Unformatted 2012 CGP Comment Response Essays February 16, 2012



# Response to Public Comments

EPA NPDES 2012 Construction General Permit

**February 16, 2012**

**Docket ID #: EPA-HQ-OW-2010-0782**Unformatted 2012 CGP Comment Response Essays February 16, 2012



## Table of Contents Comment Response Essay 1 Permit Authorization and T ermination Essay .................................. 1 Comment Response Essay 2 Erosion and Sediment Contr ol Requirements ................................ 16 Comment Response Essay 3 C&D Rule and Numeric Turbi dity Limit ....................................... 68 Comment Response Essay 4 Water Quality-Based Efflue nt Limitations .................................... . 72 Comment Response Essay 5 Inspections ..............

................................................... ..................... 84 Comment Response Essay 6 Corrective Action ........

................................................... ................ 97 Comment Response Essay 7 Staff Training............

................................................... ................. 105 Comment Response Essay 8 Stormwater Pollution Preve ntion Plan (SWPPP) ......................... 107 Comment Response Essay 9 Appendices ...............

................................................... ................. 113 Comment Response Essay 10 General Statement of Supp ort ............................................... ..... 119 Comment Response Essay 11 General Statement of Oppo sition ............................................ ... 120 Comment Response Essay 12 Request to Extend Permit Period ............................................ .... 121 Comment Response Essay 13 Miscellaneous Comments ..

................................................... ...... 122 Comment Response Essay 14 Structure of the Permit .

................................................... ............ 131 Comment Response Essay 15 Environmental Assessment

................................................... ..... 132 Comment Response Essay 16 EPA Interaction with Stak eholders .......................................... .. 133 Comment Response Essay 17 General Comments about Li near Construction .......................... 134 Comment Response Essay 18 No Code, Supplemental Inf ormation .......................................... 136 Comment Response Essay 19 Cumulative Impact of CGP and other Regulations of Industry . 137 Comment Response Essay 20 Duplicate Comments ......

................................................... ......... 140Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 1 Comment Response Essay 1 Permit Authorization and T ermination Essay

Response 1.1 Permit Applicability **EPA received several comments relating to the appli cability of the CGP. One commenter**  **requested that EPA specify in the permit that certa in North American Industry Classification**  **System (NAICS) categories are not covered by the pe rmit. EPA clarifies that, as described in the**  **permit fact sheet, the only categories of facilitie s 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 cl early 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 nec essary to specify that certain NAICS**  **categories are not covered by the permit. Commenter s requested that EPA specifically exempt**  **projects that have individual NPDES permits that in clude appropriate erosion and sediment**  **control requirements from permit coverage. EPA clar ifies that, if a site is covered by an individual**  **NPDES permit that covers any discharge resulting fr om 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. Commenters requested that EPA clarify the definitio**  **n of “disturbance” for the purposes of determining whether permit coverage is required. EP**  **A believes that the permit is clear regarding which types of disturbances trigger the need for pe**  **rmit coverage. In Appendix A of the permit, EPA has defined “construction activity” as “earth-d**  **isturbing activities, such as clearing, grading, and excavation of land.” This definition is consist**  **ent 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 activiti**  **es” to provide clarification to permittees that activities requiring permit coverage must result in**  **an “earth disturbance.” EPA has also defined “earth-disturbing activity” in Appendix A as “actio**  **ns 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 movemen**  **t and stockpiling of top soils.” EPA believes that these definitions provide clarification to per**  **mittees about what specific types of disturbances are subject to permit coverage, and th**  **at these definitions are consistent with the regulatory definition of construction activities su**  **bject to permit coverage at 40 CFR § 122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i). Ther**  **efore, 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 actu**  **al excavation” to permit coverage, EPA believes that the abovementioned definitions are co**  **nsistent with the regulatory requirements regarding which types of construction activities ar**  **e subject to permit coverage (which are broader than the suggested definitions), and theref**  **ore disagrees with the suggestions. Commenters questioned why the permit does not requi**  **re that a site discharge to a water of the U.S. to be covered by the permit. EPA clarifies tha**  **t 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 i**  **s defined at 40 CFR § 122.2 as “any addition of any ‘pollutant’ or combination of pollutants to ‘wa**  **ters of the U.S.’ from any ‘point source’.” EPA believes that the following language from the cover**  **page of the final CGP clearly limits the applicability of the CGP to sites discharging to wa**  **ter of the U.S: “...‘operators’...are authorized to**  discharge pollutants **in accordance with the effluent limits and conditi ons set forth herein.”**  **Therefore EPA believes that no modifications to the permit are necessary.**  Response 1.2 The Person(s) Responsible for Permit C overageUnformatted 2012 CGP Comment Response Essays February 16, 2012



### 2 **Commenters observed that EPA proposed different def initions of “operator” in the draft permit**  **body and in Appendix A (definitions). EPA notes tha t 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 bo dy, 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 “ope rator” from the 2008 CGP. A commenter**  **disagreed with the clarification provided in the de finition 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**  **stormwater 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 for purposes**  **of determining who is to obtain permit coverage.” E PA 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 infor mation about the roles and responsibilities of**  **parties associated with a construction projects tha t 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 th e permit. EPA has provided clarification in the**  **final permit fact sheet by describing that the part y meeting the first part of the definition of**  **“operator” (i.e., the party with operational contro l over construction plans and specifications,**  **including the ability to make modifications to thos e plans and specifications) is in most cases the** 

owner **of the site, and the party meeting the second part of the definition of “operator” (i.e., the**  **party has day-to-day operational control of those a ctivities at a project that are necessary to**  **ensure compliance with the permit conditions) is in most cases the general contractor of the**  **project. See Part 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 the 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 sho uld be the permit holder (i.e., which parties**  **meets the definition of “operator”) and to determin e overall permit compliance responsibilities.**  **EPA agrees with these comments, and therefore belie ves it is more appropriate for the parties**  **involved in a construction site to determine for th emselves 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 ope**  **rator 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 an**  **d operators" of construction activities are subject to EPA's regulations regarding construction**  **site stormwater discharges in the 2003 and the 2008 CGP. See page five of the 2003 CGP fact sh**  **eet 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 defini tion 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 landown er does not have operational control over**  **construction plans and specs nor day-to-day operati onal 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 contr ol necessary to ensure compliance with permit** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 3 **conditions. EPA appreciates the suggested modificat ions to the definition of “operator” in the**  **permit, and understands that in some scenarios, own ers (i.e., those having operational control**  **over construction plans of specifications, includin g 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 covera ge of both the owner (i.e., the party with**  **operational control over construction plans and spe cifications, including the ability to make**  **modifications to those plans and specifications) an d 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 th at all parties with responsibilities over the**  **control of erosion and sediment on the site are reg ulated. For example, EPA is aware that it has**  **been the experience of some general contractors on especially large transportation and**  **commercial construction projects, where the contrac t is awarded the lowest bid, and the site**  **design may have been developed without sufficient r egard for stormwater management and**  **permit compliance, that it is very difficult to the n later develop a Stormwater Pollution Prevention**  **Plans (SWPPP) that complies with the permit, but co nflicts with the site plans. EPA believes that,**  **although in some cases the owner has limited involv ement, owners do have the ability to**  **approve and/or make modifications to site plans, in cluding SWPPPs, and EPA believes, therefore,**  **that owners ultimately have the ability and respons ibility to ensure permit compliance. Because**  **EPA believes that owners meeting the definition of “operator” should be a permitted entity**  **under the CGP, EPA is retaining the definition of “ operator” as proposed in the draft permit**  **body. EPA proposed in the draft CGP definitions for “prim**  **ary operator” and “secondary operator” for situations where there are multiple operators assoc**  **iated with the same project, and described that all such operators are considered to be co-per**  **mittees 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 op**  **erator”, noting that, where there are multiple permittees, it should be up to the permitt**  **ees to determine their permitting structure. Some commenters also indicated that distinguishing**  **between primary and secondary operators could cause confusion with determining permit liabi**  **lity, complicating the permitting process. It was EPA’s intention that by defining “primary opera**  **tor” and “secondary operator”, EPA would provide administrative efficiency for sites with mu**  **ltiple operators by reducing the amount of time that a secondary operator would be subject to revie**  **w 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 fact sheet that subcontractors do**  **not meet the definition of “operator”, and thus are not required to obtain permit coverage. Se**  **veral commenters disagreed with EPA’s statement in the draft permit that all operators ar**  **e 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. Ma**  **ny commenters suggested that it should be up to permittees to determine permit compliance**  **responsibilities. EPA appreciates the comments received on this draft permit language. Up**  **on further reflection, EPA has omitted this language from the final permit. Given that EPA main**  **tains authority to apply joint and several liability under the CWA, it is not necessary to elu**  **cidate 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 sit es**  **with multiple operators clarification of the compli ance responsibilities for each operator.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 4 **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:**

1. If one operator has control over plans and specific ations and a different operator has control over activities at the project site, th ey 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 responsibilit y for each requirement of the permit.

2. If an operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a subdivision), the ope rator is responsible for compliance with all applicable effluent limits, terms, and con ditions 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 area s under their control.

3. You must ensure either directly or through coordina tion with other permittees, that your activities do not render another party’s pollu tant 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 operat or 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 co mmenter 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 t o 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 Feb ruary 16, 2012”) have up to 90 days after the**  **issuance of the 2012 CGP to submit their NOI for cov erage under the 2012 CGP. After coverage**  **under the 2012 CGP has been obtained, permittees wi ll 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 comp lying with certain new permit provisions. For**  **example, a site that is permitted under the 2008 CG P 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 provi de a buffer, and may also find it infeasible to**  **provide equivalent erosion and sediment controls be cause they have existing installed**  **stormwater controls on their site that meet the req uirements of the 2008 CGP. Therefore, EPA has**  **included 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 proj ect” (see Part **1.4.2.c** ), and it is infeasible for you to comply with a specific requir ement in this Part because (1) the requirement was not part of the permit you were previously cove red under (i.e., the 2003 or 2008 CGP), and (2) because you are prevented from compliance due t o the nature or location of earth disturbances that commenced prior to February 16, 2 012, or because you are unable to comply with the requirement due to the manner in which sto rmwater controls have already been installed or were already designed prior to Februar y 16, 2012, you are required to document this fact in your SWPPP and be waived from complying wit h 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 stor mwater controls implemented in compliance with the previous permit have already be en installed. **” EPA believes this note**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 5 **addresses concerns expressed by commenters about di fficulties with complying with new permit**  **provisions. EPA received many comments on the draft permit elig**  **ibility provision requiring that any CWA Section 404 dredge and fill permit(s) have been obt**  **ained prior to receiving coverage under the CGP. Some of the comments included the following:** 

• **Requiring any 404 permits to be obtained ahead of t ime could significantly delay the it**  **takes to be covered under the CGP, leading to a del ay of construction activities;** 

• **Operators should be authorized to begin work under t he CGP outside of areas requiring**  **404 permit coverage while the other necessary permi ts are being obtained;** 

• **Including 404 permit coverage as an eligibility con dition is an extraneous requirement**  **that is duplicative with requirements in the Sectio n 404 permit program; and** 

• **For emergency-related construction activities, it w ould be impossible to have applied for**  **and received a 404 permit prior to conducting earth -disturbances.**  **EPA appreciates the feedback from commenters on thi s proposed eligibility provision, and upon**  **further reflection, EPA does not believe that CWA s ection 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 t o CWA section 404 permits in the proposed**  **permit provision to minimize stream crossings is in consistent with the requirements in the**  **abovementioned eligibility provision. EPA notes tha t 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 P art 1.4.1.2. EPA agrees, and has made the**  **suggested change in the final permit. See Part 1.3b**

**. EPA received several comments regarding the propose**  **d 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-s**  **pecific water quality-based effluent limits developed for the stormwater component of the disch**  **arge.” The comments suggested that the provision was overly broad, and could apply in case**  **s where a site appropriately terminated permit coverage and subsequently needed to obtain p**  **ermit 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 obtai**  **n 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 prop**  **osed provision is actually covered by the final permit provision stating that a site is ineli**  **gible 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 are in the process of obtaining coverage under this permit, an**  **d sites covered under the 2012 permit, which are transferring coverage to a different oper**  **ator. Therefore, EPA has deleted the provision of concern.**  **EPA received a comment requesting clarification tha t sites that have stormwater discharges**  **covered under a different NPDES permit should not b e required to obtain coverage under the**  **CGP. Specifically, a commenter wanted clarification that stormwater discharges from mining**  **activities that are covered under the Multi-Sector General Permit (MSGP) are not required to**  **obtain coverage under the CGP. EPA confirms that di scharges 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**  **Part 1.1d.i that states that a site is ineligible f or permit coverage if discharges from the project**  **are “[a]lready covered by a different NPDES permit for the same discharge.” To clarify, EPA does** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 6 **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 f act sheet. EPA does not believe this clarification**  **is necessary due to the fact that the fact sheet al ready clearly discusses the NAICS categories**  **that are covered by the permit. Another comment sim ilarly requested that EPA exempt from the**  **CGP parties that have received NPDES coverage for d ischarges 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 permit (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 pr ovision for emergency-related construction**  **activities in the draft permit. Many of the comment s related to the fact that the proposed**  **provision required operators of emergency-related p rojects to comply with all relevant**  **requirements in the permit regarding discharges ass ociated 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 wit hin 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 perm**  **it. EPA believes that 30 days will provide operators of emergency-related projects with suffic**  **ient time to safely and effectively develop their SWPPP and comply with the permit. One commente**  **r requested that EPA clarify whether provisional coverage granted to emergency-related p**  **rojects 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 cover**  **ed. However, if permit coverage is denied, provisional coverage will be terminated, and the pe**  **rmittee will be required to apply for an individual permit, in which case EPA will inform th**  **e permittee of any additional requirements. EPA also received comments that the proposed requir**  **ement for the SWPPP to be developed within 7 days after submittal of the NOI is not a re**  **asonable amount of time for emergency related projects. The final permit requires operato**  **rs 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-related 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 per**  **mit was too narrowly limited to natural disasters. One commenter requested that EPA include**  **in its emergency-related eligibility provisions emergencies relating to telecommunicatio**  **ns projects, including health emergencies, law enforcement emergencies, resource management em**  **ergencies, and natural disasters of all kinds. EPA agrees with these comments, and has the**  **refore 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 received numerous comments on the eligibility r**  **equirements regarding water quality standards in the proposed permit. One commenter argu**  **ed 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 m**  **ore rigorous and supportable demonstration that water quality standards will be met in the rec**  **eiving 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, “complian**  **ce 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**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 7 **excursion above any applicable water quality standa rd.” Moreover, if EPA has determined prior**  **to permit authorization that an excursion of an app licable water quality standard will occur, EPA**  **states in Part 1.2.2 of the final permit that it ma y notify permit applicants that permit coverage**  **under the CGP is not available, and that an individ ual permit is necessary. EPA also provides in**  **Part 3.1 of the permit that EPA may impose addition al water quality-based limitations on a site**  **specific basis after permit authorization if inform ation 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 and**  **supportable demonstration. The commenter also reque sted that EPA clarify in the fact sheet**  **how the demonstration of compliance with a TMDL wil l be achieved prior to permit coverage**  **being obtained. As EPA points out above, EPA believ es 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 follow ing language to Part 3.1 of the final permit**  **ensures that discharges covered under the permit w ill be in compliance with wasteload**  **allocations in a TMDL: “EPA will also impose additi onal water quality-based limitations on a site**  **specific basis, or require you to obtain coverage u nder an individual permit, if information in your**  **NOI, or from other sources indicates that your disch arges are not controlled as necessary to**  **meet applicable water quality standards. This inclu des 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 TMD Ls contain WLAs that would be applicable to**  **specific construction sites, but if such requiremen ts 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 assumpti ons and requirements of the TMDL. EPA**  **therefore believes this approach is both less burde nsome 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 w ith the proposed permit’s eligibility**  **requirements for discharges to waters with high wat er quality. As described in the Part VIII.3.2 of**  **the fact sheet, the requirements that apply to disc harges into high quality waters in the final**  **permit establish a process for EPA to determine and specify if further actions are required for**  **new or increased discharges to Tier 2, Tier 2.5, an d 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 permit tees that discharge to Tier 2, Tier 2.5, or Tier**  **3 water the requirement to comply with the addition al requirements, on top of the permit’s other**  **effluent limits and conditions, EPA believes that a uthorizing these discharges will not result in a**  **lowering of water quality. EPA maintains that it ha s 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 T ier 3 waters, the requirements applicable to those**  **discharges in Part 3.3.2 of the final permit, and a ny other applicable state or tribal**  **antidegradation conditions that are included in Par t 9 of the permit) generally will be sufficient**  **to satisfy Tier 2 (or Tier 2.5) and Tier 3 antidegr adation requirements because authorizing these**  **discharges will not results in a lowering of water quality, making individualized Tier 2 or Tier 3**  **review unnecessary. Commenters also expressed conce rn 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 in the Part**  **1.2.3 eligibility provisions due to the fact that s ome 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 designat ion. 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 standard s, which include antidegradation**  **requirements. Without identifying these waters in P art 1.2.3, it would be unclear to permittees**  **discharging to such waters whether or not the eligi bility requirements in Part 1.2.3 apply to them.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 8 **Commenters also argued that the permit incorrectly applies the test of “will not lower water**  **quality” to Tier 2 waters, and that the permit sho uld clarify that the eligibility tests for Tier 2,**  **Tier 2.5, and Tier 3 waters differ. EPA disagrees. In th**  **e fact sheet, EPA describes that the approach in the permit with regard to high quality Tier 2 water**  **s 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 describe the rationale for how the approach with re**  **gard to high quality waters also satisfies the requirement for Tier 2 review with regard to necess**  **ity and important economic or social development. See Part VII.3.2 of the fact sheet. Ad**  **ditionally, as described above, because the permit’s approach with regard to antidegradation ha**  **s 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 wa**  **ter quality will ensure that water quality is maintained and protected for all three tiers. In su**  **mmary, EPA disagrees with these suggested changes to the eligibility provisions with regard t**  **o high quality waters, and maintains that the eligibility provision in Part 1.2.3 of the permit a**  **ppropriately 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 l**  **ocal land use review as another permit eligibility requirement, EPA notes that the CGP doe**  **s not regulate land use, and therefore, it would not be appropriate to include eligibility req**  **uirements 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 a uthorize the discharge of pollutants from**  **non-stormwater discharges. EPA points out that is h as modified the provision authorizing the**  **discharge of non-stormwater discharges to state tha t 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 discharg es 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 po llutant that could cause or contribute to an**  **exceedance of water quality standards. A commenter found that the proposed language descri**  **bing off-site areas (i.e., construction support activities) unclear. EPA clarifies that any**  **stormwater discharges associated with construction support activities, such as off-site b**  **orrow/fill areas, that meet the requirements in Part 1.3c of the final permit, are required to be c**  **overed under the permit. EPA received many comments on the proposed requirem**  **ents regarding allowable non stormwater discharges. A commenter requested that E**  **PA conduct an evaluation to ensure that pollutants from the non-stormwater discharges on th**  **e 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 pol**  **lutants, the need for additional limitations to address chlorine, and the need for limitations and/**  **or monitoring necessary to determine if contaminants are present for certain discharges. EP**  **A would like to point out that additional specificity has been added to the allowable non-sto**  **rmwater discharge requirements in the final permit to ensure that these discharges to do not ca**  **use or contribute to an exceedance of 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 limi**  **tations, EPA would like to also point out that Part 2.3.3.2 and Part 2.3.3.4 contain very spe**  **cific pollution prevention standards that EPA believes will effectively minimize the discharge of**  **pollutants from washing activities, including**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 9 **requirements to provide an effective means of minim izing the discharge of sediment from**  **washing activities, requirements regarding the wash ing of applicators and containers used for**  **paint, concrete, or other materials. Part 2.3.1.4 a lso prohibits the discharge of soaps, solvents, or**  **detergents used in vehicle and equipment washing. A dditionally, all the allowable non**  **stormwater discharges are held to the standard in P art 3.1 of the permit that states, “Your**  **discharge must be controlled as necessary to meet a pplicable water quality standards.”**  **Because these discharges are ultimately held to the standard that they must meet water quality**  **standards, and because the permit contains addition al specificity regarding these discharges,**  **EPA believes that pollutants from the allowable non -stormwater discharges will be adequately**  **controlled. EPA therefore disagrees that further ev aluations are necessary.**  **A commenter expressed concern with the proposed add ition of dewatering discharges as**  **allowable non-stormwater discharges, suggesting tha t the use of the term inappropriately**  **describes dewatering water as “wastewater.” EPA agr ees that dewatering water is not**  **wastewater if treated by an appropriate control, an d has modified the language to state**  **“Construction dewatering water that has been treate d by an appropriate control under Part**  **2.1.3.4.” The commenter also took issue with the de scription that these waters only contain**  **“trace amounts of sediment”, describing 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 conce rns of the commenter, and that the addition**  **of dewatering water to the list of non-stormwater d ischarges is justified.**  **One commenter suggested that EPA add the following d ischarges to the list of allowable non**  **stormwater discharges: water for compaction of eart h and aggregate base course for routine**  **maintenance of dirt roads and shoulders provided re claimed 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 materi als, where flows are not contaminated with**  **additives. While EPA appreciates the suggested addi tions to the list of allowable non-stormwater**  **discharges, EPA does not believe they should be inc luded 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 co urse for routine maintenance of**  **dirt roads and shoulders provided reclaimed or othe r 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 use d 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 t hese discharges are not**  **appropriate to include in the final CGP.**

• **Diverted stream 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 appr opriate to include these in the final**  **CGP.**

• **Flows used for drilling and coring such as for eval uation 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 dis charge does not occur. EPA**  **furthermore believes that discharges from these act ivities should not be allowed**  **because of the large amounts of turbidity in these discharges. Therefore, EPA disagrees**  **with the suggested addition.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 10 **A commenter also suggested that EPA add “landscape irrigation” to the list of allowable non**  **stormwater discharges. EPA mistakenly omitted lands cape irrigation from the list of allowable**  **non-stormwater discharges, which was included in th e 2008 CGP, and has added it back in to**  **Part 1.3d of the final permit.** Response 1.5 Discharges Not Authorized by the CGP **EPA received several comments on the draft provisio ns covering the list of discharges that are**  **not addressed under the permit. Some commenters wer e confused as to why certain discharges**  **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 cover age is required for all projects meeting the**  **eligibility requirements in Part 1.1, even if the p roject is also covered by a CWA section 404**  **permit. EPA received several comments with regard t o discharges to combined sewer systems,**  **which were addressed in this provision of the propo sed permit. EPA's publication:**  Guidance Manual For The Preparation of NPDES Permit Applicat ions 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 di scharges 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 c**  **ommenter suggested that the NOI form allow more detailed site location information for l**  **inear facilities. EPA considered allowing sites to enter in more than one project latitude/longitude p**  **oint on the NOI form, but ultimately determined that requiring one latitude/longitude po**  **int of the approximate “center of the site, and requiring that sites include in their SWPPP a d**  **etailed site map, is sufficient information to require from permittees.**  **A commenter expressed concern with the difficulty o f complying with the requirement to list**  **receiving water quality information on the NOI. Anot her commenter suggested that the eNOI**  **system be capable of allowing linear projects to en ter multiple discharge points due to the fact**  **that these projects often cross multiple waterbodie s. To assist permittees with determining their**  **receiving water quality information, EPA has develo ped a mapping tool that will be accessible**  **within the eNOI system that identifies, based the bo undary of the site entered by the user, the**  **waters to which the site discharges, and whether an y of those waters are impaired waters. This**  **tool will be capable of analyzing multiple points o f 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 w ater quality information. EPA notes that the**  **mapping tool will not help permittees identify whet her they discharge to Tier 2, Tier 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 p ermit. 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 si te map. EPA notes this question was included**  **on the proposed NOI form so that EPA could analyze t he 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 requir ing paper NOI applicants to determine their**  **discharge points and provide this information on th e NOI form would be difficult in some cases.**  **Additionally, EPA was unsure if there would be reso urces available to analyze this information.**  **Therefore, EPA has removed this required piece of i nformation from the paper NOI form.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 11 **A commenter expressed concern with the requirement to provide with the NOI documentation**  **of compliance with threatened and endangered specie s and historic preservation**  **requirements. EPA notes that the information provid ed on the NOI regarding threatened and**  **endangered species and historic preservation is nec essary in order for the U.S Fish and Wildlife**  **Service and National Marine Fisheries Service (“Ser vices”) and the State Historic Preservation**  **Office (SHPO), Tribal Historic Preservation Office (TH PO), or other tribal representative, to conduct**  **their review to ensure that potential impacts of co nstruction activities on threatened and**  **endangered species and historic properties have bee n appropriately considered and**  **addressed. Therefore, the final NOI form includes qu estions requiring documentation of**  **compliance with threatened and endangered species a nd historic preservation requirements.**  **EPA disagrees with a comment that stated that threa tened and endangered species and**  **historic properties information is not typically av ailable 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 deve loped prior to submittal of the NOI.**  **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 acre),” to**  **instead state “Estimated Total Area of the** Project/Site **(to the nearest quarter acre).” EPA has determined that this information is not necessary f**  **or EPA’s purposes, and has therefore removed the question from the NOI form. Instead, EPA asks o**  **n the NOI form for the “Estimated Area to be Disturbed (to the nearest quarter acre).” The comme**  **nter also requested that “Section III of the NOI form link to the primary permittee’s project tra**  **cking number in order to avoid the obligation to develop multiple, duplicative SWPPPs.” EPA notes**  **that the NOI form does require operators to enter in the tracking number if discharges from the**  **ir project have been previously covered by an NPDES permit by a previous operator; however, th**  **is question does not have any association with an operator’s SWPPP development responsibiliti**  **es. 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 option of developing a group SWPPP where you are one of several operators who wi ll 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 f or SWPPP development, and the general contractor can choose to use this same SWPPP, as lo ng as the SWPPP addresses the general contractor’s scope of construction work and obligat ions under this permit. ” **EPA believes that this clarification addresses the concerns of the co**  **mmenter.** 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 Offic**  **e specifically authorizes the use of the paper NOI form. Most commenters were supportive of t**  **he paperless NOI submittal process, citing the environmental, resource, and efficiency**  **benefits of this approach. However, many commenters expressed concern with the eNOI system, a**  **nd 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 compu**  **ter or internet access for some operators; paper trail requirements; and individual preference**  **s. EPA understands these concerns, and therefore in the final permit retains the ability f**  **or 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 th e**  **eNOI system. Among the suggestions were:**

• **EPA should improve the process for transferring acc ess to existing permits from an existing**  **preparer to a new individual who is taking over res ponsibility for submitting the NOT;** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 12 • **EPA should provide the tools and access for applica nts to track the eNOI approval**  **process electronically, and should generate an elec tronic receipt at the time the NOI is**  **submitted;**

• **EPA should allow applicants the ability to submit q uestions during the application**  **submittal process;**

• **EPA should allow the eNOI form to be saved and acces sed before final submission; and** 

• **EPA should resolve problems with the latitude/longi tude validation page.**  **EPA notes that along with the issuance of the new C GP, 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 tha t while EPA continues its transition to the**  **paperless NOI submittal process, issues may arise so me circumstances. EPA notes that it will be**  **working to address any issues with the use of the s ystem 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. Addi tionally, EPA will make available several**  **training documents on the CGP eNOI website. EPA beli eves that, with the improvements to the**  **eNOI system, and with the available guidance, the va st majority of permit applicants will not**  **experience 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 curr ent system in future system enhancements.**  **Several commenters also suggested that EPA make ava ilable online comprehensive information**  **about permittees authorized under the CGP. EPA note s that it has made information submitted**  **by permittees on their NOI forms publicly available in the past, and it will continue to do so with**  **the 2012 CGP. EPA will be including a public NOI sea rch page as part of the enhancements to**  **the new eNOI system. In contrast, a commenter expres sed 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 available informa tion submitted to EPA on permit applications**  **pursuant to 40 CFR § 122.7(b).** Response 1.6.4 NOI submittal deadlines and the offic ial date of permit coverage

. **EPA received numerous comments on proposed NOI submittal deadline**  **s. 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 inadequa**  **te 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 authorization. Some commenters also sug**  **gested 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 addition**  **al 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 representativ**  **e with adequate time to conduct their ESA review. EPA also believes, after reviewing comm**  **ents, that a 14-day review period will present a minimal burden to permittees. EPA disagre**  **es that small-scale projects should be provided with a shorter review period due to the fa**  **ct that small-scale projects can present as much of a concern to critical habitat and threatene**  **d and endangered 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 after EPA has ackno**  **wledged receipt of the NOI on the Agency’s website, unless EPA has notified the appli**  **cant that authorization is denied or delayed,**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 13 **and that in the vast majority of cases there will n ot 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 o**  **n past experience, EPA expects that the occurrence of this will be very rare, and should on**  **ly result if the Services and/or the SHPO, THPO, or other tribal representative do not have enough i**  **nformation to ensure that a project does not present a concern to threatened or endangered speci**  **es or historic properties. EPA encourages permit applicants that are unsure if there is a con**  **cern 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 th**  **at their project will be delayed during the NOI authorization process. Commenters suggested that EP**  **A 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,**  **or if there are no endangered species or historic property concerns. Although EPA understand**  **s the commenters’ line of reasoning, EPA explains that the Services still need the opportuni**  **ty to review NOIs to ensure that permittees have accurately “self-certified” their eligibility.**  **EPA points out that it is a requirement for all projects to complete their determination with regar**  **d to their eligibility under ESA and historic properties**  prior **to submitting the NOI, which will require any necess ary ESA and/or historic**  **properties consultation to have been completed prio r 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 opera**  **tor. One commenter suggested that EPA retain 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 final permit. There**  **fore there is no difference in the NOI authorization process among multiple permittees ass**  **ociated with the same project. In other words, all operators must apply for permit coverage**  **at least 14 days prior to the planned commencement of earth-disturbing activities for the**  **ir 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 m**  **ay request that EPA consider requiring an individual permit under this paragraph,” noting tha**  **t there should be a safeguard to ensure that a “nuisance” request does not delay a project. A co**  **mmenter 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 und**  **erstands the concerns of the commenters; however, this statement is consistent w**  **ith EPA’s NPDES regulations at 40 CFR § 122.28(b)(3), and EPA is unable to modify this regu**  **lation language under the scope of the CGP. It is also not under the scope of the CGP to establ**  **ish 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 necessi tate 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 indi vidual permits may be required at 40 CFR §**  **122.28(b)(3)(A)-(G). A commenter expressed that it wasn’t adequate for E**  **PA to include a “brief statement” of the reasons for the denial for permit coverage. The com**  **menter also questioned why EPA can deny coverage after coverage under the CGP has been gran**  **ted, and recommended that EPA consider a similar process used in the U.S. Army Co**  **rps of Engineers (USACE) Nationwide Permits that allows a permittee to mitigate concerns prior**  **to denial of permit coverage. With regard to the comment on EPA’s “brief statement” describing r**  **easons why permit coverage is denied, EPA**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 14 **notes that this language is consistent with the NPD ES regulations at 40 CFR § 122.28(b)(3)(ii). EPA**  **included this language in Part 1.4.5 of the final p ermit to make permittees aware of the minimum**  **information that will be provided to permittees tha t 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 a n 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 au thorized by a general permit, and it would**  **not be in the scope of the CGP to modify this proce ss. 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 denia l of coverage under the CGP will be an**  **extremely rare occurrence.** Response 1.6.6 Requirement to post a notice of perm it authorization

. **One commenter raised a concern that EPA’s proposed requirement to post a n**  **otice of permit coverage near the main entrance of the site does not take safety into cons**  **ideration because the main entrance is not necessarily a safe location for the public. Another**  **commenter indicated that the proposed requirement would be a challenge for linear project**  **s that do not have a main entrance. Additionally, one commenter pointed out that the ma**  **in entrance is sometimes miles from the construction site itself. EPA agrees with these com**  **ments, 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 proje**  **ct site.” However, EPA disagrees with a commenter’s suggestion that EPA allow permittees th**  **e option to post notice online. EPA already provides NOI submission information online. EPA beli**  **eves 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 sig**  **n at the site, it could be very difficult to find o ut**  **what permit tracking number is associated with the project through an online search. EPA also**  **believes that it important that the notice be viewa ble from a**  public **road so that it is accessible to everybody. Additionally, EPA disagrees with a co**  **mmenter’s belief that the requirement that the notice be posted to be viewed from a public rig**  **ht-of-way is unnecessary. EPA clarifies that the 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 a**  **lso disagrees with the suggestion that notice only be posted during the period of actual c**  **onstruction and not during the period when stabilization measures are implemented. EPA believe**  **s that until final stabilization is reached and permit coverage is terminated, there remain potenti**  **al erosion and sedimentation risks, and therefore it is important that notice of permit cov**  **erage be posted until permit termination**

**occurs.** Response 1.6.7 Conditions for terminating permit co verage

. **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 followi**  **ng the termination of permit coverage (e.g., a person’s name, a position title, a company). Relate**  **d to this topic, another commenter took note that the Notice of Termination (NOT) form did not i**  **nclude a place to identify who is responsible for ongoing maintenance of long-term stormwater con**  **trols. A commenter also requested that EPA clarify what constitutes “long-term” use. EPA n**  **otes that it has removed this condition from the permit. By removing this provision, EPA believe**  **s it has addressed these comments.** Response 1.6.8 Deadline for submitting the Notice o f Termination

. **One commenter disagreed with the proposed requirement that the NOT be submit**  **ted within 30 days of any of the triggering events, stating that the timeframe is not practicab**  **le and that a deadline should not be specified. EPA disagrees with this comment. EPA bel**  **ieves 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 oper**  **ators to terminate permit coverage, EPA will have more accurate records of active construction p**  **rojects covered under the permit, which is**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 15 **important for data collection and enforcement purpo ses. EPA believes that submittal of the NOT**  **form will present a minimal burden, and that 30 day s is sufficient time for permittees to submit**  **their NOT form after meeting the triggering conditio ns, as it only requires them to submit a short**  **form certifying they are eligible to terminate cove rage. Therefore, EPA has retained this provision**  **in the final permit.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 16 Comment Response Essay 2 Erosion and Sediment Contr ol Requirements

Response 2.1 Erosion and Sediment Control Requireme nts General Comments Response 2.1.1 Permit specificity and complexity

. **EPA received numerous comments indicating that the proposed permit was overly prescriptive an**  **d that certain provisions were overly complicated. Commenters suggested that EPA should f**  **ocus 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 protec**  **ting water quality. EPA was responsive to many of the concerns expresse**  **d about the permit being too prescriptive, and has made many provisions in the final permit mo**  **re flexible, including requirements to minimize steep slope disturbances, remove sediment**  **track-out, minimize soil compaction, stabilize construction exit points, and requirement**  **s for pollution prevention. Where EPA has retained specificity in the permit, EPA believes th**  **e specificity was necessary so that the permit conditions are clear to permittees and protective o**  **f water quality. Some of the proposed provisions that commenters fou**  **nd to be overly complicated included the C-factor stabilization provision, the buffer equiva**  **lency 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 essay**  **s 2.46 and 4.1. With regard to the buffer equivalency demonstration concerns, EPA has provide**  **d guidance in Appendix G to assist permittees in demonstrating their buffer equivalenc**  **y. EPA believes that making this demonstration will be practicable for most sites re**  **quired to comply with the buffer requirements. EPA also recognizes that for some situations, it wi**  **ll be infeasible to do a 50-foot buffer or to provide the buffer equivalency. Therefore, EPA incl**  **udes 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 b**  **uffer 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 residen**  **tial lots with specific and easy-to-implement controls that achieve compliance if a 50-foot buffe**  **r 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 use them; if a site does not use chemicals, the**  **requirements do not apply. EPA also believes that the requirements regarding the use of treatmen**  **t chemicals in the final permit are not overly complicated; they are primarily focused on practice**  **s that minimize the potential for a discharge in stormwater. In response to comments received, EP**  **A has eliminated or many of the specific chemical treatment use restrictions in the final pe**  **rmit. One commenter requested that EPA consider retaining**  **the more prescriptive requirements in the permit only for larger sites due to the fact th**  **at smaller sites tend to have limited flexibility w ith**  **regard to site design. EPA believes that the provis ions 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 const ruction and linear construction projects. EPA notes**  **that many of the requirements that could affect sit e design only apply if a site is implementing**  **that control. For example, if a site is not impleme nting sediment basins, stockpiling sediment,**  **constructing conveyance channels, conducting dewate ring, or employing treatment**  **chemicals, which EPA believes will often be the cas e 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** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 17 **clear to permittees and are unenforceable. EPA note s that the permit retains some use of the**  **terms referenced above, but EPA believes that the f inal permit terms are clear to permittees and**  **enforcers. When these terms are used in the permit, they are to provide needed flexibility for**  **provisions that are best determined on a site-speci fic basis. EPA has provided additional**  **information in the permit fact sheet to help permit tees determine what is required for each of**  **the permit requirements. EPA has also defined the t erms “minimize” and “infeasible” in Appendix**  **A of the final permit.** Response 2.1.3 Miscellaneous comments

. **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 practice**  **s 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 mandate 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 solu**  **tions a priority over structural solutions. EPA appreciates the suggestions, and agrees that pollut**  **ion 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 im**  **plement vegetative and pollution prevention measures. 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 contr**  **ol discharges from sediment or soil piles, the requirement in Part 2.1.2.6 to minimize the disturb**  **ance 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 vegetative or**  **non-vegetative cover in Part 2.2. One commenter suggested that the permit include spec**  **ific performance values for turbidity for the erosion and sediment control requirements. EPA**  **appreciates the suggestion; however, the erosion and sediment control requirements in the pe**  **rmit implement the non-numeric technology-based ELGs and new source performance st**  **andards (NSPS) promulgated as part of the C&D rule, which were developed based on the deg**  **ree of control that can be achieved using various levels of pollutant control technolog**  **y (BAT and BADCT). As described in comment response essay 3.1, the C&D rule did include a nume**  **ric limitation on the discharge of turbidity from active construction sites (see 40 CFR 450.22).**  **However, since its promulgation, EPA discovered that the data used to calculate the nume**  **ric limit for turbidity were misinterpreted, and that it was necessary to recalculate the numeri**  **c limit. EPA issued a direct final regulation and a companion proposed regulation to stay the num**  **eric limitation at 40 CFR 450.22 indefinitely. Because EPA is still in the process o**  **f 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.**  **A commenter indicated that EPA’s proposed language in the draft CGP that “[t]he**  **requirements in Part 2 apply in addition to any app licable state or local requirements, regardless**  **of whether they are more or less stringent,” is con fusing. 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 requ irements 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 18 Response 2.2.1 Requirement to mark off sensitive ar eas. **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:**

• **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 reg ulatory agency.** 

• **Permittees should instead be allowed to delineate s ensitive areas on their construction**  **documents (such as the SWPPP), or there should be e xceptions.** 

• **The use of marking devices is restricted on certain projects (e.g., active runways), and**  **therefore the requirement should be flexible and al low for alternatives.** 

• **Some projects exist entirely within sensitive areas , and therefore avoidance and**  **demarcation is impossible. After reviewing the comments, EPA agrees that the m**  **arking-off of sensitive areas will be problematic in some situations, and may not be alwa**  **ys be necessary. EPA has retained the requirement to mark off buffer areas in the final p**  **ermit (see Part 2.1.2.1b.iii) because EPA believes that areas of “no disturbance” should be c**  **learly delineated. For other sensitive areas that may not necessarily be areas of no disturbance**  **, EPA only requires in the final permit 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 ste**  **ep 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 mountaino us 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 requirements to very s teep slopes (e.g.,=, those over 25% or**  **those over 33%).**

• **EPA should provide a length component in the defini tion 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 assi**  **st permittees in determining what EPA considers to be a “steep slope.” EPA agrees that th**  **e definition of steep slope should be flexible**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 19 **to accommodate different locality or industry speci fications steep slopes, and therefore EPA has**  **modified the definition in the final permit to “whe re 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 adop ts that definition. Where no such definition**  **exists, steep slopes are automatically defined as t hose that are 15 percent or greater in grade.”**  **See Appendix A. EPA believes that the modified defi nition of steep slopes in the final permit**  **accommodates the concerns of the commenters. One com menter requested that EPA explain**  **how slope is to be delineated on a site. EPA clarif ies that because there are various industry**  **practices and locality specifications for determini ng slope, EPA will accept slope determinations**  **made in accordance with good engineering judgment t hat are in compliance with any**  **applicable industry or locality specifications. Bec ause this is a general provision requiring that**  **operators minimize the disturbance of steep slopes, EPA believes it i**  **s unnecessary for the Agency to incorporate a length component into the definiti**  **on for this provision to be effective. EPA also received the following comments on the pro**  **posed requirements that apply if steep slope disturbances occur, including:** 

• **Linear projects are often designed such that avoida nce of steep slopes is not feasible,**  **and, due to narrow rights-of-ways and project requi rements, it is not always feasible for**  **linear projects to comply with the additional requi rements.** 

• **The other permit requirements are sufficient to pro tect steep slope disturbances.**  **To accommodate the concerns about the practicabilit y of the proposed controls required if**  **steep slope disturbances occur, EPA has removed the se permit provisions from the final permit.**  **EPA agrees that many sites will have difficulty div erting 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 sufficient to protect water quality where steep slope disturbances occur. EPA has provided**  **the following note in the permit, which clarifies E PA’s expectations about how a site would**  **comply with the requirement to minimize disturbance s to steep slopes: “**  If a disturbance to steep slopes is required for the project, EPA would recog nize 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 slop es 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 stabiliza tion of steep slopes, including deadlines.**  **See Part 2.2 of the CGP for stabilization requireme nts and section VII.2 of the 2012 CGP Fact**  **Sheet for a discussion on the rationale of stabiliz ation requirements.**  **One commenter requested that EPA allow temporary sta bilization 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 stabiliz ation deadline, EPA notes that the 2012**  **CGP requires operators of sites with steep slopes t o 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 cessation of earth-disturbin g activities. The permit also provides**  **flexibility to install temporary, non-vegetative st abilization 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 20 Response 2.2.3 Requirement to minimize stream cross ings. **Commenters raised concern with EPA’s proposed requirements that permittees minimiz**  **e stream crossings. One commenter requested that EPA clarify what it meant by limit s**  **tream crossings to the “minimum necessary.” Another commenter noted that minimizing stream cros**  **sings could be difficult for linear projects that cross multiple drainageways. After reviewing t**  **he 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 per**  **mit, since stream crossings (e.g., dredge and fill) are often covered under the CWA section 404 p**  **ermit program. EPA believes the removal of this requirement addresses the concerns expressed b**  **y commenters. EPA notes, due to the modifications to the proposed**  **requirements to mark off any sensitive areas, avoid steep slopes, and minimize stream cros**  **sings, 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 requ irements implementing the C&D rule**  **requirement at 40 CFR § 450.21(a)(6) to “Provide an d 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 buffers should be required in the pe**  **rmit. Some c ommenters suggested that**  **because buffers are normally planned during the des ign phase of a project, the requirement is**  **beyond the scope of the construction site operator’ s responsibilities. Another commenter**  **suggested that EPA provide permittees the option to implement buff**  **ers, instead of requiring them to provide the equivalent sediment reduction t**  **hrough a complicated approach, while another commenter suggested that EPA not mandate bu**  **ffers if more effective BMPs 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 unde**  **rstands the concern of the commenters, EPA has developed compliance alternativ**  **es 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 sed iment reduction as the 50-foot buffer through**  **additional erosion and sediment controls. Several commenters suggested EPA’s implementation o**  **f the C&D rule requirements at 40 CFR § 450.21(a)(6) to be overly prescriptive, and request**  **ed 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 alt**  **ernatives that require permittees to achieve the equivalent sediment reduction as a 50-f**  **oot buffer. One commenter suggested that EPA instead allow permittees to document their comp**  **liance 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 requ**  **irements 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 . Additi**  **onally, in the fact sheet EPA describes that it was important that the requirements in the permit b**  **e 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 altern**  **atives in the permit, and that these provisions achieve the balance between being clear, environmen**  **tally protective, and flexible for sites with designs that are inconsistent with the implementati**  **on of a 50-foot buffer. Commenters also suggested EPA’s fact sheet rationale for the buffer**  **requirements and buffer appendix to be overly-prescriptive. EPA recognizes that making the**  **determination of achieving the equivalent sediment reduction if a 50-foot buffer is not provi**  **ded may be complicated for some sites.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 21 **Therefore, EPA believes that the level of specifici ty 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 require**  **ment to provide and maintain an undisturbed natural buffer of any size if it is “infeasible.” E**  **PA believes that, although a buffer of any size wil l be**  **infeasible for some sites, permittees should still be held to the requirement to treat the sediment**  **load in their 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. Therefore, complia nce alternative 2.1.2.1a.iii states, “If it is**  **infeasible to provide and maintain an undisturbed n atural buffer of any size, you must implement**  **erosion and sediment controls that achieve the sedi ment load reduction equivalent to a 50-foot**  **natural buffer.” EPA has also identified exceptions to the compliance alternatives that address**  **the concerns for when a site might find it infeasib le to comply with any of the compliance**  **alternatives. Included among the exceptions is spec ific flexibility for linear projects and for small**  **residential lots, and for projects where preexistin g development disturbances(e.g., structures,**  **impervious surfaces) have eliminated a natural buff er. Related to this topic, some commenters**  **disagreed with EPA’s use of the phrase, “if it is i nfeasible” 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 C FR § 450.21(a)(6), EPA was required to**  **incorporate the concept of infeasibility in the per mit requirement for buffers. EPA has provided**  **examples in the fact sheet and in Appendix G of whe n it might be infeasible to provide a buffer**  **of any size, which EPA believes will provide clarit y to permittees about what EPA means by**  **“infeasible.” EPA has also defined infeasible in Ap pendix A.**  Response 2.3.2 Basis for the 50-foot buffer or sedi ment removal equivalency

. **Commenters requested that EPA describe why a minimum buffer wi**  **dth of 50 feet or sediment removal equivalency 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 in**  **dependent of the C&D rule. The C&D rule requirement simply stated, “Provide and maintain na**  **tural buffers around surface waters... unless infeasible.” However, as EPA described above, EPA f**  **elt it was important to add specificity to the C&D rule requirement in the permit, and has justifi**  **ed 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 ex**  **isting vegetation, slope, and floodplain restrictions, and that EPA should leave it up to th**  **e 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 agree**  **s 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 buf fers;** 

• **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**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 22 **commenters. EPA believes that the compliance altern atives approach in the permit allows**  **permittees to take into account site-specific consi derations, and therefore, is not overly**  **prescriptive. EPA notes that the permit does not ov erride any state or local requirements for**  **buffer widths wider than 50 feet. A commenter suggested that the 50-foot buffer shoul**  **d 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, E**  **PA believes that the compliance alternatives in the permit accomplish this suggested approach. T**  **he compliance alternatives allow permittees to implement a smaller buffer, or no buf**  **fer at all where infeasible to implement any buffer, and to implement BMPs that work based on th**  **eir site-specific conditions, which is consistent with the suggested approach.**  Response 2.3.3 Miscellaneous general comments on th e buffer requirement

. **EPA received several miscellaneous comments on the proposed buff**  **er requirements, summarized as follows. One commenter disagreed with the proposed language r**  **equiring that “[t]he compliance alternative selected above must be maintained throu**  **ghout the duration of permit coverage.” The commenter suggested that EPA allow operators to**  **switch approaches during permit coverage. EPA agrees with this suggestion, and ther**  **efore has included the following language in the final permit: “The compliance alternative se**  **lected above must be maintained throughout the duration of permit coverage, except that you ma**  **y 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 ad**  **dresses the concern of the commenter. Commenters requested that EPA describe what it mean**  **t by the use of the term “natural” in terms of the proposed requirement that the permitte**  **e provide and maintain “undisturbed natural vegetation.” EPA clarifies that it was neve**  **r the Agency’s intent that permittees establish or modify the vegetation that exists within the buf**  **fer area on their site. EPA has modified the permit language to make this more clear. In the fin**  **al permit, EPA requires that permittees provide and maintain a 50-foot “natural buffer” (or**  **equivalent). EPA also clarifies in the permit that permittees are not required to enhance the qua**  **lity of vegetation that already exists in the buffer, or provide vegetation if none exist. Instea**  **d, permittees are only required to retain and protect from disturbance the buffer that existed pr**  **ior to the commencement of construction. This is consistent with EPA’s definition of “natura**  **l buffer” in Appendix A of the final permit as “an area of undisturbed natural cover surrounding surfa**  **ce waters within which construction activities are restricted. Natural cover includes the vegetat**  **ion, exposed rock, or barren ground that exists prior to commencement of earth-disturbing activitie**  **s .”**  **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 woul d lead to improved water quality protection.**  **A commenter also requested EPA to clarify if it wou ld consider the harvesting of a few trees 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 t o enhance the vegetation in the buffer are**  **permitted, such as removal of non-native species an d 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 buf fer 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 inc lude information regarding the**  **limitations of buffers. EPA believes that the permi t 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 23 **Commenters expressed that buffers need significant amounts 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 reduction of 50-foot buffers in all of the geographic areas**  **covered by the permit under various expected vegeta tion conditions and soil types, and has**  **estimated that a 50-foot buffer will generally prov ide high levels of sediment removal from**  **construction sites. Based on this modeling, EPA bel ieves that leaving the existing natural buffer**  **undisturbed, including any existing vegetation, wit hout conducting significant maintenance will**  **achieve significant sediment removals. EPA believes that, regardless of the quality of vegetation**  **within the buffer, buffers provide benefits by disp lacing earth-disturbances from surface waters,**  **allowing for filtration and infiltration of stormwa ter to occur. EPA also points out that discharges**  **to buffers must first be treated by the site’s eros ion and sediment controls, including the site’s**  **perimeter controls. Several commenters pointed out that buffer vegetati**  **on quality should be considered in the permit, with one commenter suggesting that EPA requ**  **ire permitting authorities to perform an on site evaluation of buffer quality for any sites dis**  **charging 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 appropriat**  **e condition to include in the permit. EPA recognizes that vegetation varies considerably acro**  **ss the geographic areas covered by the permit, and therefore, EPA does not believe it woul**  **d 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 l**  **imitations that EPA believes will result in discharges meeting water quality standards. Additio**  **nally, 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 r**  **equirement was for permittees to simply leave the area surrounding surface waters undisturbed.** 

