.

* There is no evidence that the EPA has identif ied and assessed available alternatives to the measures specified in the Draft for the purpose of developing the least burdensome permit possible.

* There is no evidence that the EPA has considered or specified metrics for determining the efficacy of th e Draft in order to facilitate retrospective review and evaluation.

Indeed, the proposed CGP is riddled with inefficiencies and prospective implementation problems. As EPA has yet to complete a nd defend its C&D ELG, the Draft necessarily rests more on guesswork than any "reasoned determinations." To craft a permit that "imposes the least burden on society," EPA obviously needs to know, in advance, what all of the variables are going to be. The propose d CGP does not merely set forth specific "performance objectives"; it repeatedly dictates specific "manners of compliance" in excruciating detail. Until EPA has completed its work on the C&D ELG, EPA's most efficient and effective path forward is to extend the 200 8 CGP
for its full five

- year term and refocus its efforts on implementing the C&D ELG at an appropriate future date when the contents of that regulation are fully understood.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0096

- A1.001.007

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: ADMIN.4 Residential construction is one of the most heavily regulated industries in the country. The time and costs of compliance not only impact a business’s ability to thrive and grow, they can also negatively aff ect housing affordability and stifle economic development. For example, residential construction is one of the few industries in which a government

- issued permit is typically required for each unit ofRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1023 production. The rules do not stop there, as a constrict ing web of regulatory requirements affects every aspect of the land development and home building process, including how a site operator allows stormwater to be discharged from his or her site.

While NAHB soundly supports the continued availability of the CGP, we are concerned about the increasing complexity and number of requirements that must be met, particularly with respect to those building a single home on a single lot and those who specif ically design their sites to minimize or eliminate discharges. While we do not disagree with the idea of preparing a Stormwater Pollution Prevention Plan (SWPPP) or filing a Notice of Intent (NOI) with EPA or the state permitting agency, the sheer scope of what must be included and the terms and conditions that must be followed make compliance quite complex and burdensome. For example, EPA’s “fact sheet” for the current CGP is 52 pages long – hardly a simple or streamlined process! As NAHB has proposed streamlining options in the past, we remain disappointed that EPA has not taken the opportunity to even propose any of the options during the reissuance of the CGP.

As such, NAHB believes that the CGP is just the type of regulation President Obama had in mind when contemplating his regulat ory reform strategy. On January 18, 2011, he simultaneously issued Executive Order (EO) 13563 Improving Regulation and Regulatory Review and the Memorandum on Regulatory Flexibility, Small Business, and Job Creation.[FN 17] The EO specifically calls for regulations to be cost effective and cost justified, transparent, coordinated, flexible and science driven, and largely instructs the agencies to comply with EO 12866, which was issued in 1993 and has historically provided the blueprint for agencies to follow when considering and adopting rules. The Memorandum directs all federal agencies, when proposing new regulations, to include regulatory flexibilities for small businesses such as extended compliance dates, s implified reporting requirements, or even regulatory exemptions. Because the r esidential construction industry is dominated by small businesses and the CGP requirements are costly and onerous, NAHB submits that EPA is obligated to heed the Presidents directive and stre amline the process and reduce the burdens. NAHB believes there ar e at least four ways to do this that will result in significant savings and improve compliance while maintaining environmental protection – 1) adopting a single lot permit, 2) adopting a voluntary no discharge certification, 3) revising and facilitating th e designation of Qualifying Local Programs, and 4) adopting an action level approach.

[FN 17] 76 Federal Register 3821 (January 21, 2011).

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0096

- A1.001.013

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: ADMIN.4 In recognition of the role that small businesses play in the economy, on January 18, 2011, President Obama issued the Memoran dum on Regulatory Flexibility, Small Business, and Job Creation. This new memorandum emphasizes the need to reduce burdens on small businesses whenever possible. Relying on the authority provided by the Regulatory Flexibility Act, the directive suggests tha t agencies, when initiating rulemaking that will significantly impac t small businesses, to increase compliance flexibility through measures such as extended compliance dates, simplification of reporting requirements, and partial or total exemptions. The need for regulatory relief is further supported by a recent study fund ed by the U.S. Small Business Administration that examined the proportional costs of federal regulations upon smaller firms (i.e., firms with 20 or fewer employees) as compared to larger firms.[FN 31] The study found t hat theseRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1024 firms pay 40 percent more in compliance costs per employee than firms with more than 500 workers. [FN 32] The researchers further found that this disproportionate compliance cost results from the fact that most federal environmental regulations impose ide ntical recordkeeping, reporti ng, and compliance costs on all firms. Smaller companies cannot easily spread the compliance costs across a larger number of regu lated activities and typically must rely on expensive outside professional consultants to help them demonstrate compliance with technical permitting and reporting requirements. The federal regulation of storm water clearly fits this model.