**Commenters indicated to EPA that buffers become ine ffective unless sheet flow conditions**  **occur. EPA agrees that erosive flow can limit the e ffectiveness of buffers. Accordingly, the permit**  **requires that permittees that are choosing complian ce 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 the requirement applies to discharge**  **s (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 t hat 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**  **disturbing activities. The permit also requires tha t all discharges from earth-disturbances to the**  **buffer be first treated by the site’s erosion and s ediment controls. See Part 2.1.2.1b.i.**  **One commenter requested that EPA clarify that when t he buffer width is less than 50 feet**  **whether the requirement to install equivalent erosi on and sediment controls extends along the**  **entire buffer. EPA clarifies that the additional co ntrols must treat**  all discharges **flowing to the buffer area. This situation is also clarified in th**  **e Appendix G. A commenter suggested that EPA consider allowing “b**  **uffer 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 co**  **nsidered this approach, but ultimately determined that establishing the minimum 50-foot fi**  **xed width in compliance alternative Part**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 24 **2.1.2.1a.i would be the most straightforward approa ch for permittees to implement and for EPA**  **to enforce. EPA also believes that the permit estab lishes 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 buff er in compliance alternative Part**  **2.1.2.1a.ii will reduce the post-construction benef its of a wider buffer. EPA agrees that buffers are**  **an important consideration in protecting water qual ity from post-construction discharges.**  **However, as described in comment response essay 2.1 .3, post-construction discharges are**  **outside 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 examp**  **le that a subdivided lot existing within the buffer is an example of buffer infeasibility. E**  **PA disagrees with the comment because EPA believes that it is not the role of the Agency to m**  **ake land use determinations. If a permittee is allowed by the state or local jurisdiction to const**  **ruct 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 techni**  **cally infeasible. If it is infeasible to provide a buffer of any size at all, Part 2.1.2.1a.iii requir**  **es that the permittee implement erosion and sediment controls that achieve the sediment load re**  **duction equivalent to a 50-foot natural buffer. EPA notes that, although EPA no longer incl**  **udes 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 requir ements from several commenters, with some**  **suggesting that EPA consider more stringent require ments. Some commenters suggested that**  **EPA require expanded buffer widths, especially for critical habitat areas and other sensitive**  **areas. EPA agrees that wider buffers generally prov ide enhanced environmental protection.**  **However, it was EPA’s goal to develop a minimum wid th 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 minim um width achieves this goal, as described in**  **the fact sheet. One commenter suggested that EPA con sider requiring 25-foot buffers around**  **drainage features such as ditches, storm drains, an d arroyos. EPA appreciates the suggestion;**  **however, EPA believes that this would expand the re quirements beyond what was intended by**  **the C&D rule, and therefore disagrees. EPA has clar ified in the permit that it does not consider**  **stormwater control or conveyance features on-site t o constitute “surface waters” for the**  **purposes of triggering the requirement to comply wi th the buffer requirements. The commenter**  **also suggested that EPA require permittees to docum ent in the SWPPP any existing local or state**  **buffer requirements. Because compliance with any st ate 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 commen ter that EPA include language in the**  **buffer appendix encouraging (but not requiring) tha t woody debris to be retained in buffers,**  **and that invasive species be replaced with native s pecies, and therefore EPA has added this to**  **the buffer appendix. See Appendix G.** Response 2.3.4 Waters affected by the buffer requir ement. **One commenter requested that EPA clarify when a surface water is considered to be lo**  **cated “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 ex**  **plain 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 there**  **fore 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 sit**  **e’s disturbances occur within 30 feet of a**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 25 **surface water, the requirements in Part 2.1.2.1 wou ld apply. 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 Ordin**  **ary Water Mark is identified for the purposes of measuring the buffer. EPA notes that th**  **e Ordinary High Water Mark does not equate to the 100 year 24-hour storm event, as the comment**  **er 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 o**  **f the final permit. Another commenter suggested that EPA require buffer**  **s 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 pe**  **rmit. EPA also received numerous comments on the proposed**  **application of the buffer requirements with respect to “waters of the U.S.”, including:** 

• **EPA is not justified in applying the requirement to all “waters of the U.S.” because some**  **are minor tributaries with intermittent or ephemera l flow and would receive little benefit**  **from a buffer.**

• **EPA is burdening permittees by requiring them to ma ke 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 topograph ic maps, or should develop maps**  **of waters to be protected by buffers.**

• **EPA has not justified its application of the requir ement to “waters of the U.S.” instead of**  **“surface waters” as required under the C&D rule req uirement 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 requirem ents, 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. h ave been defined under EPA’s regulations,**  **and because there is guidance from EPA regarding wh at 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 appl y. 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 t o the buffer**  **requirements in the draft permit, as well as commen ts on exceptions that EPA should consider**  **including. Several comments were focused on EPA’s proposed exc**  **eption 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 ro**  **adways.” Commenters suggested that the CWA Section 404 exception also include disturbances rel**  **ated 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 p**  **ermit” and “[c]onstruction of water dependent 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 B**  **MPs to support in-channel or shoreline work for installation/maintenance of bridges, channel ou**  **tfalls, utility crossings, and channel bank**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 26 **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 dist urbances related to “water-dependent**  **structures.” A commenter also suggested that EPA ex empt restoration disturbances (e.g., a dam**  **removal) from the buffer requirements. EPA also bel ieves that this exception is provided for in**  **Part 2.1.2.1e.v, as these disturbances will have be en 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 b ecause discharges are captured and**  **diverted by BMPs. EPA agrees with this suggestion d ue to the fact that the buffer requirement is**  **based upon a 50-foot sediment removal treatment sta ndard. Therefore, EPA believes that, if**  **there would be no discharge of stormwater from con struction disturbances within 50 feet of a**  **surface water to the surface water, there is no rea son to require the site to implement one of the**  **compliance alternatives in Part 2.1.2.1a. This woul d include situations where you a permittee has**  **implemented control measures, such as a berm or oth er barrier, that will prevent such**  **discharges. Accordingly, EPA has included this as a n exception in Part 2.1.2.1e.i.**  **EPA received comments relating to the proposed exce ption for “[d]evelopment of a site where**  **no naturally vegetated buffer area exists due to pr ior 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**  **conditions, 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 p reexisting development-related disturbances**  **(e.g., where previous construction has paved over t he buffer area with structures or impervious**  **surfaces). Therefore, EPA has clarified the exempti on by applying it only to “[w]here no natural**  **buffer exists due to preexisting development distur bances**  (e.g., structures, impervious surfaces) **that occurred prior to the initiation of planning f or the current development of the site...”**  **Although there may be circumstances in which, due t o natural conditions, there is little natural or**  **no vegetation, EPA believes that as long as the 50- foot buffer has not been completely paved**  **over or replaced by a structure, the retained natur al buffer area will provide some level of water**  **quality protection, if not through the vegetation t hen by providing a physical separation of the**  **earth-disturbing activities from the surface water and allowing 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 development disturbances only in p ortions of the buffer should also not be**  **exempt from the requirements in Part 2.1.2.1a due t o the fact that the areas around the**  **preexisting disturbances provide sediment removal b enefits. 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 compl y with the requirements in this Part.” EPA**  **also provides the following note in Part 2.1.2.1a: “Any preexisting structures or im**  **pervious surfaces are allowed in the natural buffer provided**  **you retain and protect from disturbance the natural buffer area outside the preexisting disturb**  **ance.” 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 veget**  **ated can be recovered in the areas that have been developed (unless substantial remediated is pe**  **rformed). Related to this topic, one commenter suggested that EPA not exempt previous di**  **sturbances from the buffer requirements because further disturbance will lead to water qual**  **ity impacts. EPA clarifies that the permit does not allow permittees to conduct additional disturba**  **nces within the buffer without additional equivalent controls being provided; it simply provi**  **des that the existing disturbance is allowed in the natural buffer. Additionally, because the exemp**  **tion in Part 2.1.2.1e.ii applies only if preexisting development has completely eliminated t**  **he buffer, in this situation there is no possibility for additional buffer disturbances. EPA**  **also notes that the permit requires that if any**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 27 **portion of the preexisting disturbances will be dis turbed, 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 make it difficult to comply with the requirem ent that discharges through the buffer remain**  **non-channelized or non-concentrated, there should b e 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, permitte es must use velocity dissipation devices if**  **necessary to prevent erosion caused by stormwater w ithin 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 i s imperative for the permittee to reduce the**  **erosive flow of the discharge through velocity diss ipation devices. EPA believes that through the**  **use of velocity dissipation devices and through oth er means, it is practicable for permittees to**  **avoid the erosive discharges to the buffer, and the refore EPA does not agree with this suggested**  **exception. A commenter requested that EPA not allow any except**  **ions for sites that are at high risk for pollution problems. While EPA appreciates the sugge**  **stion, EPA believes that the exceptions provide needed flexibility for those specified scen**  **arios. Furthermore, EPA believes that the permit’s erosion and sediment control requirements**  **and water quality-based requirements will ensure that permittees achieve compliance with wate**  **r quality standards. One commenter requested that EPA clarify that projec**  **ts that are exempt from the buffer requirements are exempt from all of the effluent li**  **mits for all or just a portion of the site. EPA clarifies that the exemptions only apply to the app**  **licable 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 contr**  **ol 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 r egard to linear facilities. Commenters suggested**  **that, due to limited rights-of-ways, implementation of any of the compliance alternatives will**  **often be difficult or impossible to achieve, and th erefore a more flexible approach is needed.**  **Comments also indicated that requiring a buffer cou ld also result in unintended consequences**  **in some cases (e.g., increasing the erosion potenti al 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 reg ard 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 wi th the requirements in this Part if site**  **constraints (** e.g., limited right-of-way **) prevent you from meeting any the compliance alternatives in Part 2.1.2.1a, provided that, to th**  **e extent practicable, you limit disturbances within 50 feet of the surface water and/or you prov**  **ide supplemental erosion and sediment controls to treat stormwater discharges from earth**  **disturbances within 50 feet of the surface water. You must also document in your SWPPP your r**  **ationale 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 installe**  **d.” 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 ari**  **d and semi-arid areas. Several commenters expressed that EPA should take into consideration t**  **he differences in vegetation in arid areas, and how that impacts buffer effectiveness. EPA beli**  **eves that the compliance alternatives do in fact take into account differences in vegetation th**  **roughout the geographic areas of permit coverage. If a 50-foot buffer is not retained, perm**  **ittees 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 ar eas of permit coverage in Appendix G of** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 28 **the permit, which include arid and semi-arid areas. EPA also notes that permittees may perform**  **an evaluation of buffer effectiveness based on thei r 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 ex pressed 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 buffe r undisturbed.** 

**Other comments focused on the fact that buffers are not necessary in arid areas for water**  **quality protection. For example, one commenter ind icated that buffers should not apply to dry**  **arroyos that receive flood flows. EPA points out th e purpose of the buffer in the permit is to**  **minimize pollutants from discharges. Therefore, EP A 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 th at most discharges in arid areas will infiltrate**  **before reaching a surface water, and that, therefor e, the buffer requirements should not apply.**  **EPA notes that if a discharge to a surface water wi ll never**  **occur during the period of permit coverage, then Part 2.1.2.1e.i provides an exceptio**  **n 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 infi**  **ltration of stormwater is an important function of buffers, as it results in pollutant removal. Theref**  **ore, EPA believes that even in areas of sparse vegetation, providing a setback between earth distu**  **rbances and surface waters will minimize pollutant discharges. Another commenter suggested t**  **hat EPA only require buffers if there is support that they will achieve a minimum sediment r**  **emoval efficiency in RUSLE2. EPA disagrees with this approach because, as described above in c**  **omment response essay 2.3.5, EPA believes that even sparsely vegetated buffers will provide s**  **ediment 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 cor**  **rect goal for arid and semi-arid areas, and therefore EPA has removed this language from Append**  **ix G in the final permit.** Response 2.3.8 Faster stabilization requirements. **EPA received many comments on the proposed requirements that sites disturbing within the 50-fo**  **ot 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 t**  **he requirements, most commenters disagreed with the approach. Some of the comments f**  **ocused on the impracticability and technical difficulties of completing the installati**  **on of stabilization measures within three days, and urged that EPA be more flexible. Commenters als**  **o found that having multiple stabilization requirements would be confusing on a site. One comme**  **nter 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 w**  **ithin 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 reas**  **onable, and also believes that that the stabilization deadlines applicable to all permittee**  **s (whether discharging to sensitive waters or not) and the fact that permittees will have treat d**  **ischarges so that they achieve the equivalent sediment removal as a 50-foot buffer will provide s**  **ufficient 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 a**  **ppendix 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 comm**  **ents received:**

• Insufficiencies in EPA’s modeling of the 50-foot bu ffer sediment removal performance **: EPA’s analysis of the sediment removal effectivenes**  **s of a 50-foot buffer using RUSLE2 in**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 29 **the appendix was insufficient and did not include m any important considerations. EPA**  **should have considered the effect of flow, storm ev ents, buffer effectiveness without**  **being cleaned and maintained, rain intensity/durati on, the amount of contributing area**  **allowing runoff to flow into the buffer, slope, veg etation height and mass, and other**  **critical features. Additionally, because natural ve getation varies from site-to-site, the**  **tables are not realistic, and this requirement is n ot practicable. The majority of the**  **sediment removal values are unrealistically high, w hich will be difficult, or impossible, to**  **achieve compliance with. EPA should allow an altern ative standard of 80 percent for**  **any modeled sediment removal greater than 80 percen t.** 

• Unrealistic assumptions regarding equivalent BMP pe rformance: **The effectiveness of the BMPs modeled in RUSLE2 are theoretical, based upon**  **“idealized” conditions, and are not practical. Determining if controls achieve the equi**  **valent 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. H**  **owever, there is limited field data collected on BMP effectiveness. Sediment percent re**  **moval efficiencies attributed to BMPs, as the permit evaluates, is often a poor meas**  **ure of BMP performance. Other methods, such as how much volume is prevented, how**  **much runoff is treated, etc., are better. The permit does not include enough informat**  **ion about what alternative controls will achieve compliance. EPA should provide informa**  **tion on BMP performance to assist permittees in determining the sediment removal equi**  **valency. EPA recognizes the limitations of the approach pres**  **ented 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, o**  **ne of the more commonly used programs for modeling erosion from construction sites, and evalu**  **ated buffer effectiveness for the typical soil types and vegetation types found in the areas cover**  **ed under the permit. EPA determined that, because of the complicating factors affecting erosi**  **on 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 var**  **iables affecting buffer performances on all sites, EPA believes the model provides a sound esti**  **mate of buffer performance for the areas covered under the permit. EPA also believes that mo**  **st permittees will prefer using the numbers provided by EPA over performing their own modeling**  **of their site-specific conditions. Therefore, EPA has retained in the final permit the informatio**  **n provided on the expected sediment reduction for a 50-foot buffer in the buffer append**  **ix. 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 determ**  **ine 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 diffi**  **cult 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 grea**  **ter than 90 percent are shown as 90 percent, and this is the percent removal that must be achiev**  **ed by alternative controls. EPA also recognizes potential concerns regarding th**  **e performance of BMPs evaluated by EPA in its examples in the buffer appendix. As suggested b**  **y several commenters, EPA considered providing BMP performance information and incorpora**  **ting a toolbox approach that would specify BMPs that a permittee could implement to ac**  **hieve an equivalent sediment removal. However, EPA ultimately determined that such an app**  **roach could lead permittees to choose BMPs that may not necessarily perform effectively b**  **ased on their site-specific conditions. EPA decided that BMPs are best chosen on a site-specifi**  **c basis, and therefore has retained the proposed approach in the permit requiring permittee**  **s 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 theoretic**  **al conditions, as opposed to field**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 30 **conditions. EPA notes that if BMPs are designed usi ng good engineering practices to meet the**  **sediment removal equivalency, EPA would consider th e 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 t he field. EPA notes, however, that the BMPs**  **must be implemented in accordance with the specifi cations of the equivalency design, and**  **that the BMPs must be maintained to ensure their ef fectiveness is not compromised. If an**  **operator becomes aware that their BMPs are not work ing as designed, EPA would expect them**  **to repair, modify, or replace the BMP. EPA also not es that, although the Agency relied on the**  **RUSLE2 program for its examples, permittees may cho ose 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 perm it 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 beli eve that the approach will necessarily be a**  **burden to other states. Commenters also requested t hat 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 a rea indicated in the title of each table.**  **Therefore, EPA does not believe this will present c onfusion.** 

**One commenter noted that it must make the informatio n it relied upon in its buffer appendix**  **available to the scientific community. EPA notes th at all of the information it relied upon came**  **from the RUSLE2 model, and there is no additional i nformation to provide.**  **A commenter also disagreed that EPA’s analysis of t he sediment removal efficiency of a 50-foot**  **buffer should include a silt fence. EPA clarifies t hat it modeled 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 also requires that all discharges f rom the site’s earth-disturbances to the natural**  **buffer be first treated by the site’s erosion and s ediment controls. Therefore, EPA believes it is**  **more realistic to model the expected pollutant remo val 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 cumulatively. Commenters also expressed that requir**  **ing permittees to conduct modeling of buffer equivalency is overly complicated and burden**  **some. EPA believes that some flexibility is warranted for**  **smaller sites due to the fact that they face space constraints, making 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 prote**  **ction of the 50-foot buffer due to limited technical resources.**  **EPA provides special flexibility for small resident ial sites to achieve compliance with the buffer**  **requirements in Part 2.1.2.1e.iv of the final permi t 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-fo ot buffer. Instead, the small residential lot**  **compliance alternatives provide builders of small r esidential lots with specific controls to**  **implement based on the width of buffer they will re tain on their site. Guidance on**  **implementation of the small residential lot complia nce alternatives is provided in Appendix G,** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 31 **and Part VII.1.2 of the fact sheet provides the rat ionale 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 Constru ction Sites **EPA heard concerns about the proposed permit headin g “Requirements Applicable to All**  **Construction Sites” due to the fact that certain co ntrols may not be applicable for certain**  **projects, especially for linear projects with limit ed rights-of ways. EPA notes that in the final**  **permit, EPA has limited the scope of requirements t hat apply to all construction sites to only**  **those provisions that all sites would need to imple ment.**  Response 2.5 Required Design Factors **EPA received comments on EPA’s proposed general des ign requirements, which included**  **required design factors, requirements to control st ormwater discharges, requirements to use**  **vegetated areas for sediment control, and requireme nts to route non-stormwater to sediment**  **controls. A commenter suggested that the general design requi**  **rements should consider factors for utility line construction in existing paved areas (e.g., st**  **reets) where the amount of area disturbed at one time is limited. EPA points out that each of th**  **ese specific design factors correspond to the C&D rule requirements in 40 CFR 450.21(a)(2) and (5**  **), and believes these factors are critical for ensuring that stormwater controls are designed to m**  **inimize sediment discharges from the site. For example, it is important to consider precipitat**  **ion characteristics so that earth-disturbing activities can be planned during periods with a low**  **er risk of precipitation and so that erosion and sediment control practices can be designed to a**  **ppropriately convey and manage the precipitation that is expected to occur. With regar**  **d to construction occurring in existing paved areas, EPA clarifies that the required design facto**  **rs apply to discharges that come into contact with earth disturbances at the site. EPA would not**  **expect that a site design its stormwater controls to account for discharges 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 requested that EPA provide an allowan**  **ce 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, EP**  **A believes that it is critical that sites account for run-on to ensure that stormwater contro**  **ls 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 disag**  **rees that EPA should provide an allowance for stormwater run-on quality in the permit. EPA recei**  **ved a comment in support of this view which suggested that EPA’s design criteria account for ru**  **n-on flows. EPA agrees with this suggestion, and therefore has modified the design requirement t**  **o 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 p ermit.**  **A commenter also requested that EPA define fine sil t, 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 cont rols, including sand filtration and chemical**  **treatment, is best determined on a site-specific ba sis. Therefore, EPA has removed the proposed**  **language referenced above from the final permit.** Response 2.6 Requirement to Control Stormwater Disch arges. **EPA received comments with regard to the following proposed requirement: “Design stormwater**  **controls to control both peak flowrates and total s tormwater volume to minimize erosion at**  **outlets and to minimize downstream channel and stre ambank erosion.” Commenters indicated** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 32 **that the proposed requirement did not take into con sideration 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 d oes not include specific guidance on how**  **peak flow rates are calculated, and how total storm water volume can be controlled, and would**  **require extensive stormwater calculations. A commen ter noted that this requirement does not**  **include a specific goal to be met to reduce polluta nt discharges, making compliance difficult. A**  **commenter also indicated that this requirement may not be feasible or applicable for linear**  **projects because the control 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 requir e that all permittees install specific controls.**  **Instead, the requirement only applies where flow wi ll 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 volum e does not apply. EPA believes that this**  **requirement formalizes standard practices that cons truction site operators generally take into**  **account when designing stormwater channelization co ntrols to ensure that erosion and scouring**  **from discharges is minimized. EPA believes that thr ough good engineering practices, permittees**  **will be able achieve compliance with this requireme nt, and EPA does believe that the permit**  **should specify what specific methods are required t o control peak flowrates and total**  **stormwater volume. As long as channelized discharge s are minimizing downstream channel and**  **streambank erosion, compliance will be achieved. EP A notes that the requirement to control**  **peak flowrates and total stormwater volume do not n ecessarily equate to a 2-year, 24-hour**  **storm event. Another commenter indicated that requirements conce**  **rning flowrates and stormwater volume are not appropriate parameters for regulation in th**  **e NPDES program. EPA again points out that this requirement implements the C&D rule requiremen**  **t at 40 CFR § 450.21(a)(6), and therefore, it is not within the scope of this permit to modify th**  **is regulatory requirement. Moreover, the purpose of this permit requirement is to minimize t**  **he 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 discha rge stormwater to vegetated areas of the**  **site is not realistic when grading and construction activities are occurring. EPA believes that it wil**  **l be feasible to direct stormwater to vegetated areas**  **during grading and construction activities in many cases. However, EPA recognizes that in some ca**  **ses it may not be feasible due not the nature of the construction activities occurring. Th**  **erefore, 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 not**  **es that this requirement implements the C&D rule requirement at 40 CFR § 450.21(a)(6). Commenters di**  **sagreed 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 implemen**  **ted correctly or effectively. Based on this concern, EPA no longer requires the use of level sp**  **readers. EPA has also modified the language to only require the use of velocity dissipation dev**  **ices if necessary to prevent erosion when directing stormwater to vegetated areas. See 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 requiremen t that allowable non-stormwater be**  **directed to sediment controls, stating that sedimen t-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** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 33 **requirement from the final permit. A commenter also suggested that water used for dust control**  **or irrigation should be exempt from this requiremen t. In accordance with these comments, in**  **Part 1.3d EPA only requires that non-stormwater dis charges 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 w hether EPA should adopt a design storm**  **standard, such as the 2-year, 24-hour design storm, for all stormwater controls. EPA received**  **many comments supporting the concept, with some sug gesting 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 i s a summary of the concerns:** 

• **A design standard should be flexible and should con sider other factors such as project**  **duration, timing relative to season, etc. A standar d 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 o f rainfall as a guideline.** 

• **Barrier BMPs will not capture sediment from a 2-yea r, 24-hour storm. A standard should**  **only be applied to a sediment containment system (S CS).** 

• **A design standard is appropriate for volume-based s tormwater controls, such as a**  **sediment basin. However, it is not appropriate for other types of controls, such as barrier**  **BMPs, and there is no information supporting how th ese controls can be designed to a**  **standard.**

• **Determining how to design all stormwater controls t o meet the standard would require**  **an in-depth analysis, which would increase costs an d would burden smaller developers. If**  **adopted, EPA should provide guidance on how to desi gn BMPs to meet the standard.** 

• **A design standard is not appropriate for linear pro jects with limited room for sediment**  **basins. A design standard would result in over-engi neering of sites.** 

**Based on these comments, EPA decided that it would not be appropriate to apply a design**  **standard to all stormwater controls. However, EPA r eceived support from many commenters on**  **adopting a 2-year, 24-hour storm standard for sedim ent basins. Therefore, in the final permit, EPA**  **requires that for any site choosing to implement se diment 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 de sign standard is consistent with the design**  **standard for sediment basins in the 2008 CGP, and t herefore, 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 W**  **eather 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 af**  **ter the permit is issued, EPA will incorporate it into the next permit issuance. EPA will allow pe**  **rmittees to continue to use the information in Appendix H for designing sediment basins, but encou**  **rages 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 that technical paper 40, as referenced in Appendix H, is no longer appli**  **cable 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**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 34 **and reference from the Appendix, and instead refere nces sites in Massachusetts and New**  **Hampshire to technical paper 40.** Response 2.10 Clarification of which SCMs Need to b e 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 se**  **diment controls prior to conducting earth disturbing activities.” Some commenters requested c**  **larification of which sediment controls are to be in place prior to land disturbances. EPA note**  **s that the requirement applies to “downgradient” sediment controls. Also, the require**  **ment 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 req**  **uirements. 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 u nable 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 opera tors to have completed downgradient**  **stormwater controls no later than each phase of ear th-disturbance. That is, by the time earth**  **disturbing activities in any given portion of a sit e 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 app lies to the downgradient sediment controls**  **only. Following the installation of downgradient co ntrols, all other stormwater controls planned**  **for a given portion of the site and described in th e 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 i**  **tself results in land disturbance. As discussed above, EPA notes that the 2012 CGP requires complet**  **ion of installation of downgradient sediment controls by the time each phase of earth-d**  **isturbances begins and allows operators to install and make operational all other stormwater c**  **ontrols 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 provide**  **s a list of examples of downgradient sediment controls including buffers or equivalent s**  **ediment controls, perimeter controls, exit point controls, and storm drain inlet protection. EPA bel**  **ieves that operators will be able to install such downgradient sediment controls without disturbing t**  **he rest of the site.** Response 2.10.2 Legal authority for requiring SCMs in place prior to discharge

. **EPA received comment on the Agency’s authority to require the in**  **stallation of stormwater controls before a stormwater discharge is present. EPA has revised th**  **e language in Part 2.1.1.3 of the 2012 CGP to clarify the requirement. The permit requires that d**  **owngradient sediment controls in any given portion of the site be in place by the time earth-d**  **isturbing 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-dist**  **urbance because once land-disturbance begins, receiving waters are vulnerable to increase**  **d stormwater discharges and associated pollutant loads. The requirement to have downgradie**  **nt sediment controls in place no later the initiation of land disturbances ensures that measur**  **es are in place in time to address the risk and to minimize the discharge of pollutants to receivin**  **g waters.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 35 Response 2.10.3 Definition of “initial site clearin g” and what needs to be done prior to “initial site clearing”

. **EPA received comment requesting that the Agency cla rify the definition of “initial site**  **clearing” with respect to the proposed provision to require operators to install stormwater**  **controls prior to commencing earth-disturbing activ ities in any portion of the site, with the**  **exception of initial site clearing and the establis hment of entry, exit, and access of the site,**  **which may require that stormwater controls be insta lled 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 ope rational all stormwater controls...[but] this**  **requirement does not apply to earth disturbances re lated 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 ex**  **posing 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 a**  **ctivities or make an exemption for initial site clearing because, like other earth-disturbing activ**  **ities, initial site clearing leads to increases in stormwater discharge volume and pollutant loads, in**  **cluding sediments. Thus, EPA does not define initial site clearing in the 2012 CGP. Howev**  **er, as discussed above, the permit does not require operators to install all stormwater control**  **s 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-distur**  **bing activities, including initial site clearing, in that portion of the site. Following the installa**  **tion of these initial controls, all other stormwate r**  **controls planned for this portion of the site and d escribed 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 eq uivalent sediment controls, perimeter**  **controls, exit point controls, storm drain inlet pr otection) 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 P rojects – Down-Slope Controls **EPA received comments on the proposed requirement t o “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 commenters indicated tha t many linear projects slope from beginning**  **to end and have no flat areas. Others were concerned that the length of linear projects would**  **make the proposed requirement overly burdensome. EP A 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 activ ity, 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 construct ion 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 bu t 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 projec ts. For linear projects with rights-of-way that**  **restrict or prevent the use of such perimeter contr ols, permittees must maximize the use of these**  **controls where practicable and document in their SW PPP why it is impracticable in other areas**  **of the project.** Response 2.12 Sewer Inlet Protection ProvisionUnformatted 2012 CGP Comment Response Essays February 16, 2012



### 36 **EPA received comments on the proposed requirement t o provide protection of sewer inlets.**  **Commenters noted that the requirement is a good pra ctice but should be qualified or waived in**  **situations where the controls may create unsafe con ditions (i.e., flooding around the inlets). One**  **commenter suggested that alternative controls shoul d be allowed in these situations. Other**  **commenters asserted that inlet protection is ineffe ctive and poses a safety risk, asserting that the**  **controls slow water flow and block its exit into th e 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 that 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 firs t directed to a sediment basin, sediment trap, or**  **similarly effective control. Moreover, the permit a llows operators to remove controls in the event**  **of flood conditions or to prevent erosion.**

**Other commenters noted that stormwater drains are so metimes 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 y**  **et in service during construction. The commenter explains that such storm drains are clean**  **ed out before they are put into service. The commenter suggests that these storm drains do not r**  **equire protection. EPA notes that the requirement in the 2012 CGP only applies to storm d**  **rains 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 app**  **ly. EPA also received comment suggesting that the Agenc**  **y 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 portio**  **n of the site by the time land disturbance begins in that portion of the site and includes sew**  **er inlet protection as an example downgradient sediment control.**  Response 2.13 Effective Operating Conditions **EPA received comments requesting that EPA explain w hat is meant by “effective operating**  **condition.” EPA has defined the term in the 2012 CG P. See Appendix A.**  **EPA received comments on the proposed requirement t o remove sediment once it has reached**  **a height of one-half of the height of any exposed s ilt fence in order to maintain effective**  **operating conditions. One commenter asserted that on e-half height is too high because**  **pressure will cause fabric failure. Another comment er pointed out that many manufacturers**  **state that the proper height of removal is one-thir d of exposed height. EPA appreciates the**  **comments, but 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 sought 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 o f the 2012 CGP.**  **Some commenters asserted that removing sediment fro m 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 sedimen t from tires only “where necessary” and**  **requires sweeping, shoveling, or vacuuming of stree ts, sidewalks, or other paved areas only**  **“where sediment has been tracked-out”. The permit a lso requires operators to minimize** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 37 **sediment track-out in the first place by restrictin g vehicle use to properly designated exit points**  **and by requiring the use of appropriate stabilizati on techniques at all points that exit onto paved**  **roads so that sediment removal occurs prior to vehi cle exit. These preventive measures will help**  **to minimize track-out in the first place and thus r educe the burden associated with any**  **necessary sediment removal from tires or any sweepi ng, shoveling, or vacuuming. See Part**  **2.1.2.3 of the 2012 CGP. One commenter requested clarification on the applica**  **bility of the requirement for sweeping or removing track-out to paved surfaces within the sit**  **e boundary. EPA notes that the requirement applies to “off-site” streets, other paved areas, a**  **nd 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 surfac**  **es”. EPA has not limited the requirement to streets and paved surfaces that are “publicly acces**  **sible.” 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, t**  **hen 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 re**  **quirement to remove track-out only applies in those cases where the preventive measures have fail**  **ed and sediment has been tracked-out.**

**One commenter asserted that wheel washouts are not a lways effective and that they are not**  **always an option (e.g., water is not available). EP A notes that the 2012 CGP does not require**  **wheel washout. Rather, wheel washout is indicated a s an example of a control that could be**  **used to remove sediment from vehicles prior to thei r exit. Another example control given is the**  **use of rumble strips. Regarding comments on sediment staining and “no vis**  **ible sign”, EPA recognizes that some fine grains may remain visible on the surfaces of off-si**  **te streets, other paved areas, and sidewalks even after permittee has implemented sediment remov**  **al 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 challen**  **ges 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 ro**  **ads, EPA notes that the track-out removal requirements apply to paved surfaces only. For comm**  **ents related to “no visible sign”, see discussion in previous paragraph. For comments rela**  **ted 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 n**  **otes that the 2012 CGP recognizes the challenge in removing the track-out at the end of t**  **he 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-o**  **ut occurs on a non-work day. The language provides permittees with flexibility while also ens**  **uring the removal of sediment and protection of receiving waters.**  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 a nd expressed concern that the**  **adequacy of actions taken would be subjectively ass essed by inspectors without more specific**  **criteria in place. Some commenters suggested that EPA does not have th**  **e authority to regulate airborne dust clouds that may leave construction sites, further s**  **tating that the NPDES program only regulates pollutants associated with certain construction ope**  **rations 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 the authori**  **ty to regulate airborne particles. The**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 38 **commenter goes on to say that local clean air requi rements 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 co ntain 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 le**  **aving the site under the 2012 CGP. Part 2.1.2.5 of the permit requires operators, to the extent feasib**  **le, 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 wa**  **ters of the U.S. The purpose of the requirement is to minimize the discharge of sedimen**  **t in stormwater from the site to surface waters. Dust suppression techniques are best manage**  **ment practices that prevent dust from being generated, thereby minimizing the potential f**  **or 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 ris**  **es within the site and settles onto the project area not protected by stormwater control measures w**  **here 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 Di scharges **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 sediment discharges.**  Response 2.17 Soil Stockpiles **EPA received several comments on the proposed requi rements for soil stockpiles. Some**  **commenters supported the proposed requirements. Othe rs suggested alternative language.**  **Some commenters challenged the feasibility of the p roposed 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 sedimen**  **t discharge, EPA recognizes that other practices are also effective and notes that the 201**  **2 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 separate**  **d 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 rolls, silt fences, sandbag, gr**  **avel bags, or straw bale). Where practicable, permittees must provide cover or appropriate tempor**  **ary stabilization to avoid direct contact with precipitation or to minimize sediment discharg**  **e and, where feasible, permittees must contain and securely protect stockpiles from wind.**  Response 2.18 Preservation of Native Soils **EPA received multiple comments on the proposed requ irements related to the preservation of**  **native soils. Some commenters supported the require ment. Others challenged the specificity**  **and asserted that the specific requirements would n ot always be feasible. EPA notes that the**  **2012 CGP recognizes the challenges faced by permitt ees in preserving native soil. The permit**  **requires that permittees preserve native topsoil on the site, unless infeasible.**  **EPA also received comment on the proposed recommend ations 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 b e 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 g iving specific direction on how the permittees**  **must preserve the soil.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 39 **EPA also received comments asserting that the re-us e of native soils for restoration projects could**  **encourage invasive and non-desirable vegetation. Th e 2012 CGP language provides sufficient**  **flexibility to address the concern raised by the co mmenters. As noted above, an operator may**  **be exempt from the requirement to preserve native s oils if it is infeasible to do so. EPA also notes**  **that the 2012 CGP includes a provision discussing t hat permittees should avoid the use of**  **invasive species.** Response 2.19 Soil Compaction **One commenter suggested that EPA’s proposed requirem ents for minimizing soil compaction**  **should exclude access roads, equipment pads, or oth er similar areas on linear projects that will**  **be compacted. EPA did not intend for these provisio ns 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 pract ices will be installed. For example, the**  **requirements do not apply to disturbed areas that w ill become paved surfaces, such as roads,**  **foundations, footings, or on embankments, or on are as where soil compaction is necessary by**  **design.** Response 2.20 Requirement to Stabilize Entrances an d Exits for 50 Feet **EPA received a variety comments on the proposed req uirements 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 protect ion. Commenters suggested that EPA**  **allow flexibility and that other techniques could m inimize 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 on to paved roads so that sediment removal occurs**  **prior to vehicle exit.” In addition, permittees mus t 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 requiremen**  **ts 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 en**  **trances. EPA notes that the 2012 CGP requires operators to use appropriate stabilization**  **technique at all points that exit onto paved roads so that sediment removal occurs prior to vehi**  **cle exit. The requirement does not apply to locations on the site that are not or will not be u**  **sed 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 “before the first**  **predicted storm”. Another commenter stated that the proposed stabilization requirements are**  **not practicable and asserted that installing sedime nt 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 f or minimizing erosion and sediment**  **discharge but does not include specific stabilizati on requirements for channels or timelines for**  **stabilization for channels nor does it require sedi ment barriers along the length of all channels.**  **Rather, the permit requires that stormwater conveya nce channels be designed to avoid**  **unstabilized areas and to reduce erosion, unless in feasible. In addition, permittees must prevent**  **erosion of channels and their embankments, outlets, adjacent streambanks, slopes, and**  **downstream waters during discharge conditions throu gh the use of erosion controls and velocity** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 40 **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 Rat ionale **EPA received multiple comments on the proposed requ irements 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 reg**  **ulate the use of treatment chemicals. Other commenters suggested that it is not practical**  **for the Agency to issue broad permit restrictions on the use of chemical treatments. Othe**  **rs asserted that any restrictions should be limited to the manufacturer’s specifications for ap**  **plication. While EPA agrees that operators should follow manufacturer’s specifications and not**  **es that the 2012 CGP requires that permittees using treatment chemicals must comply wi**  **th specifications provided by the provider/supplier, the Agency also believes that ad**  **ditional permit requirements on the use of treatment chemicals are important to ensure that th**  **ey are properly used and that receiving waters are protected. EPA discusses its rationale f**  **or requirements on the use of treatment chemicals in section VII.1.3 of the 2012 CGP Fact S**  **heet. EPA also notes that the preamble to the C&D Rule (40 CFR Part 450) indicates that “NPDES pe**  **rmitting authorities may establish controls on dosage and usage, protocols for residual toxicit**  **y testing, require prior approval before the use of particular polymers, training requirements f**  **or 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 t**  **he C&D Rule and the preamble to the Rule. One commenter requested clarification of the require**  **ments with regard to non-proprietary treatment, as compared to proprietary treatment. EP**  **A discusses the requirements in Part 2.1.3.3 of the 2012 CGP and notes that the requirements on**  **the use of treatment chemicals are the same whether the chemicals are proprietary or non-p**  **roprietary. EPA received comment suggesting that any operator u**  **sing chemical treatment should be required to obtain an individual permit. EPA also r**  **eceived 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. E**  **PA agrees that permittees should be encouraged to use a combination of sediment and ero**  **sion controls and notes that the 2012 CGP requires that permittees who plan to use chemic**  **al treatment must maximize the use of conventional erosion and sediment controls as a mea**  **ns to minimizing the amount of treatment chemicals that would be required. The provision wil**  **l help to ensure that treatment chemicals are not over-applied. In response to the comment sugges**  **ting that chemicals not be used at all, EPA recognizes that treatment chemicals can be an effec**  **tive means to reducing pollutant loads in stormwater discharges and, when used correctly, sho**  **uld not pose an environmental risk to receiving waters. The 2012 CGP includes several pro**  **visions related to chemical treatment to ensure proper and safe usage. See Part 2.1.3.3 of t**  **he permit. While both anionic and cationic chemicals can be used safely and effectively, EPA b**  **elieves that the use of cationic chemicals may require more oversight and/or more stringent co**  **ntrols because of the higher risk of environmental impact if they are used improperly an**  **d because of the need for greater oversight and greater understanding of site-specifi**  **c 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 authoriz**  **ation 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 stor**  **mwater.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 41 **EPA received multiple comments challenging the requ ired 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 expressed concerns with the toxicit y of**  **polymers, flocculants, or other treatment chemicals . One commenter recommended that**  **operators be required to show no toxicity to fish a nd 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 u se of the chemicals, whether beneficial or not.**  **EPA notes that the 2012 CGP does not require permit tees to test the toxicity of chemicals. EPA**  **agrees with commenters asserting that the use of ch emicals could pose a risk if used improperly.**  **However, as discussed above, EPA recognizes that tr eatment chemicals can be an effective**  **means to reducing pollutant loads in stormwater dis charges 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. In**  **particular, the permit requires that all persons wh o handle and use treatment chemicals at the**  **construction site be provided with appropriate, pro duct-specific training. Among other things,**  **the training must cover proper dosing requirements. EPA received comment questioning, for storm event d**  **ischarges, whether the Agency had evaluated the potential for discharges to contain c**  **ontaminants that result in stream concentrations in exceedance of stream water qualit**  **y standards due to the addition of flocculents and asked whether any additional limita**  **tions 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 chem**  **icals, 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, operat**  **ors 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 ef**  **fective treatment. This will maximize the opportunity for the chemical to combine with sedime**  **nt and minimize the direct discharge of chemicals. Chemicals must be selected that are appr**  **opriately suited to the types of soils likely to be exposed during construction and based on expecte**  **d turbidity, pH, and flow rate of stormwater flowing into the chemical treatment syst**  **em. 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 th**  **e chemical provider/supplier. All persons who handle and use treatment chemicals at the const**  **ruction 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 qua**  **lity-based effluent limits in Part 3 of the permit, including the provisions related to sensitive water**  **s (where applicable), as well as the technology-based effluent limits in Part 2 of the p**  **ermit . In the absence of information demonstrating otherwise, EPA expects that complianc**  **e 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 regardin**  **g Part 3 of the permit. 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 fun**  **ding for monitoring the effects of polymers (i.e. chitosan) on aquatic organisms. EPA notes tha**  **t the requirements in the 2012 CGP are based on the latest data currently available to the Agenc**  **y and that the permit does not specify**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 42 **maximum dosage rates of chemicals. Comments related to requests for EPA funding for**  **monitoring the effects of polymers are beyond the s cope of this action.**  **One commenter asserted that the application of PAM d irectly to soil surfaces will likely lead to**  **runoff that may be toxic to aquatic species. EPA be lieves 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 descr ibed 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 cons truction and discharged to locations where**  **chemicals will be applied, and the expected turbidi ty, pH, and flow rate of stormwater flowing**  **into the chemical treatment system. This requiremen t 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 s ediment control (e.g., sediment basin,**  **perimeter control, etc.) prior to discharge. The se diment 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 secondary 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 controls include spill berms, decks, an**  **d spill containment pallets. EPA also received comment requesting the Agency’s rationale for requi**  **ring secondary containment if the materials are suitable for treating runoff. EPA no**  **tes again that the 2012 CGP does not require secondary containment. Operators must store all trea**  **tment chemicals in leak-proof containers that are kept under storm-resistant cover and surr**  **ounded by secondary containment structures (e.g., spill berms, decks, spill containment pallet**  **s), 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 qu**  **estion, EPA notes that the dose and concentration of the treatment chemical makes a dif**  **ference 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 dosa**  **ge may cause negative impacts to receiving waters. Thus, EPA has included specific s**  **torage 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 shallow water table

. **EPA received comments on the proposed provisions on the usage of polymers, flocc**  **ulants, or other treatment chemicals in areas with shallow water tables. Commenters sought to bet**  **ter understand the requirement. One commenter offered alternative language to help clar**  **ify. 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 poly**  **mers, flocculants, or other treatment chemicals in areas with shallow water tables.**  Response 2.22.4 Chitosan. **EPA received multiple comments on the usage of chit osan. EPA notes**  **that operators planning to use cationic chemicals t o treat their stormwater prior to discharge,**  **including chitosan, must acquire authorization fro m their EPA regional office prior to submitting**  **their NOIs. Such operators may be subject to additio nal permit requirements. See Part 2.1.3.3 of**  **the 2012 CGP. See section VII.1.3 of the 2012 CGP F act Sheet for a discussion on the purpose of**  **these requirements. 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 i**  **n stormwater discharges and, when used correctly, should not pose an environmental risk to**  **receiving waters. The 2012 CGP includes**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 43 **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 catio nic chemicals can be safely and effectively**  **used, EPA believes that the use of cationic chemica ls may require more oversight and/or more**  **stringent controls because of the higher risk of en vironmental impact if they are used improperly**  **and because of the need for greater oversight and g reater understanding of site-specific**  **conditions to ensure proper and safe use of the che micals. 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 Part 2.1.3.3.** Response 2.22.5 Routing of treated water through se diment trapping, filtering, and/or settling devices

. **EPA received one comment suggesting that that all s tormwater should be treated to**  **remove sediment anyway. Other commenters were concer ned with the site constraints of linear**  **construction projects, asserting that the requireme nt would restrict waste areas of polymer**  **bound sediment and would make it harder to apply li quid 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. H owever, the provision to require treated**  **stormwater to be directed to a sediment control pri or to discharge helps to provide sufficient**  **opportunity for treatment chemicals to bond with se diments 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 te sting of polymers

. **EPA received a variety of comments on proposed requirements to set maximum do**  **sages or to require testing for residuals of polymers.**  **Some commenters challenged any requirements for res idual testing of polymers. Some**  **commenters supported a maximum dosage requirement. Some suggested dosage**  **requirements in place of residual testing requireme nts. 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 Fa ct Sheet for rationale for those**  **requirements. Some commenters suggested that permittees follow ma**  **nufacturer recommendations. EPA agrees with this comment and notes that the 2012 CG**  **P requires operators to comply with specifications provided by the provider/supplier of**  **the applicable chemicals. One commenter stated that the presence of chitosan r**  **esiduals does not necessarily indicate overdosing. See response on “chitosan” above.**  **One commenter suggested that operators demonstrate n o 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 eac h product. See response on “toxicity**  **concerns” above. Some commenters supported testing requirements. Othe**  **rs 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 th**  **e effectiveness of chemicals. 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 as**  **ked that EPA provide and maintain adequate flexibility. EPA notes that the 2012 CGP d**  **oes not require chemical treatment and provides permittees with flexibility in managing th**  **eir stormwater discharges. EPA also notes that the 2012 CGP does not require permittees choosing t**  **o employ chemical treatment to conduct residual testing. However, such permittees are subj**  **ect to several additional requirements to**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 44 **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**  **requirements.** Response 2.22.7 Training requirements

. **EPA received comment on training requirements for chemical treatment. One commenter asserted that cons**  **truction 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 co**  **ver proper dosing requirements. See Part 2.1.3.3 of the 2012 CGP for the requirements and se**  **ction 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 proposed corrective act ion**  **provisions as they relate to chemical treatment. On e commenter asserted that the requirements**  **for immediate corrective action during actual disch arge from a passive system are not practical**  **and that getting to the treatment system during 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 re quires that permittees immediately take all**  **“reasonable steps” to minimize or prevent the disch arge 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 actio n 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 mu st be completed within 7 days of discovery of**  **circumstances requiring correction unless the timef rame is infeasible. Any extensions beyond the**  **7-day deadline require documentation.**

**The commenter also asserted that the act of disturb ing the treatment system could result in**  **further violations of both the discharge of the chi tosan 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 req uirements 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 req uire 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 dewateri ng on vegetated, upland portions of the**  **site without removing sediment first, asserting tha t the vegetation would remove the sediment.**  **EPA agrees with the commenter that this practice sh ould be employed to the extent feasible.**  **The 2012 CGP requires permittees, to the extent fea sible, to utilize vegetated, upland areas of**  **the site to infiltrate dewatering water before disc harge.**  **Some commenters requested that EPA explicitly prohi bit dewatering onto bare soil. EPA agrees**  **with the commenter and notes that the 2012 CGP proh ibits 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 concerned with the dewatering of w ater so clean (from water pooled in**  **cold bed methane wells) that it would leach salt fr om the soil and pollute receiving waters.**  **Another commenter asserted that dewatered water nee ds to comply with water quality**  **standards. EPA agrees that all discharges from the site must meet applicable water quality** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 45 **standards and, in the absence of information demons trating 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 qu ality standards. The 2012 CGP also requires**  **corrective action if a discharge is not being contr olled as necessary to meet applicable water**  **quality standards. EPA believes that the existing r equirements to meet water quality standards**  **and to conduct corrective action address the concer n raised by the commenter. Indeed, if**  **stormwater leaches salt from the soil and subsequen tly discharges into a receiving water in**  **exceedance of applicable water quality standards, t he permittee would be in violation of the**  **permit’s WQBEL and required to take corrective acti on to address the issue.**  **Another commenter requested that EPA clarify that a traditional “sediment sock” is an**  **appropriate sediment control for groundwater remova l from shallow linear excavations. The**  **commenter also asserted that uncontaminated, non-tu rbid dewatering wastewater should be**  **clarified to include all groundwater, not just “wel l-point ground water.” In the 2012 CGP, EPA**  **provides several examples of appropriate controls t o control dewatering discharges, including**  **“sediment socks.” EPA also notes that the Agency ha s 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 Ar eas where Endangered Species Exist in the Definition of Sensitive Areas and Associated Stabili zation 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 sp ecies exist. Some commenters supported**  **including these areas in the definition. Others oppo sed any specific requirements for such sites.**  **As discussed in section VII.2.1 of the 2012 CGP Fac t Sheet, a shorter stabilization deadline is**  **warranted for sensitive areas because of the height ened concern about erosion and the**  **impacts from sediment and other pollutant discharge s to these areas. In addition, EPA responds**  **to comments on the inclusion of specific requiremen ts for sites that disturb or discharge to critical**  **habitat areas or to sites where endangered species exist in response 2.25 below.**  **EPA received comment on the proposed requirement th at permittees mark off and avoid**  **disturbing sensitive areas, including federally-lis ted critical habitats for endangered and**  **threatened species. EPA responds to comments on mar king 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 deadline should be “as soon as practicable” or “as soon**  **as possible.” Other commenters supported more string ent stabilization deadlines for sites**  **discharging to such areas. EPA agrees with these co mmenters. Under the 2012 CGP, permittees**  **on sites that discharge to sensitive areas are requ ired to complete stabilization of portions of the**  **site that discharge to sensitive areas within 7 cal endar days after the temporary or permanent**  **cessation of earth-disturbing activities, as descri bed 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 dea dlines 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 th at the 2012 CGP is a federal action subject** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 46 **to ESA requirements. Section 7(a)(2) of the ESA req uires EPA to insure that that any action the**  **Agency authorizes, funds, or carries out is not lik ely to jeopardize the continued existence of any**  **listed species or to result in the destruction or a dverse 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 re quirements for sites that disturb or discharge to**  **critical habitat areas or to sites where endangered species exist.**  **The specific requirements help to prevent impacts o n threatened and endangered species or**  **their habitats. See also section XV.D of the 2012 C GP Fact Sheet for discussion on the rationale of**  **Endangered Species Act Requirements under the permi t.**  Response 2.26 Stabilization Requirements – General Comments **(Part 2.2)**

**EPA received several comments that were directed at the proposed stabilization requirements**  **as a whole, and which were not focused on any one p articular provision. The following is a**  **summary of those comments and EPA’s response:** Response 2.26.1 Restructuring of stabilization requ irements to improve clarity

. **One commenter recommended that the final permit should be organiz**  **ed by the type of stabilization requirement. EPA appreciates this comment, and ack**  **nowledges 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 suggest**  **ion, EPA has sought to simplify this section and to make it easier to follow. Part 2.2 now incl**  **udes two subparts, one addressing deadlines for initiating and completing stabilization, and the ot**  **her 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 exceptions to**  **these requirements (Part 2.2.1.3) in a more abbreviated and orderly manner than the proposed pe**  **rmit. Similarly, Part 2.2.2 improves upon the proposed permit by keeping the stabilization cr**  **iteria 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 t he C&D rule, and that because of this the**  **proposed requirements are unreasonable, arbitrary, and capricious. The commenter**  **recommended that EPA provide flexibility to allow p ermittees 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 instance, EPA has**  **streamlined these requirements to remove the “C-fac tor” criteria that appeared in the proposed**  **rule, and to no longer impose different stabilizati on deadlines for steep slope disturbances and**  **disturbances within 50 feet of a surface water.**

**However, to the extent that the commenter still fee ls that these requirements go beyond the**  **intended stringency of the corresponding C&D rule r equirement (i.e., 40 CFR 450.21(b)), EPA**  **disagrees. EPA provided permitting authorities wit h considerable discretion with respect to the**  **implementation of the C&D rule requirements general ly, and specifically related to the**  **stabilization requirements. For example, 40 CFR 45 0.21(b) provides permitting authorities with the**  **ability to establish specific deadlines by which st abilization must be completed, and to develop**  **appropriate requirements for vegetative stabilizati on 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 appr opriate 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 a nd semi-arid areas in keeping with the C&D**  **rule’s direction to employ “alternative stabilizati on measures ... as specified by the permitting**  **authority.” Therefore, EPA believes that where the final permit’s stabilization requirements may** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 47 **differ from the language in the C&D rule, such diff erences are consistent with the discretion**  **specifically provided to permitting authorities in implementing the rule’s requirements.**  Response 2.26.3 Include incentives for minimizing a reas disturbed during construction. **One commenter noted the difficulty of establishing vege**  **tation in certain arid and semi-arid states, as well as the tendency for some construction companie**  **s to disturb a much larger area than is necessary to develop the site. The commenter obser**  **ved 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 t**  **hat the final permit include such incentives. EPA agrees with the underlying point m**  **ade by the commenter that minimizing ground disturbance is the most effective way to red**  **uce pollutant discharges. See related preamble discussion under Section IX.B (Erosion Con**  **trols Measures) of the C&D rule at 74 Fed. Reg. 63011 (third paragraph). EPA notes that one o**  **f the Agency’s primary objectives in establishing an acreage threshold for application o**  **f the numeric turbidity limit, which has since been stayed, was to provide permittees with an ince**  **ntive 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 s**  **oil 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 i**  **ncentives of the type the commenter recommends, especially without something like an en**  **forceable 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 inspec**  **tion frequencies to sites that limited the amount of land disturbed at one time below a certai**  **n acreage or that avoided earth disturbing activities in areas immediately surrounding surface**  **waters. EPA ultimately did not include these provisions based upon the concerns raised by the Ag**  **ency’s own enforcement office because of the difficulty of enforcing such provisions.**  Response 2.26.4 Final stabilization 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 natura**  **l processes to perform the final stabilization. The commenter provided the specific example of a da**  **m 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 througho ut the former impoundment area can**  **actually be counterproductive. The river may not na turally follow a designed and excavated river**  **channel despite best efforts to intuit the preferre d river channel. The newly restored free-flowing**  **river will eventually find its own path through the former impoundment and this self-selected course**  **will be the most sustainable one. Aggressively stab ilizing a restoration site may delay the river's**  **ability to create its preferred and more stable cha nnel. DER requests that EPA provide more**  **flexibility in the permit to allow for a natural-pr ocesses approach for pro-active restoration**  **projects.” EPA appreciates the commenter’s concerns and believ**  **es 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 de**  **scribed 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 Secti**  **on 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**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 48 **fluctuations of water and indicated by physical cha racteristics such as a clear, natural line**  **impressed on the bank, shelving, changes in the cha racter of soil, destruction of terrestrial**  **vegetation, the presence of litter and debris, or o ther appropriate means that consider the**  **characteristics of the surrounding areas.” See U.S . Army Corps of Engineers, Regulatory**  **Guidance Letter, No. 05-05, December 7, 2005 at** http://www.nap.usace.army.mil/cenapop/regulatory/rgls/rgl05-05.pdf

**.** 

### ) **It is only where such restoration work extends outs ide of the ordinary**  **high water mark and causes a disturbance of 1 or mo re acres (or less than 1 acre but part of a**  **common plan of development or sale that together ca uses 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 upla nd 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 un der 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 1 22.26(a)(9)(i)(B)), such as under the 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 “calenda r days” (e.g., “... earth-disturbing activities**  **have permanently or temporarily ceased, and will no t resume 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 deadlin**  **es for stabilization. By “calendar days,” EPA intends to refer to consecutive days of the calenda**  **r, 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 activiti**  **es stopping and not resuming “for a period of 14 or more calendar days,” EPA intends that the 14 day**  **s 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 to “initiate soil stabilization measure s 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 t o 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 followin g clarifying note in the permit, which should**  **be helpful in addressing the commenter’s request:**

**“The term “immediately” is used to define the deadl ine for initating stabilization measures. In this**  **context of this provision, “immediately” means as s oon 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.” Therefore, if the operator has initiated stabilizat**  **ion activities (see list of activities that constit ute**  **initiation of stabilization in permit) on the requi red day, EPA would find such steps to constitute**  **compliance with the requirement to initiate stabili zation measures “immediately.”**  Response 2.28 Support for Alternative Types of Deadl ines **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 c ommenters argued for replacing the proposed**  **deadline with an alternative “as soon as practicabl e” deadline to initiate stabilization, similar to**  **the deadline for stabilization in arid and semi-ari d areas. One commenter requested**  **consideration of a longer time period for projects that are linear or of a certain size. Several** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 49 **reasons were mentioned for why a more flexible time frame is needed, including the following**  **(EPA’s response follows each of the summarized reas ons):** 

Response 2.28.1 The C&D rule provided for a stabili zation initiation that was less prescriptive (i.e., “as soon as practicable”)

**. EPA disagrees with this argument as a rationale f**  **or using an alternative deadline. EPA is required to implement**  **the requirements in the C&D rule. The deadline for initiating stabilization is the same d**  **eadline 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 sched uling issues or weather **. For example, several commenters indicated that weather and site**  **conditions quite often can impede ‘immediate’ initiation of stabilization, and can ma**  **ke it difficult to determine when a temporary period of inactivity has begun. EPA agrees with th**  **e commenter in part that unanticipated scheduling issues could legitimately make it diffic**  **ult 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 aro und these circumstances to initiate**  **stabilization. For example, if a project was subje ct to a sudden and unanticipated delay due to**  **problems associated with unavailability of labor, p roject 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 t he 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 tim e that stabilization work must begin. EPA has**  **included a clarifying note in the permit to this ef fect, and hopes that this addresses some of the**  **commenters’ concerns.**

**Having said this, EPA believes that most issues rel ated to scheduling are within the control of the**  **construction operator, and that it should only be t hose 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**  **planned out timeframes for active construction and for short-term, long-term, or permanent**  **periods of no work, which should correspond, as app ropriate, with the initiation of site**  **stabilization measures. Therefore, for the vast ma jority of projects, scheduling the cessation of**  **work and initiation of stabilization are issues tha t 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 sudde n and unanticipated problems that make**  **initiation or completion of stabilization within th e 14-day deadline impracticable. Such problems**  **could be very similar to those discussed above, whi ch cause uncertainty with respect to**  **temporary cessation of work on the site. For examp le, 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 deadl ines to initiate and complete stabilization.**  **For this reason, EPA has modified the permit to inc lude flexibility for this type of situation. Part**  **2.2.1.3.b enables the permittee to complete activit ies 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 permanent 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** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 50 **and completing these activities and the schedule th at will be followed. EPA believes that this**  **language helps to address the concerns raised by th ese commenters.** 

Response 2.28.3 Specific stabilization practices a nd 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 op**  **erators whose particular site conditions make stabilization within a narrowly prescribed period i**  **mpracticable. EPA believes that the final permit properly accounts for the range of differing**  **site conditions under which construction permittees will be required to complete stabilizati**  **on. In addition to the alternative deadlines for sites in arid and semi-arid areas, EPA has also inc**  **luded additional flexibility to recognize “projects that are affected by circumstances beyond the contr**  **ol of the permittee that delay the initiation and/or completion of vegetative stabilization.” Se**  **e Part 2.2.1.3.b. The final permit also has removed the proposed permit’s more stringent timefr**  **ames for completing stabilization for disturbances to steep slopes, disturbances within 5**  **0 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 ini tiate stabilization immediately for areas of the site where work may be temporarily stopped, but wil l resume within a short period of time. **According to one commenter, such a requirement coul d result in a redisturbance of a recently**  **stabilized site, and would be unnecessary in instan ces where additional BMPs and surface**  **roughening could prove just as effective. In respo nse, EPA clarifies that the permit does not**  **require the exclusive use of vegetative stabilizati on for situations involving temporary**  **construction stoppages. The permittee may choose w hich 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 recommendati on 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 “immedi ately” on any portion of the site where work**  **has been permanently ceased, or where work has temp orarily ceased and will not resume for a**  **period of 14 or more days. The rule also specifica lly allows for alternative measures and**  **deadlines for arid and semi-arid areas, but does no t include other areas for such treatment.**  **Therefore, the C&D rule restricts the Agency’s abil ity 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, s uch as the recommended “as soon as**  **practicable” deadline, would leave the permittee wi th 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 hopeful ly address some of the commenters’ major**  **concerns, the Agency does not find it appropriate o r 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 r egulation to adopt one of the commenter’s**  **suggestions to incorporate alternative deadlines fo r linear projects or projects of a certain size.** 

Response 2.29 When Work On A Site Has Temporarily O r Permanently Ceased **Several commenters elaborated on the difficulties a ssociated with basing a requirement to**  **initiate stabilization on when “final grade has bee n reached.” See proposed Part 2.2.1.1.b.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 51 **These commenters explained that it is technically i mpossible to define when final grade has**  **been reached. Other difficulties were noted concern ing the work that it would take by the**  **construction operator to verify that final grade ha d 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 acce ss roads, driveways, backyards,**  **sideyards, etc. be stabilized during construction.**

**EPA appreciates these comments, and agrees that est ablishing a firm point in time when final**  **grade has been reached may be practically difficult . EPA acknowledges that it may have**  **underestimated the challenges that using such langu age would present in the field. EPA has**  **removed this language in the final permit, and inst ead more generally defines the cessation of**  **work based on when construction activities in an ar ea of the site have been completed or have**  **been temporarily stopped and will resume in the fut ure. EPA hopes that these modifications will**  **address the commenter’s concerns.**

**Regarding the commenter’s concern about requiring a ccess 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 u sed 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 conc ern 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 acc essing 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 th e 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 require ment to initiate stabilization applies. EPA**  **hopes that these clarifications address the concern s of the commenter.** 

Response 2.30 Support for Proposed Stabilization C ompletion Deadlines

**A few comments expressed support for the proposed s tabilization deadlines. One commenter**  **noted that frequent inspections would be needed to ensure compliance, but acknowledged**  **the difficulty that the Agency would have in accomm odating 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 completi ng stabilization from 7 to 14 days after the**  **temporary or permanent cessation of construction ac tivities. 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 stabilizi ng 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 oth er 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 t ype 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).**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 52 Response 2.31 Clarification of Intended Stabilizati on Completion Timeframes

**One commenter asked for clarification as to what the applicable deadline is for completing**  **stabilization. The commenter was uncertain about w hether the deadline was meant to be 7**  **days, 10 days, or 14 days. EPA agrees that the pro posed permit was not as clear as it could**  **have been with respect to the deadlines for stabili zation. EPA believes that the final permit is**  **clearer on the timeframes that apply to stabilizati on. Part 2.2.1.2 requires the permittee to**  **complete, within 14 days of stopping work in an are a of the site, certain activities depending on**  **whether the measures used are vegetative (i.e., “ac tivities necessary to initially seed or plant the**  **area to be stabilized”) or non-vegetative (i.e., “t he installation of all such non-vegetative**  **measures”). There are some exceptions to the 14-da y timeframe, which are provided in Part**  **2.2.1.3. However, for the basic 14-day timeframe i n Part 2.2.1.2, the following timeline should**  **help clarify the requirement further:**

**Day 1 Day 14 Period of active**  **construction**

**Another commenter asked EPA to clarify what type of day is intended for the stabilization**  **deadline, calendar days or working days. In respon se, EPA clarifies that the timeframes**  **associated with completing stabilization are intend ed 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 temporar y or permanent cessation of construction**  **activities.**

Response 2.32 Clarification of Area to be Stabiliz ed **One commenter asked how big of an area was intended by the proposed permit’s requirement**  **to complete certain stabilization activities on “ex posed portions” of the site. For example, the**  **commenter asked whether EPA intended the exposed po rtion to be of a certain minimum size**  **as measured by percentage (e.g., 10 percent) or squ are 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 w ork has stopped, no matter the size. Having**  **said this, EPA believes that it is not necessary fo r construction operators to plan their stabilizatio**  **n activities at the minute scale suggested by the “te**  **n square feet” example in the comment. In fact, EPA would advise operators to examine their c**  **onstruction sites prior to earth disturbance at the largest scale possible in order to develop an u**  **nderstanding of when work on large, connected areas of the site will stop, and accordin**  **gly when stabilization measures will need to**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 53 **be undertaken in those areas. By assigning the sta bilization schedule to these large areas, it is**  **EPA’s expectation that the stabilization requiremen ts 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 stabil ization activities in a sequence that makes**  **sense to them and that complies with the requiremen t to stabilize all exposed portions of the site**  **on which work has stopped.**

Response 2.33 Problems Associated with Proposed 7-d ay Deadline to Complete Stabilization **A large number of commenters raised concerns with t he proposed 7-day deadline to complete**  **certain stabilization activities. The following is a summary of those comments and EPA’s**  **corresponding response.**

Response 2.33.1 A 7-day deadline to complete stabil ization on large sites, particularly large linear transportation projects, is impracticable **. Commenters emphasized the complexities associate d**  **with scheduling stabilization activities, which by standard practice are planned out in one-week**  **increments, and the conflicts that may arise with t he 7-day deadline. One commenter**  **explained the problem as follows: “The industry st andard for construction scheduling,**  **particularly on large projects, is to 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 com pletes 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 pe rmit requirements.” Other commenters**  **raised issues with the remoteness of some of the ar eas being stabilized on large projects, and the**  **problems associated with the limits of availability of contractors and supplies. Still other**  **commenters noted the incompatibility of the 7-day w indow of time to complete stabilization**  **work with the standard practice in large constructi on 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 e fficient to mobilize stabilization activities in**  **larger areas than to work on smaller areas. The ef fect 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 s trict deadline. In view of these comments,**  **and other considerations, EPA has changed the deadl ine from 7 to 14 days following the**  **cessation of construction work on any exposed porti on 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 t imeframes associated with current industry**  **practice.**

Response 2.33.2 The 7-day Deadline Would Require Pe rsonnel 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-d**  **ay 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 const**  **ruction work on any exposed portion of the site. EPA believes that this change will make it u**  **nlikely that stabilization work will be necessary o n**  **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 g round, could delay the completion**  **of stabilization. Several commenters observed that complying with a 7-day deadline** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 54 **would be impracticable in these situations, and esp ecially in muddy conditions, could**  **result in a greater amount of damage to the site. EPA finds it plausible that weather**  **conditions could cause 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 co mplete initial vegetative**  **stabilization steps “as soon as conditions or circu mstances allow it on [the] site.” This**  **flexibility is provided on the condition that the p ermittee 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 deadli ne. The commenter observed that**  **problems such as these should not be the fault of t he permittee, and should not be**  **made into permit violations. In response, EPA agre es 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 v iolate the 7-day deadline, or any**  **specific deadline, for that matter. Having said th is, however, EPA has an interest from a**  **water quality standpoint in ensuring that during wh atever period of delay that results**  **stabilization controls are installed to protect the exposed area from erosion. In**  **consideration of these types of problems, EPA has p rovided 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 ve getative 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 complet es the installation of temporary, non**  **vegetative controls to prevent erosion. EPA believ es that this flexibility should help**  **address the commenter’s concerns.**

• **Unforeseen shortages in labor could delay completio n within 7-day timeframe. One**  **commenter provided the example of a union strike ca using a sudden unavailability of**  **workers to complete installation of stabilization m easures. 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 th e 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 stabiliz ation controls are installed to protect the**  **exposed area from erosion. In consideration of the se types of problems, EPA has**  **provided in Part 2.1.2.3.b the ability of permittee s, faced with unanticipated**  **circumstances beyond their control that delay the c ompletion of stabilization, to**  **complete initial vegetative stabilization steps “as soon as conditions or circumstances**  **allow it on [the] site.” This flexibility is provi ded on the condition that the permittee within**  **14 days completes the installation of temporary, no n-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 e xisting 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 estab lished for seeding, it is typical for**  **operators to be able to wait until conditions are s uitable for planting. For instance, for** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 55 **the geographic area described by the commenter, spr ing 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 grou nd.** 

**EPA is uncertain whether changing the stabilization deadline from 7 to 14 days addresses**  **the commenter’s specific concern. To the extent th at this concern is not addressed by**  **the modification, EPA clarifies that the permit dea dlines 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 wit hin an arid or semi-arid area,**  **seeding could be delayed during those months in con formance with local practice as**  **long as non-vegetative stabilization measures are i nstalled 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 o r local requirements that range**  **between 7 days and more than 1 year. This commente r recommended that EPA**  **provide flexibility in the permit to ensure consist ency with these requirements. In**  **response, EPA believes that modifications made to t he proposed 7-day deadline and to**  **other stabilization requirements most likely go a l ong 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 d ays, 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 un foreseen circumstances beyond the**  **control of the permittee (Part 2.1.2.3.b). EPA bel ieves that these exceptions account for**  **some of the variation seen in stabilization deadlin es among states and localities.** 

Response 2.33.5 The 7-day deadline is problematic f or sites in arid or semi-arid areas

**. Commenters observed that without rain occurring dur**  **ing the 7-day timeframe, it does not make sense to vegetatively stabilize the site, and that**  **it may take weeks to months to establish vegetation on a site depending on project size, com**  **plexity, 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 ref**  **lect the concerns raised by the commenters. See Part 2.1.2.3.a. Instead of being required to c**  **omplete soil conditioning, seeding, watering, etc. within 14 days, the operator is required to co**  **mplete these activities “as soon as practicable, given conditions or circumstances on your site.” E**  **PA is hopeful that this provision addresses the concerns raised by the commenter.** 

Response 2.33.6 The 7-day deadline places small bus iness 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 u se of these subcontractors in favor of self**  **performing this work which would place a disproport ionally 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 completin g 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 a nd enforceable deadline for completing initial**  **stabilization activities.**

Response 2.34 Recommendations for alternative deadl ines and exceptions to the deadlinesUnformatted 2012 CGP Comment Response Essays February 16, 2012



### 56 **A number of commenters offered recommendations on a lternative deadlines that could be**  **adopted to replace the proposed 7-day deadline to c omplete 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 s pecific, 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 ti me in which to complete stabilization. In**  **light of the comments received regarding the proble ms caused by the 7-day deadline, EPA has**  **decided to extend the deadline from 7 to 14 days fo r 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, r equiring completion as soon as practicable following the deadline. **A number of commenters who raised concerns about th e ability of**  **operators to reasonably comply with a 7-day deadlin e when faced with problems such as**  **inclement weather, or saturated or frozen soil cond itions, also recommended that the proposed**  **deadline be replaced with an “as soon as practicabl e” deadline to accommodate such**  **problems. Many of these same commenters also sugge sted that the permittee could be**  **required to document the 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 perm it should adopt a deadline that requires**  **all permittees to complete stabilization work “as s oon 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 contro l of the permittee where compliance with**  **a specific deadline, such as the 14-day deadline in cluded 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 t hat 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 permittee s facing such uncontrollable circumstances**  **to complete activities such as soil conditioning, s eeding, 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-ve getative measures to prevent erosion, and**  **that the circumstances causing the delay and the sc hedule to be followed to complete**  **stabilization are documented. EPA hopes that the i nclusion of this provision in the permit satisfies**  **the interests of the commenters in recommending add itional flexibility for uncontrollable**  **circumstances.**

Response 2.34.3 Allow for flexibility or additional time for drought-stricken areas. **One commenter suggested that it would reasonable to inc**  **lude recognition in the permit for the challenges faced in areas that are experiencing dro**  **ught conditions. EPA agrees, and notes that 40 CFR 450.21(b) of the C&D rule recognizes th**  **e need for alternative stabilization approaches in drought-stricken areas. EPA has modi**  **fied the final permit to provide the same flexibility for drought-stricken areas that are ava**  **ilable to sites in arid or semi-arid areas. See Pa rt**  **2.2.1.3.a.**

Response 2.35 Practicality Of Complying With Strict er Deadlines For Completing Stabilization In Sensitive Areas

. **EPA received numerous comments concerning the requi rement to adhere to a 3-day deadline**  **to complete stabilization activities where earth-di sturbing activities occur in sensitive areas (i.e.,** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 57 **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 w ould be unattainable. The following is a**  **summary of the arguments made by commenters togethe r with EPA’s response.** 

Response 2.35.1 Impracticable to comply with and en force different stabilization deadlines

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

Response 2.35.2 Alternative deadlines are not suppo rted 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 i**  **n 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 t**  **emporarily stopped. These commenters supported a timeframe that is consistent with the d**  **eadlines in 40 CFR 450.21(b). In response, EPA believes that the modification to remove the more s**  **tringent stabilization deadlines for disturbances to steep slopes and buffer areas, and**  **for stabilization of constructed stormwater conveyance channels, should partially address the c**  **ommenters’ concerns.**

**EPA would like to clarify what the Agency regards a s the commenters’ misunderstanding of the**  **scope of the C&D rule requirement as it applies. T he commenters pointed to the fact that EPA,**  **in adopting a 14-day cessation time period within w hich stabilization must be initiated, had**  **concluded that any more stringent requirement affec ting completion of stabilization was not**  **economically achievable. EPA disagrees with this c haracterization. The C&D rule does indeed**  **adopt a 14-day timeframe for triggering the start o f 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 b e defined by the permitting authority, stating**  **that “stabilization must be completed within a peri od of time determined by the permitting**  **authority.” Therefore, EPA intended the deadline f or completing stabilization work to be an issue**  **that would be determined on a permit-by-permit basi s in accordance with what the applicable**  **permitting authority believes to be appropriate. W here a permitting authority establishes**  **deadlines within the 14-day period, this would be e ntirely consistent with its authority in**  **implementing 40 CFR 450.21(b).**

**Additionally, EPA notes that the stricter stabiliza tion 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, d o not restrict limitations that are water**  **quality-based. EPA believes the stricter stabiliza tion completion deadlines to be reasonably**  **necessary to ensure that sites are not causing or c ontributing 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 12 2.44(d).** 

Response 2.35.3 Stricter deadlines do not account f or 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 th**  **at could make compliance with a specific**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 58 **stabilization deadline impracticable. As EPA has m entioned elsewhere in its response to**  **comments, EPA has made allowances in the final perm it for such unanticipated circumstances,**  **and this flexibility would extend to the stabilizat ion deadlines for sites discharging to sensitive**  **areas (i.e., sites discharging to sediment or nutri ent-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 th**  **e stabilization deadlines, the permittee may comply with alternative deadlines and requireme**  **nts, including the requirement to immediately initiate and within 14 days complete th**  **e 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 believe**  **s that this added flexibility addresses the commenters’ concerns.** 

Response 2.35.4 Stricter deadlines for sites discha rging to impaired waters are not technically justified. **One commenter found an insufficient nexus between the accelerated stabilization of**  **exposed soil for sites discharging to impaired wate rs and the presence of excess nitrogen or**  **phosphorus in the adjacent waterbody. The commente r 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 con struction sites. It is also EPA’s position that**  **in watersheds that are already degraded due to sedi ment or nutrients, the importance of rapidly**  **stabilizing exposed soil surfaces is of even greate r importance. By limiting the amount of time to**  **7 days that areas can be left exposed without compl eting certain stabilization activities, EPA**  **expects that the amount of sediment that will be mo bilized 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 wi ll 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 incre ased through stabilization activities. 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). Further more, 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 the se commonly utilized methods for reducing**  **soil erosion after seeding, combined with the accel erated schedule to stabilize exposed areas,**  **as well as restrictions on the discharge of fertili zers, will not increase nitrogen discharges, but**  **rather will result in an overall reduction in pollu tant discharges.** 

Response 2.35.5 Stricter deadlines are inappropriat e for stream restoration work. **One commenter observed that the faster stabilization sc**  **hedule for sensitive areas will have the effect of forcing time constraints on stream restoration p**  **rojects that require longer periods of time to achieve long-term ecological diversity and sustaina**  **bility. Furthermore, the commenter stated that “rushing to meet time constraints has the pote**  **ntial to interfere with restoration goals. For example, during salt marsh restoration it may be ne**  **cessary to track tidal inundation over a full month's neap to spring cycle to determine if the mi**  **cro- 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 mars**  **h surface can allow Phragmites australis to establish quickly, which out-competes native salt m**  **arsh grasses.” Based on these concerns, the commenter requested an exemption from the stricter**  **stabilization requirements for restoration projects.** 

**EPA assumes that when the commenter referred to the fact that most of the work related to**  **stream restoration taking place within sensitive ar eas as meaning that this work tends to occur in** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 59 **buffer and steep slope areas. EPA believes that mu ch of the commenter’s concerns have been**  **addressed by the removal of the stricter stabilizat ion deadlines for disturbances to steep slopes**  **and buffer areas. EPA does not agree that an exemp tion for stream restoration work from the**  **stricter stabilization schedule for sites dischargi ng to certain impaired waters or to Tier 2, 2.5, or**  **3 waters is appropriate. See also EPA’s response con**  **cerning the relationship between the scope of coverage under this permit as it relates to stre**  **am restoration projects as compared to the Section 404 wetlands program. Refer to Essay Respo**  **nse 2.26.4.**

Response 2.35.6 Stricter stabilization deadlines ar e impracticable for linear utility projects. **One commenter observed that work along utility projects**  **will proceed in phases and may result in portions of the project not being active for period**  **s 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 ar**  **e typically employed, such as straw mulch and the installation of check dams and diversion sw**  **ales. The commenter found the requirement to complete stabilization within 3 days would be in**  **feasible 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 a**  **ddressed by the removal of the stricter stabilization schedule for disturbances to buffer a**  **reas and steep slopes, and the increase in the deadline for other sensitive areas from 3 to 7 days**  **. EPA also observes that the use of temporary cover such as straw mulches would suffice as stabil**  **ization for the purposes of the permit, as long as it was installed appropriately and within the 7-**  **day deadline that applies.**

Response 2.36 Recommended Alternative Deadlines

. **Several commenters offered recommendations on the t ype 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 stabilizat ion to be completed “as soon as practicable”**  **or “as soon as practicable, but no later than” 30 d ays or another specific deadline. These**  **commenters supported flexibility in the implementat ion of these deadlines by allowing operators**  **to document actual stabilization schedules and depa rtures from the schedule due to**  **unanticipated problems. One commenter, however, rec ommended against using an “as soon**  **as practicable” deadline given that it is subject t o regulatory interpretation in terms of what is**  **required.**

**EPA agrees with this last commenter that an open-en ded deadline for completing stabilization in**  **sensitive areas, such as the recommended “as soon a s practicable” deadline, would leave the**  **permittee without clear direction on when to begin stabilization. While EPA has attempted to**  **include additional flexibility for completing stabi lization due to unforeseen circumstances, which**  **will hopefully address some of the commenters’ majo r concerns, the Agency does not find it**  **appropriate to adopt the recommended “as soon as pr acticable” standard.** 

Response 2.37 Requested Clarification Of Areas Requ ired To Be Stabilized

. **Two commenters asked for clarification regarding wh ether the special stabilization deadlines**  **apply only to the sensitive areas identified or to all other disturbed areas of the site outside of th**  **e sensitive areas. EPA appreciates the question. In**  **response, EPA clarifies that the stricter stabilization timeframes in the final permit for si**  **tes discharging to sensitive waters (i.e., sediment or nutrient-impaired waters or Tier 2, 2.5, or 3 wa**  **ters) 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 di**  **fferent (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 Dead lines for Arid and Semi-Arid Areas.Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 60 **Several commenters observed that the deadline requi rements 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 stabili zation. 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 attempte d to finalize language in Part 2.2.1.3 that is**  **clearer and internally consistent with other sectio ns of the permit. EPA believes these changes**  **have addressed the commenters’ concerns. With resp ect to the comment regarding the lack**  **of an apparent deadline for completing stabilizatio n, EPA notes that Parts 2.2.2.1.a.i and ii**  **provide deadlines for providing immediate non-veget ative 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 Co mbine The Proposed “As Soon As Practicable” Deadline With A Specific Fallback Deadli ne

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 c**  **reate situations in which the soil stabilization is unnecessarily delayed while the me**  **aning 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 r**  **equirement more enforceable. One commenter suggested adopting the approach in Arizon**  **a’s CGP, which requires that if by the 14th day after construction activity has temporaril**  **y or permanently ceased stabilization is precluded by seasonal arid conditions, stabilizatio**  **n 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 comm enters, 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 ne eded. 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 requires that if construction is occurr ing 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 ac tivities in any area of the site] complete,**  **the installation of temporary non-vegetative stabil ization measures to the extent necessary to**  **prevent erosion.” At the same time, the permit rec ognizes 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 si te “as soon as practicable, given conditions or**  **circumstances on your site, complete all activities necessary to initially seed or plant the area to**  **be stabilized” 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 Agenc y disagrees, but believes that its final permit**  **language strikes the appropriate balance between su ch flexibility and specifically enforceable**  **deadlines. EPA agrees with the commenter’s observa tions 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 install temporary non-vegetative contr ols within 14 days of the cessation of** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 61 **construction activities. EPA notes that the flexib ility 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). T he provision specifically indicates that “in arid,**  **semiarid, and drought-stricken areas where initiati ng vegetative stabilization measures**  **immediately is infeasible, alternative stabilizatio n 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 com**  **ment that they were opposed to providing a specific fallback deadline for initiati**  **ng stabilization measures. A few emphasized the fact that a specific deadline, such as the 28-day e**  **xample in the proposed permit, would not be appropriate in all situations. One commenter indica**  **ted that it might not always be possible to seed the entire area within 28 days. These comment**  **ers preferred leaving the proposed requirement to “initiate stabilization as soon as p**  **racticable following the temporary or permanent cessation of construction activities” as**  **the sole stabilization deadline. A few commenters suggested adopting the following approac**  **h 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), a**  **nd areas experiencing droughts where the initiation of stabilization measures by the fourtee**  **nth (14th) day after construction activity has temporarily or permanently ceased is precluded by s**  **easonal arid conditions, stabilization measures shall be initiated as soon as practicable.**  **”**

**EPA acknowledges 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 prevent ing erosion and that are reasonable in light**  **of the unique climatic conditions that occur in ari d and semi-arid areas. For this reason, EPA has**  **adopted requirements in the final permit that strik e the balance between flexibility and**  **specificity. With that in mind, Part 2.2.1.3.a.i r equires that if construction is occurring during th**  **e seasonally dry period of the arid or semi-arid area**  **, the permittee must “immediately initiate, and within 14 days [following the temporary or permanen**  **t cessation of construction activities in any area of the site] complete, the installation of tem**  **porary non-vegetative stabilization measures to the extent necessary to prevent erosion.” At the s**  **ame time, the permit recognizes that flexibility is needed to initiate vegetative stabilization by p**  **roviding that, in Part 2.2.1.3.a.ii, permittees who intend to vegetatively stabilize exposed portions o**  **f their site “as soon as practicable, given conditions or circumstances, complete all activitie**  **s necessary to initially seed or plant the area to be stabilized” on the site. EPA believes that t**  **his approach is reasonable in that it provides flexibility around the initiation of vegetative sta**  **bilization measures (i.e., “as soon as practicable ...”) and that it ensures that at least temporary ero**  **sion 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 o r EPA with a specific timeframe from which to**  **assess whether the site is in compliance. EPA beli eves that the approach finalized in the permit**  **accomplishes both objectives.**

Response 2.40 Request For Comment On Treating Const ruction Activities In Critical Habitat Areas Or Areas Where Listed Endangered Species Exist As S ensitive Areas For Site Stabilization Purposes

**. One commenter recommended that instead of automatica**  **lly imposing stricter stabilization deadlines on projects in such areas, the permit sho**  **uld instead require more generally that the permittee comply with the Endangered Species Act (E**  **SA). The commenter noted that adding**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 62 **additional, more stringent deadlines would add an u nnecessary and potentially burdensome set**  **of requirements. In response, EPA notes that it ha s not adopted more stringent deadlines for**  **construction activities in critical habitat areas o r areas where endangered species exist.**  **However, where additional requirements are imposed on a permittee as a condition of eligibility,**  **these conditions are enforceable under this permit and must be documented in the permittee’s**  **SWPPP.**

Response 2.41 General Comments on Arid/Semi-Arid St abilization Criteria.

**Several commenters raised overall concerns with the proposed vegetative stabilization criteria**  **for arid and semi-arid areas, and one commenter sug gested that EPA retain the 2008 CGP**  **language regarding stabilization in these areas. E PA has modified the proposed stabilization**  **criteria to more closely follow the 2008 CGP langua ge, most notably in relation to the language**  **in Part 2.2.2.1.a.ii, which stipulates the requirem ents for areal cover and the timing for vegetative**  **establishment. EPA believes that these modificatio ns should address many of these concerns.** 

Response 2.42 Requirement To Provide 70 Percent Vege tative Cover

. **EPA received a variety of comments on the draft per mit’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 stan dard 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**  **final permit in Part 2.2.2.1.a.ii.**

**A few commenters suggested that permittees be requi red to achieve the 70 percent cover**  **requirement before being allowed to terminate permi t coverage. These comments expressed**  **concern over what one commenter referred to as the “premature release of liability” without a**  **further requirement to maintain established vegetat ion or an assurance that the vegetation is**  **independently viable. EPA shares the concerns of t he 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 premat urely allow an operator to leave a site if**  **the exposed portions will never achieve the require d vegetative stabilization. However, EPA**  **believes that, on balance, enabling permittees to t erminate permit coverage despite the fact**  **that the site may not have yet reached 70 percent v egetative cover, as long as the site has**  **been reasonably prepared and planted to ultimately achieve the required vegetation cover,**  **provides sufficient assurance of stabilization. Ad ditionally, EPA notes that Part 2.2.2.1.a.i of the**  **permit requires that non-vegetative erosion control s be used to provide immediate cover so that**  **continuous erosion control is provided until vegeta tion is established. EPA’s concern with**  **requiring a permittee to remain permitted until com plete stabilization in all cases, as the**  **commenter recommends, is that it would risk incenti vizing site operators to attempt to**  **accelerate growth unnaturally at the site, resultin g in vegetation that is not viable long-term. This**  **is especially true in arid and semi-arid areas wher e practices such as watering can be counter**  **productive if, after seeds germinate and plants beg in to grow, the watering is stopped and the**  **vegetation returns to the natural precipitation lev els of the area. Therefore, EPA has decided to**  **continue to enable permittees to terminate permit c overage as long as the site has been**  **reasonably prepared and planted to achieve the 70 p ercent vegetative cover requirement.** 

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

. **Commenters raised several issues with the draft Par t 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** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 63 **in an arid or semi-arid climate. While one comment er suggested that 2 growing seasons was**  **necessary to establish vegetation in these areas, o thers 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 pl ants that will achieve a 70 percent cover.**  **EPA is sensitive to these concerns. EPA believes t hat it is necessary to include in the final permit,**  **as it has in Parts 2.2.2.1.a.i and ii, a clear stan dard by which permittees and the Agency can**  **assess compliance with this permit. At the same ti me, 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 fin al permit, it is EPA’s expectation that**  **permittees will exercise care in selecting “an appr opriate 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 re asonably expected to be achieved within 3**  **years. EPA anticipates that there could be extenua ting circumstances, such as drought**  **conditions, that could result in the vegetative est ablishment 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 th e circumstances that contributed to the**  **incomplete vegetative establishment after the third year following the initiation of stabilization,**  **the Agency could take these factors into account wh en assessing compliance. EPA notes that**  **it has incorporated interim protections for the exp osed 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 t o 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 obse rved that rolled erosion blankets cost**  **almost twice as much as crimped, dry mulch. This c ommenter also indicated that the use of**  **rolled erosion control blankets would not accelerat e vegetative establishment under desert**  **climates since rolled products quickly evaporate or sublimate precipitation in high evapo**  **transpiration conditions. This is in contrast, acc ording 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 doe s not disagree with these observations. In**  **response, the final permit clarifies that approache s, such as straw crimping, provide one**  **example of the type of non-vegetative erosion contr ol that can provide immediate cover as**  **required by Part 2.2.2.1.a.i.**

Response 2.44 Requirement to water seeded areas unt il 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 t**  **hat 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. Req uiring watering of seeded areas will be**  **cost-prohibitive and is an inappropriate use of a p recious resource.** 

• **The requirement runs counter to programs in some mu nicipalities in these areas, which**  **have been paying homeowners not to grow grass and o ther non-desert plants because**  **they use so much water.**

• **Watering seeded areas is actually counter-productiv e to long-term vegetative**  **establishment. After germination, the plants will be forced to return to an arid/semi-arid**  **condition, resulting in a reduction in vegetation a fter permit termination due to die**  **off/plant mortality once watering stops. Instead o f watering, to establish vegetation in**  **these areas, it is better to allow seeds to germina te naturally. Another problem with** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 64 **watering seeded areas in arid/semi-arid areas is th at it encourages the rapid**  **establishment of noxious weeds.**

**EPA found these comments informative, and after rec onsideration, EPA agrees that it is better to**  **leave it to the best professional judgment of the s ite operator to determine whether and to what**  **extent watering is necessary. Instead of requiring watering until seeds germinate, EPA requires**  **more generally that “other appropriate mechanisms t o promote growth”, such as irrigation, be**  **used to provide continuous erosion control until ve getation 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 cov er standard.** 

Response 2.45 Reasonableness of Vegetative Stabiliza tion Criteria

Response 2.45.1 General comments **. Commenters observed that this section was overly prescriptive and does not reflect the variety of ap**  **proaches that work for achieving the 70 percent cover requirement. These comments suggeste**  **d that the specific practices used to promote vegetative growth are best left to the part**  **icular permittee, and 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 t**  **he 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 man**  **y of the specific requirements in proposed Parts 2.2.2.1.c.iii and iv.** 

Response 2.45.2 Requirement to roughen area prior t o application **. While supportive of the requirement to “roughen the area with furrows” prio**  **r 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 th**  **at this practice cannot be achieved without jeopardizing the slope and equipment operat**  **ors. In response to this comment, EPA has decided to modify the permit to remove this require**  **ment. 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 veget**  **ative 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 requireme**  **nt to water seeded areas “until the seeds germinate and grow.” These concerns are encapsulat**  **ed 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 w ithout natural rainfall the seedlings will**  **die (without continuous watering). It is best to no t 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 sta te) is cost prohibitive. Additionally, in**  **cases where we have trucked in water, we have gotte n public complaints from nearby**  **residents that may be under local water restriction s (e.g. can only water their lawns on**  **certain days of the week). This issue would be comp ounded if we were to water the**  **roadside adjacent to agricultural property sufferin g from lack of water.”** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 65 **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 transport equipment cannot**  **access, and that vegetation can be established succ essfully 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 a chieve the 70 percent vegetative cover**  **requirement to the permittee itself. Therefore, EP A has removed the watering requirement from**  **the final permit, and in its place specifies that p ermittees must meet the 70 percent cover**  **requirement and that they must take the actions tha t 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 requirement in terms of watering and other pra ctices 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 requi rement in proposed Part 2.2.2.1.c.iii.2 to**  **“immediately after seeding, protect seeded areas wi th a temporary, non-vegetative cover”,**  **such as erosion control blankets or turf reinforcem ent mats. These commenters indicated that**  **requiring protective non-vegetative cover over seed ed areas could increase stabilization costs**  **from $5,000 to $8,000 per acre. One of the commente rs suggested that providing protective**  **cover is not the only way to ensure vegetative grow th, suggesting that for highway projects in**  **Texas, successful vegetative establishment occurs t hrough a combination of seed bed**  **preparation, broadcast seeding, and rolling of seed ed areas to help with germination and**  **erosion prevention. These comments suggested to EP A the need to provide greater flexibility to**  **permittees in how they meet the vegetative cover re quirement. 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 Veg etative Stabilization Criteria **EPA had proposed in Parts 2.2.2.1 and 2.2.2.2 to ad opt as stabilization criteria specific C-factor**  **(or “cover management” factor) values from the Revi sed Universal Soil Loss Equation (RUSLE).**  **The C-factor criteria would have provided an altern ative 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 Append ix H), which included C-factor values**  **from past studies on the effectiveness of various v egetative and non-vegetative cover practices**  **that are in common use.**

**EPA received numerous comments in response to the p roposed 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, t he vast majority of comments found the**  **approach to be extremely problematic. These commen ters challenged the accuracy of the**  **standardized testing procedures used to evaluate di fferent cover types (even noting the extent**  **of disagreement within the erosion and sediment con trol industry about which standards should**  **be in effect), expressed doubt about how well C-fac tor values for commonly used stabilization**  **practices are translated to actual sites, raised co ncerns 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 othe r concerns.** 

**In light of these comments, EPA has decided not to adopt the proposed C-factor approach and**  **instead has finalized stabilization criteria that m ore closely resemble that used in past permits.**  **While EPA may revisit the C-factor concept in the f uture to evaluate whether advances have**  **been made in standardizing the methods for rating d ifferent stabilization cover types, the** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 66 **Agency does not believe that it could have addresse d the many valid concerns raised through**  **any straightforward set of changes in the final CGP**

**.** Response 2.47 Request for Comment on Vegetative Stab ilization 70 Percent Requirement

Response 2.47.1 General comments **. In the proposed permit, EPA had requested commen t on**  **whether the final permit should replace the 70 perc ent vegetative cover requirement that had**  **been used in past permits with the new C-factor app roach. 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 perce nt criterion, and notes that this requirement**  **has been retained in the final permit. The C-facto r approach has not been included s in the**  **final permit.**

**One commenter asked that EPA retain the formula in t he 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 reta ined 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 respons**  **e, EPA has clarified in the final permit that the 70 percent criterion applies to the “density of cov**  **erage 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 per cent 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 remain ing 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 install ed, to the extent the permittee will use**  **vegetation to stabilize these areas, that vegetatio n will be required to cover 70 percent of the**  **density of vegetation that existed in those areas p rior to construction.** 

Response 2.47.3 Suggestions for alternative require ments **. Several commenters offered recommendations on how EPA might modify the 70 perc**  **ent vegetative cover requirement. Each recommended concept is considered below.** 

• **One commenter suggested the adoption of the followin g language: “A uniform (e.g.,**  **evenly distributed, without large bare areas) veget ative 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 perma nent 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 vegetati on.” EPA believes that the final**  **permit’s vegetative stabilization requirements adop t many of these suggestions. For**  **instance, Part 2.2.2.1 specifies that the 70 percen t requirement applies to the “density of**  **coverage that was provided by native vegetation” pr ior to construction, which is similar**  **to the language suggested above by the commenter. The provision also further clarifies,** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 67 **consistent with the commenter’s suggestion, that es tablishing “uniform vegetation”**  **means that it should be “evenly distributed without large bare areas.”** 

• **Several commenters recommended that EPA increase th e percent cover requirement so**  **that it is larger than 70 percent. These suggestio ns varied from commenter to**  **commenter with some suggesting 80 percent vegetativ e cover, another suggesting 95**  **percent, and still another suggesting 100 percent. EPA is sympathetic to these**  **suggestions 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 stan dard that provides effective**  **erosion control once established.**

• **One commenter advised against requiring “uniform per ennial vegetation” based on a**  **percent vegetative cover. EPA disagrees. EPA beli eves that requiring that vegetation**  **be established uniformly, so that it is evenly dist ributed without large bare areas, reflects**  **widely accepted practices for reducing erosion on e xposed soils. EPA also supports the**  **use of a percent cover requirement because it is ea sily translatable to the permittee.** 

**Another commenter recommended that the 70 percent c over requirement be replaced with a**  **70 percent stem density requirement. This commente r noted that stem density is a better**  **indicator of vegetative establishment than canopy c over. The commenter also recommended**  **that EPA require that vegetation must be native to the area. EPA understands why the**  **commenter is suggesting the stem density approach e specially for areas with sparse native**  **vegetation, and agrees that this would be a workabl e approach. EPA believes that what has**  **been adopted in the final permit offers some of the attributes on the commenter’s approach by**  **requiring the permittee to “provide 70 percent or m ore of the density of coverage that was**  **provided by native vegetation” prior to constructio n. This is because the focus of the vegetation**  **reestablishment is on the density of vegetation, wh ich is similar to the concept supported by the**  **commenter.**

**While EPA acknowledges what the commenter says is t rue that permittees may be able to count**  **weeds as cover in a manner that is equivalent to ot her 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 permanent 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 a pproach so that the concept can be**  **further developed. Additionally, in response to th e 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 68 Comment Response Essay 3 C&D Rule and Numeric Turbi dity 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 specifica**  **lly 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 addre**  **ssed 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 po llution prevention (see 40 CFR 450.21(a)**  **through (f)), and, for the first time, a numeric li mitation 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 w ere 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 a**  **nd remanding to the Agency limited portions of the final C&D rule. To address the specific iss**  **ues raised by petitioners, the motion also provided that EPA:** 

• **“may address (and if necessary take further regulat ory action on) certain impacts of the**  **final rule specific to linear gas and electricity u tility projects.”** 

• **will “solicit site specific information regarding t he applicability of a numeric limit” to cold**  **weather sites and to small sites that are part of a larger plan of development that is**  **subject to the numeric limit. On August 24, 2010, the U.S. Court of Appeals for th**  **e Seventh Circuit remanded the matter to EPA but did not vacate the numeric limit. On Septem**  **ber 9, 2010, the National Association of Home Builders (NAHB) filed a motion for clarificati**  **on (which EPA did not oppose) asking the Court to (1) vacate the limit and (2) hold the case**  **in abeyance instead of remanding the matter to EPA. On September 20, 2010, the Court gra**  **nted 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 li**  **mit. 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 regul**  **ation and a companion proposed regulation to stay the numeric limitation at 40 CFR**  **450.22 indefinitely. The stay took effect on January 4, 2011, resulting in an indefinite postpon**  **ement of the 280 NTU limit. Since the numeric portion of the rule was stayed, EPA, states, and au**  **thorized tribes are no longer required to incorporate the numeric turbidity limitation and mo**  **nitoring requirements found at §450.22(a) and §450.22(b) into NPDES permits. However, the re**  **mainder of the regulation is in effect and must be incorporated into newly issued NPDES permit**  **s. EPA published a Federal Register notice on January**  **3, 2012 requesting additional data on the performance of technologies in controlling turbidit**  **y in stormwater discharges from construction sites. The notice also requests information on othe**  **r 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 standa**  **rd. The final CGP is directly affected by the stay in t**  **hat, due to the stay, the permit does not need to include the numeric turbidity limit. When EPA issu**  **ed the draft permit for public comment, the**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 69 **Agency was uncertain whether its work to complete t he recalculation of the numeric turbidity**  **limit would be completed in time to incorporate int o the final permit. To be able to implement**  **the yet-to-be-promulgated turbidity limit in the fi nal permit, EPA included in the draft permit a**  **placeholder for the effluent limit, as well as prop osed implementation requirements such as**  **turbidity monitoring and reporting protocols. Beca use EPA is still in the process of collecting data**  **to support the recalculation of the numeric turbidi ty 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 requirem ents. EPA has, however, implemented the**  **remaining portion of the C&D rule that was not affe cted by the stay of the numeric limit.**  **One commenter requested that EPA include specific la nguage in the permit allowing EPA to**  **reopen the CGP and insert the recalculated limit. A s described above, EPA is in the process of**  **collecting data to inform the basis for a recalcula ted numeric turbidity limit. EPA does not want**  **to prejudge the timing and outcome of the data coll ection 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 incorpora ting 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 avail able to be inserted into the reissued CGP during**  **the five-year permit term. Request to 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 i ssues associated with the**  **pending C&D ELG lawsuit. EPA appreciates the commen t. 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. Simila rly, another commenter requested that EPA**  **provide the basis for why the current permit is ade quately protecting waters of the US. EPA notes**  **that the new requirements in the permit largely rel ate to the C&D rule, which EPA is required to**  **include in the new permit. Other new requirements EP A has included because EPA found they**  **were necessary to provide protections to impaired w aters and high quality waters.**  **EPA’s Removal of the Numeric Turbidity Limit and Sa mpling Requirements**  **EPA notes that, due to the stay of the numeric limi t, as described in comment response essay**  **“Numeric Turbidity Limit” above, the final permit does not include the numeri**  **c turbidity limit or sampling requirements. EPA believes that the remov**  **al of the placeholder for the numeric limit and associated sampling requirements negates the co**  **ncerns expressed by commenters about these proposed requirements. See also discussion a**  **bove. Relationship Between C&D Rule BMPs and Discharges**  **One commenter asserted that the C&D rule illegally i mposes certain BMPs that regulate internal**  **site processes that are not related to point source discharges. EPA disagrees. EPA has**  **developed short 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 Req**  **uirements EPA received several comments on its implementation**  **of the C&D rule effluent limitations guidelines as proposed in the permit. Some of the c**  **omments 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 requir ements that EPA has proposed in** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 70 **the CGP must be allowed to be litigated in full pri or to inserting them into a new CGP**  **and mandating compliance. The C&D ELG can only be a ssessed an entire package of**  **non-numeric and numeric effluent limits. Accordingl y, EPA should delink the CGP from**  **the C&D rule, and focus the new CGP on modification s and issues not embroiled in the**  **C&D ELG. EPA should refocus its efforts on implemen ting the C&D ELG at an appropriate**  **date in the future when the contents of that regula tion 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 pe rmitting program.** 

• **EPA should put the C&D ELG and CGP in a joint revie w and comment process.** 

• **EPA’s implementation of the C&D rule erosion and se diment control practices is overly**  **prescriptive, cost-prohibitive, and is a one-size-f its-all strategy. The CGP should include**  **just the ELG language, and EPA should develop separ ate non-mandatory guidance with**  **more specific implementation information.**

• **EPA has not determined that the C&D rule requiremen ts as implemented in the permit**  **are feasible. EPA should conduct further analyses t o 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 p romulgated, EPA must conduct an**  **analysis that includes information about the indust ry, estimates costs and economic**  **impacts of the proposed effluent control options, r eviews comments on the proposed**  **effluent limits, and incorporates those comments in to a final regulation supported by**  **documentation. EPA disagrees with the comment suggesting that EPA**  **wait to implement 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 t**  **he C&D rule at 40 CFR 450.22 have been stayed**  **. The remainder of the regulation, including the no n-numeric effluent limitations, is in**  **effect and must be incorporated into newly issued p ermits. Therefore, EPA is required to**  **implement the non-numeric ELGs into the new CGP. With regard to the comments that EPA was overly pre**  **scriptive in its implementation of the C&D rule, EPA believes that specificity was needed in o**  **rder for the permit conditions to be clearly articulated, transparent, and enforceable. After re**  **ceiving 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 exampl**  **e, EPA does not require in the final permit for sites disturbing steep slopes to divert flows aroun**  **d steep slopes and use specialized controls. EPA also made the definition of steep slope more flexib**  **le to account for different regional and industry steep slope standards. EPA added flexibili**  **ty to the buffer requirements for linear construction projects and for small residential lot**  **s to account for situations where the buffer compliance alternatives may be burdensome or infeas**  **ible to implement. EPA also removed much of the specificity that was proposed with rega**  **rd 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 cond**  **itions 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 co**  **sts on permittees above and beyond the costs accounted for in the 2008 CGP or in the C&D r**  **ule requirements. See the Economic Analysis document in the permit docket.**  **EPA disagrees with the suggestion that EPA must con duct further analyses to account for the**  **specificity added to the C&D ELGs and NSPS in the f inal CGP. EPA believes that its**  **implementation of the C&D ELGs and NSPS in the fina l CGP is consistent with the CWA and its**  **implementing regulations, and that further analyses are not 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** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 71 **include effluent limitations and conditions to impl ement 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 conduc t the extra analysis suggested by**  **commenters in deriving NPDES permit limits to imple ment the applicable ELGs and NSPS. EPA**  **points out that the C&D rule intended to provide di scretion to permitting authorities to determine**  **how best to implement the provisions of the rule wi th respect to including in their permits limits**  **and conditions (requiring controls and measures) ap propriate for the conditions in their**  **permitted areas. As the permitting authority respo nsible for issuing stormwater permits for**  **construction activities in four states, Indian Coun try, Federal facilities, Washington, DC, and U.S.**  **territories/protectorates, EPA believes that it is important in this final permit to include**  **requirements that more specifically define what EPA believes 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 requireme nts to “Provide and maintain natural buffers”**  **and “Minimize soil compaction”, among others.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 72 Comment Response Essay 4 Water Quality-Based Efflue nt Limitations