[FN 31] Crain, N.V. and Crain, M.W., The Impact of Regulatory Costs on Small Firms, September 2010, retrieved on March 24, 2011, from http://w ww.sba.gov/advocacy/853/2016. [FN 32] Ibid, page 9.

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0096

- A1.001.016

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: ADMIN.4 EPA’s intended efforts to imp rove the permit are more likely to create confusion and significant cost with no demonstration that any additional benefits will be derived in comparison to the more simplified and streamlined approach of the 2008 CGP. Therefore, NAHB urges EPA to remove the costly measures, such as WQBEL requirements, prior to finalizing the CGP

Response See Essay Response 19.1 thru 19.6.



# Comment ID 0096

- A1.001.059

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: ADMIN.4 In recognition of the role that small businesses play in the economy, on January 18, 2011, President Obama issued the Memoran dum on Regulatory Flexibility, Small Business, and Job Creation [FN 76]. This new memorandum emphasizes the need to reduce burdens on small businesses whenever possible. Relying on the authority provided by the Regulatory Flexibility Act, the directive sugges ts that agencies, when initiating rulemaking that will significantly impact small businesses, to increase compliance flexibility through measures such as extended compliance dates, simplification of reporting requirements, and partial or total exemptions. The need for re gulatory relief is further supported by a recent study funded by the U.S. Small Business Administration that exam ined the proportional costs of federal regulations upon smaller firms (i.e., firms with 20 or fewer employees) as compared to larger firms. [FN 77] The stud y found that these firms pay 40 percent more in compliance costs per employee than firms with more than 500 workers. [FN 78] The researchers further found that this disproportionate compliance cost results from the fact that most federal environmental regulations im pose identical recordkeeping, reporting, and compliance costs on all firms. Smaller companies cannot easily spread the compliance costsRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1025 across a larger number of regulated activities and typically must rely on expensive outside professional consultants to help them demonstrate compliance with technical permitting and reporting requirements. The federal regulation of storm water clearly fits this
model.

NAHB is particularly concerned about the cost implications of the new water qualitybased effluent limitations. According to E PA's TMDL website, roughly 40,000 impaired waters have been identif ied within the 50 states. More than 13,000 of those 40,000 impaired waters suffer from nutrient and/or sediment impairments, requiring any NPDES permits for construction projects that may disch arge to those waterbodies to contain a requirement for reductio ns of nutrients and/or sediment from the project's stormwater discharges. In addition, to these known impaired waters, there are likely thousands of other water bodies that have not been assessed for wa ter quality
due to a lack of resources at the state le vel, so the number of impaired waterbodies can be expected to grow. Under the proposed CGP, all developments that disturb greater than ten

- acres and discharge into an impaired waterbody must perform monitoring for the "action levels" given in the CGP. This means that thousands of projects will be subject to the additional, costly water quality

- based monitoring requirement, yet the Agency has failed to consider these cost implications in its deliberations.

[FN 76] 76 Federal Register 3828 (January 21, 201 1) [FN 77] Crain, N.V. and Crain, M.W., The Impact of Regulatory Costs on Small Firms, September 2010, retrieved on March 24, 20 11, from http://www.sba.gov/advocacy/853/2016. [FN 78] Ibid, page 9.

Response See Essay Response 19.1 thru 19.6.



# Comment I D 0121

- A2.001.001
Author Name: Walsh Kevin Organization: Massachusetts Department of Transportation (MassDOT), Highway Division Issue Category: ADMIN.4 MassDOT is committed to improving water quality and addressing the potential impacts of stormwater runof f, yet we are concerned that the Draft Construction General Permit contains requirements that would not achieve this cost

- effectively. In addition, the permit contains a number of conditions that could lead to enforcement actions and potentially third part y lawsuits. To be consistent with the recent Executive Order 13563: Improving Regulation and Regulatory Review, modifications should be made to portions of this permit to make the requirements more efficient and easily understood and implemented

Response See Essay Response 19.1 thru 19.6.