Response 4.1 Water Quality-Based Effluent Limitatio ns **2012 CGP and Water Quality Standards and TMDLs EPA received comment suggesting that the Agency inc**  **lude a requirement that any activity authorized by the CGP undergo site-specific review**  **to determine whether increased discharges are consistent with TMDL allocations. Similarly, EP**  **A 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 quali**  **ty standard exceedances without appropriate levels of review, disclosure, public co**  **mment, and administrative appeal opportunities. The commenter described a past situa**  **tion in which the state had issued a blanket certification for CGPs and asserted that, as a resu**  **lt, no recourse was available where site specific information later indicated exceedances of**  **state water quality standards, the antidegredation policy, or TMDLs. The commenter ass**  **erts that such a blanket certification also fails to advise permittees to contact the appropria**  **te state staff to determine if their projects are in compliance with existing TMDLs and that, as a re**  **sult, 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 th**  **at 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 s**  **uggested that individual permits should be required for discharges these waters, to high-qu**  **ality waters, and to streams listed as critical habitat for threatened and endangered species. The**  **commenter argued that under an individual permit, the projects would receive highe**  **r 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 inc**  **lude new stabilization, inspection, and monitoring requirements in the CGP for sites discha**  **rging to nutrient- and sediment-impaired waters, and for providing specific tools to help de**  **termine whether a proposed site will discharge to such waters. EPA also received comment asserting**  **that the CWA prohibits new discharges into impaired waters for which a TMDL has been esta**  **blished unless there is a WLA available to accommodate those discharges, and that this permit**  **should similarly make this clear, disallowing its application at all into TMDL-established stream**  **s 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 op**  **portunity for site-specific analysis or scrutiny to protect 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 la**  **nd-disturbing activities. The 14-day NOI submittal deadline provides the Fish & Wildlife Ser**  **vice 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 pro**  **ject. If more time is needed, EPA can delay authorization to allow additional assessment to tak**  **e 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 consisten**  **t with an applicable wasteload allocation (WLA), or to comply with state or tribal antidegrad**  **ation requirements. Part 1.2.2 of the permit indicates that no permit shall be issued to a new s**  **ource or a new discharger, if the discharge from its construction or operation will cause or co**  **ntribute 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 di**  **scharges from the construction or operation will not cause or contribute to an exceedance of water q**  **uality standards. For the comment on advising permittees to contact t**  **he appropriate state staff to determine if their projects are consistent with existing TMDLs,**  **EPA also notes that the 2012 CGP requires**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 73 **potential permittees to identify in their NOIs the s urface water(s) to which they will discharge,**  **whether any waters are impaired, and whether any TM DLs exist for the receiving waters. To assist**  **applicants, EPA is providing a mapping tool. Applic ants 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 wai ting period discussed above. EPA may**  **impose additional water quality-based limitations o n a site-specific basis, or require an applicant**  **to obtain coverage under an individual permit, if i nformation 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 operat ors are aware of applicable water quality**  **standards and TMDLs and to determine whether additi onal stormwater controls are necessary.**  **EPA disagrees that the 2012 CGP provides no mechani sm 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 recou rse for cases in which site-specific**  **information indicates occurrences of exceedances o f state water quality standards. First, as**  **discussed above, permittees must determine whether they discharge to impaired waters and**  **whether those waters have TMDLs. Applicants will do cument this information in their NOIs when**  **seeking coverage. While EPA expects that compliance with the stormwater control requirements**  **described in Part 2 of the permit will result in di scharges that will not cause, have the reasonable**  **potential to cause, or contribute to an excursion a bove any applicable water quality standard,**  **EPA also notes that the permit allows for the Agenc y to require corrective action and/or**  **additional stormwater controls if the stormwater co ntrols that the permittee has installed and is**  **maintaining are not effective enough for the discha rge to meet applicable water quality**  **standards (See Parts 3 and 5.2.1.2). For example, p ermittees 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 permittee s to post a sign or other notice conspicuously**  **at a safe, publicly accessible location in close pr oximity to the project site. At a minimum, the**  **notice must include the NPDES Permit tracking numbe r 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 p ublicly available information about the**  **construction site and to identify the site when rep orting potential permit violations. Violations**  **identified through such reporting could result in c orrective action and/or the installation of**  **additional stormwater controls to protect water qua lity.**  **EPA also received comment questioning what is meant by requiring that discharges be**  **controlled as necessary to meet applicable water qu ality standards and that unless EPA clarifies**  **the requirement, permittees will be vulnerable to t hird party lawsuits, enforcement actions, or**  **costly studies. EPA discusses the requirement in Pa rt 3 of the 2012 CGP. The requirement means**  **that permitted discharges may not cause, have the r easonable 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 require ments 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 sta ndard. However, with regard to third party**  **lawsuits, enforcement actions, or studies, EPA beli eves that the permit must include mechanisms**  **to allow the Agency to identify where corrective ac tion and/or additional stormwater controls**  **may be needed to meet applicable water quality stan dards and to require corrective action**  **and/or the installation of additional stormwater co ntrols. See Parts 3 and 5.2.1.3 of the 2012 CGP**  **for description of requirements and sections VIII a nd X of the 2012 CGP Fact Sheet for a**  **discussion on the purposes of these requirements. EPA received comment on the requirement to install**  **additional controls when needed to meet applicable water quality standards. The commenter a**  **sserted that the regulated party should**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 74 **have the opportunity to review and comment on new r equirements before they are imposed.**  **EPA notes that the permit does not include an addit ional public review and comment step.**  **However, as discussed in Part 1.4.5, for cases in w hich 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 a pply for and/or obtain coverage under**  **either an individual NPDES permit or an alternate g eneral NPDES permit. This notification will**  **include a brief statement of the reasons for this d ecision and will provide application**  **information. Any interested person may request tha t EPA consider requiring an individual permit**  **or alternate general permit under this paragraph. The section further explains that if the permittee**  **is already covered under the 2012 CGP, or a previously issued CGP, the notice will set a deadli**  **ne to file the permit application or NOI for an alternate general permit, and will include a statem**  **ent that on the effective date of the individual NPDES permit or the date of coverage und**  **er 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 deadl**  **ine for application or NOI submittal. EPA may take appropriate enforcement action for any unp**  **ermitted discharge. If a timely permit application is submitted, then when an individual N**  **PDES permit is issued or coverage is provided under an alternate general NPDES permit, coverage u**  **nder this permit is terminated on the effective date 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 s ection 122.44(d)(1)(vii)(B) provides that where**  **a State or EPA has established a TMDL, NPDES permit s 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 disc harging 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 t he CWA gives the Agency authority to**  **regulate point source discharges of pollutants to w aters of the U.S. but not to establish upper**  **limits of construction project sizes. However, whil e 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 includin g deadlines for stabilization apply to regulated**  **sites, regardless of how large they may be. Thus, t he permit provides protection to receiving**  **waters from discharges from sites of all sizes at o r exceeding minimum size thresholds.**  **One commenter asserted that the special stabilizatio n deadlines (Part 3.2.2.2) should apply if the**  **permittee discharges to a surface water that is imp aired 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 discharge of the impaired parame ter. 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 stabilizat ion and discharges of these pollutants.**  **However, See Part 3.2 of the 2012 CGP, which explai ns that if the permittee discharges to an**  **impaired water that is impaired for a parameter oth er than a sediment-related parameter or**  **nutrients, EPA will inform the permittee if any add itional 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)(vii)(B) pr ovides that where a State or EPA has**  **established a TMDL, NPDES permits must contain effl uent limits and conditions consistent with the**  **assumptions and requirements of the WLAs in the TMD L.** 

**Stabilization**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 75 **For comments on stabilization, see response on stab ilization in section 2 of this document.**  **Inspections For comments on inspections, see response on inspec**  **tions in section 5 of this document. 2008 CGP was Sufficient / the Proposed Terms are Ov**  **erly Burdensome and Unnecessary EPA received general comment asserting that the Age**  **ncy 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 curre**  **nt permit. In response to the comment, EPA directs the commenter to the 2012 CGP Fact Sheet in**  **which the Agency provides background information on the permit and discusses the purpose**  **s of permit provisions. In particular, section I of the Fact Sheet explains that because the 2012 CG**  **P is being issued 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 modificat**  **ions 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 dev**  **elop a cost-benefit analysis and use that analysis to develop more reasonable alternativ**  **es. 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/constr**  **uction/index.cfm . EPA also developed an**  **economic analysis as part of the administrative rec ord in support of the 2012 CGP. The analysis**  **is available in the docket for the 2012 CGP. This a nalysis 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 the requ irements of the C&D rule, which for the first**  **time is being incorporated into the CGP. The object ive of this examination was to show where**  **and/or to what extent the 2012 CGP includes require ments 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 Ag ency developed the Construction and**  **Development NPDES General Permit Environmental Asse ssment 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 pro visions.**  **Comments Related to Testing for Individual Nutrient s**  **EPA notes that the 2012 CGP does not include requir ements for testing of individual nutrients.**  **Comments Related to Turbidity Standard**

**EPA notes that the 2012 CGP does not include a nume ric turbidity standard.**  **Comments Related to Benchmark Monitoring Reports**

**EPA notes that the 2012 CGP does not include benchm ark monitoring requirements.**  **Exceedance of Applicable Water Quality Standard as a Violation**  **EPA received comment suggesting that the water qual ity-based effluent limitations be**  **applicable only to water bodies impaired for turbid ity, 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 201 2 CGP apply to discharges to surface waters that**  **are impaired for sediment or sediment-related param eters, such as total suspended solids (TSS)**  **or turbidity, and/or impaired for nutrients, includ ing impairments for nitrogen and/or phosphorus,** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 76 **the general requirements in Part 3.2 applies more b roadly. 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 i nform the permittee if any additional limits or**  **controls are necessary for the discharge to be cont rolled as necessary to meet water quality**  **standards, including for it to be consistent with t he assumptions of any available wasteload**  **allocation in any applicable TMDL, or if coverage u nder an individual permit is necessary in**  **accordance with Part 1.4.5. Thus, EPA disagrees tha t any impairments should be explicitly**  **excluded and notes that if a permittee discharges t o an impaired water that is impaired for a**  **parameter other than a sediment-related parameter o r 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 12 2.44(d)(1)(vii)(B), which requires that water**  **quality based effluent limits in permits be “consis tent with the assumptions and requirements of**  **any available wasteload allocation for the discharg e...” and of 40 CFR 122.4(i), which creates**  **conditions for the issuance of permits for new sour ces.**  **What happens if a water becomes listed as impaired during the permit term?**  **EPA received comment asserting that guidance is nee ded 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 th e 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 th eir NOIs. Part 3.2 of the 2012 CGP requires**  **permittees that discharge into to a surface water t hat is impaired at the time of NOI submission**  **for sediment or a sediment-related parameter to com ply 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 impai rment-related requirements. EPA does not**  **expect and the permit does not require operators to regularly review updated lists of impaired**  **waters to determine whether waters that were not pr eviously 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 determ ines, that a discharge permitted under**  **the 2012 CGP is not being controlled as necessary t o meet applicable water quality standards,**  **the permittee must take corrective action as requir ed 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 sed iment-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 th e permit, which allows the Agency to require**  **corrective action and/or additional stormwater cont rols 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 def inition of “impaired waters.” In response to**  **this comment, EPA included this language in the def inition because, although most TMDLs are**  **adopted by states, territories, or authorized tribe s 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). Regard ing the inclusion of TMDLs in the provision**  **of the permit, EPA notes that 40 CFR 122.44(d)(1)(v ii)(B) provides that where a State or EPA has** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 77 **established a TMDL, NPDES permits must contain effl uent limits and conditions consistent with the**  **assumptions and requirements of the WLAs in the TMD L.**  **Determining Whether Waters are Impaired / Definition for Sensitive Waters**  **EPA received comment on the proposed provision expl aining that “if you indicate that you do**  **not discharge to an impaired water, EPA may determi ne, based on additional information, that**  **you are considered to be discharging into an impair ed water.” Some commenters sought clarity**  **on the language “additional information.” Other comm enters questioned the Agency’s**  **authority supporting this clause. EPA notes that th e 2012 CGP does not include this language.**  **However, the Agency reserves the right to review fo r accuracy any information provided in NOIs**  **including the list of impaired waters to which a si te discharges.** 

**One commenter asserted that the determination of whe ther a site discharges to an impaired**  **water should be based on whether hydraulic connecti vity exists between the permitted**  **discharge and a downstream water segment that is im paired, 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 immed iate receiving waters, particularly in the**  **case when a discharger could potentially cause or c ontribute to the impairment of water bodies**  **that flow into further downstream waters. In respo nse to these comments, EPA notes that 2012**  **CGP requires operators of all sites covered under t he permit, as a first step, to determine whether**  **they discharge to impaired waters and, if so, to id entify 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 contro ls to protect downstream waters, even 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 Ag ency requires the consideration of water**  **quality standards (WQS) of downstream waters when e stablishing WQS and NPDES permit limits.**  **In addition, under 122.44(d)(1)(i), NPDES permits m ust 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 ab ove any State WQS including state narrative**  **criteria for water quality. Effluent limitations mu st 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 nec essary downstream protection of WQS can**  **be made case-by-case by considering the ranges of g eographical 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-app**  **roved or established Total Maximum Daily Load (TMDL)” to a water that “has an EPA-approved o**  **r established total maximum daily load (TMDL).” The commenter described situations in whic**  **h a water body may not have a TMDL itself but it is nonetheless referenced in the documentati**  **on 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 eve**  **n 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 w**  **aters. If a State has determined that the water quality 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 furth**  **er information, the Agency believes that that water should also be subject to the additional requ**  **irements, in addition to the fact that 40 CFR 122.44(d)(1)(vii)(B) requires that that discharge b**  **e consistent with the assumptions and requirements of the relevant wasteload allocation i**  **n the TMDL. EPA received a suggestion that the Agency expand th**  **e requirement to include sites located within the watershed of major impaired waterways su**  **bject to TMDLs for sediment and nutrients. EPA notes that sites subject to TMDLs are included**  **in the requirements.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 78 **EPA also received comment asserting that the Agency is exceeding its authority by requiring**  **operators to determine whether a waterbody is impai red for the purposes of local, state, and**  **federal law. However, the commenter does support pr ovisions 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 ap plicant to designate waters as impaired.**  **Rather, the permit requires applicants to determine (i.e., identify or look up) whether waters**  **have already been designated as impaired by the sta te, tribe or EPA. For the comment on**  **deferring to the state, EPA agrees that impaired wa ters are those that are identified as impaired**  **on the CWA Section 303(d) list and thus has been id entified by a State, Tribe, or EPA pursuant to**  **Section 303(d) of the Clean water Act as not meetin g an applicable water quality standard. EPA**  **also defines as “impaired” waters that have an EPA- approved or established total maximum**  **daily load (TMDL). See response above on EPA-approv ed 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 definition**  **indicating that a discharge occurs “if the first na med water of the U.S. to which you discharge is**  **identified” The commenter points out that some impa ired 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 CG P does not specify “named.”**  **EPA received comment asserting that the Federal Reg ister 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 requ**  **iring that permittees identify the impairment status of their receiving waters along l**  **inear projects that may discharge in multiple watersheds is burdensome and has the potential for**  **error due to various interpretations of impairments and stressors. In response to this comm**  **ent, EPA notes that the Agency is developing a mapping tool that will assist potential permittee**  **s to identify in their NOIs the surface water(s) to which they will discharge, whether any waters are i**  **mpaired, and whether any TMDLs exist for the receiving waters. The mapping tool functions for sm**  **all construction projects occurring on a single lot as well as for linear projects spanning multipl**  **e watersheds. See discussion on the mapping tool in this section (Response 4.1).**  **Use of Mapping Tools for Determining Whether Site D ischarges 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 t he existing eNOI e-mapping tool prior to any**  **further use by the public. EPA also received commen t 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 embed ded 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 a re impaired. 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 inf ormation, EPA assumes that the tool**  **correctly determines if a site discharges to an imp aired water. However, due to limitations with**  **the data, EPA recognizes that there could be circum stances where the mapping tool does not**  **generate the correct results. If a permittee does n ot agree with the tool’s analysis, or is unsure if**  **it is correct, EPA recommends that permittees verify t**  **he tool’s results by comparing the up-to-date and comprehensive list of impaired waters and EPA-a**  **pproved or established TMDLs associated with their state, tribe, territory, etc to the surf**  **ace waters that the permittee believes they discharge to. Much of this information is accessib**  **le through the websites of individual states,**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 79 **tribes, territories, etc.; alternatively, you can c onduct searches for this information through EPA’s**  **website at located at http://epamap32.epa.gov/radim s/ or**  **http://www.epa.gov/myenvironment/new/. If a permitt ee is able to verify through other means**  **that the tool is not correct for your site, EPA all ows applicants to edit the results generated. Or, if**  **permittees prefer to determine which waterbodies th eir sites discharge to using alternate**  **methods, EPA also notes that applicants are not req uired 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 accurat e determinations on discharges to impaired**  **waters. EPA agrees that the permittee is responsibl e for submitting accurate information. EPA**  **believes, despite the limitations, that it is appro priate to provide discharge mapping assistance**  **to permittees. As discussed above, in the absence o f other information, because the CGP**  **Mapping Tool is utilizing the best available electr onic information, it is EPA’s assumption that the**  **results generated by the CGP Mapping Tool are corre ct. However, EPA recognizes that there**  **may be cases where the results generated by the too l are inaccurate. Therefore, if an applicant**  **is unsure that the information is correct or disagr ees 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 m apping tool, or alternative if the permittee so**  **chooses, on their NOIs will eliminate any legal defe nsibility questions.**  **EPA received comment requesting clarification on th e ability of the mapping tool to determine**  **whether discharges enter CSOs or MS4s. EPA notes tha t the mapping tool does not have this**  **ability. Permit applicants are not required to iden tify 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 waterbodies, they must note whether the w ater 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 inf ormation, EPA assumes that the tool**  **correctly determines if a site discharges to an imp aired water. However, EPA welcomes**  **comment on the mapping tool once the tool becomes a vailable for public use and intends to**  **make any necessary corrections or updates to the to ol as needed and as resources allow. EPA**  **has created an email address for interested parties 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 prop osed requirements for certain dischargers**  **to conduct water quality benchmark monitoring or to conduct sampling. EPA also received**  **multiple comments in support of the proposed benchm ark monitoring requirements. EPA notes**  **that the 2012 CGP does not include these requiremen ts. While EPA believes that monitoring can**  **be helpful in assisting permittees and EPA in deter mining whether discharges are controlled**  **sufficiently to meet applicable water quality stand ards, and therefore do not cause or**  **contribute to an impairment, and identify situatio ns 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 t his permit will result in stormwater discharges**  **being controlled as necessary to meet applicable wa ter quality standards. This is because the**  **permit includes several enhanced protections, inclu ding provisions to protect impaired and**  **sensitive waters and several new requirements for ( 1) Eligibility for emergency-related** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 80 **construction, (2) use of treatment chemicals, (3) X ncreased 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) X Water quality-based effluent limits, (9) XSite**  **inspections, (10) XCorrective action, (11) XStormwa ter Pollution Prevention Plans, and (11)**  **XPermit termination. Nevertheless, EPA notes that i f at any time a permittee becomes aware, or**  **EPA determines, that a discharge is not being contr olled as necessary to meet applicable water**  **quality standards, the permittee must take correcti ve 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 Impaire d Waters**  **EPA received comment asserting that the proposed pr ovision requiring daily examinations is**  **overly burdensome and does not provide valuable inf ormation, especially during no stormwater**  **flow conditions. The commenter believes that a more appropriate requirement would be to**  **examine critical stormwater controls specifically a ssociated with an impaired pollutant within 24**  **hours after significant rainfall events during safe conditions. EPA also received comment**  **asserting that all inspection requirements should b e explicitly limited to include only those areas**  **upon which earth-disturbing activities are taking p lace within the site.**  **EPA notes that the 2012 CGP does not require daily visual inspections. See Part 4 of the 2012**  **CGP for a description of the inspection requirement s and section IX of the 2012 CGP Fact Sheet**  **for a discussion on the purpose of the requirements**

**. Additional Requirements for Discharges to Impaired W**  **aters / Water Quality-Based Effluent Limits One commenter asserted that it is not appropriate fo**  **r EPA to include water quality-based effluent limit requirements in the 2012 CGP that do**  **not yet have an EPA-approved or established TMDL and that establishing such requirements may be**  **beyond EPA’s authority under the CWA. The commenter is asserting that EPA is inappropriat**  **ely using the CGP to mandate additional requirements that may or may not be needed and may**  **or may not help the waterbodies meet their pollutant reduction goals. Another commenter**  **asserted that both the language and legislative history of the CWA make it clear that N**  **PDES 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. The commenter g**  **oes 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 quality standard. The commenter asserts that EPA ha**  **s not made the required determinations nor provided any justification or scientific rationale**  **for these additional conditions, particularly for t he**  **benchmark levels. For the comment on benchmark moni toring, 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 limi tations must be consistent with the assumptions**  **and requirements made of any wasteload allocation (i.e., TMDL) but also notes that under 40**  **CFR 122.44(d)(1)(i), NPDES permits must contain lim itations 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 S tate 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 stabiliza tion requirements for dischargers to waters**  **impaired for sediment or a sediment-related paramet er, 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 requir ements enhance the permittee’s ability to find**  **and correct problems before a discharge of pollutan ts occurs, and the stabilization requirements** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 81 **restrict the amount of time that areas exposed duri ng construction on sites that discharge to**  **sediment or nutrient-impaired waters are left unsta bilized.**  **One commenter asserts that EPA should rely on its TM DL program to protect impaired**  **waterbodies noting that the program enables the Sta tes 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 requi rements for permittees discharging to**  **impaired waters for the reasons discussed in the pr evious paragraph. For the comment on**  **States, EPA agrees that States may establish additi onal requirements. See Part 3.2.2.3.**  **EPA received comment suggesting that the permit’s w ater 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 dischar ge and therefore the discharge would**  **have no possible impacts on that receiving water. E PA disagrees with the suggestion to limit**  **water quality-based effluent limitations to sites d ischarging to impaired waters within one mile of**  **a site. If a site is discharging into an impaired w ater, the distance between the site and the**  **water is irrelevant because the discharge, by defin ition, is introducing pollutants into a surface**  **water. If a discharge of pollutants to waters of t he 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 esta blishing a linkage between discharges**  **that enter a storm sewer system to the waters to wh ich 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 whic h you discharge is the waterbody that receives**  **the stormwater discharge from the storm sewer syste m." The commenter asserts that this**  **provision redefines the point of discharge, that EP A is expanding its control via this provision, and**  **that it is impossible for EPA to determine the sepa rate or distinct impact of any one discharge**  **into storm water sewer systems. EPA disagrees that it is redefining the point of di**  **scharge 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 conv**  **eyance carrying such discharge between the site and the surface water. Also, the regulator**  **y requirement subjecting industrial stormwater discharges (including construction site discharges**  **from construction activity of five acres or more) to NPDES permits applies, regardless of wheth**  **er these discharges are to a municipal separate storm sewer system (MS4). See 40 CFR 122.2**  **6(a)(4); 55 Fed. Reg. 47990, 48006 (Nov. 16, 1990) ("Today's rule requires [all operators of ind**  **ustrial stormwater] discharges through municipal separate storm sewer systems to apply for an indivi**  **dual permit, apply as part of a group application, or seek coverage under a promulgated g**  **eneral permit for storm water discharges associated with industrial activity."). EPA also no**  **tes that the 2008 CGP provided that it “authorizes stormwater discharges...where those storm**  **water discharges enter surface waters of the United States or a municipal separate storm sew**  **er system (MS4) leading to surface waters of the United States subject to the conditions set for**  **th 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 CG**  **P also established that permittees “are not eligible for coverage under this permit for dischar**  **ges of pollutants of concern to waters for which there is a total maximum daily load (TMDL) establis**  **hed or approved by EPA unless [the permittee] implement[s] measures or controls that a**  **re 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 consis**  **tent with TMDL assumptions . Consistent with**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 82 **the 2008 CGP, the 2012 CGP covers discharges to sto rm sewer systems, including MS4s, that**  **ultimately discharge to surface waters. For the comment on the possibility of determining s**  **eparate or distinct impacts, EPA agrees that quantifying the impact on a receiving water of an i**  **ndividual discharge that first passes through an MS4 may be difficult. The extent to which EPA, s**  **tates, or other authorities will be able to determine the separate or distinct impact of any on**  **e 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 n**  **ot require permittees to determine the separate or distinct impacts. Rather, the permit re**  **quires operators to determine whether they discharge to impaired waters, be it directly or thr**  **ough a storm sewer system. An untreated stormwater discharge passing through a storm sewer**  **system can contribute a pollutant load including sediments and sediment-related parameters**  **, 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 req**  **uiring additional protections for all sites that discharge to sensitive waters (including impaired w**  **aters as well as Tier 2, Tier 2.5, and Tier 3 waters) to minimize the potential that this dischar**  **ge will contribute to an excursion above water quality standards. See section VIII.2 of the 2012 C**  **GP Fact Sheet for a detailed discussion on the requirements and their purposes.**  **For the comment on establishment of a water quality -based effluent limitation for stormwater**  **discharged into sewer systems if those systems even tually 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 in clude numeric turbidity limits or benchmark**  **monitoring requirements. EPA also received comment asserting that discharges**  **into a storm sewer prior to discharge should be regulated in a manner that accounts for t**  **he presence of other pollutant sources that discharge to the system. The commenter also suggest**  **ed that discharges should be regulated in a manner that accounts for whether the system is su**  **bject 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 n**  **o water quality benefit and that EPA’s impervious surface data should be made more accurat**  **e before additional urban TMDL requirements are imposed through the permit. For t**  **he comment on accounting for other pollutant sources, EPA believes the issue is moot g**  **iven that the proposed benchmark monitoring requirements 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 t**  **he 2012 CGP, EPA regions serve as the permitting authority, and discharges covered under**  **this permit must comply with the terms of the permit. To the extent that additional protectio**  **ns 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 be**  **nefit, EPA disagrees and directs the commenter to the economic analyses developed in sup**  **port of the C&D Rule on which the 2012 CGP is based. See**  **http://water.epa.gov/scitech/wastetech/guide/constr uction/index.cfm** 

**. Required use of GI and LID**  **EPA received comments suggesting that the Agency re quire the use of green infrastructure and**  **low-impact development, particularly at sites disch arging to impaired or sensitive waters. As an**  **advocate of green infrastructure and low-impact dev elopment, EPA appreciates these**  **comments and notes that the Agency encourages the u se of green infrastructure and low**  **impact development. However, EPA crafted the non-nu meric 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 e xample, 40 CFR 450.21(a)(5) requires**  **construction operators to design, install, and main tain controls to “minimize sediment discharges** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 83 **from the site.” EPA notes that the permit does all ow for the Agency to require corrective action**  **and/or additional stormwater controls if the stormw ater 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 consult with the Fish a**  **nd Wildlife Service and to reach an understanding of how much, if any, additional sedim**  **ent or nutrient loading is compatible with maintaining habitats critical for the survival of i**  **mperiled species. Commenter points out that in some cases, any additional pollutant loading may no**  **t be compatible with protecting critical habitats and these imperiled species and that in su**  **ch cases developers should meet a higher standard of water quality protection for those proj**  **ects that might impact designated critical habitat. EPA has consulted with the Fish and Wildli**  **fe Service in developing the 2012 CGP. See also discussion on additional controls in this sect**  **ion (Response 4.1).**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 84 Comment Response Essay 5 Inspections

Response 5.1 Inspections **Persons Responsible for Inspecting Site EPA received a comment that EPA should allow the pe**  **rmittee to identify that staff are qualified by a state/municipality and have received inspectio**  **n certifications to ensure qualified persons are on staff. EPA notes that if personnel have rece**  **ived 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 c alendar days and within 24 hours of the end**  **of a storm event of 0.25 inches or greater and with in 24 hours of a discharge generated by**  **snowmelt. Many of the comments suggested that the proposed re**  **quirements were overly 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 requ**  **irement not tied to storm events would be easier to comply with. Another commenter noted t**  **hat requiring all sites to inspect after qualifying storm events will be difficult when a pr**  **oject outsources inspections to a consultant. Many commenters also specifically disagreed with EP**  **A’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 ev ent is excessive. Reducing the**  **inspection storm event trigger to 0.25 inches will significantly increase the frequency of**  **inspections during rain events, increasing the cost s.** 

• **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 e nough damage to stabilization devices to**  **necessitate a corrective action.**

• **Quantifying the storm event in inches doesn’t accou nt for regional variation.**  **Many commenters suggested modifications to EPA’s pr oposed inspection frequency**  **requirements. These suggestions are summarized as f ollows:** 

• **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 inspecti ons once every 7 days, with no**  **additional requirements for storm events.**

• **The inspection frequency should be once every two w eeks or once every 15 calendar**  **days to encourage permittees to complete an inspect ion 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 site, 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 85 • **Increase the post-discharge inspection time period to 48 hours to provide a broader**  **window to complete the inspection.**

• **Modify the inspection requirements to once per week for sites that do not drain to**  **impaired waterways, and twice per week for sites th at do discharge to impaired**  **waterways.**

• **Retain a 0.5 inch storm event inspection trigger fr om 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 bas ed on rainfall patterns within their**  **respective jurisdictions.**

• **Apply the 0.25 inch storm trigger only to sites tha t are particularly vulnerable to erosion.**  **EPA appreciates all of the comments and suggested m odifications on the proposed inspection**  **frequency requirements. EPA notes that, after revie wing 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 c oncerns expressed by commenters about the**  **storm event trigger inspection requirements. With regard to the concerns expressed about reducin**  **g the inspection trigger to storm events 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 inadequa**  **te 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 inc**  **h 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 storm accounts**  **for approximately 24 percent of storms in New Hampshire, 10 percent of storms in Idaho, and 1**  **0 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 functio**  **ning effectively. While EPA recognizes the concern of some commenters that a 0.25 inch storm w**  **ill not** always **produce a discharge, EPA does not believe that site inspections should neces**  **sarily be linked to discharge-generating events. The main purpose of the inspection is to ca**  **tch problems on the site before a discharge of pollutants occurs. Therefore, EPA has retained t**  **he 0.25 inch storm event as the inspection trigger in the final permit. However, as noted abov**  **e, 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 ap preciates the suggestions, but believes that**  **the inspection requirements in the permit are adequ ate to ensure that maintenance and**  **corrective actions occur promptly, and believes tha t further increasing the frequency of**  **inspections would be overly burdensome for permitte es.**  **Many commenters expressed concern with the proposed requirement that sites conduct**  **inspections within 24 hours of a discharge generate d by snowmelt. These concerns are**  **summarized as follows:**

• **Snowmelt events often have no potential for erosion . The inspection requirements for**  **snowmelt will require daily inspections whenever te mperatures exceed 32° F. In some**  **areas, this requirement could require daily inspect ions for months, which would be** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 86 **burdensome. EPA should instead only require inspect ions for snowmelt that has the**  **potential to cause erosion.**

• **It is difficult to conduct inspections during snowm elt conditions in remote utility corridors**  **where active construction activities are not active ly occurring. EPA should remove the**  **requirement to inspect during snowmelt conditions i f a project is stabilized or inactive.** 

• **The permit does not mention snowmelt generating a m ultiple day discharge, which is**  **likely to occur in areas with significant snow accu mulations that take weeks or months to**  **melt off.**

• **It is unclear how one determines that a discharge h as 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 believes this modification addresses the concerns of the commenters expressed**  **above. One commenter requested that EPA describe the signif**  **icance of adopting 0.25 inches as the trigger for storm event inspections and for removin**  **g the option to inspect once every 7 days, as proposed. EPA notes that its intention in using 0.2**  **5 inches as the trigger for storm event inspections and in removing the option to inspect o**  **nce every 7 days was to increase the number of inspections occurring at sites covered un**  **der 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 req**  **uiring all sites to inspect after a storm event of 0.25 inches would be burdensome. Therefore, to p**  **rovide needed flexibility, EPA has modified the requirements in the final permit to allow permi**  **ttees site inspection frequency options, as described above.**  **One commenter indicated that the different inspectio n frequency requirements throughout the**  **permit will complicate inspection tracking and reco rds 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 ap ply. In the final permit, only sites discharging**  **to sensitive waters are subject to different inspec tion frequency timelines. See Part 4.1.3.**  **Several commenters requested that EPA clarify the c oncept of a “storm event” and clearly**  **define what a storm event of 0.25 inches is. EPA no tes that “storm event” is defined in Appendix**  **A of the permit as “a precipitation event that resu lts 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 EP A clarify if inspections are required after a**  **0.25 inch storm event, after a discharge event, or after both. EPA clarifies that in the final permit,**  **if the permittee elects to conduct inspections in a ccordance with the inspection schedule in**  **Part 4.1.2.2, inspections are required within 24 ho urs of the**  occurrence **of a storm event of 0.25 inches or greater, regardless of whether or not a d**  **ischarge 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 e**  **vent is still occurring, regardless of whether a discharge has occurred.**  **A commenter requested clarification on how a permit tee 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 inspecti on schedule in Part 4.1.2.2 to either keep a**  **properly maintained rain gauge on the site, or to o btain 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 87 **EPA received comments requesting clarification on w hen 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 the 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 inspections in accordance with P**  **art 4.1.2.2, as long as they conduct their required inspection within 24 hours after the end o**  **f the 0.25 inch storm event, there are no further inspection requirements even if the dischar**  **ge continues. However, EPA encourages permittees to monitor conditions on their site outs**  **ide of their normal inspection schedule to ensure that their BMPs remain in effective operatin**  **g condition, especially while the site is discharging. The commenter also questioned how an i**  **nspector will know if the project had a multiple day storm event without the requirement to**  **conduct a daily inspection. EPA clarifies that if a permittee has elected to conduct inspecti**  **ons in accordance with Part 4.1.2.2, they must keep a record of rainfall occurrences, which will i**  **nform them of whether an inspection is required. See Part 4.1.7.1d.**  **One commenter suggested the storm event inspection r equirements 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 t ypically scheduled on days of expected**  **rainfall, and personnel are not scheduled on weeken ds. 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 m aintained 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 occur s 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 r equirements in the proposed permit**  **that apply “during discharge conditions” are in add ition to the proposed requirement to inspect**  **within 24 hours of a 0.25 inch storm event. One comm enter 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 in spections, if the site is actively discharging, the**  **permittee would be required to comply with the spec ific requirements that apply during**  **discharge conditions, in addition to the other insp ection requirements. EPA notes that within 24**  **hours of a 0.25 inch storm event, the site may not be discharging; therefore, EPA disagrees that**  **these areas would already be observed during a norm al inspection, as suggested by a**  **commenter. In the final permit EPA has clarified th is requirement by specifying the additional**  **inspection requirements that apply only “if a disch arge is occurring during your inspection.” See**  **Part 4.1.6.6. To further clarify, if during an insp ection a discharge is occurring, permittees are**  **responsible for complying with all of the requireme nts 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 fre quencies are not practicable,**  **especially where active construction is complete. E PA notes that it provides flexibility in areas**  **where active construction is complete and where sta bilization has been implemented. For these**  **areas, permittees may reduce the frequency of inspe ction to once per month. See Part 4.1.4.1.**  **For more information, see the comment response essa y “Reductions in Inspection Frequency”**  **below. Increased Inspection Frequency for Sites Discharging**  **to Sensitive Waters**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 88 **EPA received many comments that disagreed with the proposed requirement that sites**  **discharging to sensitive waters conduct more freque nt site inspections.**  **One commenter noted that the different inspection fr equency requirements on a site could**  **cause confusion as to what the requirements apply i n 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 re cognizes 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 c aused 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-impair ed 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 mai**  **ntains that the increased inspection frequency requirements for sites discharging to imp**  **aired waters will enhance a permittee’s ability to find and correct problems before a disch**  **arge 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 concer**  **ned 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 inspectio**  **n requirement on the entirety of the site. EPA also notes that it understands that sites may h**  **ave difficulty determining the waters to which they discharge and their impairment statuses. Accor**  **dingly, EPA notes that it will make available an electronic mapping tool that a permittee can acc**  **ess 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 pro**  **posed requirement that sites discharging to impaired waters conduct daily visual examination**  **s. The following summarizes their comments:**

• **Stormwater controls often do not require maintenanc e or need to be replaced or**  **repaired even on a weekly basis. Many sites alread y perform BMP maintenance daily, so**  **this shouldn’t be a permit requirement. Daily visua l inspections are not necessary**  **everyday because wet weather events do not occur ev ery day. This is particularly true in**  **arid areas. It would be difficult to determine whet her stormwater controls are working as**  **intended if a wet weather event has not occurred.**

• **There are periods where activities on the site do n ot require personnel on a daily basis**  **and weather conditions present little risk of disch arge.** 

• **A daily visual exam does not have any different res ult from weekly inspections. The**  **weekly and/or post-discharge inspections are suffic ient to address any issues that could**  **arise.**

• **The requirement to inspect daily would be a disince ntive for using controls that are suited**  **for extended use and that require decreased mainten ance.** 

• **Daily inspections would overburden personnel, parti cularly for large, irregularly shaped**  **sites with long perimeters and for remote sites whe re little construction is occurring. For**  **some sites, the requirement would require a full-ti me inspection position, which would**  **add undue complexity and would be unreasonable.**

• **Daily visual examinations are also not practicable for long linear projects where it could**  **take a day to complete the inspection. A daily visu al examination would be particularly**  **onerous for linear projects with extreme terrain. C ertain linear projects are not significant**  **sources of pollutant loadings (e.g., linear communi cations projects), and more frequent**  **inspections could cause further disturbance and wou ld be counterproductive. Instead,**  **linear projects should only be subject to biweekly inspection requirements and be**  **allowed to perform representative inspections.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 89 **Commenters had several suggestions for modifying th e 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 per cent.** 

• **Weekly inspections are sufficient.**

• **The daily visual inspection requirement should only apply in the areas where active**  **construction is occurring**

• **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 determin e the specific frequency and**  **location of visual inspections appropriate for thei r location and document this in the**  **SWPPP.**

• **Instead of requiring inspections after a storm even t, it would be more practical to require**  **inspections at regularly scheduled times so that ar rangements can be made to have**  **appropriate personnel on site and repairs can be ma de.**  **EPA also notes that several commenters supported th e daily visual inspection requirements,**  **citing the importance of the requirement near water s with TMDLS. A commenter also noted that**  **daily visual examinations are the only way to ensur e all practices are properly maintained and**  **are functioning, and suggested that they be require d for all sites.**  **EPA appreciates the comments expressed about the pr oposed increased inspection frequency**  **requirement in the draft permit and the suggestions for what the inspection frequency**  **requirements should be. After reviewing the comment s, 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 frequenc y requirements for sites discharging to**  **impaired waters are necessary to ensure that discha rges 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 i nspect 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 requiremen ts, and that the inspection frequency**  **requirements in the final permit are practicable fo r 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 d escribed below.**  **Several commenters requested clarifications on the proposed increased inspection frequency**  **requirements for discharges to sensitive waters. On e 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, permi ttees are not required to keep records of daily**  **visual inspections. EPA clarifies, however, that al l sites are required to keep records of their**  **inspections in accordance with Part 4.1.7.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 90 **One commenter noted that the proposed language that the increased inspection frequency**  **requirements apply to “certain portions of your sit e” was unclear. EPA agrees that this language**  **was not clear, and has clarified the language in th e final permit. The final permit applies the**  **impaired waters inspection frequency requirements t o “[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 antidegradat ion purposes...”**  **A commenter requested EPA clarify who is responsibl e for daily visual inspections and how**  **should be reported. Some commenters suggested that the contractor be responsible for daily**  **visual examinations. EPA again notes that daily vis ual examinations are no longer required in the**  **permit. However, it is worth clarifying that the pe rmit requires that the person(s) inspecting sites**  **be a construction site staff person or a third part y, and that they be “qualified”. EPA clarifies in**  **the permit that a “qualified person” is a person kn owledgeable in the principles and practice of**  **erosion and sediment controls and pollution prevent ion, who possesses the skills to assess**  **conditions at the construction site that could impa ct stormwater quality, and the skills to assess**  **the effectiveness of any stormwater controls select ed to meet the requirements of the permit.**  **With regard to how inspections are reported, EPA ag ain points out the permittees are required**  **to report inspections in accordance with Part 4.1.7**

**. Several commenters noted that it is unclear which i**  **nspection frequency requirements apply for sites eligible for reduced inspection frequency req**  **uirements and increased inspection frequency requirements. A commenter suggested that the allowa**  **nce to reduce inspections supersede the increased inspection frequency requirements. EPA ha**  **s clarified which requirements apply in this 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 requi rements for reductions in inspection**  **frequencies. Commenters requested that EPA clarify whether the r**  **educed inspection frequencies 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 reduc**  **ed inspection frequency replaces the standard inspection frequency requirements in Part 4.1.2 of**  **the permit. Commenters requested that EPA clarify which inspect**  **ion 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 t**  **his 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 inspecti**  **ons 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 port ion of the site has also been stabilized in**  **accordance with Part 2.2.1.2a and Part 2.2.1.2b, th e permittee can conduct inspections at the**  **reduced frequency in Part 4.1.4.1. However, if a di fferent portion of the site also discharges to an**  **impaired water, and that portion of the site has no t been stabilized in accordance with Part** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 91 **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 allo**  **wing reduced inspections for frozen conditions. Upon further reflection, EPA agrees tha**  **t 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 i**  **nspection 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 temporaril**  **y suspended earth-disturbing activities due to frozen conditions to temporarily suspend their i**  **nspections until thawing conditions, and sites that are actively conducting earth-disturbing activ**  **ities during frozen conditions to reduce their inspection frequencies to once per month. EPA belie**  **ves 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 t**  **hat any problems on the site will be identified expeditiously.**  **EPA received several comments specific to the reduc ed inspection frequencies for stabilized**  **areas. Once commenter suggested that a site should b e eligible for reduced inspections if it has**  **met the criteria for having completed the installat ion of stabilization. EPA agrees with this**  **suggestion, and it was EPA’s intention that sites t hat 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 eligibl e for reduced inspections.**  **One commenter indicated that the reduction in inspec tion frequency to once a month would**  **still be burdensome for long-term linear projects t hat have little potential for erosion, and**  **suggested that EPA consider less burdensome inspect ion 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 lo cal inspection requirements, EPA does not**  **believe that these requirements should supersede EP A’s inspection requirements. A project that**  **has to comply with local inspection requirements ca n take advantage of this by conducting**  **one inspection that counts for both. For example, i f 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 for**  **stabilized areas. Additionally, EPA notes that stat e and local inspection requirements vary across**  **the geographic areas covered under this permit, and therefore EPA cannot take into account**  **the fact that some areas already have these inspect ions 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 working effectively. EPA belie ves 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 importan t 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 shoul d consider a less burdensome standard for**  **linear projects, EPA considered providing more flex ible requirements for linear projects, but**  **ultimately decided, as described in comment respons e essay “Inspections on Linear Projects”**  **below, that all sites should inspect the areas desc ribed in Part 4.1.5 of the final permit so that any**  **potential problems occurring on areas of disturbanc e or problems with stormwater controls are**  **identified expeditiously. EPA received a few comments regarding EPA’s propose**  **d 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**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 92 **provision to allow “monthly inspections during the rainy season after construction is completed in**  **arid areas with average annual precipitation of les s 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 construc tion sites, and therefore, it is essential that**  **sites are inspected regularly to ensure that erosio n and sediment controls are properly**  **maintained and in effective operating condition. Th erefore, EPA believes that inspections should**  **occur at least monthly in areas where rain is not e xpected so that operators are made aware of**  **any potential problems before they result in pollut ant discharges. In contrast, one commenter**  **noted that reducing inspections in arid and semi-ar id areas to once per month is insufficient**  **because it does not take into other pollution sourc es that commonly occur on construction sites.**  **Another commenter suggested that EPA require post-s torm 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 requirin g that construction occur during the seasonally**  **dry period in order for a site to qualify for this reduced inspection frequency. In addition, EPA has**  **added a post storm-event inspection requirement. EP A believes that these additions to the**  **provision address the concerns of commenters by ens uring that inspections occur in a timely**  **manner during conditions that are more likely to pr oduce discharge events.**  **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 th**  **at areas cleared for overhead utility construction often do not meet the definition of la**  **nd disturbance, and recommended that EPA exclude these areas from the inspection requirement**  **s by refining the wording of the requirement to state that “all 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 4**  **0 CFR §122.26(b)(14)(x) and (b)(15) should be subject to the inspection requirements, which is co**  **nsistent with the requirement in Part 4.1.5.1 of the final permit that all areas that have been “cle**  **ared, graded, or excavated” are to be inspected. EPA believes that even minimal disturban**  **ces that meet the definition of construction activity should be inspected because these areas st**  **ill have the potential to cause erosion and sedimentation, resulting in pollutant discharges. H**  **owever, EPA believes that the burden caused by the inspection of disturbances from clearing rig**  **ht-of-way easements for overhead utility construction (as described by commenters) will be m**  **inimal, as they will primarily involve making sure any stormwater controls installed are operatin**  **g 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 h**  **ave been stabilized. EPA believes that this flexibility will reduce the frequency of inspection**  **s for many projects, thereby reducing the burden, especially for certain types of linear proj**  **ects where disturbances are quickly stabilized. Inspection Requirements When No Discharge is Occurri**  **ng EPA received several comments on the proposed inspe**  **ction requirements that apply where no discharge is occurring. Two commenters suggested th**  **at EPA remove the word “sufficient” from the requirement to “...check for the presence of sedi**  **ment that is deposited in sufficient quantities...” because the word is subjective and wil**  **l lead to inconsistent enforcement determinations. EPA agrees with this comment, and a**  **ccordingly, 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 thi**  **s comment. EPA believes that checking for signs of erosion and sedimentation at points of dis**  **charge 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 eros**  **ion,” and can rely on their best professional**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 93 **judgment regarding whether there are signs of visib le erosion and sedimentation. Therefore, EPA**  **has retained this requirement in the final permit, but has slightly modified it to state, “At points o**  **f discharge and, if applicable, the banks of any surf**  **ace waters flowing within your property boundaries or immediately adjacent to your 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 requirem**  **ent is subjective because it does not require that the signs of sedimentation be “sufficient.”**  **A commenter suggested that EPA change the requireme nt 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 accoun t for stormwater controls that minimize**  **pollutant discharges rather than “remove” pollutant s. EPA agrees with this comment. Therefore,**  **in the final permit EPA has modified the requiremen t 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 disch arges. Determine if any controls need to be**  **replaced, repaired, or maintained in accordance wit h Parts 2.1.1.4 and 2.3.2.”**  **Inspection Requirements During Discharge Conditions EPA received several comments on the proposed inspe**  **ction requirements that apply during discharge conditions. One commenter suggested that E**  **PA not separate the requirements that apply during discharge conditions from the other in**  **spection requirements. EPA agrees with this, and in the final permit combined all of the require**  **ments for inspections into one part. See Part 4.1.6.**  **Some commenters disagreed that discharge quality sh ould be observed during inspections,**  **especially given that certain sites under the propo sed 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 propos ed permit. EPA notes that the burden**  **associated with observing discharge points during i nspection 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 in ch 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 Analysis for the permit which is locat ed on the public docket. The analysis**  **concluded that the cost of complying with the inspe ction requirements in the 2012 permit will**  **result in an incremental cost increase to some perm ittees. EPA estimates that reducing the storm**  **event trigger from 0.5 inches to 0.25 inches will r esult in an increase of 2.3 additional inspections**  **annually permit permittee, which amounts to an annu al 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 fr om 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 allowed. EPA clarif ies 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 draft CGP, EPA requested comment on whether**  **linear construction projects should be subject to the same frequency of inspections as oth**  **er construction sites. EPA received many comments on this topic, which are discussed as foll**  **ows.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 94 **EPA received a comment that the proposed inspection requirements do not delineate clear**  **lines of responsibility among other permitted and n on-permitted entities in the same right-of-way,**  **which could cause linear utility and pipeline proje cts to incur unreasonable costs to coordinate**  **more management and labor required to document even ts caused by other operators. EPA**  **disagrees with this comment. EPA believes it has ma de it clear what is required by operators in**  **the permit. EPA clarifies that if an operator is re sponsible for any of the 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 non-permitt ed entities, and instead believes that**  **operators should have the flexibility to determine their permit compliance responsibility**  **arrangements. Several commenters indicated that the proposed insp**  **ection requirements are not always practicable for linear projects, and urged EPA to a**  **llow for representative inspection requirements or a waiver where inspections are infe**  **asible, or only require inspections for areas that have likely erosion/sedimentation issues. The**  **specific points raised by commenters are summarized as follows:** 

• **It may be challenging to observe and document the v isual 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 a re 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, stabiliz ation of disturbed areas may need to be**  **postponed until climactic conditions are favorable. Linear projects face challenges with**  **traffic and safety issues, restrictive boundaries a nd 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 inspe ction within 24 hours of a storm event.**  **EPA should allow representative inspections within 24 hours of a storm event.** 

• **It may be infeasible to inspect the entire length o f a linear project at any frequency.** 

• **EPA is incorrect in its assumption that representat ive inspections would impede the**  **proper upkeep of stormwater controls because those controls are independently**  **mandated and enforceable under the CGP.**

• **Inspections along the entire site should only be re quired “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 a**  **ll sites to allow sites the option of choosing either a once a week inspection frequency or a bi-w**  **eekly and within 24 hours of a storm event inspection frequency. EPA believes that this modifi**  **cation will address many of the concerns expressed by commenters about the difficulties in a**  **ccessing all required inspection areas on linear projects, particularly the concerns raised a**  **bout accessing all discharge points. EPA clarifies that the permit does not require the enti**  **re length of the site to be inspected. Areas that have not been disturbed are not required to be insp**  **ected. EPA also clarifies that the requirement to document the visual quality of disch**  **arges only applies if a discharge is occurring during the inspection. If a discharge is not occurr**  **ing during the inspection, the permit does not require discharge points to be inspected. In additi**  **on, the permit allows permittees to reduce the frequency of inspections on areas of the site that**  **have been stabilized to once per month. EPA**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 95 **believes that this provision provides important fle xibility, especially for long, linear projects.**  **Although one commenter, as described above, suggest ed that the reduced inspection**  **frequency requirement to once a month would still b e burdensome, EPA, as described above,**  **disagrees, as it would only require that the permit tee 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 beli ef that all areas described in Part 4.1.5 of the**  **final permit should be inspected on all sites so th at any potential problems occurring on areas of**  **disturbance or problems with stormwater controls ar e identified expeditiously. With respect to**  **the comment that because the proper upkeep of storm water controls is already required under**  **the permit, EPA is incorrect in assuming that repre sentative inspections would impede the proper**  **upkeep of stormwater controls, EPA disagrees. EPA m aintains its belief that without regular**  **inspections of all areas described in Part 4.1.5, i t would be impossible for permittees to detect**  **problems that occur and fix any problems before a d ischarge of pollutants occurs. With respect**  **to the comment about the challenges of inspecting l inear 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 p ermit does not require areas of the site that**  **are considered unsafe to inspection personnel to be inspected.**  **Despite the comments that disagreed with the propos ed 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 sto rmwater 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 i s reasonable to require linear projects to inspect**  **at the same frequency as other sites. 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 w hich other non-permit holders are causing**  **disturbances. EPA notes that inspection reporting i s not required, but clarifies that operators are**  **required to keep records of inspections in accordan ce with Part 4.1.7 of the final permit. With**  **regard to the concern about responsibilities among multiple entities on a site, as noted above,**  **EPA does not believe it would be appropriate for th e permit to specify the responsibilities of**  **other permitted and non-permitted entities, and ins tead believes that operators should have the**  **flexibility to determine their permit compliance re sponsibility 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 are as and keeping records as described in Part**  **4.1.7. A commenter requested that EPA clarify whether insp**  **ection records can be kept electronically, and recommended that EPA allow that permittees to s**  **tore records that are over 6 months old electronically as long as they are accessible withi**  **n 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 t han 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 st ored in paper form.**  **Inspections by EPA One commenter noted that the proposed permit languag**  **e allowing other federal, state, or local agencies to inspect sites would allow any num**  **ber of persons or entities to enter where**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 96 **records are kept. The commenter questioned what con stitutes a representative of a local**  **agency, and whether coordination by a representativ e is required to review private records. The**  **commenter also questioned whether EPA has the autho rity to grant the power of inspections to**  **other agencies. Upon further reflection, EPA has mo dified 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 addr esses the concerns of the commenter.**  **A commenter disagreed with the requirement that ins pections be conducted “at reasonable**  **times”, and suggested that they instead be conducte d “during normal business hours”, “during**  **projects normal working hours”, or “during the hour s of operation specified in the SWPPP.” EPA**  **notes that EPA’s regulations at 40 CFR § 122.41(i) provide that EPA may inspect “at reasonable**  **times.” Therefore, EPA has retained this language in the final permit.**  **A commenter noted that inspectors must have appropr iate safety training and personal**  **protective equipment (PPE) for access to sites (uti lity 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 inspecti ons on construction sites. EPA also notes that**  **EPA will communicate with the operator identified o n the NOI regarding inspection actions.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 97 Comment Response Essay 6 Corrective Action

Response 6.1Corrective Action General **Some commenters had general questions on the correc tive action requirements, when**  **corrective action is required, deadlines, and recor dkeeping requirements. EPA notes that Part 5**  **of the 2012 CGP discusses corrective action require ments and the conditions under which**  **permittees are required to take corrective action. As discussed in the permit, an operator may**  **be required to repair, modify, or replace any storm water control used at the site; clean up and**  **properly dispose of spills, releases, or other depo sits; or remedy a permit violation. Part 5 of the**  **permit also discusses deadlines and recordkeeping r equirements associated with corrective**  **action. EPA received multiple comments on the relationship**  **between corrective action requirements and violations and on the proposed provision explai**  **ning 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 dischar**  **ge, exceedance of an applicable water quality standard) does not remove the original viol**  **ation. Commenters asserted that the proposed corrective action requirements would expos**  **e permittees to unnecessary liabilities and enforcement actions. Commenters also suggested that**  **permittees should be given an opportunity to make corrections or to modify stormw**  **ater controls before a violation is incurred. For the comment on the relationship between correct**  **ive action requirements and violations, EPA discusses in Part I.1 of the 2012 CGP’s Appendi**  **x I that any permit noncompliance constitutes a violation of the Clean Water Act and is grounds f**  **or enforcement action, and in Part 5.1 of the 2012 CGP that corrective actions include actions ta**  **ken to remedy a permit violation. For the comment on corrective action removing the o**  **riginal violation, EPA maintains that correction of an underlying permit violation does n**  **ot 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 enforceme nt actions. Both the corrective action**  **requirements and consequences of noncompliance will greatly help to ensure compliance with**  **the permit and to protect water quality whenever th ere is a violation of an underlying permit**  **condition. EPA discusses the purpose of the correct ive action requirements in section X of the**  **2012 CGP Fact Sheet. For the comment on providing some opportunity to ma**  **ke 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 ne**  **eding correction and to correct them before an unauthorized discharge occurs and before a corre**  **ctive action violation is incurred. However, if permittees delay maintenance or inspection or ot**  **herwise overlook the need for correction until after an underlying permit violation has been incur**  **red, 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 bette r understand in which cases the**  **corrective action requirements described in Part 5 (e.g., reports, signatures, recordkeeping)**  **would be triggered. For example, some commenters as serted that the completion of routine**  **maintenance should not trigger corrective action. E PA generally agrees, and the 2012 CGP**  **provides that routine maintenance activities will n ot always trigger corrective action. The 2012**  **CGP requires operators to maintain stormwater contr ols in effective operating conditions. EPA**  **has defined “effective operating condition” in Appe ndix A, specifying that stormwater controls** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 98 **in effective operating conditions are those that ar e “implemented and maintained in such a**  **manner that [they] are working as designed to minim ize pollutant discharges.” Maintenance**  **activities that do not disrupt the effectiveness of stormwater controls would not trigger corrective**  **action. However, if stormwater controls are no long er working properly or if stormwater controls**  **malfunction or fail, then they would trigger requir ements for corrective action, including the**  **provisions on deadlines, reporting, and recordkeepi ng.** 

**For comments on track-out, EPA notes that the 2012 CGP requires operators to minimize track**  **out and, when track-out does occur, provides operat ors with the opportunity to remove the**  **track-out without incurring a violation if they rem ove the track-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 correctiv e action should be limited to those cases**  **in which “unauthorized discharge” to U.S. waters ha s occurred. EPA notes that the 2012 CGP**  **authorizes the discharge of pollutants in accordanc e with effluent limitations and conditions set**  **forth in the 2012 CGP. The corrective action requir ements 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 th e permit, the only discharges that are**  **authorized are those that occur while permittees me et 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 bein**  **g met, EPA believes that it is important for permittees to correct the situation pursuant to dea**  **dlines discussed in Part 5.2.1 to ensure that waters are protected rather than limiting correctiv**  **e 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 eve**  **nt and discharge occurs). Such a conservative approach is more protective of water q**  **uality protection and is in line with the goals of the CWA § 101(a).**  Response 6.2 Reason for Reorganizing **EPA received comment on the organization of the 201 2 CGP that the discussion of effluent**  **limitation requirements, inspection requirements, a nd corrective action requirements in separate**  **sections of the permit creates redundant requiremen ts, additional burden, and confusion. EPA**  **disagrees with these comments and notes that the Ag ency believes that the reorganization**  **presents requirements in a more readable manner to enhance the permittees’ understanding of**  **and compliance with the permit’s requirements. Howe ver, 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 appearance of the permit in se ction III of the 2012 CGP Fact Sheet.**  Response 6.3 Water Quality Standards **EPA received comments challenging the immediate enf orcement of exceedances of water**  **quality standards without giving operators the oppo rtunity to correct the issues. EPA also**  **received comment challenging the designation of the se exceedances as violations and not**  **removing them, even after they have been corrected. Some commenters asserted that EPA**  **should not characterize exceedances of water qualit y 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 Gen eral.” See also Response 4.1.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 99 **EPA also notes that the terms of the referenced set tlement agreement committed EPA to public**  **noticing and taking comment on certain provisions a nd EPA fulfilled those terms: those provisions**  **were included verbatim in the proposed fact sheet o f the MSGP, along with a full explanation of**  **the terms of the agreement. The agreement did not c ommit EPA to including those provisions in**  **the final MSGP. EPA fulfilled its obligations unde r the settlement agreement and the petitioner**  **withdrew the litigation. The final permit attempts to balance two potentiall**  **y 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 q**  **uality standards, and, at the same time, (2) to recognize that EPA, not the permittee (or a thir**  **d 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 discharge must be controlled as necessary to meet applicable water qu**  **ality standards. At the same time, the permit clearly states that EPA expects that complia**  **nce with the technology-based limits and other conditions in the permit will control dischar**  **ges as necessary to meet water quality standards since these requirements because the perm**  **it includes several enhanced protections, including provisions to protect impaired and sensit**  **ive waters and several new requirements for (1) Eligibility for emergency-related construction,**  **(2) XIneligibility for coverage for sites using certain treatment chemicals, (3) XIncreased usage o**  **f the electronic notice of intent process, (4) XSediment and erosion controls, (5) XNatural buffer**  **s or alternative controls, (6) XSoil stabilization, (7), XPollution prevention, (8) XWater quality-base**  **d effluent limits, (9) XSite inspections, (10) XCorrective action, (11) XStormwater Pollution Prev**  **ention Plans, and (11) XPermit termination. Nevertheless, EPA notes that if at any time a permi**  **ttee 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 requir**  **ed 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 beco mes 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 rev iewing and potentially modifying existing**  **control measures. This requirement is necessary un der the Clean Water Act (CWA) to ensure**  **that the permit’s limitations are at least as strin gent 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 permi t will control discharges as necessary to**  **meet applicable water quality standards. Where thi s expectation does not hold true for a**  **particular site, and either the permittee becomes a ware 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 impose addit ional water quality-based limitations or**  **require the permittee to obtain coverage under an i ndividual 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 Materials Should Not be Li mited to Cleanup On-Site **One commenter suggested that cleanup of materials sh ould not be limited to cleanup on-site.**  **EPA agrees and notes that the 2012 CGP does not spe cify on-site or off-site for the requirement**  **to clean up and properly dispose of spills, release s, 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 clean up materials and sections VII.1.2 and VII.3.3 of**  **the 2012 CGP Fact Sheet for discussion on the purpo se of these requirements.**  Response 6.5 Corrective Action if Discharge Appears Excessively Muddy or CloudyUnformatted 2012 CGP Comment Response Essays February 16, 2012



### 100 **EPA received comment asserting that the proposed re quirement to perform corrective action if**  **stormwater discharges appear excessively muddy or c loudy was unclear, subjective, and may**  **not have any negative impact depending on the recei ving stream. Another commenter**  **asserted that the appearance of stormwater discharg e is subjective. EPA notes that the final**  **2012 CGP does not specify that corrective action is required if stormwater discharges appear**  **excessively muddy or cloudy. However, the permit do es require inspectors to observe and**  **document the visual quality of any discharge presen t during inspection and to take note of the**  **characteristics of the stormwater discharge includi ng color, odor, floating, settled, or suspended**  **solids, foam, oil sheen, and other obvious indicato rs of stormwater pollutants. See Part 4.1.6.6.b**  **of the 2012 CGP for a description of the requiremen t and section IX.1.6 of the 2012 CGP Fact**  **Sheet for a discussion on the purpose of the requir ement. Also, the 2012 CGP requires stormwater**  **controls to be maintained in effective operating co nditions (2.1.1.4..a) and to repair stormwater**  **controls. Part 2.1.1.4.b explains that if a permitt ee finds that controls need to be replaced,**  **repaired, or maintained, the permittee must make th e 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 i f the problem can be corrected through routine**  **maintenance and 2) when installation of a new pollu tion 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 da ys from the time of discovery 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 operational as soon as practicable after the 7-day**  **timeframe. While the 2012 CGP does not explicitly d escribe excessively muddy or cloudy water**  **as a violation, EPA notes that it may be an indicat ion that a violation has occurred to the extent**  **that a stormwater 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 t urbidity 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 numer ic 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 requ irements into their permits. EPA published a**  **Federal Register notice on January 3, 2012 requesti ng 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 topic s relevant to establishing numeric effluent**  **limitations for stormwater discharges from these si tes, including sample collection, applicability to**  **linear electric transmission line construction, col d 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.**  **Commenters had concern with the requirement for qui ck fixes to be completed by the end of**  **the next full work day and that they would not alwa ys be able to comply with this requirement.**  **One commenter asked whether EPA has an objective def inition of “easy fix.” Another asserted**  **that “easily fixed” is subjective. Another commente r asserted that permittees should not be**  **required to make repairs that are “easily fixed”, a sserting that if they are easy to fix then they are**  **probably not significant. EPA disagrees with the as sertion that permitees should not be required**  **to make repairs that are “easily fixed”. Any proble m with the stormwater controls may contribute**  **to potentially avoidable discharges to receiving wa ters and smaller problems can lead to bigger**  **problems if left unchecked and thus should be repai red. The requirements to correct problems** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 101 **according to the timelines established in the permi t help to ensure that stormwater controls are**  **kept in effective operating conditions and to minim ize 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 initiat e work to fix problems immediately after**  **discovering them and to complete such work by the c lose of the next full work day, if the**  **problem does not require significant repair or repl acement or if the problem can be corrected**  **through routine maintenance. See Parts 2.1.1.4 and 2.3.2 of the 2012 CGP. For comments on the**  **subjectivity of “easy”, EPA notes that the provisio n 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 wi ll 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 unautho rized 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 co ntrols have fallen down or been driven over,**  **repairs to the control must be made by the end of t hat day. That same would be true if the**  **permittee finds that a sediment control (e.g., sewe r inlet control device, compost filter sock,**  **check dam, silt fence, etc.) requires routine maint enance to remove accumulated sediment so**  **that the control will operate effectively during th e 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 corrective action where installation of a new erosion or sediment control o**  **r 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 Effluen t Toxicity (WET) test be completed showing**  **safe discharge levels. EPA acknowledges the comment s but disagrees as it believes that the**  **multi-barrier approach outlined in Part 2.1.3.3 of the 2012 CGP is protective of receiving waters**  **and better balances environmental protection with m inimizing permittee burden. Under the**  **provisions of the permit, operators must use conven tional 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 di rected 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 like ly to be exposed during construction and based**  **on expected turbidity, pH, and flow rate of stormwa ter flowing into the chemical treatment**  **system. They must comply with state or local requir ements, which could include residual testing.**  **They must use chemicals in accordance with good eng ineering practices and specifications of**  **the chemical provider/supplier. All persons who han dle 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 requi rements. The operator must document in the**  **SWPPP the dosage they will use or how they will det ermine 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 ar e 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 102 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 s tormwater 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 discussion on the pur pose of these requirements.**  **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 dis charges 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 chemicals can be sa fely 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 understa nding of site-specific conditions to ensure**  **proper and safe use of the chemicals. Thus, operato rs planning to use cationic chemicals to**  **treat their stormwater prior to discharge must acqu ire authorization from their EPA regional office**  **prior to submitting their NOIs. Such operators may b e subject to additional permit requirements.**  **See Part 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) indicate s that “NPDES permitting authorities may**  **establish controls on dosage and usage, protocols f or residual toxicity testing, require prior**  **approval before the use of particular polymers, tra ining 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 chem icals consistent with the C&D Rule and**  **the preamble to the Rule.**

**For comments related to corrective action after res idual 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 Ac tion **EPA received multiple comments on the proposed requ irement to install a new or to modify an**  **existing stormwater control and to make it operatio nal by no later than 7 days from the time of**  **discovery (1) that the installation of a new stormw ater control is needed or (2) that an existing**  **pollution prevention measure requires significant r edesign and reconstruction or replacement.**  **Some commenters noted that certain repairs can be m ade quickly and would not require 7**  **days. One commenter suggested that the 7-day deadlin e 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 ther e would be cases in which a 7-day**  **deadline would not be feasible. Such commenters cit ed the need for assessing stormwater**  **controls, designing changes, ordering supplies, acq uiring financial approvals, or, in the cases of**  **catastrophic failure, cleaning and allowing inspect ions by insurance adjustors, lawyers, and**  **government entities. Others asserted that weather or seasonal challenges could delay**  **completion of corrective action. Some commenters su ggested that deadlines for completing**  **corrective action be removed completely or that the deadline should be linked to the next**  **predicted storm event.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 103 **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 thro ugh 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 o r prevent the discharge of pollutants until a**  **permanent solution is installed and made operationa l. EPA disagrees that operators should be**  **permitted to wait to take any corrective action unt il the next scheduled weekly inspection or**  **predicted storm event because the delay would not b e 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 these requirements. EPA also agrees that in some cases operators may re**  **quire more than 7 days to complete corrective action but disagrees that there should b**  **e no deadline at all. EPA discusses the purpose of the deadline requirements in section X o**  **f 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 an**  **d to make it operational or to complete a repair, but the permit allows more time if 7 days i**  **s infeasible. In such cases, the permittee must document why it is infeasible to complete the insta**  **llation or repair within the 7-day timeframe and document the schedule for installing the stormw**  **ater control(s) and making it (them) operational as soon as practicable after the 7-day**  **timeframe.** Response 6.11 SWPPP Modification **EPA received comment asserting that a requirement t o recertify the SWPPP after triggering**  **corrective action and after corrective action is ta ken would be overly burdensome. EPA notes**  **that the 2012 CGP does not require operators to rec ertify 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 procedures docume nted in the SWPPP, permittees must**  **modify the SWPPP accordingly within 7 days of compl eting the corrective action work. See Part**  **5 of the 2012 CGP for a description of the requirem ent and section X of the 2012 CGP Fact Sheet**  **for a discussion on the 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 p urpose of the requirement.**  Response 6.12 Corrective Action Records **EPA received comment on the proposed corrective act ion 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 com menter also had suggestions for**  **combining the inspection and corrective action reco rdkeeping requirements. EPA respectively**  **disagrees and discusses the purpose of the correcti ve 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 fo r 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 commenter s 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 f or conditions not hazardous to human** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 104 **health and well being. Another questioned the Agenc y’s need for the information at all and, in**  **particular, by the end of the next full work day. E PA notes that the 2012 CGP does not include**  **the proposed requirements to notify the EPA regiona l 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 stan dards or applicable requirements in Part 3.1**  **of the 2012 CGP. In these cases, the permittee mus t 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 Age**  **ncy has streamlined the permit and reduced burden. For example, the permit does not in**  **clude much of the proposed corrective action notification requirements. The permit does i**  **nclude, however, deadlines for developing corrective action reports and provisions specifying**  **how those reports must be developed and stored. Each corrective action report must be signe**  **d and certified, and operators are required to keep a current signed, paper copy of all correct**  **ive action reports at the site or at an easily accessible location, so that it can be made availab**  **le at the time of an onsite inspection or upon request by EPA. See Part 5 of the 2012 CGP for a de**  **scription of the permit corrective action requirements and section X of the 2012 CGP Fact She**  **et for discussion on the purposes of the requirements.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 105 Comment Response Essay 7 Staff Training

Response 7.1 Staff Training Requirements

**EPA received a few comments on the proposed staff t raining 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 trai ning requirements. The comments are**  **summarized as follows:**

• **The permit is vague and unclear regarding what spec ific 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 traini ng.** 

• **EPA should consider establishing qualification or c ertification requirements for the**  **persons conducting training, or should establish qu alifications for the persons preparing**  **the SWPPP for large sites.**

• **EPA should provide free online training so that ope rators know what level of staff training**  **is expected to achieve compliance with the permit.**

• **Formal training requirements should only apply to p ersonnel 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 pers onnel 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. EPA has pu rposely 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 perm it is finalized, and also has several**  **documents on its website that can assist permittees in complying with the permit. EPA also**  **disagrees that personnel need to be certified becau se it believes that training can be provided**  **without having obtained certification. Additionally , because there are many different erosion**  **and sediment control certification programs in exis tence, EPA does not believe it would be**  **appropriate to require any one specific professiona l certification or qualification program.**  **Commenters suggested that EPA exempt from the train ing 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 pers onnel 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. EP A has noted in the fact sheet that new training**  **may not be necessary for some employees if the perm ittee is able to ensure that the employee,**  **due to prior training, already understands the appl icable topic area. So, if as a result of a**  **certification or prior experience an employee alrea dy has the proper understanding required**  **under the staff training requirements, EPA clarifie s that new training is not necessary. EPA also**  **clarifies that with regard to off-site personnel, a s long as operators ensure that these personnel**  **have existing knowledge of the minimum areas of und erstanding required under Part 6, no**  **additional training is necessary. One commenter requ ested that EPA provide an option for** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 106 **documentation of prior training that would “pre-qua lify 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 the required personnel were trained in**  **accordance with Part 6. This could include document ing that certain personnel have existing**  **qualifications that make additional training unnece ssary.**  **A commenter requested clarification on how to docum ent that the required personnel have**  **been trained. EPA clarifies that documentation coul d simply be confirmation that the required**  **personnel have received training to understand the minimum elements required under Part 6,**  **and have read and understand the relevant permit pr ovisions. If certain personnel have specific**  **certifications, qualifications, or experiences rela ting to their responsibilities, EPA suggests that t**  **he operator include documentation of this in the SWPPP**  **, as well. One commenter suggested that EPA require documentation of names and titles of th**  **e persons providing training. EPA clarifies that while this information is not required, that i**  **t would be appropriate information to include in the SWPPP if the operator chooses.**  **A commenter expressed concern that there will not b e sufficient time for operators to develop**  **training programs to achieve compliance with the ne w 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 the refore, EPA does not believe that it will be**  **necessary for operators to develop new training pro grams. Because many of the new provisions**  **implement the C&D rule non-numeric ELGs and New Sou rce Performance Standards (NSPS)**  **published in December of 2009, and because EPA prop osed the vast majority of the conditions**  **that appear in the final CGP in the draft CGP in Ju ne of 2011, EPA believes that many operators**  **are already familiar with the conditions in the fin al permit. Furthermore, EPA believes that**  **operators will have the opportunity to become famil iar with the new conditions in the process of**  **developing their SWPPP prior to obtaining permit co verage. 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 sugge sted that EPA provide a training program on**  **this requirement. EPA agrees that this should not b e a standard aspect of training, and has**  **removed this requirement from the permit. One commenter expressed that the staff training requ**  **irements in the proposed permit are inadequate because there is no requirement that the**  **y actually construct and maintain the various controls and practices or understand the ra**  **nge of controls and practices and their purposes and uses on a construction site. EPA disag**  **rees 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 permi**  **t. EPA notes that because operators are held to the erosion and sediment control requiremen**  **ts in Part 2, operators must ensure that their personnel adequately install and implement their st**  **ormwater 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 unders**  **tanding adequate to achieve compliance with all of the permit conditions.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 107 Comment Response Essay 8 Stormwater Pollution Preve ntion Plan (SWPPP)

Response 8.1 SWPPP **Preparer of SWPPP Should Meet Minimum Qualification s**  **One commenter suggested that EPA require those prepa ring 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. Rat her, the Agency is specifying the minimum**  **information that a SWPPP must include. The requirem ent creates a minimum standard for SWPPPs**  **while maintaining flexibility for operators. EPA di scusses requirements for SWPPPS in Part 7 of the**  **2012 CGP and the purpose of those requirements in s ection XII of the 2012 CGP Fact Sheet.**  **One commenter suggested that the SWPPP must contain all of the current provisions of the CGP**  **(or any applicable State CGP), including an inspect ion schedule; that the SWPPP should**  **designate all known discharge points; and that the SWPPP should designate responsible**  **personnel and ensure that they understand their req uirements and responsibilities. EPA notes**  **that the 2012 CGP is consistent with these recommen dations. 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 ot her permits, certificates, and/or permissions**  **required to undertake the project cover the intent of a SWPPP. EPA disagrees with the comment.**  **SWPPPs are an integral part of ensuring and documen ting 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 p ermits, certificates, and/or permissions. That**  **is, the preparer would not be required to start fro m the beginning. This will allow the preparer**  **take advantage of work that has already been comple ted and thus reduce burden.** 

**Narrative or Numeric Effluent Limits in SWPPP The proposed permit included language explaining th**  **at “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 lang**  **uage. EPA has clarified the language in the 2012 CGP from the language that was used in the pro**  **posed permit. The language now explains that “the SWPPP does not establish the effluent li**  **mits that apply to your site’s discharges; these limits are established in this permit.” In other w**  **ords, 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 the permit, but the SWPPP does not e**  **stablish the limits. The limits are established in the permit, itself.**  **Person(s) Responsible for Developing the SWPPP EPA received comment on the proposed provisions reg**  **arding person(s) responsible for developing the SWPPP. Some commenters had general q**  **uestions regarding who is responsible for developing the SWPPP. See Part 7.1.1 of the 201**  **2 CGP. Several others had concerns on a proposed requirement for owners to be responsible f**  **or SWPPP development. Some commenters supported the proposed requirement. EPA disagrees w**  **ith the need to specify who prepares the SWPPPs. Rather, the Agency is specifying the minimu**  **m information that a SWPPP must include. The requirement creates a minimum standard for SWPP**  **Ps while maintaining flexibility for operators. See Part 7 of the 2012 CGP and section X**  **II of the 2012 CGP Fact Sheet. Requirement to Develop a SWPPP Prior to Submitting t**  **he NOI**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 108 **EPA explains in Part 7.1.1 of the 2012 CGP that per mittees are required to develop the site’s**  **SWPPP prior 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, th e Agency notes that permittees are not**  **required to submit their SWPPPs. However, they are required to keep a current copy of the**  **SWPPP at the site or at an easily accessible locati on 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 stor m sewer system receiving discharges from**  **the site; or representatives of the U.S. Fish and W ildlife Service (USFWS) or the National Marine**  **Fisheries Service (NMFS). See Part 7 of the 2012 CG P and section XII of the 2012 CGP Fact Sheet.**  **Management of Stormwater Post-Construction EPA received comment suggesting that the 2012 CGP a**  **ddress “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 t**  **o 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 permit**  **tee has discretion to determine the size of the team and the roles of individual member**  **s. Another asserted that “team” connotes multiple members and suggested that the language ma**  **intain the flexibility to allow for an individual SWPPP person for smaller projects. EPA n**  **otes that the 2012 CGP neither specifies the size of the SWPPP team nor does it preclude the per**  **mittee from establishing a one-person “team” and assigning all team responsibilities to t**  **hat person. One commenter indicated that an applicant 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 a**  **re 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 member**  **s 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 w**  **ere trained in accordance with the staff training requirements of the permit.**  **Coverage of Construction Support Activities EPA received comment requesting clarification of wh**  **ether 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 bor**  **row/fill areas may be construction support activities subject to permit requirements. See Part**  **s 1.1 and 1.3.c of the 2012 CGP for a discussion on requirements for stormwater discharges from cons**  **truction 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 construc**  **tion support activity is different than the operator of the main construction site, then that o**  **perator 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 assoc**  **iated with industrial activity” and thus not be subject to permitting. EPA disagrees with the comme**  **nt and notes that the definition of “Storm water discharge associated with industrial activity**  **” includes “material handling sites...; sites used for the storage and maintenance of material handlin**  **g equipment...; shipping and receiving areas...; storage areas...for raw materials, and interm**  **ediate and final products...; and areas where industrial activity has taken place in the pa**  **st and significant materials remain and are exposed to storm water. For the purposes of this pa**  **ragraph, material handling activities include**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 109 **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. Comme**  **nters asserted that this requirement would cause legal confusion. EPA also received comm**  **ent 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 as**  **sociated with the same project, all operators are required to obtain permit coverage. If an oper**  **ator only has operational control over a portion of larger project (e.g., one of four homebu**  **ilders in a subdivision), the operator is responsible for compliance with all applicable effl**  **uent 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. If one operator ha**  **s 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 lon**  **g as they develop a group SWPPP (see Part 7.1.1), which documents which operator has responsi**  **bility 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 r**  **equired 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 Activit ies**  **EPA received comment suggesting that applicants may indicate “estimated dates” to comply**  **with the requirement to include the sequence and da tes 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 c onstruction 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 occurr ing at one time” have been removed. EPA**  **believes that applicants will be able to estimate d ates 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**  **timelines or schedules or by using best professiona l 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 di sagrees that the requirement should 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 provis ion to include locations of stormwater**  **control measures on the SWPPP site map is a good re quirement. 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 also received comment suggesting that the Agenc**  **y remove the requirement “to indicate stormwater flow...after major grading activities” bec**  **ause it will not be accurate, will be confusing, and would be best represented in a separ**  **ate series of maps. The commenter suggests that the requirement be delayed until proj**  **ect is nearing completion. EPA disagrees**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 110 **with the commenter and believes that including an i ndication 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 gener al 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 f low, 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 the y expect the flow to occur as a result of the**  **grading and construction. EPA disagrees that the in formation will be confusing. The party**  **responsible for creating the site map should develo p 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. Th e information provided in the site map,**  **including changes to flow, will help reviewers to u nderstand 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 do**  **cument, EPA notes that operators are required to update the SWPPP if the site will be gr**  **aded differently than initially indicated as this would be a change to the construction plans. See Pa**  **rt 7.4.1 for a list of conditions requiring SWPPP Modifications.**  **EPA received comment requesting that the Agency def ine “immediate vicinity” for the**  **proposed requirement that applicants indicate locat ions 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 s howing these waters will provide permittees with**  **information necessary to comply with the requiremen ts for impaired waters (Parts 3.2.2), and Tier**  **2, 2.5, and 3-protected waters (Part 3.3.2). Iden tifying the location of these waters on the site**  **map will also help permittees comply with the Erosi on and Sediment Control requirements (Part**  **2.1), particularly those related to buffers, and Po llution Prevention Standards (Part 2.3.3).**  **EPA received comment suggesting that the Agency req uire operators to identify inlets to**  **sanitary sewers and on-site stormwater management f eatures which the commenter asserts**  **might be impacted by the project. For the comment r egarding on-site stormwater management**  **features, EPA notes that the 2012 CGP requires oper ators to identify locations of stormwater**  **control measures (Part 7.2.6.8). For the comment on inlets to sanitary sewers, EPA notes that**  **discharges from sanitary sewers are covered under s eparate regulations and are beyond the**  **scope of the 2012 CGP. Thus, the permit does not re quire operators to identify inlets to sanitary**  **sewers in their SWPPP site maps. EPA received comment requesting that the permit inc**  **lude exceptions to linear facilities that do not routinely collect topographic information or al**  **ter 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 p**  **urpose of the requirements in section XII.2.6 of the 2012 CGP Fact Sheet.** 

**Construction Site Pollutants The 2012 CGP requires 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 i**  **n providing the required information. EPA**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 111 **disagrees that the requirement is impractical or th at it will provide inaccurate information and**  **discusses the purpose of this requirement in sectio n XII.2.7 of the 2012 CGP Fact Sheet.**  **Description of Stormwater Control Measures EPA received comment on the proposed requirements t**  **o provide a description of stormwater control measures. One commenter suggested that EPA r**  **equire permittees to include “any manufacturer’s or owner’s specifications” in the de**  **scriptions of stormwater control measures. Another commenter suggested that EPA incorporate fl**  **exibility into the requirement and require permittees to include “specifications for installat**  **ion and maintenance based on the industry standard and good engineering practice including ma**  **nufacturer’s specifications where appropriate.” The requirements of the 2012 CGP are**  **consistent with both comments. Part 2.1.1.3.b of the 2012 CGP requires permittees to in**  **stall all stormwater controls in accordance with good engineering practices, including applicable de**  **sign specifications, and Part 7.2.10.1 requires permittees to include in their SWPPPs info**  **rmation on the type of stormwater control measure to be installed and maintained, including d**  **esign information. The provisions require good engineering practices in all cases but allow p**  **ermittees the flexibility to follow manufacturer’s design specifications where “applica**  **ble.” EPA also received comment on the requirements to de**  **scribe the use of chemical treatment. The commenter suggested that EPA include requirements f**  **or documenting any chemical additives used, including the dosages used, applicable Materi**  **al Data Safety Sheets (MSDS), manufacturer’s application instructions and subsequ**  **ent 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 appli**  **cable; and to describe manufacturer’s application instructions. The commenter also refers**  **to monitoring results. EPA notes that the 2012 CGP does not require monitoring and thus does not r**  **equire 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 di sagrees that the reference to staff training in**  **the SWPPP section of the 2012 CGP is redundant. Par t 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, whil e Part 6 discusses the actual training**  **requirements. EPA discusses the purpose of the requ irement to document training in Section**  **XII.2.13 of the 2012 CGP Fact Sheet. The commenter also recommended that all EPA inspect**  **ors be required to successfully complete training programs with instruction in construction**  **applications. EPA acknowledges the suggestion but notes that comments related to training require**  **ments of EPA inspectors are beyond the scope of the 2012 CGP.**  **On-Site Availability of Your SWPPP EPA received comment suggesting that the Agency als**  **o require that a representative of applicable and appropriate land management agencies**  **also have access to the SWPPP and relative monitoring records. Representatives of “ap**  **propriate land management agencies” should 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 c**  **opy of the SWPPP at the site or at an easily accessible location so that it can be made availabl**  **e at the time of an on-site inspection or upon request by EPA; a state, tribal, or local agen**  **cy approving stormwater management plans; the operator of a storm sewer system receiving disc**  **harges from the site; or representatives of the U.S. Fish and Wildlife Service (USFWS) or the Natio**  **nal Marine Fisheries Service (NMFS). EPA may also provide access to portions of the SWPPP to a m**  **ember of the public upon request.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 112 **For the comment on relative monitoring records, EPA notes that the 2012 CGP does not include**  **monitoring requirements so the 2012 CGP does not in clude requirements related to monitoring**  **records. EPA received comment seeking clarification on the r**  **elationship between the proposed requirement to post notice of permit coverage to th**  **e proposed requirement to post notice of the plan’s location. EPA notes that the permittee d**  **oes 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 SW PPP must take and that electronic copies**  **are acceptable. 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 SWPPP s be available at any time to the Agency.**  **See Part 7.3. The requirement to make the SWPPP ava ilable at any time to the EPA is sufficient to**  **provide the Agency with the ability to review the S WPPP when necessary or appropriate while**  **also providing operators with the flexibility to de velop 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 SW**  **PPPs. 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. Also, EP**  **A 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 Info**  **rmation (CBI) will be withheld from the public. See Part 7.3 of the 2012 CGP for a description of t**  **he 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. Co**  **nsistent with the approach taken under the 2008 CGP, EPA intends to assist members of the publ**  **ic 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 unqualified staff. EPA notes that any changes to th**  **e SWPPP must be authorized by a person identified in Appendix I, Part I.11.b. The provisio**  **n to require changes to be authorized will ensure that any changes are approved by the appropriate an**  **d qualified staff. 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 requi**  **rement to specify that permittees must “maintain records” on SWPPP modifications rather th**  **an “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 d**  **escription of the requirement and section XII.4.5 of the 2012 CGP Fact Sheet for a discussion on the**  **purpose of this requirement.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 113 Comment Response Essay 9 Appendices

Response 9.1 Definitions and Acronyms **EPA received multiple comments on the proposed defi nitions and acronyms included with the**  **proposed CGP. One commenter supporting the Agency’s proposal to pr**  **ovide a definition for the term “minimize,” noting that it was “important to provid**  **e this clarification.” EPA agrees. See Appendix A.** 

**Another commenter noted that the word “areas” was m issing from part of the proposed**  **definition of the term “action area.” EPA has made the correction.**  **One commenter asked whether the term “impervious sur face” includes porous pavement or**  **vegetated rooftops if such surfaces are designed to have high capacity for soil infiltration. EPA**  **notes that the definition of impervious surfaces in cludes surfaces with “low or no capacity for soil**  **infiltration.” Thus, to the extent that the surface s identified by the commenter have high**  **capacity for soil infiltration, they would not be c onsidered impervious surfaces for the purposes**  **of the 2012 CGP. Another commenter suggested that EPA expand the def**  **inition 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 “perenni**  **al stream,” EPA notes that the 2012 CGP neither uses nor defines this term.**  **EPA received comment asserting that the proposed pe rmit prohibits the discharge of vehicle**  **and equipment wash water. EPA notes that the 2012 C GP 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 inclusio n of the person “holding the title” of the**  **land or property in the definition of “operator.” C ommenters 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 as sociated 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**  **specifications; or 2) The party has day-to-day oper ational control of those activities at a project**  **that are necessary to ensure compliance with the pe rmit conditions (e.g., they are authorized to**  **direct workers at a site to carry out activities re quired 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 pr oposed requirement to label containers as**  **“Hazardous/Toxic Waste,” asserting that such a labe ling 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 not es 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 accordance with applicable Resource Conservation and Recovery Act (RCRA)**  **requirements and all other applicable federal, stat e, 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 co ntains properties that are dangerous or** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 114 **potentially harmful to human health or the environm ent.” The definition also refers to the**  **regulatory definition of hazardous waste at 40 CFR §261.2. EPA believes that the concise**  **definition makes the permit readable and understand able and will help to ensure compliance**  **with effluent limitations, in particular, the pollu tion 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 ter m “footprint.”**  **Another commenter suggested an alternate definition for the term “stormwater inlet.” EPA**  **agrees and has incorporated the suggested definitio n 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 th e term “BMP,” but rather uses the term**  **“stormwater control.” EPA also received comment suggesting that the Agenc**  **y 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 t he permit (Part 2.2), the term “immediately” is**  **used to define the deadline for initiating stabiliz ation 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 activit ies 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 use**  **d and understood by the regulated community and does not need a separate, Agency defi**  **nition. EPA received comment suggesting that the Agency exp**  **and the proposed definition of “dewatering” to include well point dewatering and d**  **raining of any impoundments such as ponds or lakes. For the comment on well point dewat**  **ering, 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 p**  **onds or lakes" referenced in the comment would currently require an NPDES permit. It is als**  **o 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 R**  **ule, discharges from a water transfer do not require a NPDES permit. The rule states: "Water**  **transfer means an activity that conveys or connects waters of the United States without subjec**  **ting the transferred water to intervening industrial, municipal, or commercial use. This excl**  **usion does not apply to pollutants introduced by the water transfer activity itself to the water**  **being transferred." 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 interveni**  **ng industrial, municipal, or commercial use, the release will not require a NPDES permit. Howeve**  **r, if the conveyance itself introduces pollutants into the water being conveyed, the relea**  **se will require an NPDES permit. For further information, please see the National Pollutant Disc**  **harge 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 i**  **n 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 h as changed under the 2012 CGP. The 2012** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 115 **CGP does not require potential permittees to provid e copies of their NOIs to states, Tribes, or**  **territories. However, EPA notes that permit conditi ons applicable to specific states, Indian**  **Country lands, or territories will be established a s the states, Indian Country lands, and U.S.**  **territories complete their Section 401 certificatio ns for the permit. The White Mountain Apache**  **Tribe may include a requirement to receive a copy o f the NOI as part of the 401 certification**  **process. See Part 9.** Response 9.3 Small Construction Waivers and Instruc tions **EPA received comment requesting clarification on th e 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 wa iver, 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 cons truction waivers to retain a copy of the revised**  **waiver as part of site records.** Response 9.4 ESA Criteria **EPA received comment on the proposed ESA criteria d escribed in Appendix D of the proposed**  **CGP. One commenter asserted that the appendix is unw orkable 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 specie s. The commenter suggested that EPA do a**  **programmatic consultation under Section 7 of the ES A with the USFWS to identify which species**  **may be adversely affected and to what extent in ord er 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 ine fficient and does not result in any**  **measurable conservation benefit. The commenter sugg ested that the Agency instead provide**  **guidance on types of construction activities, how t hey may affect listed species, and how those**  **activities can be curtailed to minimize effects. For the comment on types of stormwater discharges a**  **nd their potential effects on a variety of different endangered species, EPA notes that the Ag**  **ency developed a Biological Evaluation (BE) for the 2012 CGP that describes the anticipate**  **d stressors associated with discharges authorized by the permit, their potential effects o**  **n 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 compl iance with Section 7 of ESA.**  **For the comment on each construction agent responsi ble 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 requirem ents of the 2012 CGP in Appendix D of**  **the permit. As discussed in the guidance, the permi t recommends that potential permittees**  **contact local USFWS, NMFS, and/or State or Tribal H eritage Center offices if there are listed**  **species and/or critical habitats in the county or t ownship 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. Rat her, EPA believes that it may be useful for**  **potential permittees to contact these offices when 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 commenter asserted that EPA did not provide an o**  **pportunity for review and comment on the criteria because the proposed permit included l**  **anguage explaining that the proposed eligibility criteria were draft and subject to chan**  **ge. The commenter recommended that EPA**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 116 **postpone issuance of the final eligibility criteria until after consultation with USFWS and NMFS is**  **complete to allow for public review and comment. EP A disagrees with the commenter, noting**  **that the ESA criteria in the 2012 CGP are essential ly 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 eligib ility criteria.**  **EPA also received comment requesting that EPA remov e the requirements for listing**  **endangered species, asserting that they are irrelev ant to stormwater management. EPA**  **disagrees with the commenter, noting that the issua nce of the 2012 CGP is a Federal action**  **subject to review under ESA. Thus, to be eligible f or coverage 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 federally-designate d as “critical habitat” under the ESA in order to**  **be eligible for coverage under this permit. EPA req uires operators to indicate any listed species**  **or their designated critical habitats in their acti on areas in their NOIs as part of the**  **documentation/basis for the eligibility criterion t hey have selected.**  Response 9.5 Historic Properties **EPA received comment on the proposed historic prope rty requirements. One commenter**  **indicated that he was pleased to see the requiremen ts in place.**  **Another commenter asserted that the proposed requir ements were not consistent with the**  **Advisory Council on Historic Preservation’s regulat ions 36 CFR 800 that implement Section 106 of**  **the National Historic Preservation Act of 1966 as a mended. The commenter asserted that it is**  **EPA’s responsibility to meet the requirements of Se ction 106 of the National Historic Preservation**  **Act and to make critical decisions and determinatio ns 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 assert ed that EPA remains legally responsible for**  **all findings and determinations and that the respon sibilities to make determinations of adverse**  **effect, to participate in consultation, and to ente r into agreement documents cannot be wholly**  **delegated to applicants or their consultants (36 CF R 800.2(a) and 800.3 to 800.6). The**  **commenter also suggested alternative language.**

**EPA thanks the commenter for the comment and the su ggested language. EPA notes that**  **Section 106 of the National Historic Preservation A ct (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 either listed on, or eligible f or 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 pr ocess in Appendix E of the 2012 CGP that**  **enables construction operators to appropriately con sider the potential impacts, if any, of their**  **installation of stormwater controls on historic pro perties and to determine whether actions can**  **be taken, if applicable, to mitigate any such impac ts. See Appendix E. The screening**  **procedures and eligibility criteria involve more de tailed documentation requirements related to**  **the potential effects resulting from the installati on of ground-disturbing stormwater controls, and**  **include opportunities for such historic preservatio n partners to request that EPA place a hold on**  **particular authorizations based on concerns regardi ng potential impacts on historic properties.**  **In such circumstances, EPA involvement would includ e careful evaluation of the requested hold**  **and consideration of whether additional measures to address adverse impacts to historic**  **properties are warranted. These screening procedur es were informed by views EPA received**  **from the Advisory Council on Historic Preservation (“ACHP”). In addition, EPA’s efforts to consider**  **potential impacts on historic properties as they re late to NHPA Section 106 included a**  **conference call joined by the ACHP to obtain the vi ews of State and Tribal Historic Preservation**  **Officers. EPA notes that the coverages of individua l construction sites under this permit do not**  **constitute separate Federal undertakings.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 117 Response 9.6 Appendix Impaired Waters **EPA received comment on the proposed benchmark moni toring requirements. Refer to**  **Response 4.1. EPA received comment asking whether the Agency inte**  **nds to provide tables of impaired waters for Federal Facilities in Colorado. EPA also receiv**  **ed comment suggesting that the Agency remove the Appendix (which lists impaired waters) c**  **ompletely. EPA has removed the Appendix and is 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 wat**  **ers 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 like ly to be useful for permittees, it will also lead**  **to many false positives asserting that in a given catc**  **hment area there are likely to be numerous areas that are waters of the U.S., and that, theref**  **ore, 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 assert**  **ed that it is possible that the discharge would be downstream of the impaired segment. The co**  **mmenter believes that neither of these cases should be considered a discharge to an impair**  **ed water. EPA agrees that the mapping tool will be useful for permittees. EPA disagrees t**  **hat the tool will lead to many false positives. Thi s**  **is because the CGP Mapping Tool utilizes the best a vailable data to determine whether or not a**  **site is considered to discharge to an impaired wate r, and in the absence of any other**  **information, EPA assumes that the tool correctly de termines if a site discharges to an impaired**  **water. However, due to limitations with the data, E PA recognizes that there could be**  **circumstances where the mapping tool does not gener ate 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 p ermittee verify the tool’s results by comparing**  **the up-to-date and comprehensive list of impaired w aters 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.; alter natively, permittees could conduct searches for thi**  **s information through EPA’s website located at http:/**  **/epamap32.epa.gov/radims/ or http://www.epa.gov/myenvironment/new/. If a permitt**  **ee is able to verify through other means that the tool is not correct for its site, EPA all**  **ows applicants to edit the results 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 metric s 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 requi rements of the section and that more**  **administrative transparency is needed and appropria te. EPA notes that Appendix J did not**  **include a Section 4. Without knowing which technica l 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 Respons e 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 per mit.**  Response 9.7 Standard Permit Conditions **EPA received comment suggesting that the Agency inc lude a reopener clause in the CGP so**  **that requirements from the revised national post-co nstruction requirements for discharges from**  **areas of new development and redevelopment can be i ncorporated into the permit. EPA notes** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 118 **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 wil l be conducted according to 40 CFR §122.62,**  **§122.63, §122.64 and §124.5. EPA also received comment on the proposed SWPPP cer**  **tification 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 S**  **WPPP, it is inappropriate to require that contractor to certify that the SWPPP was prepared u**  **nder 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 con**  **tractor of the construction site are permitted, the owner may be the party responsible f**  **or SWPPP development, and the general contractor can choose to use this same SWPPP, as lo**  **ng 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 gener**  **al contractor’s direction or supervision if the owner developed one that addresses the general**  **contractor’s scope of construction work.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 119 Comment Response Essay 10 General Statement of Supp ort

Response 10.1 Support for Proposed CGP **EPA received multiple comments expressing general s upport for the proposed CGP. EPA**  **appreciates the support.** Response 10.2 Examples of Impacts of Stormwater Disc harges from Construction Sites **EPA received comments identifying some of the poten tial impacts on surface waters caused by**  **stormwater discharges from construction sites. Some commenters provided examples. EPA**  **thanks commenters for providing the information. Th e Agency has considered all comments in**  **developing the final 2012 CGP.** Response 10.3 Permit Should Require State-of-the-Ar t Control Measures **EPA received comments suggesting that the Agency sh ould further strengthen the permit “to**  **require state-of-the-art control measures”. While E PA 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 economic ally practicable and achievable in light of**  **best industry practices. EPA notes that the 2012 CG P 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 c hoose site-specific BMPs to most appropriately**  **meet the non-numeric effluent limitations. The perm it requires operators to design, install, and**  **maintain erosion and sediment controls that minimiz e the discharge of pollutants from earth**  **disturbing activities, as described in Part 2 of th e permit. The permit defines “minimize” as “to**  **reduce and/or eliminate to the extent achievable us ing stormwater controls that are**  **technologically available and economically practica ble and achievable in light of best industry**  **practices.” EPA believes that this definition inclu des the use of “state-of-the-art control**  **measures” to the extent that they are technological ly 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 situati ons, have maximum flexibility in complying**  **with permit requirements while allowing them to con sider site-specific factors.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 120 Comment Response Essay 11 General Statement of Oppo sition

Response 11.1 Comments Expressing General Concern w ith the Proposed CGP **EPA received comments expressing general concern wi th the proposed permit. In general, these**  **comments are summary statements that are part of la rger comment letters in which**  **commenters 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 construc tion projects and for linear construction**  **projects in particular,**

• **Assertions that the permit should take a “BMP appro ach”,** 

• **Feasibility of requirements,**

• **Provisions related to numeric effluent limits,**

• **Economic impacts on construction industry and the e conomy,** 

• **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 th**  **at the commenter means that EPA should issue a permit with non-numeric effluent limitation**  **s and exclude numeric turbidity limits, EPA notes that the 2012 CGP includes non-numeric efflue**  **nt limitations but does not include a numeric turbidity limit.**  **For the comment on “feasibility”, see Response 13.1**

**. For the comment on numeric effluent limits, see Res**  **ponse See Response 4.1 and Response 6.6. For the comments on economic impacts, refer to Resp**  **onse 21 on economic impacts.**

**For the comments on environmental benefits, see the Construction and Development NPDES**  **General Permit Environmental Assessment developed i n support of the 2012 CGP and available**  **in the docket for the permit. For the comment clarity and understandability of th**  **e permit, see Response 13.1. For the comment on waiting period, see section II o**  **f the 2012 CGP Fact Sheet. For the comment on buffer requirements, see Respons**  **e 2.3. EPA also refers the reader generally to the 2012 CG**  **P Fact Sheet in which the Agency explains permit provisions in detail and discusses the purpo**  **se of each provision.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 121 Comment Response Essay 12 Request to Extend Permit Period

Response 12.1 Request to Extend Permit Period **EPA received several comments on the proposed timel ine for issuance of the 2012 CGP. Some**  **commenters suggested that the EPA delay issuing the permit. Others asserted that the Agency**  **needed additional time to clarify or to develop num eric turbidity limits. And others suggested**  **that the Agency wait until EPA finalizes the C&D Ru le, presumably the numeric limit portion of it**  **since the non-numeric portions are already finalize d. 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 ti me to streamline the permit, to incorporate**  **final C&D rule effluent limitations (presumably num eric since the non-numeric limitations are**  **already final), and to allow courts time to fully a djudicate all issues. Still others suggested that t**  **he Agency wait to issue the permit long enough to acco**  **mmodate 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 th**  **e permit because of delays related to the turbidity limit, EPA notes that the C&D rule did in**  **clude a numeric limit for turbidity, but the Agency has issued a stay of the numeric limit for t**  **urbidity (and related monitoring requirements) so that the limit can be recalculated. Until a new**  **numeric turbidity limit has been promulgated, the EPA and authorized states are not required to i**  **ncorporate the stayed numeric turbidity limitation (or any other numeric turbidity limitati**  **on) 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 mu**  **st be incorporated into newly issued permits.**