# ADMIN.5 REGULATORY FLEXIBILITY ACT

Comment ID 0026

- A1.001.006
Author Name: Kovacs William Organization: U.S. Chamber of CommerceRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1026 Issue Category: ADMIN.5 In the Regulatory Flexibility Act ("RFA"), 5 U.S.C. § 601 et seq., the Congress declared that federal agencies should achieve statutory goals without imposing unnecessary regulatory burdens. It determined that federal rules (such as the CGP) 3 often impos e disproportionately heavy demands on small businesses and that the federal agencies' systemic failure to recognize differences in the scale and resources of regulated entities has adversely affected competition, discouraged innovation and restricted produ ctivity improvements. Therefore, it directed agencies to employ alternative regulatory approaches to minimize the significant economic impact of ru les on small businesses and to tailor rules to address small businesses' unique needs and concerns. See Pub. Law 96

- 354, §(a) (1980)(RFA Congressional findings and purpose).

The draft CGP is for construction sites disturbing more than one acre and will include many permittees who qualify as RFA "sm all businesses." See generally 76 Fed. Reg. at 22885. Consequently, the Agency should have prepared or be preparing an initial regulatory flexibility analysis for the draft CGP, published it in the Federal Register and transmitted a copy to the Chief Counsel for Advocacy of the Small Business Administration. 5 U.S.C. § 603(a).4 Additionally, the Agency should have discussed significant alternatives such as the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; the clarification, consolidation, or simplification of compliance and reporting requirements; the use of performance rather than design standards; and an exemption from coverage of the rule, or any part thereof, for such small entities. 5 U.S.C. § 603(c) . However, it

appare ntly has not done any of these things. [FN 5]

[FN 3] The CGP is an "agency statement of general or particular applicability and future effect designed to implement, interp ret, or prescribe law or policy." See 76 Fed. Reg. at 22885 - 86 (describing the draft CGP as an agency statement of particular applicability and future effect designed to implement law and policy). Consequently, it is a "rule" under the Administrative Procedure Act, 5 U .S.C. § 551(4) and arguably subject to the RFA. See 5 U.S.C. § 601 (2).

[FN 4] The Agency should have described and estimated the number of small entities subject to the CGP; described projected re porting, recordkeeping and other compliance requirements, estimated the classes of small entities subject to CGP requirement s and summarized the professional skills needed for compliance; and identified duplicative, overlapping or conflicting Federal rules. See 5 U. S.C. § 603(b).

[FN 5] Coincident with the final CGP's promulgation, the Agency should publish: A final regulator y flexibility analysis containing a succinct statement of the need for, and objectives of, the CGP; a summary of the significant issues raised by the public in response to the initial analysis and a statement of any changes made as a result; a description and an estimate of the number of small entities subject to the CGP or an explanation of why no such estimate is available; a description of the type of professional skills needed for c ompliance; and a description of the steps taken by the EPA to minimize t he final CGP's impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other sign ificant alternatives to the rule that might mitigate the impact on small entities was rejected. See 5 U.S.C. § 604.

Response See Essay Response 19.3 thru 19.6.



# Comment ID 0026

- A1.001.014

Author Name: Kovacs WilliamRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1027 Organization: U.S. Chamber of Commerc e Issue Category: ADMIN.5 C. The EPA ought to demonstrate compliance with the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. Specifically:

1. The EPA should withdraw the draft CGP and prepare an initial regulatory flexibility analysis, publish it in the Federal Re gister and transmit a copy to the Chief Counsel for Advocacy of the Small Business Administration. 5 U.S.C. § 603(a).

2. The EPA should describe and estimate the number of small entities potentially subject to the draft CGP; describe projected reporting, recordkeeping and other compliance requirements, estimate the classes of small entities subject to CGP requirements and summa rize the professional skills needed for compliance; and identify duplicative, overlapping or conflicting Federal rules. See 5 U.S.C. § 603(b).

3. The EPA should incorporate significant alternatives into the draft CGP such as the establishment of differing com pliance or reporting requirements or timetables that account for the resources available to small entities; the clarification, consolidation, or simplification of compliance and reporting requirements; the use of performance rather than design standards; and an exemption from coverage of the rule, or any part thereof, for such small entities. 5 U.S.C. § 603(c).