**EPA notes that the 2008 CGP and the authorization t o discharge under the 2008 CGP expired at**  **midnight, February 15, 2012. EPA is issuing a new C GP rather than extending the 2008 CGP to**  **incorporate new requirements that implement the tec hnology-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 qua lity waters requiring additional pollutant**  **control. EPA believes that issuing a new permit tha t incorporates the new C&D rule requirements**  **now, rather than waiting until June 30, 2013, is mo re protective of water quality because the**  **permit includes several enhanced protections, inclu ding provisions to protect impaired and**  **sensitive waters and several new requirements for ( 1) Eligibility for emergency-related**  **construction, (2) provisions for sites using certai n treatment chemicals, (3) increased usage of the**  **electronic notice of intent process, (4) Sediment a nd erosion controls, (5) Natural buffers or**  **alternative controls, (6) Soil stabilization, (7) P ollution prevention, (8) Water quality-based efflue**  **nt limits, (9) Site inspections, (10) Corrective actio**  **n, (11) Stormwater Pollution Prevention Plans, and (11) Permit termination.**  **EPA also received comments suggesting that the Agen cy delay issuance of the CGP to give EPA**  **time to develop a “single lot permit” and provision s 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 expir ed at midnight, February 15, 2012 and EPA**  **did not want to leave operators without this option of seeking permit coverage for construction**  **stormwater discharges. See also responses on “singl e lot permit” and “qualifying local program”**  **in Response 13.1. EPA also received a comment suggesting that the Age**  **ncy provide additional time to states in developing their state-specific construction stormw**  **ater 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.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 122 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 err**  **ors in the proposed permit. EPA has reviewed these comments and made corrections as nec**  **essary to the final permit. EPA appreciates all of the suggestions the Agency recei**  **ved 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 guideline**  **s (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 requirements, known as the “co**  **nstruction and Development Rule” or “C&D rule”, became effective on February 1, 2010. Becaus**  **e 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 permit. For this reason, the 2012 CGP includes sign**  **ificant 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 in corporated by reference into their own**  **comments. EPA notes that the Agency has responded t o these comments where they appear.**  **Permit Clarity and Objectivity EPA also received comment suggesting that the Agenc**  **y improve clarity of the proposed permit and that the Agency ensure that the final permit is**  **implementable. EPA appreciates the comment and has made changes such that EPA believes**  **the final permit is clear and implementable. EPA made the proposed permit availab**  **le 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 fina**  **l 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 perm it 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., d isturbing 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 perm**  **it coverage in states and other areas where EPA is the permitting authority. EPA is the permitt**  **ing 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 stat es**  **(i.e., Colorado, Delaware, Vermont, and Washington) ; most Indian lands; and for a few other**  **specifically designated activities in specific stat es. While some states for which EPA is not the**  **permitting authority may choose to refer to the 201 2 CGP as a model as they develop their own**  **general permits for discharges from construction si tes, EPA notes that they are not required to do**  **so, and the 2012 CGP does not apply to discharges w here EPA is not the permitting authority.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 123 **Instead, these states are required to incorporate t he C&D rule requirements into permits that**  **they issue after February 1, 2010, the effective da te of the C&D rule. See 74 Fed. Reg. 62996, and**  **40 CFR 450.21. Permit Flexibility**  **EPA received general comments asserting that the pr oposed CGP lacked flexibility, was too**  **prescriptive, and was not accommodating of the full range of applicable construction activities,**  **including heavy construction and linear constructio n. EPA disagrees with these comments. EPA**  **has been responsive to many of the concerns express ed about the permit being too**  **prescriptive, and has made many provisions in the f inal permit more flexible, including**  **requirements to avoid steep slopes, to remove sedim ent track-out, to minimize soil compaction,**  **to stabilize construction entrance and exit points, regarding inspection frequency, and to**  **prevent pollution. Where EPA has retained specifici ty in the permit, EPA believes the specificity is**  **necessary so that the permit conditions are clear t o permittees and also are protective of water**  **quality. See also Response 2.1.1 on permit specificity and c**  **omplexity. For general comments related to flexibility with re**  **spect 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 re**  **spect to stabilization requirements, see Part 2.2 of the permit for a description of stabilization re**  **quirements, 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.** 

**Some 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 d eveloping permits. EPA is the permitting authority**  **for the 2012 CGP. Where EPA has included requiremen ts in the 2012 CGP that are more specific**  **than those in the C&D rule, EPA has done so to mini mize 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 per mit.**  **Comment Asserting that Proposed Permit is Arbitrary EPA received comment asserting that the proposed pe**  **rmit is arbitrary. EPA disagrees. As discussed above, the permit implements the requirem**  **ents 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 analy**  **sis developed in support of the permit available in the docket for the 2012 CGP.**  **Permit Length EPA received comment asserting that the permit is v**  **oluminous. EPA reviewed the proposed permit, looking for areas where the Agency could st**  **reamline requirements and reduce permit length while maintaining permit protections. EPA no**  **tes that the Agency was able to significantly shorten the final permit.**  **Mapping Tool EPA received comment asking when the mapping tool w**  **ill be available and suggesting that the tool be made available prior to issuance of the per**  **mit. EPA intends to make the mapping tool**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 124 **available with the issuance of the 2012 CGP. Some c ommenters asserted that EPA should make**  **the mapping tool available early to provide time fo r 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 the absence of any other information, EPA assumes that**  **the tool correctly determines if a site discharges to an impaired water. However, EPA welco**  **mes 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 mak**  **e 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 Templa te or Inspection Report Template will**  **be provided. One commenter asserted that it is impor tant that the Agency provide the SWPPP**  **template in a sufficient amount of time before perm it issuance to allow operators to develop**  **their new SWPPPs. EPA intends to make the SWPPP tem plate available with the issuance 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 t o make an inspection report template**  **available soon after the issuance of the 2012 CGP, as Agency resources allow.**  **Nephelometers EPA received comment asking whether the Agency will**  **make any recommendations for nephelometers or provide training for their use. EP**  **A does is not planning to make any recommendations for nephelometers or to provide tra**  **ining 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 inte nds to provide training and other**  **implementation assistance through webcasts and guid ance 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 o**  **r 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 ensu re 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 qua lity ‘through documentation or other means**  **appropriate to the information.’ 67 Fed Reg. at 845 9.” The commenter also asserts that EPA**  **should demonstrate that the Agency has complied. E PA notes that the 2012 CGP was reviewed**  **by OMB prior to permit issuance. EPA believes that t he permit is consistent with the Information**  **Quality Act and EPA’s Information Quality Guideline s (located at** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 125 **http://www.epa.gov/quality/informationguidelines/do cuments/EPA_InfoQualityGuidelines.pdf).**  **The Agency has utilized the best available sources of data and information, including peer**  **reviewed journals and state- and university-develop ed guidance manuals. EPA has**  **documented the sources used by the Agency in suppor t of the 2012 CGP in the docket for the**  **permit. The official public docket is the collecti on of materials that is available for public viewin**  **g at the Water Docket in the EPA Docket Center, (EPA/**  **DC) EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 20460. Materi**  **als may also be available through http://www.regulations.gov. The docket ID for the 2**  **012 CGP is EPA-HQ-OW-2010-0782.**

**Rationale for SWPPP EPA received comment questioning the need for the S**  **WPPP 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 “w ill include ‘jurisdictional determination**  **(JD) requests’ and ‘preliminary JDs (PJDs)’” and wh ether the Army Corps of Engineers or EPA will**  **respond to JD requests made for the purposes of the CGP or other, state-issued, CGPs (for the**  **buffer requirements, in particular) and whether suc h requests will be part of the NOI system.** 

**EPA notes that JD of Waters of the US is outside th e scope of this action.**  **Invasive Species EPA received comment suggesting that the Agency req**  **uire 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 cons**  **truction sites. Exceptions and Flexibility for Restoration or Revit**  **alization Projects EPA received comment suggesting that the Agency inc**  **lude 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 flexibilit**  **y above. While EPA recognizes the ecological benefit of restoration or revitalization projects,**  **EPA notes that discharges from construction activities (including those associated with restora**  **tion or revitalization projects) that meet the eligibility criteria under Part 1 of the 2012 CGP w**  **ould be subject to the permit to protect receiving waters from discharges resulting from suc**  **h projects. Requirements for Projects Covered Under 404 Permits**  **EPA received a comment in which a commenter request ed clarification whether “projects**  **permitted under §404 of the Clean Water Act need [t o] obtain coverage under the general**  **construction stormwater permit.” EPA notes that op erators of active construction sites that will**  **discharge pollutants to waters of the U.S. are subj ect to section 402 of the CWA (NPDES) and**  **must obtain coverage under a section 402 (NPDES) pe rmit (whether the CGP, an individual**  **permit, or a state CGP) for such discharges from th eir 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 sho**  **uld 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 t**  **echnical and economic limitations. EPA notes that the 2012 CGP incorporates the requiremen**  **ts established in the C&D rule, which also uses the term “infeasible.”** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 126 **Access to Internet EPA received one comment asserting that not all own**  **ers or operators have access to the Internet. To the extent that the commenter is conce**  **rned with the Internet-based eNOI system, EPA notes that the Agency will allow paper NOIs in l**  **imited circumstances if applicants receive permission from EPA regional offices prior to submi**  **ssion of application. To the extent that the commenter is concerned with Internet access in gene**  **ral, EPA notes that the 2012 CGP does not require Internet access but recognizes that Interne**  **t access will be helpful. For example, webcasts and guidance materials will be available t**  **hrough the Internet. However, noting that EPA received only one general comment on this issue**  **, EPA does not believe that a significant number of owners or 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 ac**  **cess in the home or office. EPA also notes that owners or operators who cannot access the Inte**  **rnet 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 disc ussion on clarity above. While EPA believes**  **the requirements are clear as written in the 2012 C GP, the Agency still plans to host webcasts**  **and to develop guidance materials to help permittee s 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 downstre**  **am erosion. EPA notes that the 2012 CGP does not require the removal of all sediment and al**  **so that the permit does not address all sources of sediments. Rather, the permit requires o**  **perators to design, install, and maintain erosion and sediment controls that**  minimize **the discharge of sediment and other pollutants from** earth-disturbing activities **. That is, the permit uses a “minimization” framew ork for these pollutants**  **rather than a “100% removal” framework, and the per mit addresses discharges from “earth**  **disturbing activities” and not runoff from natural 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 2**  **012 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 no**  **t regulating land use but rather the discharge of pollutants from construction sites and from cons**  **truction support activities to waters of the United States. For further information, see gener**  **ally the 2012 CGP, the 2012 CGP Fact Sheet, and the responses to comments in the docket for thi**  **s action. Determining Receiving Waters and Impairment Status**  **EPA received comment asserting that determining the receiving water body and impairment**  **status would be difficult. Commenters were concerne d with the requirement to identify the**  **receiving waters and impairment status of the disch arges from the site, asserting that such a**  **requirement is onerous. See Response 4.1. Daily or Day**  **EPA received comment requesting that the Agency cla rify the use of the word daily or day to**  **clearly distinguish between calendar day and workin g day. EPA has reviewed the proposed**  **permit and clarified the language in the final perm it to clearly distinguish between calendar day**  **and working day, as necessary.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 127 **Waiting Period Several commenters criticized the proposed 30-day w**  **aiting period for being too long. EPA notes that the 2012 CGP establishes a 14-day waiting peri**  **od. Comments Related to Numeric Turbidity Limit or Samp**  **ling**

**See Response 3.1, Response 4.1, and Response 6.6. Suggestions for Implementation, Enforcement, Compli**  **ance, and Public Participation EPA received multiple comments with suggestions for**  **implementation, enforcement and compliance of the permit, including suggestions to**  **include opportunities for public participation. Some commenters asserted that the causes of erosion**  **and sediment transport are rooted in improper implementation of the current permit requi**  **rements 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, avail**  **able 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 su**  **ggestions and notes that the 2012 CGP includes provisions to allow for public participati**  **on 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 immediate**  **ly post on our website, which gives the public the ability to review those NOIs [see www.epa.gov/np**  **des/cgpenoi]), (2) a requirement for permittees to post a notice of permit coverage at a**  **publicly accessible location in close proximity 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 p**  **ublic upon request (Part 7.3). EPA believes these provisions will result in increased accountab**  **ility and compliance. EPA also received comment asserting that permittees**  **will not comply unless they are forced to do so through enforcement action. EPA disagrees. Wh**  **ile 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 applicabil**  **ity (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, theref**  **ore, non-compliance is a safe business risk. EPA disagrees with this comment, noting that the Ag**  **ency intends to enforce the 2012 CGP. The Clean Water Act and its implementing regulations re**  **quire strict compliance with the CGP. EPA takes its enforcement responsibilities very serious**  **ly. EPA will actively enforce the 2012 CGP requirements. In addition to EPA's civil enforceme**  **nt program that protects human health and the environment by taking legal action to bring pol**  **luters into compliance with federal environmental laws, the Agency's criminal enforceme**  **nt program focuses on cases involving negligent, knowing, or willful violations of these**  **laws. EPA also received comment suggesting that the Agenc**  **y ensure that the final permit is implementable. EPA believes the final permit is imp**  **lementable. 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 doc**  **umented in this response-to-comment document, EPA has reviewed and considered all publi**  **c comments and made changes, as appropriate. Included among these comments were com**  **ments from states, local governments, NGOs, environmental groups, and the regulated commun**  **ity. In addition, the final permit has gone through a thorough review both internally, wit**  **hin the Agency, and externally, through inter-Agency review. These reviews have enhanced th**  **e final permit and ensure that the permit is implementable. See also response on permit clarity**  **above. Permit Training** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 128 **Some commenters asserted that the permit is complex and suggested that EPA should offer**  **training. To help with permit clarity and implement ation, EPA plans to host webcasts and to**  **develop and update existing guidance materials. One commenter asserted that her department will requ**  **ire lead time to identify budget and scope necessary to implement training and requested**  **clarity on when the final permit would be released 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 wi**  **ll 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” a**  **bove. EPA also notes that the 2012 CGP implements the requirements established in C&D rule**  **, which became 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 not**  **es 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 secti**  **on 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 the proposed permit appe**  **ars to include provisions that duplicate and/or expand upon federal requirements such as End**  **angered Species Act and Spill Prevention Control and Countermeasure (SPCC) requirements. The**  **commenter questioned the reasonableness of including such provisions. For th**  **e comment on ESA, EPA discusses the purpose of the ESA permit requirements in section XV.D of t**  **he 2012 CGP Fact Sheet. For the comment on SPCC, EPA discusses the purpose of the permit pollu**  **tion prevention standards in section VII.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 t**  **he applicability of the 2012 CGP to the mining industry. EPA notes that the 2012 CGP does n**  **ot cover discharges from mining operations unless they involve construction activity and are c**  **overed by 40 CFR 122.26(b)(14)(x) or (b)(15). Thus, the 2012 CGP covers discharges from construct**  **ion activities required to obtain NPDES permit coverage and performing the following activi**  **ties: construction of buildings, including building, developing and general contracting; and h**  **eavy and civil engineering construction, including land and subdivision. See Part 1.1 of the**  **permit. Required Use of GI and LID**  **EPA received comments suggesting that the Agency re quire the use of green infrastructure and**  **low-impact development, particularly at sites disch arging to impaired or sensitive waters. As an**  **advocate of green infrastructure and low-impact dev elopment, EPA appreciates these**  **comments and notes that the Agency encourages the u se of green infrastructure and low**  **impact development. However, EPA crafted the non-nu meric 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 e xample, 40 CFR 450.21(a)(5) requires**  **construction operators to design, install, and main tain controls to “minimize sediment discharges**  **from the site.” EPA notes that the permit does all ow for the Agency to require corrective action**  **and/or additional stormwater controls if the stormw ater 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).**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 129 **Qualifying State, Tribal, or Local Programs (QLP) EPA received comment asserting that the Agency shou**  **ld revamp the QLP program to remove impediments and make it more attractive for state a**  **nd 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 a**  **doption of this language and streamline the permitting process and that EPA should develop a pr**  **ocess for facilitating and encouraging implementation of the QLP in the CGP. EPA also rece**  **ived 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 conditi**  **ons. The Agency is not incorporating any QLPs into the C**  **GP at this time. EPA’s NPDES regulations at Parts 122 and 124 require that EPA provide public n**  **otice for any draft permit before issuing a final permit, with the exception of minor modificat**  **ions, which do not have to follow the Part 124 procedures. Incorporation of a QLP into the CGP wou**  **ld not be considered a minor modification, as defined in 40 CFR § 122.63, thus EPA acknowledge**  **s the requirement to publish any QLP in a draft permit to provide public notice and opportuni**  **ty for comment in advance of final permit issuance. When approving QLPs, EPA will identify th**  **e specific QLP requirements; however, the applicability of those local requirements will not**  **change. Qualifying those local requirements will eliminate the potential for duplicative or conflict**  **ing language in the CGP from being applicable to those construction sites operating in QLP jurisd**  **ictions. 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 , a**  **s described above, must be made consistent with 40 CFR Parts 122 and 124 requirements and proc**  **edures. 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 pe**  **riodically 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 under**  **going a 30-day public notice process (as they would not be minor modifications, as explained abov**  **e).**

**However, the 2012 CGP does allow for collaboration between local municipalities and states to**  **occur and notes that the permit construct allowed f or 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 comm ent 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 othe r types of regional programs.**  **No Discharge Certification EPA received comment suggesting that the Agency dev**  **elop 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 covera**  **ge under the CGP. EPA has decided not to establish a “no discharge” certification program un**  **der the 2012 CGP. EPA notes that neither this permit nor CWA section 402 apply to construction si**  **tes 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 dev elop a single lot permit that would**  **authorize stormwater discharges from residential co nstruction 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 evalua ted the possibility of doing a single lot permit.**  **EPA determined that a single lot permit would not b e 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 p ermit would also include the requirements** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 130 **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 climates 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 w ould 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 in cluding webcasts and guidance materials.** 

**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** 

**.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 131 Comment Response Essay 14 Structure of the Permit

Response 14.1 Consistency of Requirements in Propos ed Permit

**Several commenters raised concerns about the incons istency 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 t**  **erms that were defined differently in the proposed permit than in the defi**  **nitions 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 diffe rent sections of the proposed permit**  **(Part 3 and 4). These requirements have been remov ed from the permit, and therefore**  **the comment is no longer applicable. No further re sponse is required.** 

• **Stabilization deadlines – One commenter noted the confusion of imposing dif**  **ferent sets of deadlines on sites, one that applies generally ,**  **and then different ones that apply where the site discharges to an impaired water, whe**  **re 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. S**  **ee 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 requirement s are necessary. EPA notes the**  **commenter’s concern, however, the Agency believes i t is important to emphasize in**  **both the impaired waters and antidegradation sectio ns that additional requirements**  **may be imposed on a case-by-case basis. This is es pecially 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 fa ct that EPA believes that these**  **additional requirements, together with the Part 2 t echnology-based requirements and**  **general Part 3 water quality-based requirements, wi ll be sufficiently protective to achieve**  **water quality standards. Where additional requirem ents 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, al ternatively, that the operator may**  **be required to apply for coverage under an individu al permit.** 

• **Water quality sampling and inspection requirements – One commenter noted the**  **inconsistencies between the benchmark monitoring re quirements and the inspection**  **frequency requirements in the proposed permit. The commenter argued that because**  **the requirements for inspecting the site during a r ain event and those for taking samples**  **both depend on precipitation, they should be consis tent. EPA appreciates the**  **comment. The benchmark monitoring requirements hav e been removed in the final**  **permit, and therefore the comment is no longer appl icable. No further response 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 a ppreciates the comment, and agrees with**  **the commenter regarding the importance of the permi t readability. During permit finalization,**  **EPA attempted to streamline the entire permit in re sponse to comments with the hopeful result**  **being that the permit is more readable. EPA believ es that these modifications should address**  **the commenter’s concerns.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 132 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 pu**  **rsuant to the National Environmental Policy Act (NEPA) regarding the environmental issue**  **s 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 requirement of conducti ng a NEPA review for the reissuance of**  **the CGP and believes that the initiation of the sco ping process should be delayed until the C&D**  **ELG is finalized and incorporated into the CGP. Th e commenter also suggested EPA limit its**  **review of environmental issues associated with cons truction site stormwater runoff to sediment**  **only and requested that a modified CGP option be an alyzed as an alternative.**  **Another commenter requested the scope of analysis a ddressed in the EA include impacts to**  **threatened and endangered species, water quality in cluding oceans and sea-level rise and**  **historic properties. Additionally, the commenter s tated that “other (State) agencies**  **requirements must be reviewed by EPA to its appropr iateness in the contribution of water**  **pollution”.**

**EPA thanks both of the commenters for their comment s 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 c onsidered 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, d ocument 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 publ ished in the Federal Register for a 30-day**  **public comment period on December 23, 2011 (76FR803 66, Dec. 23, 2011).**  **The scope of the EA was limited to the environmenta l resources that may be affected by the**  **reissuance of the CGP, including impacts to threate ned and endangered species, water quality**  **and historic properties. EPA appreciates that ther e 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 per mitting authority for the stormwater general**  **permit), and categorically to cover only new source s.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 133 Comment Response Essay 16 EPA Interaction with Stak eholders

Response 16.1 Process **EPA received comments regarding the Agency’s intera ction with the public and stakeholders.**  **Commenters encouraged EPA to work closely with stak eholders during the comment review**  **process. EPA agrees and notes that it worked closel y 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 burde nsome. EPA also took into consideration all of**  **the significant comments on the proposed permit fro m the public and from stakeholders. This**  **process helped EPA to develop a permit that EPA bel ieves to be both environmentally**  **protective and practicable for permittees. EPA grea tly appreciates the input provided to**  **Agency during the permit development process. One commenter insisted that EPA develop the permit i**  **n 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 costs of federal regulatory requirements, the commenter urged EPA to allow for**  **public participation in its decision-making process. EPA believes that the process for developi**  **ng this permit was indeed transparent and based on sound science and reasoned decision-making**  **. As noted above, during the comment review period, EPA was very receptive to the concer**  **ns expressed by stakeholders and the public on the proposed permit. EPA took these conce**  **rns 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 fina**  **l permit language, and provides this information for each permit provision in the 2012 CGP in the pe**  **rmit fact sheet. Commenters also expressed public participation to b**  **e a critical component of the permitting program, and noted concern about the lack of a prov**  **ision in the CGP that allows opportunities for public review and participation in the permit c**  **overage process. EPA notes that the Agency will make available to the public Notices of Inten**  **t on its website, which the public can view prior to a permit applicant becomes covered under t**  **he permit. This will provide the public the opportunity to view the relevant information provid**  **ed in the NOI about proposed stormwater discharges and to voice any concerns to EPA in adv**  **ance 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-way, and a provision that EP**  **A provide access to portions of SWPPPs to the public upon request. A commenter also requested tha**  **t permit applicants notify the applicable local government that an NOI has been filed. EPA dis**  **agrees with this suggestion. EPA does not believe it is the role of the Agency to require inf**  **ormation to be provided to local governments. However, EPA notes that it may be a requirement tha**  **t permit applicants also notify their local government about their proposed discharges in addit**  **ion to EPA.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 134 Comment Response Essay 17 General Comments about Li near 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 requirements in the dr**  **aft CGP are more applicable to conventional perimeter-bound projects, and do not p**  **rovide practicable guidelines for linear projects. The commenters suggested that due to diff**  **erences between conventional construction and linear projects, some of the requi**  **rements in the permit are impracticable or infeasible. Some commenters expressed that the impl**  **ementation of the impracticable provisions would be costly for linear communications projects,**  **and provide little to no additional environmental benefits to the existing effective st**  **ormwater management programs employed by linear projects. One commenter suggested that per**  **mit imposes disproportionate burdens on natural gas utility construction.**  **Commenters pointed out the following differences be tween linear projects and conventional**  **construction projects that make it infeasible or im practicable to implement some of the erosion**  **and sediment control requirements in the draft perm it:** 

• **Linear projects extend tens or hundreds of miles ov er different natural terrains, soil**  **types, waterbodies and watersheds, regulatory bound aries, and numerous**  **stormwater flow barriers.**

• **Unlike conventional construction, linear projects h ave uncontrolled perimeters. They**  **have little or no capacity to control run-on from o ff-site sources or run-off from the**  **site, and an inability to isolate discharges from t he disturbance itself. They also have**  **many discharge points.**

• **Implementation of some permit requirements are beyo nd the control of linear utilities.**  **Linear projects are constructed on narrow easements provided by multiple**  **landowners, and operate alongside other permitted a nd non-permitted entities**  **doing road improvements in the same right-of-way, w hich make it difficult to comply**  **with reporting and inspection requirements that app ly 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 u sually 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 bes t controlled with BMPs**  **appropriate for linear settings; there is little ne ed for artificial stormwater controls.**  **Installing erosion and sediment controls may be mor e disruptive than the project**  **itself. Stormwater generally flows naturally over t he 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 followi ng language in the permit to provide**  **flexibility for linear projects: “for utility proje cts disturbing a narrow corridor of earth, erosion**  **controls need only be installed in areas of concent rated 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 exit points;**

• **Controlling peak flowrates and total stormwater vol ume;** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 135 • **Steep slopes;**

• **Natural buffers or equivalent controls;**

• **Sediment basins;**

• **Designating fueling areas;**

• **Monitoring discharges;**

• **Active treatment systems; and**

• **Minimizing exposure of stormwater to building mater ials and other construction site**  **materials. EPA appreciates the comments provided about the dif**  **ferences between linear projects and conventional construction projects. In the final pe**  **rmit, EPA was responsive to concerns expressed about specific proposed permit requiremen**  **ts. Specifically, EPA provided additional flexibility and eliminated proposed permit provisio**  **ns in response to concerns expressed by commenters relating to the following proposed permi**  **t requirements:**

• **Natural buffers and/or equivalent controls;**

• **Marking off sensitive areas;**

• **Additional requirements if steep slopes are disturb ed;** 

• **Minimize stream crossings;**

• **Required design factors;**

• **Perimeter controls; and**

• **Soil Compaction, among others. For additional information regarding the flexibilit**  **y provided to linear facilities regarding these erosion and sediment controls, see the comment resp**  **onse essay in Part 2. EPA also clarifies that certain provisions in the p**  **ermit that were of concern to linear projects only apply if those stormwater controls are being instal**  **led. 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 comment ers that EPA consider a different**  **regulatory approach for linear projects, such as ex empting certain types of linear projects from**  **the permit, or developing an alternative permit app roach, such as an NPDES General Permit for**  **linear projects. EPA also disagrees with the sugges tion from a commenter that statewide**  **permitting programs are appropriate for linear cons truction projects in lieu of the CGP. Although**  **EPA recognizes linear projects have many difference s that warrant different erosion and**  **sediment control approaches than other types of con struction projects, EPA believes that the**  **CGP accounts for these differences by provided flex ibility regarding the implementation of**  **erosion and sediment control requirements in the pe rmit. See comment response essay in Part 2.** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 136 Comment Response Essay 18 No Code, Supplemental Inf ormation

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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 137 Comment Response Essay 19 Cumulative Impact of CGP and other Regulations of Industry

Response 19.1 Cumulative Increase in Burden on Cons truction Industry **A number of commenters observed that the requiremen ts in the proposed permit are**  **burdensome and impracticable, and that the cumulati ve impact of the permit would be**  **damaging to the construction industry, which is alr eady impacted heavily by the recession.**  **Several of the commenters observed that the new and additive requirements would render the**  **permit unusable. The commenters specifically menti oned provisions that were of greatest**  **concerns, among which included the 30-day waiting p eriod, the requirement to install**  **stormwater controls prior to construction disturban ce, 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 flexibility, 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 th e 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 provi sions of greatest concern were either removed**  **or significantly modified in response to comments r eceived. The following is a list of changes**  **made, which EPA believes address the bulk of the co mmenters’ concerns:** 

• **Authorization waiting period: EPA reduced the wait ing 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 imme diately after the permit is issued.** 

• **Stormwater controls: EPA has modified a number of the proposed requirements relating**  **to the design and installation of stormwater contro ls. 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 replac ed with a more flexible provision that**  **requires sediment track-out onto off-site streets a nd other paved areas to be minimized**  **using appropriate stabilization techniques. See Pa rt 2.1.2.3. Another example is the**  **buffer provision, where the final permit includes a dditional flexibility for small lot**  **construction and linear projects so that operators 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 meeting numeric C-fact or 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 disturbanc e: This requirement has been modified,**  **in response to comments received, to focus on the i nstallation of controls prior to each**  **individual phase of disturbance rather than requiri ng their installation for all phases up**  **front. Although it was not our intent to require t he installation of stormwater controls for**  **the entire project prior to construction even thoug h 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 c larification was warranted.**  **Additionally, EPA emphasized in the final permit (s ee Part 2.1.1.3) the fact that not all**  **controls need to be installed at once for an indivi dual phase of the project, but only**  **those that are needed to control the initial discha rge.** 

• **Numeric turbidity limit, monitoring provisions, and reporting requirements: EPA has**  **removed the numeric turbidity limit and all related monitoring and reporting** Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 138 **requirements from the final permit. This change wa s made as a result of the continuing**  **work that EPA is conducting on recalculating a nume ric turbidity limit.** 

• **Benchmark monitoring requirements: EPA has removed the benchmark monitoring**  **requirements that were proposed for sites dischargi ng to sediment and nutrient-impaired**  **waters. This change was made in response to the nu merous 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 mod ified 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 concer n 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 respons e is necessary.**  Response 19.3 Executive Order 12866 Review

**One commenter raised the concern that there was no i ndication 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 d ocumentation of the changes made in**  **response to this review in the docket for this perm it, 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 appare nt 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 pr oposed permit, which has been updated**  **based on modifications in the final permit. The ec onomic analysis is included in the**  **administrative record for the final permit. The ec onomic analysis indicates that while there will**  **be some incremental increase in the costs of comply ing 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 Analysis of the**  **Final Construction & Development Effluent Limitatio n 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 adequacy of the p roposed permit based on the lack of**  **documentation demonstrating consistency with E.O. 1 3563. EPA performed an economic**  **analysis of this general permit, including an exami nation 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 ana lysis that the issuance of this permit will not**  **have a significant impact on the construction indus try. In terms of evaluating alternatives to**  **finalizing the general permit, EPA conducted an ana lysis as part of its Environmental Assessment**  **for complying with the National Environmental Polic y 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)Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 139 **Two commenters raised concerns regarding the propos ed permit’s failure to account for the**  **CWA Section 304(b)(1)(B) factors required in the es tablishment of Best Practicable Technologies**  **Currently Available (BPT). This comment is not rel evant to the issuance of the final permit. The**  **BPT factors are required to be assessed when promul gating effluent limitation guidelines for point**  **source categories. This analysis was completed dur ing the promulgation of the C&D rule, and**  **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 req uired 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.**Unformatted 2012 CGP Comment Response Essays February 16, 2012



### 140 Comment Response Essay 20 Duplicate Comments

Response 20.1 Duplicate **EPA received comment letters that were duplicates o f 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 ha s responded to all of the significant**  **comments, but where comment letters and portions of comment letters were identified as**  **duplicates of other letters, only one response was developed.** Unformatted 2012 CGP Comment Response Essays February 16, 2012

141 

# Construction General Permit

Comment/Response - Customized Search

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142 

# 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 0057-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 Sto rmwater Discharges from Construction Activities con firms that it is focuse d upon the construction industry sectors classified as "Bu ilding, 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 t he Construction Sector. Mining is listed under an entirely different NAICS Code, number 21. The draft also notes its close rel ationship to the pending rulemaking to establish numeric Effluent Limitation s Guidelines ("ELG") for the new Construction and D evelopment Point Source Category. Se e 76 Fed. Reg. at 22,885 (Apr. 25, 2011). Coal mini ng 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) an d the specific mining sectors of the 2008 Multi-Secto r General Permit ("MSGP") for Storm Water Discharge s from Industrial Activity.

For these reasons VCA requests that the draft be am ended to clarify that coal mining will not be subje ct to the General Permit for Stormwater Discharges from Construction Activities and the associated Construction and Development ELG s.

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 In tent (NOI) to be covered by this permit if..."

•One of the two key criteria that mandated Construc tion General Permit (CGP) coverage in the 2008 perm it was disturbed acreag e of 1 or more acres AND discharging to waters of the United States. However, the new permit does not mention "d ischarging to waters of the U.S." as a key criterion. Has this been removed fro m Section 1.1 or is this simply an oversight in the draft language of the permit?

Response Refer to Response 1.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

143 

# 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, dist urbance is not defined in either the CGP or any of the relevant underlying stormwate r regulations. UWAG asked EPA to include such a def inition in the C&D Rule but, to date, EPA has not done so. Such a definition is vital to distinguishing between actual soil disturb ance (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 g round level but stumps, root mats, and other cover are left in place). We submit that only soil disturbance is subject to permitting requ irements, if above applicable acreage thresholds.

[FN 6] EPA should note in the eligibility section t hat no NPDES permit is required for construction ac tivities that disturb l ess than one acre, and that special waivers are available for so me "small construction" projects that disturb betwe en one and five acres, in keeping with EPA stormwater regulations at 40 C.F.R. Part 1 22.

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 a cres of land, or less t han 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 engage in building, developing, contracting and heavy constru ction. [FN 10] EPA should exclude linear projects f rom "common plan" cover age or revise the definition to the extent that linear pro jects running on public or private ROWs will not be included as part of the traditional development construction site and thus are not requ ired to follow the traditional development site' se diment plan. These chan ges reflect the reality that only those utilit y pipeline projects running within a larger "common plan" construction 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 force this group of utilit ies into complying with a contiguous construction project's sediment plan, a compliance obligation that they simply cannot perfo rm on their ROW excavation area. Further, these types of private ROW areas con tiguous to a construction project site only run 5-1 0 feet wide-thus, the 1-5 acres requirement in the "common plan" definition is a mi sfit for linear pipeline projects. Linear construct ion projects involve a lengthy, narrow excavation on private and public property: e ach work day, only a small portion of the project a rea is excavated and then backfilled, rendering traditional sediment control and design requirements unworkable and ineffective for the purposes contemplat ed in

the Draft Permit.Unformatted 2012 CGP Comment Response Essays February 16, 2012

144 [FN 10] 76 F.R. 22883 (April 25, 2011).

Response EPA notes that it is not within the scope of this a ction to exlude linear projects from "common plan" coverage or to revise t he regulatory

definition. EPA defines "constructio n 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 proj ects from "common plan" coverage or to revise the regulatory definition. EPA notes t he final CGP does not require utility pipeline proj ects running within a larger "common plan" to comply with a cont iguous construction project's sediment plan. While they operators of a common plan have th e option to develop a group SWPPP (see Part 7.1.1 o f the final CGP), they are not required to. In fact , EPA clarifies in Part 1.1 that if an operator only has operational contro l over a portion of a larger project (e.g., one of four homebuilders in a subdi vision), the operator is responsible for compliance with all app licable effluent limits, terms, and conditions of t his permit as it relate s to the activities on their portion of the construction site. EPA note s 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 requi rement to obtain permit coverage to a discharge to a water of the Un ited States. Is it the intent of the new permit that any construction proj ect, regardless of whether it has the potential to discharge to waters of the United States, will require CGP coverage? If that is not t he intent, why was this qualifier removed from the proposed permit?

Response Refer to Response 1.1.



# 1.2 PERSON(S) RESPONSIBLE FOR OBTAINING PERMIT COVE RAGE

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 Second ary Operator. For example, in Arizona the DOT is required to obtain coverage as t he owner with control over specifications and plans ; however, the DOT is not the primary operator (the Contractor) or secondary oper ator (Contractor's sub-contractors). Consider "Prim ary Operator/Owner" & "Secondary Operator" or "owner", "Primary Operator" & "Secondary Operator."Unformatted 2012 CGP Comment Response Essays February 16, 2012

145 Response Refer to Response 1.2.



# 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 b e held jointly and severally responsible. Permittees shoul d be held solei responsible for their permitted area. If there are multiple operato rs, they should be left to decide if a current perm ittee wants secondary o perators to work under their permits or if operators associated with a common plan of development have to pull their ow n separate permits. The 2008 CGP language allows the owners and operators to dec ide who should be the permittees and allows seconda ry operators to be covered under the permit with perm ission from the permittee. The proposed 2011 CGP la nguage relies on defining an operator as someone wi th operational control at a site, and we believe some operators have limited capacity to influence operat ional control over a large development and therefore should not assume joint l iability. Clarification needs to be provided on who needs to apply as co- permittees and if operators with operational control can opt o ut of applying as co-permittees and can apply separ ately when they are part of a common plan of development.

Response Refer to Response 1.2. EPA also notes that it does not require, where there are multiple operators on a site, for all op erators 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 r equired by EPA. EPA clarifies that when there are multiple permittees, all permittees are responsible for appl ying for permit coverage. EPA provides clarity regarding permit compliance respon sibilities 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 ob tain permit coverage. If an operator only has operational control over a portio n of a larger project (e.g., one of four homebuilde rs in a subdivision), the operator is responsible for compliance with all applicable effl uent limits, terms, and conditions of this permit a s it relates to the activities on their portion of the construction site, including protect ion of endangered species, critical habitat, and historic properties, and impl ementation

of control measures described in the SWPPP in the a reas under their control. You must ensure either di rectly or through coordination 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 operato rs to decide who should be the permittees and allow s secondary operators t o beUnformatted 2012 CGP Comment Response Essays February 16, 2012

146 covered under the permit with permission from the p ermittee. The proposed 2011 CGP language defines an operator as someone with operational control at a site. Not all operators on a project have the same level of impact on a proje ct and therefore should not be held jointly and severally responsible. If there are mul tiple operators, the project should decide if secon dary operators should work under primary operator's permits or if associated with a larger common plan of development does it make more sense for secondary op erators to pull their own separate permit. Primary verses s econdary is getting too complicated and Xcel Energy r ecommends that the language from the 2008 CGP remain the same in the new permit

.

Response Refer to Response 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 c onstruction project that has..."

•What is the purpose of designating someone a secon dary operator? Is the secondary operator any more o r 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 Transportation (TxDOT) Issue Category: 1.2 EPA proposes to, where there are multiple operators at a single site, distinguish between "primary ope rators" and "secondary operators"

based on the point in time at which coverage under the CGP is ob tained (i.e., "primary operators" are operators who seek coverage under the CGP for work in an area for which no other oper ator has already obtained coverage, whereas "second ary operators" are operators who seek coverage under the CGP for work in an area for which another operator has already obtained co verage). It appears that the only purposes for this distinction are to, as explained in Parts 1.5.3 and 1.5.4, allow "secondary operator s" to (1) file their NOls later in time as compared to "primary operators" (7 days prior to co mmencing earth-disturbing activities, versus 30 day s prior to commencing earth-disturbing activities), and (2) be authorized by the CGP sooner after EPA's acknowledgment of NO I receipt as compared to "primary operators" (7 days after acknowledgment ve rsus 30 days after acknowledgment).

While TxDOT is not opposed to the differences in ti ming of NOI filing and authorization under the CGP afforded "primary operators" and "secondary operators," TxDOT is opposed to usin g the terms, "primary operators" and "secondary ope rators," to categorize operators based on the order in which they seek aut horization for work at a given site. The terms may be construed to imply t hat "primaryUnformatted 2012 CGP Comment Response Essays February 16, 2012

147 operators" have more substantive responsibilities o r potential liabilities than do "secondary operator s," which is not the case. TxDOT recommends that EPA simply make the timing distinct ions at Parts 1.5.3 and 1.5.4 without using the ter ms "primary operators" and "secondary operators," and remove reference to thos e terms from throughout the draft permit.

Response Refer to Response 1.2 and 1.6.4.



# 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 f urther complicate permitting matters by creating a system in which multiple parties will be held potentially responsible for a single d ischarge. Liability under the CWA applies to the "owner and operator" and is joint and several. EPA should allow the various parties opera ting at a site covered by a permit to determine ove rall NPDES permit compliance responsibilities through their construction contrac ting practices, which will be made c lear by the NOI filing. If EPA identifies a permit violation, it should assert liability against the p arty filing the NOI. By creating a primary and seco ndary "co- permittee" and potentially creating multiple permittees for a single discharge , EPA is confusing the NPDES permitting process and creating more levels of potential liability for "operators" than intended b y the CWA and potentially conflicting with normal c ontracting practices. E PA should allow maximum flexibility regarding whether multipl e parties want to become co-permittees or ensure an alternative compliance strategies, 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 "su bcontractors" to obtain permits. As EPA stated in i ts Stormwater Question and Answer

Guidance:

28. What are the responsibilities of subcontractors at the construction site under EPA's storm water c onstruction general permits?

A. EPA storm water construction general permits req uire subcontractors to implement the measures state d in the pollution prevention plan and to certify that he/she understands the ter ms and conditions of the permit requirements. Under EPA's general permits, subcontractors are not required to submit NOIs.

(NPDES Storm Water Program Question And Answer Docu ment Volume II; USEPA B33-F-93-002B; July 1993; at 11).Unformatted 2012 CGP Comment Response Essays February 16, 2012

148 Response Refer to Response 1.2.



# Comment ID 0068-A1.001.008

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.2 EPA also should specifically exempt from CGP requir ements those parties that have individual NPDES permits that include appropriate sediment and erosion control obligations, whether i n the form of non-numeric or numeric effluent limit ations for sediment-related discharges. Many individual permittees collect stor mwater as well as process water and treat all of that water through BMPs or advanced treatment devices (of combination thereof). If disc harges from any ongoing construction activities is captured and also becom es subject to the effluent limits set forth in and contemplate d in the development of th e individual permit, such persons overseeing such a ctivities should not have to obtain separate CGP coverage.

Response EPA notes that the permit excludes parties that are already covered by a different NPDES permit for th e same discharge. See Part 1.1 .d.i of the final permit.



# Comment ID 0087-A1.001.014

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 1.2 Section 1.2 of the CGP imposes joint and several li ability for compliance on all parties involved in t he construction project, regardless of their respective roles and responsibilities. This i s contrary to EPA's long-standing approach of looki ng 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 du ty to obtain a permit"). As proposed, Section 1.2 c ould lead to inequitabl e results, e.g., the joint and several liability of a secondary perm it holder who did not have control over operations at the site. This is particularly true of linear utility projects, which are usually construc ted on easements and where, consequently, landowner s are typically not inv olved in the construction project.

Response Refer to Response 1.2.



# Comment ID 0089-A1.001.001

Author Name: Keenum MichaelUnformatted 2012 CGP Comment Response Essays February 16, 2012

149 Organization: City of Lubbock Issue Category: 1.2 Section 1.2 Person(s) Responsible for Obtaining Per mit Coverage defmes the terms operator and further defines primary and sec ondary operators. However, it is unclear as to which categ ory 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 po tentially every project administered by a municipal ity should have at leas t two NOr's. If we as a municipality have the "right" to initiate c hanges to plans and specifications, then by definit ion that would make us an operator and most likely a primary operator (and not seconda ry operator). At the same time, if the general cont ractor 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.

Ultimately, this interpretation would mean that a m unicipality 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 t he comment suggesting that every project should have at least two NOIs be subm itted, EPA clarifies that only the parties meeting the definition of operator, as defined in Part 1.1.a are required to obtain permit coverage. EPA notes that there is no fee for opera tors applying 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 becau se it adds the phrase: "The party possesses the tit le of the land where the construction activity will take place ..." in the fir st part of the definition, as shown below.

"Operator" - for the purpose of this permit and in the context of stormwater associated with construct ion activity, any party associated with a construction project that meets either of th e following two criteria:

1.The party possesses the title of the land where t he construction activity will take place and has op erational 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 pr oject which are necessary to ensure compliance with a SWPPP for the site or other permit conditions (e.g., they are authorized t o direct workers at a site to carry out activities required by the SWPPP or comply with other permit conditions)... (emphasis add ed).Unformatted 2012 CGP Comment Response Essays February 16, 2012

150 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 current ly drafted) goes on to state: "This definition is p rovided to inform permittees of EPA's interpretation of how the regulatory definiti ons of ‘owner or operator' and ‘facility or activit y' are applied to discharges of stormwater associated with construction activity." AGC finds this sentence 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 permi t coverage. AGC recommends

that EPA delete this sentence.

AGC also requests that EPA clarify where the owner fits into the newly-proposed definitions of "primar y 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:

28. What are the responsibilities of subcontractors at the construction site under EPA's storm water c onstruction general permits?

A. EPA storm water construction general permits req uire subcontractors to implement the measures state d in the pollution prevention plan and to certify that he/she understands the ter ms and conditions of the permit requirements. Under EPA's general permits, subcontractors are not required to submit NOIs. See NPDES Storm Water Program Question And Answer Docu ment Volume II; USEPA B33-F-93-002B; July 1993; at 11.

To avoid the sort of confusion called out above - w hich has plagued the construction and develo pment industry since the introduction of the construction stormwater permit program - AGC re commends 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) wh o are responsible for compliance with each specific part of the permit. Fo r example, see AGC's comments below on Draft CGP Part 8.1.2, P erson(s) Responsibl e for Developing SWPPP. To this end, AGC continues to be concerned by the fact that there is no reference an ywhere in the Draft to the architect, designer or p rofessional engineer, all of whom clearly play key roles in controlling 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 App endix A. However, EPA notes that it has received comments that disagree that th e "operator" should be the p arty that possesses title of the land because those holding title to the land will not always be the entities i n control of the plans and specifications. EPA agre es that this definition could cause confusion, and therefore, EPA has retained the defi nition of "operator" that was included in the permi t body.



# Comment ID 0096-A1.001.020

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

151 Under EPA’s proposed framework, the developer remai ns the owner of a subdivision for as long as the individual lot builders/owners are s till operating. As often occurs in the home building industry, a developer initiates the develo pment of a subdivision, and then sells off individual lots to home builders to construct singl e- family homes on each lot. Typically, the developer and the home builder do not have any continuing business relationship after the init ial purchase and sale. Considering the nature of these transactions, it is unrealistic and very problematic for EPA to expect the developer (or a s ingle lot owner) to shoulder all responsibilities under the permit even after the de veloper’s activities on the development

property cease.

NAHB is unaware of any other industry where EPA hol ds multiple permit holders responsible for an infraction by a single permit ho lder. EPA must allow for the transfer of stormwater responsibilities to new owners, builders , and contractors after the developer finishes his work at the development property. The original developer should not be held responsible for any NPDES Construction Stormwater Permit requiremen ts placed on new permit holders. EPA’s provision to hold multiple operators responsible un der a single permit for the same property is bound to cause unnecessary confusion and litigation , is unlikely to enhance compliance, and appears beyond EPA’s authority under the Clean Wate r Act.

Response Refer to Response 1.2. In addition, EPA notes that Part 1.1 of the final permit clarifies that where t here are multiple operators as sociated with one site, if an operator only has operational control over a portion of a larger project (e.g., o ne of four homebuilders in a subdivision), the operator is responsible for compl iance with all applicable effluent limits, terms, a nd conditions of this permit as it relates to the activities on their portion of the c onstruction 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 th e site for which they are responsible under this pe rmit to another operator, and that operator has submitted an NOI and obtained coverage under this permit, the operator may terminate perm it coverage (for example, a developer can pass permit responsibility for lots i n a subdivision to the homebuilder who purchases those lots, providing the homebuilder has filed his or he r 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 p articular construction and development project co- permittees and holds all of them jointly and severally responsible for compliance wi th the permit in part 1.2 of the permit. NAHB ur ges EPA to retain the language in the 2008 CGP section 5.12 C. Requiring multiple busines ses to obtain one permit and then holding them join t and several liable is impractical, inconsistent with the way the agency t reats other industries and fundamentally 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 a cre parcels

on individualized schedules. Under this scenario an d the proposed CGP definitions, the developer would be considered an operator, asUnformatted 2012 CGP Comment Response Essays February 16, 2012

152 the developer owns the 100 acre parcel and (under E PA’s theory) has operational control over the const ruction plan for the entire 100 acre parcel. As operator is defined in Appendix A o f the CGP, an operator may be the“party [that] possesses the titl e of the land where the construction activity will take place and has o perational control over construction plans and spec ifications, including the ability to

make modifications to those plans and specifications.”

However, each of the builders would also be conside red an operator, as each builder would both have op erational control over the construction plans and specifications for the indiv idual homes to be constructed on the smaller parcel s within the 25 acres, and would also be considered to have day-to-day operational c ontrol of the activities at a project that are nece ssary 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 violat ion of the terms of the proposed CGP on any portion of the larger 100 acre parcel ev en though they lack control over the operations occurring on the other 75 acres, and do not have a direct contractual relationship. In NAHB’s view, th e addition of joint and several liability to the proposed CGP in this regard is imp ractical, inappropriate and should be removed.

The addition of joint and several liabi lity provisions is problematic because it is contra ry to applicable law. Joint and several liability i s not expressly authorized under the Clean Water Act. [FN 35] Section 301 states that “the discharge of a ny pollutant by any per son shall be unlawful.” [FN 36] A “discharge of a pollutant” is “any addition o f any pollutant to navigable waters from any point source.” [FN 37] A “point source” is any discernible, confined and d iscrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, co nduit . . . from which pollutants are or may be dis charged.” [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 and several liability; it is inconsist ent with the Act and fundamentally unfair.

Moreover, the implementing regulations for NPDES pe rmits expressly provide for segregation of responsi bility to comply with a permit’s requirements as between a facility’s owner and its operator. In the case of an individual NPD ES 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 prov ide that a discharger’s filing of a Notice of Inten t fulfills the duty to obtain a permit. [FN 40]

While the Proposed CGP would require only “operator s,” as defined in the Proposed CGP, to obtain permi t coverage, the definition of operator could be so broadly construed as to includ e owners as well (as in the case of a developer as discussed above), who are not required to obtain permit coverage under the NPDES regulations described above. [FN 41] The Proposed C GP’s expansive definiti on of an operator, such that it would include the develop er-owner of a development project, and then hold th at developer-owner jointly and severally responsible for the actions of other oper ators on the property owned, is contrary to the NPD ES’ implementing regula tions and

the Clean Water Act.

Even under the CWA, due process considerations requ ire that there be causation between the discharge b y a permittee and a vio lation of the permit. [FN 42] There are federal pollution law s 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 Environm ental Response, Compensation and Liability Act of 1980 (C ERCLA) is said to be strict, joint, and several - u nless the har m is divisible. [FN 43] However, potentially responsible parties will n ot be held jointly and severally liable where a def endant can show that the harm at issue is capable of apportionment and provide suffi cient evidence for the court to allow it to apporti on liability. [FN 44] Here, EPA isUnformatted 2012 CGP Comment Response Essays February 16, 2012

153 trying to impose joint and several liability withou t a congressional mandate and without the protectio ns (such as apportionment) provided in statutes where Congress intended to imp ose joint and several liability.

Under the proposed CGP and its definition of operat ors, an operator could be liable for violations res ulting from the non- compliance of other operators on a large development project even where the cause of the violation is readily appare nt and limited to one of several operators. As violations of the requirements of the proposed CGP will be easily attributable to partic ular acreage under development, assigning joint and several liability is unnecessar y and is contrary the Clean Water Act and the legal requiremen t 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. § 9607. [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 “operato r” in Appendix A, which discusses a party’s possess ion of the title to land where a construction activity will take place, is also inappropriate under the CWA. [FN 42] See Appalachian Power Co. v. Train (4th Cir . 1976) 545 F.2d 1351, 1377 (It is beyond EPA’s aut hority to require permittees to treat and reduce pollutants other tha n those added by each individual point source’s pro cess); American Iron and Steel Institute v. EPA (3d Cir. 1 975) 526 F.2d 1027, 1055-1056 (individual point sou rces entitled to adjustment in effluent where inability to meet l imitation is due to significant background pollutan ts); 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 congress ional abrogation of traditional principles of causa tion,, then, private parties should be held liable... only if thei r 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) (citing F ireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Ci r.2002) and Carson Harbor Vill., Ltd. v. Unocal Cor p., 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 s everal liability by establishing that it caused only a divisible por tion 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: 1.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

154 The definition of "operator" that appears in the 20 08 CGP is a definition that has been used for sever al permit cycles. It is well understood by the regulated community and, because of that, it is generally well understood who must o btain a permit in states where EPA is the permitting authority. We believe that th e new permit should retain this definition, both be cause it functions wel l and because a change could unnecessarily throw a settled and im portant 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 Response 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.

Response EPA clarifies in the final permit fact sheet that t he party that meets the first part of the definitio n of "operator" (the party has operational control over construction plans and specifications, including the ability to make modifications to tho se plans and specifications) in most

cases will be the owner of the site. See Part VI.1. If an "owner" meets this definition, then EPA clar ifies that they are req uired 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 perm it coverage, EPA provides separate NOI requirements for "primary operators" and "secondary operators." It appears that most landown ers who are operators would be considered "primary operators," while all other persons meeting the definition of "operator" at a r egulated construction site would be considered "sec ondary operators," and have slightly different requirements. For instance, "se condary operators" would have provisional coverage within seven days while "primary operators" would have coverage in 30 days. "Primary operators" would be responsible for SWPPP implemen tation.

TCEQ recommends that EPA clarify that individual la ndowners, who tend to have limited operational control at the ir sites, would not be considered primary operators and would not be requi red to submit a NOI nor be responsible for SWPPP im plementation. This woul d be consistent with TPDES Construction General Permit ( CGP), TXR150000, which also includes the terms "pri mary 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 limit ed operational control at the site; while most oper ators under the TPDES CGP are considered "primary operators."Unformatted 2012 CGP Comment Response Essays February 16, 2012

155 Response Refer to Response 1.2. EPA clarifies that all parti es meeting the definition of "operator" are require d to submit an NOI, and that if the owner meets the definition of operator, then they w ill 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 f urther complicate permitting matters by creating a system in which multiple parties will be held potentially responsible for a single d ischarge. Liability under the CWA applies to the "o wner and operator" and is joint and several. EPA should allow the various parties opera ting at a site covered by a permit to determine ove rall NPDES permit compliance responsibilities through their construction contrac ting practices, which will be made clear by the NOI filing. If EPA identi fies a permit violation, it should assert liability against the p arty filing the NOI. By creating a primary and seco ndary "co- permittee" and potentially creating multiple permittees for a single discharge , EPA is confusing the NPDES permitting process and creating more levels of potential liability for "operators" than intended b y the CWA and potentially conflicting with normal c ontracting practices. EPA should allow maximum flexibility regarding whether multipl e parties want to become co-permittees or ensure an alternative compliance strategies, as long as all regulated discharges are permitted.

EPA also should clarify that it does not intend "su bcontractors" to obtain permits as expressly indica ted in its "NPDES Storm Water Program Question And Answer Document Volume II; USE PA 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 s hould be the sole operator, responsible for tempora ry controls, within specified parameters. The contractor has day-to- day control over phasing, construction methods, SWP PP implementation, and BMP maintenance. The option to have the Contractor as sole operator is available in many state permits. Requiring both DOT ‟ s and Contractors to obtain permit coverage as operators forces DOTs into a pse udo regulatory role over contractors on projects. I n Part 1.2 the Secondary Oper ator requirement is ambiguous and redundant. The prime c ontractor, by definition, is the responsible party. EPA echoes this respon sibility in Part 1.2.2. Managing the NOI ‟ s and NOT ‟ s of secondary operators (subcontractors) will beco me a complex contract administration issue for the state, although the task would be mor e feasible if the Prime Contractor were the sole op erator.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

156 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 al l operators within a particular construction and de velopment project co- permittees and holds all of them jointly and severally respons ible for compliance with the permit. Proposed CGP, § 1.2; see Fact Sheet at 16-17. While the Proposed CGP largely maintains the same d efinition of an operator for the purposes of design ating who must obtain permit coverage, the proposed permit adds joint and severa l responsibility for compliance.

Section 1.2 provides in relevant part:

For the purposes of this permit, an "operator" is a ny party associated with a construction project tha t meets either of the following two

criteria:

1. The party has operational control over construct ion plans and specifications, including the ability to make modifications to those plans and specifications; 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 wor kers at a site to carry out activities required by the permit)."

Section 1.2 then explains that all "operators" asso ciated with the same parcel will be jointly and sev erally responsible for permit compliance associated with the project:

Where there are multiple operators associated with the same project, all operators are required to obt ain permit coverage. On ce covered by a permit, all such operators are to be considere d as co-permittees if their involvement in the cons truction activities affects the same project site, and are held jointly and severally re sponsible for complying with the permit. In contra st, the 2008 CGP provided at § 5.12.C. If you have op erational control over only a portion of a larger p roject (e.g., one of four homebuilders in a subdivi sion), you are responsible for compliance with all applicable effl uent limits, terms, and conditions of this permit a s it relates to your activities on yo ur portion of the construction site, including protect ion of endangered species, critical habitat, and hi storic properties, and implementation

of control measures described in the SWPPP.

LBA respectfully submits that this language from th e 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 tha t would be subject to the requirements of the Propo sed CGP, the proposed change to joint and several liability is impractical and fund amentally unfair. By way of example, a developer wh o owns a 100 acre parce l often contracts with four separate builders, each of whom would separately construct homes on separate 25 ac re parcels utilizing separate,

individualized schedules. Under this scenario and t he Proposed CGP definitions, the developer would be considered an operator , as the developer owns the 100 acre parcel and theoreticall y has operational control over the co nstruction plan for the entire 100 acre parcel. TheUnformatted 2012 CGP Comment Response Essays February 16, 2012

157 definition of an operator in Appendix A provides th at an operator may be the "party [that] possesses t he title of the land where the construction activity will take place and has opera tional control over construction plans and specifications, including th e ability to make modifications to those plans and specifications." P roposed CGP, Appendix A, at A-8. That definition is not consistent with industry practice, however, because the owner may not have o perational control over construction plans and spec ifications in each separate 25 acre parcel. In contrast, each of the builders woul d also be considered an operator, and actually has both have operational c ontrol over the construction plans and specifications for the individual homes to be constructed on the s maller parcels within the 25 acres, and also has actual day-to-day operational control of the activi ties at a project and would be the only ones in a p osition to ensure compliance with permit conditions o nly on that builder's individual 25 acre site. Prop osed CGP, § 1.2. Based on the Proposed CGP's provis ions for joint and several liability, LBA is concerned that the de veloper and all of the builders would be considered liable for any violation of the term s of the Proposed CGP on any portion of the larger 10 0 acre parcel even though the owner does not have o perational control over construction on the entire parcel, and each individ ual builder lacks control over the operations occur ring 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, inappro priate, and should be removed.

Second, the addition of joint and several liability provisions is problematic because it is contrary t o applicable law. Nowhere does the Clean Water Act provide for joint and several liabi lity for violation of an NPDES permit. On the contr ary, the implemen ting 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 individua l 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).

The implementing regulations for general permits ad ditionally provide that a discharger's filing of a Notice of Intent fulfills the duty to obtain a permit. 40 CFR 122.28(b)(2)).

While the Proposed CGP would require only "operator s," as defined in the Proposed CGP, to obtain permi t coverage, the definition of operator could be broadly construed to include owne rs as well (as in the case of a developer in the hypothetical discussed above), who are not required to obtain permit coverage under the NP DES regulations described above..[FN 1]

The Proposed CGP's expansive definition of an opera tor, such that it would include the developer-owner of a development project, and then hold that developer-owner jointly and severall y responsible for the actions of operators on the p roperty owned, is contrary to the NPDES' implementing regulations.

Even for strict liability statutes such as the Clea n Water Act, due process considerations require tha t there be causation between the discharge by a permittee and a violation of the p ermit. See Appalachian Power Co. v. Train (4th Cir. 1976) 545 F.2d 1351, 1 377 (It is beyond EPA's authority to require permittees to tre at and reduce pollutants 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 limi tation is due to significant background pollutants) ; and see Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995) 51 5 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 proximately cause death o r injury to protected animals") (emphasis added).Unformatted 2012 CGP Comment Response Essays February 16, 2012

158 Concepts from other statutes governing pollution co ntrol have been imported into the Clean Water Act p reviously, but that has been done by Congress in statutes. See, e.g., NRDC v. EP A (D.C. Cir. 1987) 822 F.2d 104, 116 fn. 13 (Congre ss borrowed "standards of performance" from the Clean Air Act and imported in to Clean Wat er Act). Here, it appears that EPA is doing the sam e thing by creating joint and several liability. There are federal poll ution laws under which joint and several liability for polluters has been upheld. For example, the scope of liability in a cost recove ry action under § 107(a) of the Comprehensive Envir onmental Response, Compensation and Liability Act of 1980 (CERCLA) is said to be st rict, joint, and several - unless the harm is divisible. See U.S. v. Burlingto n 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, potentiall y responsible parties w ill not be held jointly and severally liable where a defendant can show that the harm at issue is capable of appo rtionment and provide sufficient evidence for the court to allow it to apportion lia bility. 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 jo int and several liability by establishing that it caused on ly a divisible portion of the harm].

Under the Proposed CGP and its definition of operat ors, an operator could be liable for violations res ulting from the non- compliance of other operators on a large development project even where the cause of the violation is readily appare nt and limited to one of several operators. As violations of the requirements of the Proposed CGP will be easily attributable to partic ular acreage under development, assigning joint and several liability is unnecessar y and is contrary to the policy rationale expressed in the CERCLA case law and the legal requirement of causation applicable to the Cl ean Water Act.

In addition, the joint and several liability requir ement has left the NEL compliance obligation in sec tion 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 20 acres are disturbed at one time, a permittee's discharges wil l be subject to the turbidity NEL. On or after Febr uary 2, 2014, the threshold for compliance with the turbidity NEL decreases to 10 a cres. Id. Based on section 1.2's requirement that a ll operators, as defined, be co-permittees and based on the manner in which many LBA members' construction and development projects proceed, it is unclear ho w the thresholds for compliance will be calculated wh en different portions of a larger acreage under com mon ownership are under construction by different operators. Consistent wit h LBA's proposal to remove the joint and several li ability provision from the Proposed CGP, LBA proposes that t he compliance threshold be evaluated based strictly on the acreage under construction by the operator who is individually and separately developing specified pa rcels under its control.

In summary, LBA urges EPA to remove the joint and s everal responsibility provisions included in sectio n 1.2 of the Proposed CGP. Such removal is consistent with the provisions of t he CWA and the policy pursuant to which responsibil ity for environmental compliance is allocated based on easily identifiabl e actions. LBA proposes that the designation of res ponsibility for CGP compliance remain as is required under the 2008 CGP - on an op erator- 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 res ponsible for compliance with all applicable effluent limits, terms, and conditio ns of this permit as it relates to your activities on your portion of the construction site, including protection of endanger ed species, critical habitat, and historic properti es, and implementation of control measures describe d in the SWPPP."]. This approach makes clear what each o perator's responsibility is and makes clear for EPA which operator is resp onsible for any permit violations.

[FN 1] This is additionally the case, as the defini tion of an operator in Appendix "A" of the Proposed CGP - which differs significantlyUnformatted 2012 CGP Comment Response Essays February 16, 2012

159 from that in Part 1.2 - includes the concept of "ti tle to the land." Proposed CGP, Appendix "A". Addin g a "title to the land component" to the permit confuses the issue of who qualifies as t he operator since, ,as described herein, those hold ing title to the land w ill not always be the entities in control of the plans and specificat ions. For example, there w ill be instances where long term lessees or utility companies

with easements will be the entities with control ov er the plans and specifications. For this reason, t he definition of "operator" in Appendix A, which discusses a party's possession of the title to land where a construction activity will take pla ce, is also inappropriate

under the Clean Water Act. Consistent with LBA's re commendation that the present CGP's language in sec tion 5.12.C. regarding the compliance responsibility of an operator with ope rational control over only a portion of a larger pr oject be revised, LBA submits that the definitions of operator in section 1.2 and Appendix A be made consistent with EPA's regulations, and t hat title to land be om itted 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 an other, it is the operator's duty to obtain an NPDES permit. While MDT agrees that it is useful to further define "operator" within the cap , MDT is concern ed with both the proposed definition, as well as the requirement tha t all operators obtain permit coverage.

In the last year, MDT has worked cooperatively with the EPA Region VIII office to determine the approp riate entity responsible for obtaining permi t coverage on our public transportation projects. I n accordance with public contract law, our contract s must be structured in a manner that allows for open and competitive bi dding, so that taxpayer dollars are expended in the most cost-effective manner. Activities that do not affect the end product are a n important variable in contract bidding. As such, MDT does not dictate construction methodologies, sequencing, equipment, etc. As a res ult, our ability to exert the operational control n ecessary to ensure p ennit compliance is limited. Instead, our control is primarily assoc iated with permanent structures and facilities. Bec ause 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 impl emented on MDT projects covered under the state's M ontana Pollutant Discharge Elimination System stonn water construction general permit. Specifying the contractor as the sole perm ittee eliminates potential for " finger-pointing," which can hamper actions to bring a facility into compliance in the most expeditious manner possible and complicat e enforcement actions. For that reason, MDT recommend s modifYing the definition of "operator " to clarif y that the operational control over construction plans and specifications, includi ng the ability to make modifications, must include the control necessary to ensure compliance with permit conditions. In addition, fle xibility should be allowed in the permit for determining the approp riate permit holder

in each situation.

Response Refer to Response 1.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

160 

# 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 responsibi lity for permit compliance among multiple operators at a site. However, the inclusion of joint and several responsibility creat es risk that is unreasonable and unmanageable for c ontractors with limited s ite control. It is not uncommon for subcontractors who are "oper ators" on a project to be separated by distance and time in their site ope rations even though they may have concurrent Construction Genera l Permit ("CGP") permit coverage for the same proje ct. Holding one operator responsible for the actions of another operator whe re there is not common place or time between them i s unreasonable. Furthermore, a subcontractor typically has no recourse against ano ther subcontractor from committing permit violatio ns 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 managed. If a subcontractor at a pro ject is deemed to be in viola tion of the permit it is reasonable to hold that su bcontractor and the "primary operator" responsible for the viol ations but not all other site operators. The provis ion for joint and several liability 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: Tepa 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 Section s 1.3.1.7 and 2.1.1.3, Requirement for CWA section 404 permits to be obtai ned prior to filing an NOI.Unformatted 2012 CGP Comment Response Essays February 16, 2012

161 Comment: Requirement to obtain CWA Section 404 perm its for stream crossing and other potential wetlan d impacts prior to filing NOI for CGP coverage is unnecessary.

Discussion: In general, permits under sections 402 and 404 of the CWA are two independent processes wi th different regulatory agencies and timelines. The limited benefit to be g ained by requi ring that section 404 permits be obtained first is not commensurate with the potential impact of delaying application for th e CGP, particularly since the waiting period has be en extended from 7 to 30 days.

Recommendation: Recommend deleting the requirement to obtain CWA Section 404 permits before 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 provi sion requiring CGP applicants to already have obtained any appropriate CWA 404 permi ts for actions subject to such permitting. But cons truction sites that require CWA Section 404 permitting must obtain such permits reg ardless of what EPA sets forth in its CGP. However, EPA should not repeat those obligations within a final CGP to avoid creating ad ditional and unnecessary liability under the NPDES progr am for requirements clearly set forth in the CWA's Section 404 program. FSWA re commends that EPA avoid such unnecessary cross-refe rencing and further simplify the CGP by removing extraneous and unneces sary duplication with other programs.

Appropriately regulated sites are subject to these requirements whether or not they also must obtain N PDES stormwater permits. In addition, the requirement to have "already" obtaine d any necessary CWA Section 404 permits prior to se eking coverage under the Proposed CGP could result in difficult timing and i mplementation issues especially for larger construc tion sites that may have only a small portion needing CWA Section 404 permit covera ge, but such coverage could hold up all other const ruction activities. Wit hout the provision, construction operators could commence co nstruction on certain parts of the property while a waiting its final Section 404 approval. The eligibility requirement in Part 1.3.1 .7 should be removed (as well as the similar langua ge 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 BrooksUnformatted 2012 CGP Comment Response Essays February 16, 2012

162 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 o btained any necessary CWA Part 404 dredge and fill permit(s) for any disturbances (e.g., stream crossings, infrastructure work, strea m restoration) to water s of the U.S., including wetlands, associated with [the] construct ion pro ject." Section 1.3.1.7. In effect, this makes the C GP the "critical path" permit, which may be unworkable for some projects. Along lo ng linear projects, in particular, other permits ma y only be necessary for discrete areas (e.g., at jurisdictional water cr ossings). In these situations, the operator should be authorized to begin work under the CGP outside of these discrete areas while the other necessary p ermits 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 wh en a CWA Part 404 dredge and fill permit(s) must be obtained. In Part 1.3.1.7, it states that you must have already obtained any nece ssary CWA Part 404 permits in order to be eligible to obtain coverage under the CGP. However, in Part 2.1.1.3 Minimize stream cross ings of the CGP, it states that the CWA Part 404 pe rmit must have been obt ained prior to any discharge of dredge or fill materials to waters of the U.S. In the Purpose section for th e Part 2.1.1.3. Minimize stream crossings in the Fact Sheet (page 32), it states "T his section also reinforces the sequence that opera tors are required to fo llow with respect to wetland disturbances - they must first obtain co verage 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 th e 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 is for obtaining a CWA Part 404 permit for consistency.

The requirement to have CWA Part 404 permit coverag e prior to obtaining CGP coverage is not practicabl e particularly for proj ects that will be covered by a Nationwide Permit requiring th e submittal of a preconstruction notification and t hat have a short turnaround time from project conception and funding to project comp letion. It is not always possible to plan a year or more in advance particularly for small linear projects which also have a great poten tial for requiring coverage under a Section 404 Nat ionwide Permit. For these fast track projects where project plans may not be finalized, any required permits are typically obtained concurr ently if at all possible. The U.S. Army Corps of Engineers has 45 days to approve a co mplete application. If wetlands will be impacted, a wetland delineation re port must be submitted prior to or with the preconstruction n otification. 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 i n the fall). Assuming 30 days are required to complete a wetland delineation and prep are the report, the operator would have to initia te Section 404 permitting at least 105 days prior to the start of any disturbance at the p roject to meet the proposed permit requirement. Fin ally, the CWA Section 404 permitUnformatted 2012 CGP Comment Response Essays February 16, 2012

163 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 time line. Because operators need as much flexibility as possible when planning and scheduling permit activities in order to meet proje ct deadlines, it is recommended that EPA only requi re that 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 "stormwat er 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 y ou are eligible for permit coverage..."

•Is "discharging to waters of the U.S." still a key criterion requiring National Pollutant Discharge E limination System (NPDES) coverage?

Response Refer to Response 1.1.



# 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 o f the proposed CGP is that some NPDES-delegated sta tes (Arkansas in particular) have adopted an interpretation that the acreage thr eshold triggers used to determine the application o f the CGP are tied to a broaderUnformatted 2012 CGP Comment Response Essays February 16, 2012

164 definition of "soil disturbance" rather than to the actual acreage of excavation trigger historically used by EPA. Within the definition of soil disturbance, ADEQ includes haul roads and esse ntially any other activities that denude the ground surface of cover vegetation. Entergy reasonably can control and sequence areas w here actual excavation it to occur, but since suppo rt structure erection c an involve positioning equipment throughout a utility line rig ht-of-way ("ROW"), roadway and equipment tra il or tracking areas are also captured in the acreage of impact. Consequently, on a linear project the ten acre threshold existing in the dra ft permit concerning monitoring requirements could be quickly exceeded even though the actual excavation for the pr oject is well under ten acres and the project's des ign is not reasonably expected to cause the type or amo unt of offsite stormwater runoff that logically req uires the more stringen t monitoring requirements. ESI requests that EPA provide directi on to the States that, as far as the CGP is concern ed, the ten- acre threshold should be

measured as areas of actual excavation.

Response Refer to Response 1.1. EPA also notes that the 10 a cre 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 authorization to conduct emergency repairs under the CGP conditioned upon th e receipt of the notice of intent to conduct work under the CGP within 7 days of star ting work. However, language in the CGP effectively prohibits initiation of construction in upland areas prior to securing a we tland dredge or fill permit under § 404 of the Clea n Water Act, if such a permit will be required for completion of the portion of the work to occur in waters of the United St ates ("WOUS"), such as a jurisdictional wetland. It would be impossible to apply for and receive a § 40 4 permit in order to comply with the previous condi tion within that time period. Entergy requests that EPA remove this §404-related requirement from the CGP and allow the permit appli cant to begin work in an upland area associated with the emergency project i mmediately, with the understanding that the applica nt must separately obtain the appropriate authorization for dredge or fill of a W OUS.

Response Refer to Response 1.3.



# 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 i s that the project could not have been "covered by another NPDES stormwater permit within the past 5 years...". It should be noted out that ele ctrical lines are very vulnerable

to storm events and that it is within the realm of possibility that a line could be dest royed and require rebuilding immediately following submittal of a NOT. Entergy requests that EPA add a n exception to the CGP for this type of situation.Unformatted 2012 CGP Comment Response Essays February 16, 2012

165 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 n ew CGP is not available to authorize a discharge th at was covered by anoth er permit in the past 5 years is intended to avoid "permit shopp ing" where the holder of a permit that contains wat er quality- based effluent limitations might seek coverage under the CGP to avoid those co nditions. The language of this subsection (c) is br oad, however, and could apply to other circumstances, including case s where a prior permit was appropriately terminated during an extended cessation of work. We would ask either that EPA clarify the narrow scope of thi s subsection or that it state that the "Note" appea ring immediately below subsection (c) is intended to provide relief from the broad langua ge of subsection (c) in cases where "permit shoppin g" 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 Propos ed Permit

Simplot believes that EPA needs to clarify that thi s draft General Permit is focused on the constructi on industry and not the mining industry. As noted below (1.B. Speci fic Comments), there are other Clean Water Act (CWA ) permitting requirements specific to mining

activities. In order to avoid confusion as to what regulatory requirements are applicable to mining op erations in relation to the General Permit for Stormwater Discharges from Construction Activities, EPA should address this issue in the fi nal permit.

Response Refer to Response 1.3.



# Comment ID 0106-A2.001.002

Author Name: Hamanishi Henry Organization: J. R. Simplot Company Issue Category: 1.3.1Unformatted 2012 CGP Comment Response Essays February 16, 2012

166 1 B. Specific Comments on the Applicability of the Proposed Permit

Eligibility Conditions (1.3)

To be eligible for CGP permit coverage, there are s everal conditions. The proposed permit states in se ction 1.3.1.4 that:

Your project is not (eligible if):

a) Already covered by another NPDES stormwater perm it for the same discharge, except where a site requ ires permit coverage under this permit and a state construction stormwater per mit because earth disturbing activities will take p lace 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 stormwat er 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 Temporar ily Inactive Facilities. All stormwater discharges, except for most stormwater discharges subject to the existing effluent limitat ion guideline at 40 CFR Part 436. Mine dewatering d ischarges composed entirely of stormwater or uncontaminated ground water seepage f rom: construction sand and gravel, industrial sand, and crushed stone mining facilities in Regions 1, 2, 3, 6, 9, and 10 are cov ered by this permit.

8.J.1.3 Covered Discharges from Exploration and Con struction of Non- Metallic Mineral Mining Facilities. All stormwater discharges.

8.J.1.4 Covered Discharges from Sites Undergoing Re clamation. All stormwater discharges.

In particular, in 8.J.1.3, the covered discharges f rom Construction have the following definition in t he permit:

8.J.3.3 Construction phase - Includes the building 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 southe astern Idaho, SIC code 1475, which is included in S ubsector J3 of Sector J of the MSGP permit, Simplot asserts that the MSGP permit i s the only permit required for stormwater in constr uction related activities as described in S.J.3.3 based on the proposed CGP sect ion 1.3.1.4 a.

In addition , the Clean Water Act section 402(/)(2) exempts unc ontaminated 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 runo ff from mining operations ... composed entirely of flows which are from co nveyances or systems of conveyances ... used for collecting a nd conveying precipitation runo ff and which are not contaminated by contact with, or do not come into contact with any overburden, raw m aterial, intermediate products, finished product, b yproduct, or waste productsUnformatted 2012 CGP Comment Response Essays February 16, 2012

167 located on the site of such operations.

EPA should recognize in the CGP and Fact Sheet the applicability of the exemption to qualifying stormw ater 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 requir ements those parties that have individual NPDES per mits that include appro priate sediment and erosion control obligations, whether i n the form of non-numeric or numeric effluent limit ations for sediment-related discharges. Many individual permittees collect stor mwater as well as process water and treat all of th at water through BMPs o r 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 contemplate d in the development of the individual permit, such persons overseeing suc h activities should not have to obtain separate CGP coverage.

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 40 4 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 each ot her for implementation or enforcement. It is entirely possi ble to engage in a project that requires a 404 permit b ut does not require a 402 permit and vice versa; this clearly illustrates the indepe ndence with which each program operates. EPA's just ification in the CGP Fact Sheet offers little to support the addition of this requirement to the permit: "By requiring th at such permits be abtained first, EPA believes tha t it will enable those agencies charged with 404 perm it issuance to be able to evaluate the proposed imp acts to wetlands and/or surface waters independent from the construction project as a whole." The 404 program already evaluates propos ed impacts to jurisdictional waters independent from the construction project as a whole. In fact, not only does the 404 program ev aluate impacted waters separately from the project as a whole but it evaluates each i mpacted water as a sole and separate project. That is to say, a linear constructi on project which crosses multiple distinct jurisdictional wate rs must obtain separate 404 permit coverage for eac h crossing. The 40 4 program has a long history of successfully evaluating the distinc t 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

168 Furthermore, the 404 permit requirement will make i t nearly impossible to pursue multiple permits conc urrently during the permitting phase of a project. It is not uncommon for local co nstruction permitting authorities or federal land a gencies 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, unrelat ed permits. Given the long lead time that 404 permi ts can require, in some districts the process can take m ore than a year, a bottleneck will be created in th e permitting process if project permitting cannot p roceed without the needed 404 permit. This requirement has no clear ju stification or benefit and will serve to slow the c onstruction 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 CONSTRUCTIO N 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 slop e - such as landslide or a debris flow. In this case, i t 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; C GP Section 1.3.2, Emergency related construction.

Comment: Proposed deadlines for NOI submission (wit hin 7 days) and Stormwater Pollution Prevention Pla n (SWPPP) development (within 7 days of submitting NOI) during emergency- related construction may be unattainable.

Discussion: DoD supports EPA's propos al to provide immediate authorization for construct ion activities required for response to publicUnformatted 2012 CGP Comment Response Essays February 16, 2012

169 emergencies; however, submission of an NOI within 7 days of commencing earth-disturbing activities may not be feasible in some emergency situations. Likewise, development of a SWPPP within 7 days of the NOI sub mission is unattainable given some emergency situations (i.e., those which result in loss of pow er for 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 constru ction, the requirement to submit a SWPPP within sev en days following submi ttal of the NOI would be extremely difficult for a major li ne repair p roject, particularly during hurricane restorations where numerous lines may be damaged and require total rebuild. ESI requests that EPA revisit this timeline to allow constructio n to begin in a more ti mely manner, such as within seven days of submission of the NOI unless the permitting authority notifies the applic ant that construction 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 abil ity to perform work in emergency situations and sup ports the additional fl exibility 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)Unformatted 2012 CGP Comment Response Essays February 16, 2012

170 Issue Category: 1.3.2 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 subm it an NOI after commencing the emergency earth-dist urbing activity. After the emergency (e.g., wildfires, floods, earthquakes, hu rricanes), utilities (e.g., electric, gas, communic ations) are the first s ervices that must be restored to support other response activities. D elays in restoring these utilities will lead to ove rall delay s in restoring communities. A short deadline (i.e., 7 days) is particularly probl ematic in emergency situations that are, themselves , on- going and for which the scope of the work can expand over time. For example, in a fl ood emergency, the flood conditions may continue for days 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-disturbi ng activity or after the emergency conditions have been abated, whichever occurs later." We note that for some emergencies, like ear thquakes, the physical disruption may occur for jus t a few minutes, but th e emergency conditions may persist for days if not weeks or lon ger. 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 t o extend the deadline for developing a SWPPP for em ergency projects. To avoid confusion, EPA should include the same language in Section 1.5, which would otherwise compel the opera tor 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 authorizati on 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 th is sentence. A common emergency on a highway projec t is a failed highway slope - such as a landslide or a debris flow. In this case, it m ay 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 emer gency events in Section 1.3.2 - Eligibility for Eme rgency-Related Construction Activities are unreasonable and impractical, partic ularly for small government entities with only a fe w people handling cleanu ps. In anUnformatted 2012 CGP Comment Response Essays February 16, 2012

171 emergency, everyone should be busy with initial res ponse and clean up which may take up to several wee ks depending on the typ e and extent of the emergency which has most probably don e most of the environmental damage even before clea n up begins. Preparing a lengthy NOI within seven (7) days is unreasonable a nd beyond the capability of small government entiti es. Small government un its also

face limited resources.

Thought should be given to less detailed response r eports and longer time frames within which to repor t.

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 an d minor.

1. In a minor emergency (which could be a train wre ck, bridge washout, fire, minor storm damage) requi ring a permit might be reasonable. However, requiring all of the intricate details such as w etlands, endangered species, impaired waters, etc. is not reasonable or practical.

2. In a major emergency, everyone is too busy savin g 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 envir onmental damage has been done. If there are impaired waters, historical issues, etc. these issu es are not important until after the initial cleanu p, assessment of the ov erall damage and impact to the area . The idea of having to prepare a lengthy NOI withi n seven (7) days is unreasonable and will take impo rtant 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, sampling, r ecords keeping, TMDL's etc., and only require very basic informatio n.

2. Major event - the NOI should be totally eliminated and replaced w ith a letter giving notice of the event containing the type of event, a list of responsible parties and the estimated durat ion of the cleanup and a brief, verbal damage asses sment.

You might require the lead agency to provide a gene ral assessment report following the completion of t he cleanup indicating the ty pe of event; a timeline for restoration; what general pre cautions will be taken to protect any historical ar eas, impaired waters, endangered species; and also the impact to wetlands, waters, f orests and other sensitive facilities in the event area.Unformatted 2012 CGP Comment Response Essays February 16, 2012

172 The report could indicate what (if any) provisions for sediment, TMDL monitoring, etc. were used durin g the cleanup and restoration, including what provisions to comply with the permit were considered and applied.

This report should be submitted within six (6) mont hs of the completion of the cleanup and damage asse ssment phase.

Response EPA appreciates the recommended modifications to th e eligibility procedures regarding emergency-relate d construction activities. However, EPA believes that that 30 days is a reason able amount of time for a site to develop its neces sary 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 commu nities and rural areas who do not have the expertis e or the personnel to prepare a permit submittal even in seven days. They will have to hire the expertise - money they may not have. R emember FEMA, if dec lared, is a reimbursement process at 75/25 and takes several days/weeks to get approval and cash flowing. A stat e usually has some emergency funds which can help, however they still don't have the expertise to complete the NOI nor the time to do it.

4. Many areas have an emergency management cooperat ive group. However this group manages a large numbe r of activities in a ma jor event. In an event that would cover several jurisdi ctions, the questions become:

A Is the EMA responsible for the NOI and all the pe rmit provisions?

B. Who's responsible if the event covers multiple E MA jurisdictions?

C. Is each individual government unit responsible f or an NOI in its individual jurisdiction?

D. If EMA is responsible for an overall NOI and com pliance, do they assign to one of the government un its the NOI and compliance work? Do they hire outside help and where are the f unds coming from?

5. Emergencies are like a Chinese fire drill. Lots of things are happening at once and even when you t hink you're ready, you frequently find that you are not (as we found out in New Orlea ns and Houston in the past, or recently with all th e bad weather in spring of 2011). With nature devastating the environment we know the environment is taking a hit. Therefore, we need to a ddress the emergency at hand.

It will take some serious time for the environmenta l impacts to right themselves. No governmental unit involved in a cleanup and restoration will neglect good stewardship in protec ting its sensitive assets.

There is a time and place for everything in a major emergency. It is not the time for excessive paperw ork or regulations.Unformatted 2012 CGP Comment Response Essays February 16, 2012

173 Response In response to the concern about the time required to submit the NOI, Refer to Response 1.3. To addres s the questions raised, EPA clarifies that EMA is responsible for the NOI and c ompliance with the permit to the extent the EMA mee ts the definition of "o perator" (i.e., the party has operational control over const ruction plans and specifications, including the abi lity to make modifications to those plans and specifications; or the party has day-to-d ay operational control of those activities at a pro ject that are necessary to ensure compliance with the permit conditions (e.g., they a re authori zed to direct workers at a site to carry out activi ties required by the permit). If the event covers multiple EMA jursidctions, all parties meeting the definition of "operator" within those jursidictions ar e responsible for being covered under the permit. Similarly, to the extent that any individual govern ment unit meets the definition of "operator", they are required to be covered under the permit. If EMA is an operator, they would be required to comply w ith the NOI and the per mit for the areas covered under their permit, as would other op erators covered under the permit. With regard to th e question about hiring outside help and obtaining funds, EPA notes that it is not the role of the Agency to determine whether personn el 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 per form work in an emergency situation pending subsequ ent submission of an NOI.

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 ident ify 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 wi th potential for

Response Refer to Response 4.1.



# Comment ID 0040-A1.001.006

Author Name: Reynolds PaulUnformatted 2012 CGP Comment Response Essays February 16, 2012

174 Organization: Sunflower Electric Power Corporation Issue Category: 1.3.3 confusion and/or error, particularly in states wher e impairments are described generally (e.g., aquati c life use impairment) without reference to particular pollutant stressors (e.g., nutrients or sediments).

Response Refer to Response 4.1.



# 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 eligib ility requirements as set forth in the 2008 CGP, wh ich relies extensively and appropriately on EPA's TMDL program to address thes e issues. While that is what EPA has proposed, the CGP Fact Sheet references proposed Appendix J, which FSWA believes is an inap propriate complication of the 2008 CGP approach (se e Section III.D. commen ts below). In this case, EPA is properly establishing eligibility based on the CWA's water quality progra m by certifying compliance with any appropriate TMDLs, which would require complian ce 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 the 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, In c. Issue Category: 1.3.3 The Section 1.3.3 requirement that permittees ident ifY the impairment status of their receiving waters (especially along linear projects that may cross or discharge into multi ple differen t watersheds) is similarly burdensome, and is rife with potential for confusion andlor error, particularly in states where impairments are described generally (e.g. , aquatic life use impai rment) without referenc e 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 eligibilit y with regard to new sources and existing unpermitt ed dischargers who are discharging to impaired waters. EPA should maintain the same im paired waters eligibility requirements as set forth in the 2008 CGP, which reliesUnformatted 2012 CGP Comment Response Essays February 16, 2012

175 extensively and appropriately on EPA's TMDL program to address these issues. The proposed CGP Fact She et (see page 19) appear s to confirm that EPA intends to follow this approach: " The proposed requirements in Part 1.3.3 are the sam e as the corresponding requirements in Part 1.3.C.4 of the 2008 CGP." Howe ver, the exact same page of the Draft references pr oposed Appendix J, whic h AGC believes is an inappropriate complication of the 20 08 CGP approach (see AGC's comments, Section IV abo ve).



# 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 int erpreted by the Ninth Circuit in Friends of Pinto Creek v. EPA 504 F.3d 1007 (9th Ci r. 2007), and should be revised to require a more r igorous and supportable demonstration that water quality standards will be met in the receiving water prior to issuance of cov erage for new sources.[ FN 6] In the absence of such a demonstration, new sources would need to retain all stormwater (and associated pollu tants) on site. Moreover, the process for review of new sources (or existing unpe rmitted discharges) proposing to discharge to water s with a TMDL is only vaguely alluded to in the Fact Sheet, and the entirety of t he analysis appears to rest with EPA during the 30- da y waiting period prior to coverage. EPA should clarify in the Final CGP how this demons tration will be made prior to permit coverage or co mmencement of construct ion.

[FN 5] 40 C.F.R. Part 122.4(i) provides: No permit may be issued . . . [t]o a new source or a new disc harger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The ow ner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards 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 pe rformed a pollutants load allocation for the pollut ant to be discharged, must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining p ollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compli ance schedules designed to bring the segment into compliance with applicable water quality stand ards. The Director may waive the submission of info rmation by the new source or new discharger required by pa ragraph (i) of this section if the Director determi nes that the Director already has adequate informat ion to evaluate the request. An explanation of the develop ment of limitations to meet the criteria of this pa ragraph (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 commence d construction activiti es after February 1, 2010, and that requires NPDES permit co verage 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) Issue Category: 1.3.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

176 1. General Eligibility Provisions (Section 1.3.3): The Draft Permit provides that a discharger is not eligible for coverage under the Permit if EPA determines, before authorization of the disc harge, that the discharge will cause, have the reas onable potential to cause, or contribute to an excursion above an applicable wate r quality standard. It is very important that this provision only disqualifies a discharger from eligibility if EPA determines, befo re authorization, that there is a water quality pro blem associated with th e discharge. This gives the discharger notice, before coverage i s granted, that EPA has identified a problem. The discharge then has th e 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 r etained in the final Permit.

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 eligib ility requirements as set forth in the 2008 CGP, wh ich relies extensively and appropriately on EPA's TMDL program to address thes e 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 appro ach (see Section III.D. comments below).

Part 1.3.3 of the Draft Permit provides that a disc harger is not eligible for coverage under the Permi t 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 im portant that this provision only disqualifies a dis charger from eligibility if EPA determines, before authorization, that there is a w ater quality problem associated with the discharge. This gives the discharge notice, before coverage is granted, that EPA has identified a problem. The discharge then has the opportunity to fix the problem and obtain coverage, without having to be concerned about civi l or criminal penalties for permit violations or ab out 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 pr ovision 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: 1.3.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

177 The Section 1.3.3 requirement that permittees ident ify 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 wi th potential for confusion and/or error, particularly in states where impairments are described generally (e.g., aquatic life use impair ment) without reference to particular pollutant stressors (e.g., nutrients or sediments).

Response Refer to Response 4.1.



# 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 antidegradatio n requirements to tier 2 and 2.5 waters unnecessari ly. In such waters, newly permitted discharges may be allowed w ithout the additional limitations proposed by the P roposed CGP. EPA should treat such waters consistently with its own guidance and not unnecessarily encumber construction in such wat ersheds. FSWA agrees with EPA's statement and the Agency's general approach t hat compliance with the CGP presumes compliance wit h Tier 2 or 3 antidegra dation 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 unnecessar ily expand the application of antidegradation requi rements to Tier 2 and 2.5 waters. EPA should not unnecessarily encumber construction in such watersheds. AGC recommends that EPA follow the general approach th at compliance with the CGP presumes compliance with Ti er 2 or 3 antidegradation requirements.

Response Refer to Response 1.3.Unformatted 2012 CGP Comment Response Essays February 16, 2012

178 

# 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 Tier 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 Depart ment of Environmental Management (IDEM) is inconsistent impaired waterbod ies described by USEPA.

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 a pproach in the permit is inconsistent. EPA also cla rifies that the requirements that apply to discharges to Tie r 2, Tier 2.5, or Tier 3 waters are different than the requirements that apply to discharges to impair ed 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 Qu ality Waters (Section 1.3.4): For discharges to Tie r 2, Tier 2.5 or Tier 3 wa ters, EPA provides that the discharge is eligible for coverag e only if it "will not lower the water quality of t he applicable water." We have two concerns about this provision, which relates to the three tiers of EPA's antidegradation policy (found in 40 CFR 131.12). Fir st, we do not think that EPA should specify requirements that app ly to Tier 2.5 waters. The concept of Tier 2.5 does not appear in EPA regulations or guidance; it is strictly up to each State whether i t wants to create a category between Tier 2 and Tie r 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 i ncreased discharges to Tier 2 waters can lower water quality if certain demonstrations a re made related to their economic or social benefit. Also, EPA allo ws States to adopt exceptions to antidegradation review for certain di scharges, including those that meet a "de minimis" test of significance. Therefore, Section 1.3.4 should be modified to clarify that th e test of eligibility for Tier 2 (and Tier 2.5) wat ers 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 langua ge of Section 1.3.4: it provides that in the absenc e of contrary information, EPAUnformatted 2012 CGP Comment Response Essays February 16, 2012

179 expects that compliance with the requirements of th e Draft Permit will result in discharges that "will not lower the water quality of the applicable water." We agree 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 D raft Permit's conditions are necessary in order for EPA to make this determi nation. We encourage EPA to reconsider the Draft Permit's stri ngent conditions, such as the proposed notice, buff er and monitoring provisions, to

streamline the Permit and make its conditions more reasonable and flexible. Recommendations on these i ssues are set forth in the comments of FSW A and FWQC member organizations.

Response EPA appreciates the comment. Refer to Response 1.3

.



# 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 discha rges to Tier 2, Tier 2.5 or Tier 3 waters that the discharge is eligible f or coverage only if it "will not lower the water quality of the appl icable water." The Chamber has two concerns with th is provision, which relates to the three tiers of EPA's antidegradation policy (found in 40 CFR 131.12).

• First, the EPA should not specify requirements th at apply to Tier 2.5 waters. The concept of Tier 2.5 does not appear in EPA regulations or guidance; it is strictly up to each State whethe r 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 qua lity" is not the correct test to apply to Tier 2 wa ters. In EPA's antidegr adation policy and guidance, new or increased discharges to Tier 2 wat ers can lower water quality if certain demonstratio ns are made related to their economic or social benefit. Also, EPA allows States to adopt exceptions to antidegradation review for certain discharges, inc luding those that meet a "de minimis" test of significance. Ther efore, 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 fo r 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 informatio n, EPA expects that compliance with the requirements o f the Draft Permit will result in discharges that " will not lower the wate r quality of the applicable water." The Chamber agrees with that determination, which is justified given the string ent conditions contained in the

Draft Permit.

Response EPA appreciates the comment. Refer to Response 1.3.Unformatted 2012 CGP Comment Response Essays February 16, 2012

180 

# 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-stor m water discharges to ensure the permit language will not be construed as author izing the discharge of pollutants through non-storm water discharges. Specifically,

section 1.4.1 .4 of the draft 2011 CGP authorizes t he following non-stormwater discharg es, 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 vehicl es 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 water where spills or leaks or hazard ous materials have not occurred (unless all spilled material has been remo ved) and where detergents are not used. Absent further quali fication to these allowable non- storm water discharges, as suggested below, the CGP should 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 di rt roads and shoulders provided reclaimed or other wastewaters are not used; water used for compacting so il provided effluent or other wastewaters are not u sed; diverted stream flows; discharges from riparian habitats and wetlands; and flows used for drilling and coring s uch as for evaluation o f foundations materials, where flows are not contaminated with ad ditives.

Response Refer to Response 1.4.



# Comment ID 0038-A1.001.002

Author Name: Minervini W.Unformatted 2012 CGP Comment Response Essays February 16, 2012

181 Organization: Issue Category: 1.4.1 For consistency with Part 1.4.2.1, change the openi ng clause of Part 1.4.1.4 to read "The following no n- 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-sto rmwater discharges.

Response EPA agrees with the suggestion, and has made the pe rmit 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 add itional non-stormwater discharges from construction activity, including:

k. Uncontaminated construction dewatering wastewate rs that have been treated by an appropriate control under Part 2.1.4.6.

Wastewaters that have been treated in accordance wi th 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 t o NPDES. We do not believe that it should be added to the allowable non-storm water list because dewatering of sediment ponds doe s not produce wastewater, but only captured storm w ater. The term "trace a mounts" is ambiguous and could be considered unachievable w hen 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-s ite areas that are not contiguous with the permitte d 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

182 

# 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 Propose d 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 no t include landscape irrigation as a non-stormwater discharge.

The installation of sod and other types of vegetati on is a permit stabilization requirement and requir es significant watering during the 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 of f 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 discharges from the si te and these same measures, when applied to landscape irrigation waters, will m inimize impacts of non-stormwater discharges from l andscape irrigation.

Part 8.2.9 of the Proposed CGP requires the SWPPP t o identify the sources of nonstormwater and to desc ribe the measures taken to comply with the requirements in Part 2.1.3.1d to ro ute non-stormwater discharges to sediment controls. The Proposed CGP also inc ludes fertilizer discharge restrictions in Part 2.3.4 tha t are designed to minimize discharges of fertilizer s containing nitrogen a nd phosphorus.

Landscape irrigation is not specifically included a s 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 Environmen t - Colorado Issue Category: 1.4.1 Part 1.4.1.4 ofthe Permit authorizes discharges fro m several non-stormwater sources. Part 8.2.9 of the permit requires the routing of non-stonnwater discharges to sediment controls. Sed iment 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-poll utants, or other pollutants that may not be adequat ely controlled with sediment controls. The Division requests that EPA evaluate t he discharges in this list to determine if sediment controls will adequate ly minimize the potential pollutants in the discharges as neces sary to meet applicable water quality standards. If the EPA finds that this condition is not being met, the Division requests that EPA furth er define or restrict the list of non- stonnwater discharges to remove those discharges which would result in a potential to exceed water q uality standards, or require additional effluent li mits for those discharges. Specific examples include, but are not limited to:Unformatted 2012 CGP Comment Response Essays February 16, 2012

183 Evaluate the need for limitations restricting the s ource water used for the activity, where applicable (e.g., only authorize discharges from potable water sources for dust control, washing, et c.).

1.4.1.4 .c: Evaluate the need for limitations or pr ohibitions for washing activities that may introduc e dissolved pollutants (e.g., limit washing to the exterior ofvehicles and prohibit dis charges from washing vehicle beds, chutes, or other surfaces used for containing or transferring materials).

Evaluate the need for additional limitations to add ress chlorine.

4.1.4.i and j: Evaluate the need for limitations an d/or monitoring necessary to determine if contamina nts are present. Note that 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 R isk discharge policy. For these sources, the Divisi on has done a full evaluation and included specific exclusigns and limitations to address potential pollutants. Fr om more information, see the Low Risk Policy and Fact Sheets, available here: http:/ /www.cdphe.state.co.us/wq/PermitsUnitlguidanceandpo licynewpage.html

Response Refer to Response 1.4.



# 1.4.2 LIST OF DISCHARGES NOT ADDRESSED BY THIS PERM IT

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 construct ion activities that are discharged to a combined sewer system" are among th e discharges "that are not addressed under this per mit because they are either covered by another permit or they are not within th e scope of designated discharges requiring NPDES pe rmit coverage."

Please confirm (and provide legal basis for that co nfirmation) that under no circumstance can any stor mwater 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 sect ion 402(p) of the Clean Water Act.

(40 CFR § 122.26(a)(7) states that "conveyances tha t discharge storm water runoff combined with munici pal sewage are point sources that must obtain NPDES permits in accordance with t he procedures of § 122.21 and are not subject to th e provisions of this se ction." 40 CFR § 122.26(a)(7) makes it clear that dis charges from combined sewer systems cannot be requi red to obtain a permit under 40 CFR § 122.26. However, 40 CFR § 122.26(a)(7) might not ma ke it clear that discharges to combined sewer syste ms cannot be required t o obtainUnformatted 2012 CGP Comment Response Essays February 16, 2012

184 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 Activit y states flatly (page 9) that "permits are not required for industrial [storm wat er] discharges to sanitary sewers systems, includin g 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 o f Ecological Restoration (DER) Issue Category: 1.4.2 Section 1.4.2.2 of the draft permit appears to indi cate projects regulated under part 404 of the Clean Water Act (CWA) are ex empt from the general construction stor mwater permit. Several restoration projects advance d by the division have obtained both a §404 permit and applied for a general stormwater permit per instruc tions from the regulating authorities. DER would li ke clarification on thi s section of the stormwater permit. If a project obtains a §404 permit from the Corps of Engineers, is the entire p roject exempt from the NPDES stormwater program? Are there qualifications or lim itations?

Response Refer to Response 1.5.



# 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 requir ements those parties that have individual NPDES per mits that include appro priate sediment and erosion control obligations, whether i n the form of non-numeric or numeric effluent limit ations for sediment-related discharges. Many individual permittees collect stor mwater as well as process water and treat all of th at water through BMPs o r advanced treatment devices (of combination thereof). If disc harges from any ongoing construction activities is captured and also becom es subject to the effluent limits set forth in and contemplate d in the development of the individual permit, such persons overseein g such activities should not have to obtain separate CGP coverage.

Response Refer to Response 1.1.



# Comment ID 0105-A2.001.017Unformatted 2012 CGP Comment Response Essays February 16, 2012

185 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 located in combined sewer drainage areas. Section 1.4.5 of the Draft CGP states that "[s]tormwater and/or allowab le non-stormwater discharges

associated with construction activities that are di scharged to a combined sewer system" are not eligib le for coverage under t he CGP. This appears to presume that all construction site runof f will receive treatment at a municipal treatment p lant. Howev er, given the frequency of combined sewer overflows in many geographic area s with this type of infrastructure, it is entirely predictable that untreated

construction site runoff will contribute to the lik elihood of overflows and will directly contribute s ubstantial 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 sto rmwater volume and pollutants from reachin g municipal drainage systems. For these reasons, EPA should strongly consider requiring con struction and development sites discharging to comb ined systems to meet stormwater control and pollution prevention require ments no less stringent than sites in MS4 areas, wi th an emphasis on retaining stormwater volume on site. Alternatively, EPA shoul d clarify that construction site operators must obt ain coverage under the NPDES pretreatment program and meet requirements analogou s to the CGP.

[FN 7] Further compounding the problem, the routine discharges of sediment-laden runoff from construct ion sites to municipal

combined sewer infrastructure will increase mainten ance requirements and costs. A number of communitie s in Massachusetts and New Hampshire face substantial financial and technical challenges in reducing or eliminating CSOs. 24 comm unities in Massachusetts discharge combined sewer effluent from a total of 3 12 outfall locations. See MassDEP, Combined Sewer O verflows: Frequently As ked Questions, available at http://www.mass.gov/dep/ wa ter/wastewater/csofaqs.htm. In New Hampshire, six c ommunities discharge combined sewer effluent from 35 remaining CSO outfa lls. See New Hampshire Dep't of Envt'l Services, En vironmental 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.

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 TransportationUnformatted 2012 CGP Comment Response Essays February 16, 2012

186 Issue Category: 1.5.1 The Operator is required to identify "Impaired Wate rs" (i.e., 303(d) listed waters) which in Wyoming i s not user friendly, comprising five different tables including TMDL listings. The DEQ listing priorities (tables) also change from ye ar-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 sepa rate 16 digit watershed 10 must also be used. A 10-mile linear highway proj e ct 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 c ontractual 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: 1.5.1 9. INFORMATION ON NOI. In Part 1.5.1, the applicant is required to provide the latitude and longitude of discharge points. The 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 requ irement will be particularly cumbersome due to the potential number of discharge 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) - DEVELOP MENTUnformatted 2012 CGP Comment Response Essays February 16, 2012

187 

# 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 const ruction operators use the e-NOI system in the inter est 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 p aperless 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) 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 p rocessing paper NOIs, but it will also help to redu ce natural resource consumption. Additionally, we hope that this more efficient syst em of submitting NOIs will result in the developmen t 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 tempo rary acceptance of paper NOIs in limited circumstan ces until the transition is complete.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

188 Refer to Response 1.6.2. EPA also notes that it wil l 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 I NTENT (NOI). Past experience using the ENOI system Latitude and Longitude Validation page under the "Project Site I nformation" Tab resulted in coordinates delineated to be 850 miles away from verified project coordinates.

Consider revisions/updates to the ENOI system Latit ude and Longitude Validation page.

Response Refer to Response 1.6.2 and 1.6.3.