4. Coincident with the publication of the final CGP, the Agency should publish a final regulatory flexibility analysis contai ning a succinct statement of the need for, and objectives of, the CGP; a summary of the significant issues raised by the public in response to th e initial analysis and a statement of any changes made as a result; a description and an estimate of the number of small entiti es s ubject to the CGP or an explanation of why no such estimate is available; a description of the type of professional skills needed for c ompliance; and a description of the steps taken by the EPA to minimize the final CGP's impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule that might mitigate the impact on small entities was rejected. 5 U.S.C. §
604.

5. Alternatively, the EPA ought to cite the controlling legal authority that it believes exempts the CGP from the RFA and how the Agency's reliance on that exemption in this case will improve the CGP's efficacy.

Response See Essay Response 19.3 thru 19.6.



# Comment ID 0093

- A2.001.015

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: ADMIN.5
The benchmark limits and the associated monitor ing and reporting requirements in the Draft are unnecessary and unproven requirements that would do more to fuel private litigation than to protect the environment. Water quality based effluent limits and TMDLs should be
written at the state level and in c lose coordination with proper monitoring programs that will yield appropriate benchmarks. AGC also maintains that EPA lacks the legal authority to impose a zero benchmark level, or any other level, without first complying wi th 33 U.S.C. § 1314(b)(1)(B) and the Regulatory Flexibility Act (see AGC comments at Section III). The direct and indirect costs of this irrational and scientifically unsound approach could be substantial and must be calculated and accounted for. Furthermore, there isRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1028 absolutely no evide nce that the agency has considered, much less demonstrated, whether there are demonstrable environmental benefits to offset the potentially huge employment and economic costs this provision may impose on property owners, developers, builde rs and

consumers. In the absence of such a demonstration, EPA's action is not justified.

Response See Essay Response 19.1 thru 19.6.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)



# Issue Category:

DUP

. Dupli cate Letter

February 16, 2012

Docket #: EPA

- HQ

- OW

- 2010

- 0782Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1029 

# DUP COMMENT LETTER IS DUPLICATE OF ANOTHER COMMENT LETTER

Comment ID 0027

- A1.001.001

Author Name: Kovacs William Organization: U.S. Chamber of Commerce Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0026

- A1. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0029

- A1.001.002

Author Name: Pebley Trey Organization: McAllen Construction, Inc. Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0036

- A1.001.002

Author Name: President Mike Organization: National Asphalt Pavement Association (NAPA) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0039

- A2.001.002

Author Name: Western Lennie Organization: Ames Construction, Inc. Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 throughRes ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1030 0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0041.001.001

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0040

- A1. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0042

- A2.001.002

Author Name: Mackinnon John Organization: General Contractors of Alaska (AGC) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0043

- A2.001.001

Author Name: Games Mark Organization: Magruder Construction Company, Inc. Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded c omment.

Response Refer to Response 20.1.



# Comment ID 0044

- A2.001.001

Author Name: Vaughan Ray Organization: South Carolina Department of Transportation (SCDOT) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0153

- A1.001.001 through
0117

- A2.001.040 for the coded comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1031 Response Refer to Response 20.1.



# Comment ID 0044

- A2.001.002

Author Name: Vaughan Ray Organization: South Carolina Department of Transportation (SCDOT) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0120

- A1.001.001 through
0120

- A2.001.040 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0049

- A1.001.017

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: DUP
Commenter submitted revised comment for 0049

- A1.001.017. See comment ID 0078

- A1.001.001.

Response Refer to Response 20.1.



# Comment ID 0050

- A2.001.001

Author Name: Winn Jane Organization: Berkshire Environmental Action Team (BEAT) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.001 through
0109

- A2.001.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0057

- A1.001.001

Author Name: Newlon Thornton Organization: Virginia Coal Association, Inc. (VCA) Issue Category: DUP The VCA concurs with the comments filed by the National Mining Association (NMA) regarding this draft general permit. In the interest of brevity, the VCA incorporates those comments by reference. The VCA does desire to emphasize several points.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1032 Response Refer to Response 20.1.



# Comment ID 0059

- A1.001.001

Author Name: Schwartze Post Emily Organization: Home Builders Association of St. Louis and Eastern Missouri Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0031

- A1.001.002 through
0031

- A1.001.009 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0063

- A1.001.001

Author Name: Tobin Kathleen Organization: Verizon Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0061

- A1.001.001 through
0061

- A1.001.019 for the coded comments.

Response Refer to Response 20.1.



# Comment ID 0067

- A1.001.001

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: DUP Entergy supports and endorses comments pertaining to the draft construction general permit ("CGP") provided by the Utility Wa ter Act Group, of which Entergy is a member.

Response Refer to Response 20.1.



# Comment ID 0079

- A1.001.001

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: DUP
See Comment EPA

- HQ

- OW

- 2010

- 0782

- 0049.001Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1033 Response Refer to Response 20.1.



# Comment ID 0081

- A1.001.001

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0056

- A1. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0092

- A2.001.001

Author Name: Killam Gayle Organization: Merrimack River Watershed Council, Inc. Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0095

- A2.001.001

Author Name: Martaus Cecilia Organization: AT&T Inc. and its affiliates Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0061

- A1. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0101

- A2.001.001

Author Name: State New Organization: New York State Department of Environmental Conservation Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0060

- A2. Letter not coded.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1034 Response Refer to Response 20.1.



# Comment ID 0104

- A2.001.001

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0017

- A2. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0113

- A1.001.002

Author Name: Schroeder Marlene Organization: Parker River Clean Water Association Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.010 for the coded commen t.

Response Refer to Response 20.1.



# Comment ID 0114

- A2.001.001

Author Name: Clowser Michael Organization: Contractors Association of West Virginia (CAWV) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0118

- A1.001.001

Author Name: Evans Michael Organization: Colaska, Inc. Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1035 Response Refer to Response 20.1.



# Comment ID 0120

- A2.001.001

Author Name: Batson Jon Organization: A nderson County, South Carolina Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0153

- A1.001.001 through
0153

- A2.001.040 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0122

- A2.001.002

Author Name: Mackin Kerry Organization: Ipswich River Watershed Association Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.0010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0134

- A2.001.005

Author Name: Gaines John Organization: City and County of Denver, Department of Public Works Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0030

- A2.001.001 through
0030

- A2.001.029 for the coded comments.

Response Refer to Response 20.1.



# Comment ID 0135

- A2.001.003

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissions (MACC) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.009 for the coded comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1036 Response
Refer to Response 20.1.



# Comment ID 0136

- A1.001.003

Author Name: Conlon Royce Organization: PDC Inc. Engineers Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.002 through
0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0138

- A2.001.002

Author Name: Khalsa EkOngKar Organization: Mystic River Watershed Association (MyWRA) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0140

- A2.001.001

Author Name: Killam Gayle Organization: River Network, et al.
Iss ue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0092

- A2. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0142

- A2.001.001

Author Name: Craycroft John Organization: Cedar Swamp Conservation Trust (CSCT) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.009 for the coded comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1037 Response Refer to Response 20.1.



# Comment ID 0144

- A2.001.001

Author Name: Wray Susan Organization: HaloSource, Inc. Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0082

- A2. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0149

- A1.001.001

Author Name: Hoy Jason Organization: Town of Van Buren, NY Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0117

- A1.001.001 through
0117

- A2.001.011 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0151

- A1.001.002

Author Name: Cox Jeff Organization: Sierra Club, Central Ohio Group Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.00 1.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0155

- A1.001.002

Author Name: Legnatto Paul Organization: Onondaga County, NY Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0117

- A1.001.005 through
0117

- A2.001.011 for the coded comment.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1038 Response Refer to Response 20.1.



# Comment ID 0156

- A2.001.002

Author Name: Deen David Organization: Connecticut River Watershed Council Issue Category: DUP
A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 through
0109

- A2.001.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0160

- A1.001.002

Author Name: Kurtz John Organization: Kurtz Bros., Inc. Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166

- A2.001.001 through
0166

- A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0162

- A2.001.001

Author Name: Keyes Jennifer Organization: Wright Water Engineers Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0030

- A2. Letter not coded.

Response Refer to Response 20.1.



# Comment ID 0164

- A1.001.001

Author Name: Unknown Unknown Organization: New York State Department of Environmental Conservation Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0060

- A1. Letter not coded.Res ponse to Public Comments: EPA NPDES 2012 Construction General Permit (CGP)

1039 Response Refer to Response 20.1.



# Comment ID 0165

- A2.001.001

Author Name: Rampe Thomas Organization: Grand Lake St. Marys Lake Improvement Assn Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109

- A2.001.002 thr ough
0109

- A2.001.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0167

- A1.001.001

Author Name: Alberto Feliciano Jose

Organization: Puerto Rico Homebuilder Assn Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0031

- A1.001.001 through
0031

- A1.001.009 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0169

- A1.001.001

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: DUP Duplicate of document ID number EPA

- HQ

- OW

- 2010

- 0782

- 0166

- A1. Letter not coded.

Response Refer to Response 20.1.