# Comment ID 0068-A1.001.013

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 1.5.2 While EPA continues to implement an eNOI system, FS WA supports a flexible system in which the party fi ling 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: 1.5.2 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 existi ng 7-day waiting period makes it difficult for perm it holders, such as the NMDOT to begin construction on projects that are on a fast t rack or ones that become available within a very sh ort 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

189 

# Comment 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 con cerned that EPA's new process of making NOIs (and d ischarge monitoring reports) publicly accessible through EPA's website is furthe ring public confusion in ways that will harm job gr owth and economic recov ery. As EPA states in the proposed CGP Fact Sheet, during t he extended 30- day waiting period, "the public will have the oppor tunity to review the NOIs, to request to review the SWPPPs, and to p rovide feedback to EPA." This will foster situation s wherein people who have objectives unrelated to protection of water quality will take issue with construction site operator's electronic submissions in order to delay important projects. These concerns are compou nded by the draft permit provisions that would allo w "any interested person" to object to coverage under the CGP (see AGC's com ments at Section IX on Draft CGP Part 1.5.6, Proced ures for Denial of Coverage), as well as provisions that would require site operator s to electronically report within 24 hours any exce edances 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 Requir ed 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: 1.5.2 In addition, Amigos Bravos supports EPA's efforts t o transition towards a paperless NOI process. EPA' s resources have been continuously attacked and whittled away in recent y ears and Amigos Bravos supports any efforts to spen d less time and resources on administration paperwork and more on inspections an d enforcement actions. The lack of EPA and state ov ersight of stormwater activities in the state of New Mexico, due in no sm all part to the lack of staff and resources to cond uct inspections and enforcement actions, is common knowledge among the New Mexico r egulated community. As a result, many don't bother to obtain permit coverage.Unformatted 2012 CGP Comment Response Essays February 16, 2012

190 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 eN OI except where a paper NOI is specifically authorized because the eNOI is a pa perless process and the waiting period begins the s ame day. If the NOI is sub mitted via mail, the waiting period does not start until EPA S tormwater Processing Center receives the NOI and en ters it into the N OI system. Since there is no delay waiting for the NOI to be receive d and entered into the system by EPA, it is more ad vantageous for the oper ator 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: 1.5.2Q With respect to EPA's request for comments on the e xperience of using the eNOI system, the Southern Ut e Growth Fund has the following comments. If a person uses the eNOI syste m frequently, it is fairly user friendly. However, the system can be intimidating forUnformatted 2012 CGP Comment Response Essays February 16, 2012

191 the infrequent user, e.g., the responsible corporat e officer or manager who only certifies the documen ts that have been prepared by others. Typically, these infrequent users require g uidance every time they need to use the system. Bec ause there can be a change in personnel, it is highly recommended that EPA improv e the process for transferring access to existing p ermits from an existing preparer to a new individual who is taking over responsibili ties for preparing NOTs and submitting reports for certif ication 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 sy stem to submit Notice of Intent (NOI) and other not ices 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 requir ed.

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 elect ronic Notice of Intent (eNOl) or electronic submiss ion of the necessary application forms and encourages the use of technology to impro ve the efficiency of the permitting process.Unformatted 2012 CGP Comment Response Essays February 16, 2012

192 Recommended Change: U. S. Steel recommends that EPA go beyond automating the application step and prov ide the necessary tools and access for applicants to receive confirmation o f eNOl receipt and to track the approval process el ectronically.

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 usi ng the eNOI submittal process in other states. We encourage the use of a paperles s 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 for m. Project data required on the form including outfall coordin ates; watershed mapping; ecological critical areas; etc. should be incorpo rated into the

electronic format for convenience of use. - Integrate online tracking of NOI. Create a format for applicant to submit questions during process t o the EPA. - Allow the eNOI to be saved and accessed repeatedl y 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 Management 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 discrimina tes against the rural and marginal operators. Most permittees will use E- permitting without the requirement. EPA should also accommodat e 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 MeridianUnformatted 2012 CGP Comment Response Essays February 16, 2012

193 Issue Category: 1.5.2Q Section 1.5.2, pages 5-6 - "Nevertheless, EPA is aw are that the permitting program is still in the pro cess of making the transition to a paperless process..."

•If a paperless process is EPA's goal, is there an opportunity to simply maintain an electronic Stormw ater Pollution Preventi on 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 sys tem has been in place in Texas for several years, a nd has been a great benefit to obtaining coverage in a timely manner for our proje cts. We recommend that EPA encourage the use of the ir eNOl system for filing electronically. The primary benefit of the electron ic STEERS program in Texas is that we are able to o btain permit coverage almost immediately, when we are prepared to begin actual c onstruction on any of our sites that meet the exist ing requirements for ob taining 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 pap er NOls, as well as eNOls in all circumstances, sin ce the DEQ's permitting program is still in the process of making the transition to a paperless process.Unformatted 2012 CGP Comment Response Essays February 16, 2012

194 Response Refer to Response 1.6.2.



# 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 t o require all construction operators to use the eNO I system in the interest of developing a "paperless" application process and of minimizing the administrative cost of continuing t o 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 locat ion information for linear projects, such as starting point and ending point G PS- type locations with routes attached, rather than li miting the available input to only one physical address. The system also needs to allo w for many potential outfalls, since a long linear project may cross multiple

waterbodies. Two or three lines will not be enough to capture all th e 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 p ermit, regarding how to submit filings through the Notice of Inquiry Syste m and the possible mandatory use o f the eNOI system, as well as current experience in the use of eNOI. [FN 9] AGA members have observed that the eNOI filing system is an efficient method to su bmit the NOI and allows the 30-day waiting period f or permit authorization to start ticking upon electronic submission. The system work s well for updating permit information, verifying t hat the permit's receipt and review status, and receiving a paperless approval. The system also allows immediate authorization when amendments are submitt ed forUnformatted 2012 CGP Comment Response Essays February 16, 2012

195 a project NOI.

[FN 9] Proposed CGP, at 13.

Response Refer to Response 1.6.2.



# Comment ID 0093-A2.001.029

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 1.5.2Q EPA has requested comment on the transition to a "p aperless" NOI system for the CGP. The agency has ma de clear its strong pre ference to require all construction operators to use the eN OI system in the interest of developing a "paperles s" application process and of minimizing the administrative cost of continuing to process paper NOIs. A total paperless system for t he NOI may be desirable for EPA, but the agency admits that the permitting program i s still transitioning to a paperless process.

AGC strongly urges EPA to continue accepting paper NOIs. There are still some small contractors that a re hesitant about total ly relying on the computer and also the security of electronic sites.

In addition, EPA must be mindful of circumstances t hat woul d require a paper submittal. For example, some cons truction companies are required to generate the paperwork for the project owner, and they must obtain written signature of th e responsible authority prior to submission. This can only be accomplished via p aper submittal. Also, if EPA expects state permitti ng authorities to switch over to an all electronic NOI filing system, it must make provisio ns for payment of permit fees by non-electronic mea ns (a paper check) to accommodate operators that do not have an available means of electronic payment. For example, a company must pay by credit card 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 c ards to the people who will be completing these tas ks. Also, some AGC companies report that when they are required to generate paperwork for the pro ject owner, they must get the signature of the resp onsible authority prior to submission. This can only be accomplished via paper submittal.

In any event, EPA should phase in any requirement f or electronic NOI and provide training to small bus inesses. Some AGC members who have experience using the eNOI system reported problems with the Latitude and Longitude V alidation page (under the "Project Site Information" Tab).

Response Refer to Response 1.6.2. EPA also notes that it doe sn't expect state permitting authorities to switch over to an all electronic NOI filing

system.



# Comment ID 0096-A1.001.019Unformatted 2012 CGP Comment Response Essays February 16, 2012

196 Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.5.2Q While EPA continues to implement an eNOI system, NA HB supports a flexible system in which the party filing the NOI has the option to se lect the eNOI system or file a hard copy NOI. There are many cases where a business entity may pr efer to submit hard copies, including where computer access and availability is limited. At a m inimum, EPA should phase in any requirement for electronic NOI submission and provide training to potential permittees.

Response Refer to Response 1.6.2.



# 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 pro vided an electronic receipt is generated at that ti me.

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). Electron ic Notices of Intent ("NOIs") have already proven a convenient means of compliance for permittees and an efficient mechanis m for gathering basic information about constructio n stormwater discharges for dissemination to the public, while reducing the cos ts, 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 el ectronic filing require d by other regulatory programs and courts around the country. To maximize the public benefits of this requirement , EPA should provide transparent, automatic, and comprehensive online ac cess to information associated with covered activit ies, including the info rmation in reports required of permittees under the new provis ions of the Draft CGP. In addition, EPA should add a requirement that Stormwater Pollution Prevention Plans ("SWPPPs") - in most cas es the essential document governing permittee activ ities - be filed and accessi ble to the public in electronic form.

Response Refer to Response 1.6.2 and 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

197 

# 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 wh at 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: 1.5.2Q Dow generally supports the proposed use of an elect ronic system for submission of Notification of Inte nt. However, Dow also recommends that EPA provides sufficient time for de legated authorities to implement the electronic sys tem to accept NOI input and submissions from affected operators in accordance w ith 40 CFR §122.22, including those requirements fo r a corporation's responsible corporate officer. Dow also supports the proposal t o allow paper NOI submission and related items to t he appropriate permitting authority.

Response Refer to Response 1.6.2. EPA also notes that EPA do es not require authorized states to follow the same NOI submittal process as EPA.



# 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 t o require all construction operators to use the eNO I system in the interest of developing a "paperless" application process and of minimizing the administrative cost of continuing t o process paper NOIs.

Response Refer to Response 1.6.2.



# Comment ID 0123-A2.001.002Unformatted 2012 CGP Comment Response Essays February 16, 2012

198 Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 1.5.2Q Comment: CRWD supports the requirement to submit NO Is electronically, with exceptions for R egional 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 el ectronic filing.

Response Refer to Response 1.6.2.



# 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 fl exible 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, Inc. (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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

199 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 sy stem, tribal application submittals are not address ed in this proposed cap. MDT encourages EPA to work cooperatively with the Tribe s to develop a streamlined electronic submittal pro cess that includes all entities.

Response Refer to Response 1.6.2. EPA also clarifies that NO I s for tribal areas covered under this permit are su bmitted 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 Wor ks Issue Category: 1.5.2Q Section 1.5.2, page 6 We support EPA's effort to t ransition to a paperless system.

Response Refer to Response 1.6.2.



# Comment ID 0137-A2.001.003

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 1.5.2Q The paperless eNOI seems fairly straightforward and streamlined and allows for a staff member to prepa re the report before se nding to a certifying member. It makes sense that all requests are required to be filed online since it is easily accessible and straight forward. Exceptions to the eNOI should be made on a case by case basis and subject to the regional office's pre ference and circumstances.

Response Refer to Response 1.6.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

200 

# 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 proces s is a compromise between easing the regulatory bur den for developers and regulators associated with collecting pertinent inf ormation about a proposed project and providing the general public access to information about development projects in their com munity. Up to now, this "balance" has been more to the benefit of regulators 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 ge neral permitting process and minimize the expense i nvolved, both for the developer and the regulator. We see the wisdom of electronic submissions and support the use of eNOIs with very few exceptions.

We hope the EPA will not miss the opportunity to en hance the public's access to that information by st oring the eNOI in a searchable database available to the public. Public access and review of that information can improve accountabil ity of all the parties and help identify misinformation or shortcomings in the info rmation 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 s ubmit. 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.



# 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 prepa re the report before se nding to a certifying member. It makes sense that all requests are required to be filed online since it is easily accessible and straight forward. Exceptions to the eNOI should be made on a case by case basis and subject to the regional office's pre ference and circumstances.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

201 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 deadl ines for different types of construction projects. Particularly the "Previously Permitted New Source" and "Existing Permitted Discharger" requirements state there is a requirement for these types to submit an NOI 9 0 days after permit issuance. This can pose many de trimental obstacles for these projects considering these contracts were likely so licited and awarded years ago before any draft perm it or known new regulations existed. I would propose that "Existing Permitted D ischargers" and "Previously Permitted New Sources" can maintain permit cov erage 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 proce ssed sooner if proof that the Endangered Species Ac t and historic properties have been addressed through the NEP A process. A 30-day period for NOI submittal may have an extremely nega tive 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 t akes about two weeks. By adding an additional month for NOI submittal, we could potentially have a contract or for a small 60-day project who is unable to commence work for the first 45 day s

Response Refer to Response 1.6.4.



# Comment ID 0030-A2.001.006

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 1.5.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

202 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 an d provide adequate time for review, the NOI system should be set up so that multiple agencies can be reviewing simultaneously e specially if permittees are using the eNOI system.

Also, it isn't clear if a secondary operator can fi ll for permit coverage before a primary. For exampl e, a light rail project is proposed for an area and utilities start being relocated when the d esign of the light rail is only at 70%. Can the uti lities pull their own p ermit even though in some ways they are secondary operators? This lan guage on primary and secondary operators may need t o be adjust ed (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 followin g two categories: "previously permitted new source" and " existing permitted discharger." Specifically, will these two categories of construction projects be grandfathered under the 20 03 or 2008 CGP that they are currently covered unde r? Or will they be required to meet the conditions of the proposed new CGP once th ey have been granted coverage under this permit? If projects that are currently under construction have to meet the new permit requ irements, this could create additional costs and di sruption on a construct ion project and confusion if the project is substantially compl ete. 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 proje cts. A 10

‐ day deadline is more reasonable especially for smal l construction projects (such as residential lot size) that are on a fast t rack and do not fall under the secondary operator c ategory.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

203 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 ade quate time for review.

Also, it isn't clear if a secondary operator c an file for permit coverage before a primary. For e xample, Xcel Energy (a secondary operator) needs to relocate utilities as part of a larger com mon plan of development (i.e. before a street widen ing project begins or a light rail project is built). Quite often the utility relocati on work needs to occur long before the primary oper ator is ready to pull their permits. Again, this concept of primary verses secondary ope rator is confusing. Can Xcel Energy pull our own pe rmit even though 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 wit hin this letter. The proposal is increasing the "wa iting period" from 7 days to 30 days for new projects. The new timeframe is intende d to better reflect the endangered species- related reviews that must take place prior to authorization. If the project has already conduc ted a National Environmental Policy Act ( NEPA) review for endangered species there does not appear to be a need for additional time. S ince EPA is proposing to maximize the use of the el ectronic Notice of Intent (NOI) process for authorizing construction discharges to be more efficient, projects t hat have already completed an endangered species re view, 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 MeridianUnformatted 2012 CGP Comment Response Essays February 16, 2012

204 Issue Category: 1.5.3 Section 1.5.3, Table 1-1, page 7 - "Except for seco ndary operators, at least 30 days prior to commenci ng..."

•For operators with extensive environmental program s, a 30- day waiting period seems overly burdensome and coul d result in significant delays in construction. Departments of Transportati on (DOTs) and many large cities often have experien ced environmental staff that completes environmental clearance documents well in advance of NOI submission. In the case of DOTs, th is work is often mandated as a means of ensuring federal funding for constructio n projects. Perhaps as part of the NOI submission p rocess, an operator wou ld indicate

whether or not clearances have been obtained. If an operator does not have existing environmental and/ or historical clearances clearly documented at the time of NOI submission, then thei r waiting period would be 30 days. If an operator a lready has the proper environmental and/or historical clearances, then th eir 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 prim ary operators submit NOI at least 30 days prior to commencing earth disturbing activities is too long. This could delay constructi on activities/project schedules that are dictated b y contract requirements. As noted above in 1.5.2, we currently experience very little lag time in when we submit, versus when coverage i s obtained.

Additionally, all projects previously permitted und er the 2008 permit or existing state permit should be allowed to be comple ted under the existing permit. For state DOTs, contract requi rements and specifications have been developed spec ifically for the 2008 permit. Requiring a new permit with new requirements will r equire 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 all ow 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 bei ng required to retroactively comply with the new rules (grandfather 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: 1.5.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

205 A. NOI submittal timing requires that the document be filed via the e- NOI process thirty days prior to initiation of cons truction activities. The applicant then is required to delay constructio n start for 30 days following notification by the a gency that the NOI/SWPPP package is complete. Assuming a typical agency processing l ag of one month from NOI submission to a completene ss determination, permi ttees could face a sixty-day minimum interval from NOI su bmittal until construction could commence under the CGP. For major linear energy projects, this delay can be factored into the overa ll project management sequence; however, for minor line upgrade projects t hat 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 C ommission ("FERC") or regional electric reliability organization mandate, that time delay could affect electrical reliability to c ustomers as well as potential ly place 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 sta ndards set forth in the C&D ELG (see Section II. ab ove). EPA also should remove the provisions relating to "primary" and "se condary" operators, which could result in multiple permits for a single discharge (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 proce ssed sooner if the permit applicant demonstrates that the legal requirements under the Endangered Species Act and Historic Prope rties Act were addressed 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 addition al review time), then EPA sho uld allow for an expedited permit approval process.

Response Refer to Response 1.6.4.Unformatted 2012 CGP Comment Response Essays February 16, 2012

206 

# Comment ID 0098-A1.001.004

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 1.5.3 The language here is confusing, mixing timing provi sions that will apply only during the changeover to the new permit with NOI deadlines that will apply for the rest of its term. We suggest that the Agency separate these two kind s of timing provisions for the sake of clarity.

Response EPA appreciates the comment, but believes it is nec essary that these timelines be included in the perm it so that all types of ope rators are aware of when they need to submit their NOI. EPA si mplified 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 sou rces at least 30 days prior to covered activities promotes advance planning by per mittees and could enable appropriate review of NOI information by EPA, other federal, state, and local resource agencies, and t he public. Secondary operators should also be subje ct 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 com mencement of construction activities. A minimum of thirty days is needed to review a NOI submittal and to ensure that all relevant requireme nts, such as compliance with the Endangered Species Act (ESA) are met.

Response Refer to Response 1.6.4.Unformatted 2012 CGP Comment Response Essays February 16, 2012

207 

# 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 de adline of 30 days for new sources. Alternatively, D ow recommends that the current 7 days NOI submission deadline (from the 20 08 Construction General permit (CGP) be maintained in order to provide the necessary time for affected stakeholders to develop and implement their Stormwater Pollution Preventio n Plans (SWPPP).

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 dea dlines for submitting the NOI for the new permit. P er Part 1.5.3, all existing projects must initiate a new permit NOI wi thin 90 days. It will be a burden to operators, wit h little to no return on effort, to terminate NOIs, update SWPPPs, and fill out new NOI s to apply for coverage under the new 2011 permit.

We request the EPA allow the applicants to determin e if they should complete the project under the old permit, or apply for t he new one, based on their individual project schedule circumst ances. If that is not acceptable, we request consid eration of the following options:

 „Grandfather ‟ projects with 2008 permit coverage where construct ion activities are complete, and all that remains i s final veget ative stabilization. This is especially pertinent to proj ects completed and seeded in the fall of 2011, whic h would achieve vegetative stabilization in spring 2012 and would file a NOT j ust outside the 90 day window.

 Extend the 90 window for projects awaiting final v egetative stabilization (under the 2008 CGP) to all ow one full spring growing

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 dis chargers' and 'previously permitted new sources' to submit an NO! for cove rage under the renewed CGP is 90 days. This time is not reason able given the substantial changes proposed in the CGP. Storm Water PollutionUnformatted 2012 CGP Comment Response Essays February 16, 2012

208 Prevention Plans (SWPPPs) will need to be updated; additional and/or different controls may need to be implemented in order t o comply with the proposed effluent limitations; design chan ges will need to be explored; and contract amendmen ts will nee d to be negotiated and issued. MDT strongly encourages EPA to consider a l onger period of time for existing discharges to obt ain permit coverage under the renewed CGP, perhaps a year or more.

Response Refer to Response 1.6.4.



# 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 productiv e purpose and could further impede construction prog ress in our Alaska's short seasons. Project funding has been later and later every year, this change c ould cause further impediments in the initiation of constructi on. Alaska has very short construction seasons and further impediments have huge ramifications. What is the purpose and value of thi s 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 und ue project delay. While the CGP establishes authori zation to conduct emergency repairs conditioned upon the rece ipt of the notice of intent within 7 days, it would be unworkable to apply for and receive documentation on eligibility under other fe deral laws in order to comply with notice of intent requirements within the time per iod provided.

Response Refer to Response 1.6.4.



# 1.5.4 YOUR OFFICIAL START AND END DATES FOR PERMIT COVERAGEUnformatted 2012 CGP Comment Response Essays February 16, 2012

209 

# 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 author izing coverage from 7 to 30 days, see Part 1.5.4.

Response Refer to Response 1.6.4.



# 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 A ct (ESA) and National Historic Preservation Act (NH PA)

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 ne w sources.

Comment: The fact sheet (page 23) states that if th e Fish and Wildlife Servi ce , the National Marine Fisheries Service or a Sta te or Tribal Preservation Office request additional assessment t ime to address ESA or NHPA concerns, EPA can delay authorization to allow the assessment to be completed.

Discussion: The proposed permit a lready extends the time for this assessment from 7 to 30 days. The fact sheet (page 26) states that EP A can delay authorization even further, although this is not stated in the CGP. This practice could sign ificantly delay construction. Although it may be u seful to allow some flexibility for additional asse ssment 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 al lowing addit ional assessment time to address ESA or NHPA concer ns be limited to 30 days. Also recommend that language be added t o 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 CorporationUnformatted 2012 CGP Comment Response Essays February 16, 2012

210 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 co nditioned upon the receipt of the NOI within 7 days . It would be unworkable to apply for and receive documentation on eligibility under othe r 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 wi thin 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: 1.5.4 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 proje cts.

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 curren t 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, In c. 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 conditio ned upo n the receipt of the NOI within 7 days, it would be unworkable to apply for and receive documentation on eligibility under othe r federal laws in order to comply with NOI req uire ments within the time periodUnformatted 2012 CGP Comment Response Essays February 16, 2012

211 provided. For example, EPA estimates that, on ave rage, 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 arbitrary, and presents undue project complications. UWAG acknowledges that EPA has impos ed 30-day waiting periods in other permits, such as MSGP-2008. However, the activities authorized under those permits are n ot nearly as episodic or dynamic as activities unde r the CGP. As a result, UWAG believes that a shorter waiting period (e.g., 7 day s or 14 days) would be appropriate for the typ es of activities covered by the CGP. EPA should also clarify that the 30-day waiting period is triggered upon submittal of a complete NOI, rath er than administrative acknowledgement by EPA.

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 c onsidered provisionally covered under the terms and conditions of this permit immed iately, and are unprovisionally covered 30 days aft er EPA acknowledges receipt o f your NOI ... unless EPA notifies you that your author ization has been delayed or denied." EPA should cla rify that such notifica tion of delay or denial will simply keep the provisional co verage in place until such time as EPA specifies wh at further steps the pe rmittee may need to take and gives the permittee a reasonable p eriod to respond.

Response Refer to Response 1.3.



# Comment ID 0088-A1.001.007

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc.Unformatted 2012 CGP Comment Response Essays February 16, 2012

212 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 activitie s. This is a significant change from the 2008 CGP which includes a 7-day waiting pe riod. Specifically, EPA proposes to increase the "w aiting period" from 7 days to 30 days to accommodate the endangered species and hist oric properties-related reviews that must take plac e 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 p rojects 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 cont inue to apply on all small projects (e.g., those di sturbing 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.

Response Refer to Response 1.6.4.



# Comment ID 0096-A1.001.022

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 1.5.4 EPA is proposing to require NOI submission at least 30 days prior to commencing earthdisturbing activities. This is a significant change from the 2 008 CGP which had a 7 day waiting period. EPA proposes to increase the “waiting perio d” from 7 days to 30 days to accommodate the endangered species and historic properties-rela ted reviews that must take place prior to authorization. EPA should consider adopting an expe dited permit approval process for sites that do not have Endangered Species or Historic Properti es – the stated reason behind the additional review time. A 30 day waiting period increases the costs for construction projects, but has little effect on improving overall environmental protectio n. NAHB strongly urges EPA to retain the 7 day waiting period. If the 7 day period cannot be r etained for all permittees, at a minimum, itUnformatted 2012 CGP Comment Response Essays February 16, 2012

213 should continue to apply for all small projects (e. g., those disturbing less than 10 acres).

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 c ontractors 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 contract ors are required to pro cure their own borrow/spoils sites. This inform ation would not be known at the time of primary per mitting and may not be known at the time of bid. A 30-day lead time would be problematic in such cases , and especially where the contractors are typicall y the primary permit holder on these borrow/spoil sites. We request that the Agenc y consider clarifying that, in such circumstances, the contractor would be a "secondary" permittee subject to the more reasonabl e 7-day waiting period.

Response EPA appreciates the comment. EPA believes that the reduced waiting period in the final permit to 14 da ys will be less problematic 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 Language

1.5.4 Following your submittal of complete and accu rate NOI consistent with this Part, unless you are a secondary operator, new operators of a new source or existing permitted dis charger, and operators of emergency

‐ related projects, you are considered covered under the terms and conditions of this permit 30 ca lendar days after EPA acknowledges receipt of your NOI through posted info rmation

on EPA's website.

Concern

The 30

‐ day waiting period is too long. The long waiting pe riod re quires the SWPPP to be completed too early in the p rocess, potentially resulting in an inadequate product. Since the SWPPP must be completed prior to submitting the NOI and with multiple revisions during the approval process, the SWPPP may be written appr o ximately 60 days prior to the permit coverage begin ning. The plans and scope of work may be incomplete 60 days prior to constructio n commencing. The result will be in incomplete SWPP P based on assumptions.Unformatted 2012 CGP Comment Response Essays February 16, 2012

214 Suggested Correction

7

‐ day waiting period for all projects. Or at least a 7

‐ day waiting period for all projects less than 10 ac res.

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 significa nt 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 del ivery & startup times significantly, especially in mountainous regions with potentially short work windows. This will also affe ct projects in or near water, where work must be co mpleted under no or low flow conditions, again with very small work windows. DOT transportation projects have received Endangered S pecies Act (ESA) and Cultural Clearances prior to filing the NOI for the Project. ITD strongly encourages EPA to continue t o utilize the 7 day NOI waiting period. Require all parties to have required cleara nces prior to the NOI to facilitate the 7 day waiti ng 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 covera ge after submittal of a complete and accurate NOI has increased from 7 days to 30 days. This increased waiting period may result in c ostly delays in project construction and delivery. MDT is of the understanding that EPA has proposed this increased waiting period to a llow for add itional administrative time to address compliance w ith such laws as the National Historic Preservation Act and the Endanger ed Species Act. In the interest of environmental st reamlining, MDT suggest s incorporating an expedited review time for federal agencies thaI are able to submit their own demonstr ation of compliance with these Acts similar to the US Army Corps of Engineers' Cle an Water Act Section 404 Nationwide Permits.

Response Refer to Response 1.6.4.



# Comment ID 0158-A1.001.007Unformatted 2012 CGP Comment Response Essays February 16, 2012

215 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 eme rgency repairs conditioned upon the receipt of the NOI within 7 days, it would be unworkable to apply for and receive documentation on eligibility under othe r federal laws in order to comply with NOI requirem ents within the time period provided. For exampl e, EPA estimates that, on average, Section 404 perm its 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 to o long and should be reduced to 10 business days wi th an expedited option for per mit coverage within 24 hours. Furthermore, a lack of re sponse 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 D epartment of Environmen tal Quality offers immediate permit coverage under the Arizona Construction General Permit through its Smart NOI system. That i s 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 permitti ng should serve a s an example to EPA. While, under proposed Part 1.3 .2, EPA would offer immediate permit coverage for projects that o ccur in response to natural disasters ("e.g., torna do, hurricane, earthqua ke, flood"), it would not recognize other situations where earth di sturbing activities are required on short notice to avoid severe economic or social consequences. For example, a damaged transmission l ine tower may require immediate replacement to avoi d a disruption in electrical

service or to re-establish electrical se rvice. When one considers access roads and the area of actual construction it is not uncommon for these projects to exceed one acre in earth disturba nce and therefore require CGP coverage. A 30-day de lay to engage in this type of

critical work is not reaso nable. EPA must provide an expedited option for per mit coverage for those emergency situations requiri ng work to be started inunediately, but which are not speci fically listed in Part 1.3.2.

Response Refer to Response 1.6.4 and 1.3.



# 1.5.5 CONTINUATION OF COVERAGE FOR EXISTING PERMITT EES IF THE PERMIT EXPIRES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.Unformatted 2012 CGP Comment Response Essays February 16, 2012

216 

# 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 con sider requiring an individual permit ... " This cou ld become a tool for persons 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 incl ude 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 covera ge, to "include a brief statement of the reasons fo r this decision." Denial of coverage would significantly postpone a constructio n project and in some cases force cancelling the pr oject. Providing only a "brief

statement" of the rationale for the decision is not sufficient for an action with such significant ram ifications.

Discussion: It is unclear whether EPA can deny cove rage after it has already been granted, and what th e standards/criteria EPA would use to remove or deny coverage. Denying coverage on a project that is underway could reasonably result in work to stop with s ignificant cost ramifications. Additionally, removing coverage would tend to minimize (and conceivable prohibit) upkeep of in-place practices to minimize soil erosion. The U.S. Army Corps of Engin eers (USACE) Nationwide Permits allow the applicant to develop a mitigation plan that would reduce the adverse effects on the a quatic environment instead of being denied coverage under the permit.

Recommendation: DoD recommends EPA develop a simila r process to that in the USACE Nationwide Permits. EPA should allow the permittee to mitigate concerns prior to coverage de nial.

Response Refer to Response 1.6.5.



# Comment ID 0093-A2.001.030Unformatted 2012 CGP Comment Response Essays February 16, 2012

217 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 i ndividual permit...." Thi s language is very problematic because it could force contract ors to submit individual permits for invalid reason s. 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 project or out of ideological or political motivations. Individual permits are ex tremely burdensome, time consuming, and costly, and the CGP already contains requirements to ensure water quality is not comprom ised.

In addition, AGC is very concerned that EPA has not identified the specific criteria that would req uire an individual permit. This lack of specifics would likely result in unnecessary projec t delays and illegitimate claims. EPA must also cla rify that it is the decision- maker and establish an appeals pro cess or other mechanism that applicants can use if they believe the requirement to obtain an individua l permit is not warranted. In addition, there need to be safegu ards in place to protect against nuisance requests and an opportunity for the prospective p ermittee to respond. There should also be a deadlin e by which this process must conclude to allow proj ects 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 w ill 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 that EPA consider req uiring an individual permit under this paragraph.” Because this language contains no crite ria for when an individual permit is appropriate, it could lead to operators being requi red to submit individual permits for invalid reasons, such as 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 wat er quality is not compromised. EPA should first remove the language “Any interested person ma y 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 permit 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 t o challenge the requirement to obtain an individual permit.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

218 Refer to Response 1.6.5.



# 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 oth er permit documents must take safety into considera tion. The main entrance for a typical transportation related construction site at TxDOT may not necessarily be a safe location for t he traveling public, and in fact the project location may have multiple "primary entranc es". On a linear project, these entrances may be wh ere new phases of construction have commenced and be miles apart.

Suggestion: Add in language that the NOI must be po sted at a safe, publicly accessible location near w here construction is oc curring and where it will be apparent to someone who is looking for it. On a linear transportation project the mai n entrance may not be clearly defined or marked, and many of these posting locati ons may be potentially unsafe for public access. We suggest that the permit be written that allows for flexibility regarding where the NOI is located, with consideration given to ex isting 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 perm ittees post a notice of permit coverage is a signif icant challenge for linear utility construction projects. There is no main entrance to a linear utility construction area. Sometimes ther e 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 t he right-of-way in which the actual construction will take place. EPA needs to provide linear utility project operators with flexibility t o post or provide notice in a manner that makes the most sense for the particular projec t, including the option simply to post such notice on-line.

Response Refer to Response 1.6.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

219 

# 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 rig ht of way is unnecessary. For example, on projects where there is a publicly accessible location that is not on a publi c right of way (in a parking lot, for example), doc ument posting at that location woul d provide the same or better access without requiring viewers to actually enter the active construction site. Indeed, posting o n a public right of way could result in dangerous situations where s omeone 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 ope rators post a notice of CGP coverage and key contact information at the facilit y entrance is an important improvement to the publi c notification provisions, and should be retained in the final permit. This requir ement imposes minimal burden on the site operator w hile providing 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 inc lude the NPDES Permit tracking number and a contact phone nu mber for obtaining permit information, such as the SWPPP. The notice must be located so that it is visible from a public road th at is nearest to the active part of the construction site, and it mu st use a font large enough to be readily viewed from a public right

‐ of

‐ way.Unformatted 2012 CGP Comment Response Essays February 16, 2012

220 Concern

On a Federal Installation, the posting would be loc ated at the gate entrance to be visible from a publ ic 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.



# 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 posti ng of additional signs on linear transportation projec ts can present considerable safety risks both by pl acing additional obstac les within the clear zone (total roadside border area available fo r safe use by errant vehicles) and by changing driv ing 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 substant ial amount

of time from the end of active construction to fina l stabilization. Maintaining a sign for long period s after construction has ended and stabilization measures have been implemented does n ot seem warranted, as it will not lead to any water 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 sh ould be required during active construction periods only.

Response Refer to Response 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 perspec tive. The lack of "before-the- fact" public notification about projects covered un der "general permits" is a challenge for those of us ho ping to unde rstand what activities are planned for our watershe ds. However, when no information can be located for an ongoing project t hat is need of regulatory attention, our frustratio ns are multiplied. With out accessible, on-site posting of that information, bringi ng attention to problems, if those exist, is much m ore difficult. We appreciate seeing an explicit requirement here.Unformatted 2012 CGP Comment Response Essays February 16, 2012

221 Response EPA appreciates the comment. Refer to Response 1.6. 6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

222 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 2, 2.1, 2.1.1, 2.1.1.1, 2.1.1.2, 2. 1.1.3, 2.1.2, 2.1.2.1, 2.1.2.2, 2.1.2.2Q, 2.1.2.3, 2.1.2.4, 2.1.3, 2.1.3.1, 2.1.3.1 Q, 2.1.3.2, 2.1.3.2Q, 2.1.3.3, 2.1.3.4, 2.1.3.5, 2.1.3.6, 2.1.3.7, 2.1.3.7Q, 2.1.3.8, 2.1.4 , 2.1.4.1, 2.1.4.2, 2.1.4.3, 2.1.4.4, 2.1.4.5, 2.1.4.5Q, 2.1.4.6, 2.2, 2.2.1, 2.2.1.1, 2. 2.1.2, 2.2.1.2Q, 2.2.1.3, 2.2.1.4, 2.2.1.4Q, 2.2.2, 2.2.2.1, 2.2.2.1Q, 2.2.2.2, 2.2.3, 2.3, 2.3.1, 2.3.2, 2.3.2.1, 2.3.2.1Q, 2.3.2.2, 2.3.2.3, 2.3.2.3Q, 2.3.2.4, 2.3.2.5, 2.3.3 , 2.3.4Unformatted 2012 CGP Comment Response Essays February 16, 2012

223 

# 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") r equirements in the cap. LID is a nationally-proven set of site-specific architectural and engineering practices that both r educe the volume of and pollutants in storm water c oming off of a site, approximate pre-development hydrologic conditions, and often br ing economic benefit to the operator if incorporate d into the project's initial des ign. LID has been shown to reduce damaging impacts of ur ban storrnwater runoff more than conventional site designs and Best Managem ent Practices ("BMPs"). LID should therefore be require d in NPDES permits as part of the Clean Water Act's mandate to reduce stor mwater pollution. Accordingly, EPA should add to the site plarming requirement set forth in § 2.1 a requireme nt that operators design their sites using LID or similar environmental site design prin ciples 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 constructi on. As an example, over 125 miles of the Cahaba River that flows through Alaban1a are im paired by siltation (causing habitat . alteration), and about 55 miles of Shades Creek, a major tributary of the river, are the subj ect of a TMDL for siltation, turbidi ty, and habitat alteration. The Shades Creek TMDL found that between 62% (2001) and 73% (1991) of the sediment loading is from "Streambanks." In other w ords, the majority of s ediment

in Shades Creek is from bank erosion associated wit h increased storm wate r discharges arising from a cumulative increase in the amount of impervious surfaces in that watershed. Field obs ervations and the draft Cahaba River TMDL prepared in October 2003 indicat ed that instream erosion and scour due to increased post-co nstruction 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 carm ot be met and degradations will cumulatively worsen with approval of each new development.

Response See Response 2.1.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

224 

# 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 overl y-prescriptive erosion and sediment control practic es that it had proposed, often stating that, for example, the "need for these cont rols is dictated by site-specific considerations," because they were "not always feasible," or that "implementing the requirement wo uld be cost-prohibitive." See 74 Fed. Reg. at 63,01 8. Now, EPA, through its permitting authority in four states and in various parts of many other states (recognizing also that E PA's CGP "acts" as a mo del CGP for the other 46 states), is reverting to the type of o verly-prescriptive BMP mandates that it addressed i n promulgating the final C&D ELG.

If in fact many BMPs are best assessed on a site-sp ecific basis or may prove to be "cost-prohibitive" in certain circumstances, EPA should develop guidance for implementing the BMPs s et forth in the C& D ELG rulemaking and then rely upon the individual permittee to assess and analyze the appropriate BMPs and thei r implementation to meet the standards set forth in the C&D ELG. For examp le, at the appropriate time after the C&D ELG is completed (the next CGP renewal process, not the current pro cess subject to these comments), EPA should adopt in a final CGP only tha t which is required by the C&D ELG with regard to s lopes; "minimize the disturbance of steep slopes" and then require the p ermittee to justify i n its stormwater management plan the appropriate st eps it will take to achieve that end. EPA should be proposing separa te guidance concurrent with the C&D ELG rulemaking that sets forth more pr ecise 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 con cluded 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 appr opriate time arrives to implement a revised C&D ELG , EPA should require precisely what is contained in tha t regulation (as EPA states, "simply parroting" the C&D ELG), and use the extensive information (and more) in developing separate guidance that may assi st site operators to more knowledgably implement su ch requirements without unnecessarily complicating the Proposed CGP.

Response See Response 3.5.Unformatted 2012 CGP Comment Response Essays February 16, 2012

225 

# 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 sugges t that the Agency delete the quoted language or oth erwise replace it with a savings clause making clear that this permit and other appl icable state or local requirements constitute indep endent 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 f irst priority, with structural measures to be used as a second priority? This is consistent with the approa ch to reduce erosion first (pollution prevention) a nd trap sediment second (pollution treatment). This approach is more technically effec tive in minimizing sediment discharges from sites a nd 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 Propo sed CGP indicates that EPA has not undertaken a sep arate analysis of the Technology-Based Effluent Limitations (TBELS) for t he non- numeric standards included in proposed permit. Alth ough EPA conducted a technology control analysis of certain non numeri c standards when it promulgated in the Construction and Development Rule ( "C&D Rule") in 2009 [http://water.epa.gov/scitech/wastet ech/g uide/construction/index.cfm], these were admittedly far less specific than those included in the Proposed CGP. Fact Sheet at 12 ["Th e proposed permit includes specific requirements th at implement the C&D rule's

sediment and erosion control limits. While ma ny of these requirements are included in the 2008 C GP, the proposed permit includes more specifics in order to properly implement the C&D ru le."] EPA has not conducted the required analysis f or the specific requirements added (which EPA states are simply e xplanation (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. This is because in inco rporating the C&D Rule limitations, EPA has applied them with greater specificity than what is included in t he C&D Rule Code of Federal Regulations section to which theUnformatted 2012 CGP Comment Response Essays February 16, 2012

226 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), unless infeasible or inc onsistent with the requirements of the project. Where avoiding disturbance to such areas i s infeasible you must comply with the design requir ements in Part 2.1.4.2."] ; compare 40 CFR § 450.21(e) ["Prohibited discharges"] with P roposed CGP, §§ 2.3.2.1, 2.3.2.3 [EPA request for c omments on practicability of providing secondary containment for fueling and mai ntenance areas (§ 2.3.2.1), staging and storage are as (§ 2.3.2.3)].

Another problem with the CGP's inadequate TBEL anal ysis is that EPA is requesting comments on 26 diffe rent aspects of the Pro posed CGP, including requests for information regarding f easibility of certain aspects of the permit's non-n umeric 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 additional flexibility is warranted for small sites that intend to implem ent the buffer alternative...EPA welcomes the submission of performance and cost dat a for treatment devices that might be implemented u nder compliance alternatives"]). While EPA has requested that comme nters include information regarding the costs of so me of the non- numeric limitation options described, it has not conducted any economi c analysis of its own for these provisions or shown that the proposed permit requirements are feasible as required.

Dr. David Sunding, Principal Economist for the Brat tle Group, has examined the costs of compliance wit h the non-numeric effluent limitations included in the Proposed CGP. As descri bed in his attached letter (attached hereto, along with Dr. Sunding's present curriculum vitae), there may be significant costs t o permittees associated with the aspects of the non

- numeric effluent limitations upon which EPA has requested comment. For example, in re gard to the requirements for the use of chemical tr eatment included in sedition 2.1.4.5 of the Proposed CGP, implementation informa ti on and hypothetical cost estimates for chemical tre atment 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 a re significantly higher than implementing both stan dard and/or enhanced traditional BMPs on a construction site. Additionally, the costs of specific runoff controls such as secondary containm ent can be large on a per- acre basis, especially for small projec ts (see Proposed CGP §§ 2.3.2.1 and 2.3.2.3). As de scribed in Dr. Sunding's report, EPA has not analyz ed the costs associated with these options.

EPA's adoption of TBELs requires rigorous assessmen t of technology factors specified in the CWA and it s impl ementing 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. Failur e to conduct the requisite analysis is a violation of th e CWA. Each factor must be fully considered for ea ch control measure promulgated, and the economic achievability based on the total cost to the industry and overall effect of the proposed regulation on the indus try's financial

health must be considered. This entails an iterativ e process requiring the perm it 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 limits, and inc orporate those comments into a final regulation supported by documentation. Mark A. Ryan, The Clean Water Act H andbook (2003 ed.) at 24. The fact that the analysis has not been made availa ble for public comment for these additional specifi c permits requirements has impaired the ability of LBA and others in the homeb uilding and construction industry to provide meanin gful comments.

EPA recognizes that the Proposed CGP will include T BELs in the form of both nonnumeric effluent limita tions and a turbidity E LG (if EPA is able to promulgate a supportable ELG prior t o 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 analys is of the pollutant control factors mandated by 33 U.S.C. §1314. The techn ology control factors "shall" be considered. 33 U.S.C. §1 314(b)(4)(B). EPA is required to but has not consid ered the technology 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. Accordingly, the iterative process required

to establish the CGP's TBELs has not been fol lowed, and must be before the permit is issued. Mar athon Oil. Co. v. EPA (9th Cir. 1977)Unformatted 2012 CGP Comment Response Essays February 16, 2012

227 564 F.2d 1253, 1268; The Clean Water Act Handbook a t 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 overl y- prescriptive erosion and sediment control requireme nts not specifically called for by the C&D ELG. EPA's CGP must be adjustable to site conditions. EPA should develop guidance for i mplementing the

non- numeric best management practices (BMPs) required b y the C&D ELG rule so the individual permittee can assess and analyze the most appropriate method of implementation to meet t he standards. Historically, EPA's CGP has recognize d and provided sufficient flexibility to address the stochastic nature of pre cipitation and the variability of other site attrib utes (such as soils typ e and topography) by allowing discretion in the design and implementa tion of BMP s. My company is concerned that EPA's CGP proposal reverts back to the type of overly-prescriptive erosion and sedimen t control mandates that the Agency appropriately el iminated from the final C&D ELG 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 'im plementing the requirement would be cost- prohibitive.' See 74 Fed. Reg. at 63,018. We oppose EPA`s attempt to use the new CGP to implemen t an approach even more prescriptive than the C&D E LG 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 stabi lization using the uniform soil loss equation ("e-f actors"), site buffer design, water quality monitoring, and the potential use of chemic als to enhance flocculation and clarification water treatment processes, a re typically taught in upper level college engineering classes. Many contractors and local regulatory staff do not have the necessary training 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 o f staff technical expertise or that significant tra ining that will be required to support effective implementation and compliance.

Response See Response 2.1.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

228 

# 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 s ediment control BMPs that are practical and consist ent with existing state and local permit requirements, and proven effective in protec ting 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 dischar ges recognizes and provides sufficient flexibility to address the variable natu re of precipitation and other site attributes (such as soils type and topography) by allowing flexibility in the design and implementati on of Best Management Practice (BMPs) and other pol lutant control measures. T his approach has fostered the implementation of appropr iate controls on a state and regional basis, while guarding against inappropriate andlor overly excessive requirements. We continue t o support that approach, and EPA's new requirement mandating buffers or alternatives practices and steep slope provisions, and stabilization requirements are highly prescript ive and does not take into account limitations posed by individual site conditions. OH BA encourages EPA to maintain the flexibility in th e 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 s ediment control Best Management Practices (BMPs) th at are practical and consistent with existing state and local permit req uirements, and proven effective in protecting water quality.Unformatted 2012 CGP Comment Response Essays February 16, 2012

229 Response See Response 2.1.1.



# 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 e rosion and sediment control requirements. EPA's CGP must be adjustable to site conditions. Mandating specific BMPs at a national l evel is an inappropriate way to protect water quali ty. We are concerned tha t EPA's CGP proposal reverts back to the type of overly-pre scriptive erosion and sediment control mandates tha t the Agency appropriately eliminated from the Final C&D ELG rule. If implemen ted, these overly-prescriptive requirements will le ad to unnecessary and costly implementation of BMPs that may not be appropriate for a specific site. Instead, EPA should issue guid ance 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 speci fic to the December 2009 C&D ELG rule and issue guidance document(s) for pro per 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 t he 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 dist urbance from linear installation projects, EPA shou ld exempt these project s from any

erosion controls in the Draft Permit that focus on reducing impacts from soil stresses and impervious surface creation. While the earthUnformatted 2012 CGP Comment Response Essays February 16, 2012

230 disturbed in constructing or renovating a housing d evelopment or suburban shopping mall is rectangular in nature, natural gas pipeline projects do not install acres of new impervious sur faces (e.g., asphalt parking lots, roads, buildings , concrete sidewalks or patios) that will make permanent changes to the hydrology of a l arge track of land. Instead, linear excavations tak e a short time and once the pipe is installed or repaired, the soil is replaced, origin al contours are restored, and the area is re-seeded with grass and/or native foliage. Further, when existing impervious surfaces (e.g., p avement) are disturbed as part of a linear project, they are typically rep laced after the project but do not result in an increased amount of impervious surfaces.

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 pr oject. Gas pipeline work typically takes place in public and private utility ROWs unde r easement contracts with respective surface owners . During construction, the utility easements generally remain in use by the landowners . Requiring the same generic stormwater controls fo r linear projects as for traditional projects would limit landowner access a nd use of their property, including their front law n, sidewalks, and acces sible portions of paved roadway. Even if adequate space were avail able to install stormwater retention areas within o r adjacent to the ROW, the required manipulation would merely add to the distu rbed surface area. This would also increase the uti lity's liability risk i n areas beyond the natural gas line project easement for possible hazards to the health and property of others, parti cularly 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 contr ol, stabilization, and pollution prevention (see 40 CFR § 450.21(a) thru (f)). And now, according to EPA, t he CGP "must incorporate the C&D rule requirements. " See 76 Fed. Reg. at 22,885. The C&D ELG does require site operators to implemen t several specified best management practices (BMPs ) to control erosion an d the

runoff of sediment from construction sites. And at an appropriate point, EPA and the state permi tting authorities will have to incorporate these requirements into their CGPs. The Draft, howe ver, is far more prescriptive than the C&D ELG, and does not merely incorp orate 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 basi ns on all large construction sites), and the agency sought to respond to the greatUnformatted 2012 CGP Comment Response Essays February 16, 2012

231 variation in construction sites, often stating, for example, that the "need for these controls is dict ated by site- specific considerations," that they are "not always feasible," or that "implementi ng the requirement would be cost-prohibitive." See 74 Fed. Reg. at 63,018. In the process of revising its CGP, EPA now improperly att empts to reverse its reasoned decision to exclude s uch requirements. The Draft inappropriately reverts back to the type of overly- prescriptive BMP mandates that it eliminated from t he final C&D ELG.

If, in fact, many BMPs are best assessed on a site- specific basis or may, in certain cases, prove to b e cost- prohibitive, then EPA should simply provide non-mandatory guidance for implement ing those BMPs and give site operators the latitude to assess and determine the BMPs they require to meet the standards set forth i n the C&D ELG. The CGP should, for example, mandate only the controls that the C&D ELG requires for slopes (i.e., "minimize the di sturbance of steep slopes") and then give the site operator the latitude to develop a stormwater management plan that includes the approp riate steps it will take to achieve that end. The o perator will still have and retain the obligation to justify whatever plan it develops. Th is more flexible approach is preferable to Part 2.1 .1.2 of the Draft, which would add that the operator must "[a]void earth- disturbing activities on steep slopes (i.e., slopes of 15% or greater), unless infeasible or inconsist ent 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 n ature of precipitation and the variability of other site attributes (such as soil types and topography) by allowing discretion in the design and implement ation of BMPs. This approach has fostered the implementation of ap propriate controls on a state and regional basis, w hile guarding against i nappropriate and/or excessive requirements. AGC continues to sup port such a flexible approach and does not agree th a t the C&D ELG requirements support such a dramatic departure from that approac h in its implementation into the CGP. AGC encourage s EPA to delete its overly-prescriptive requirements for erosion and se diment controls from the Draft, limiting itself to the r equirements found in the C&D ELG, and then, as appropriate, issuing non-mandator y guidance on such controls.

In addition, AGC urges EPA fully to comply with the CWA. Ostensibly, the Draft sets forth the "best pr acticable control technology" that the agency has found necessary to meet the tec hnology- based effluent limits that the agency has establish ed under CWA section 301 (33 U.S.C. § 1311) and section 306 (33 U.S.C. § 131 6). See 76 Fed. Reg. at 22,885. There is, however, no evidence the agency has "considered the total cost of the application of th is technology in relation to the effluent reduction benefits to be achieved from such application," in accordance with the Act. The relev ant subsection of the statute, 33 U.S.C. § 1314(b)( 1)(B), provides in part:

Factors relating to the assessment of best practica ble control technology currently available to compl y with...section 1311 of this title shall include consideration of the total cost of ap plication 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 vari ous types of control technology, process changes, non-water quality environmental im pact (including energy requirements), and such other factors as the Administrator deems appropriate... .Unformatted 2012 CGP Comment Response Essays February 16, 2012

232 Unless and until EPA properly calculates and consid ers both the total costs and the effluent reduction benefits of the very prescriptive measures that it has included in the Draft, the Dra ft will not only go well beyond anything the C&D ELG r equires, but also conflict with

the CWA.

Response See Response 3.5.



# 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 overl y-prescriptive erosion and sediment control practic es that it had proposed, often stating that, for example, the "need for these cont rols is dictated by site-specific considerations," because they were "not always feasible," or that "implementing the requirement wo uld be cost-prohibitive." See 74 Fed. Reg. at 63,01 8. The Draft inappropriately reverts back to the type of overly-prescriptive BMP mandates that EPA eliminated from the final C&D EL G.

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 implement ing the BMPs set forth in the C&D ELG rulemaking an d then rely upon the individual permittees to assess and analyze the app ropriate BMPs and their implementation to meet the standards set forth in the C&D ELG. For example, at the appropriate time, EPA shou ld 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 st ormwater management plan the appropriate steps it will take to achieve that end. EPA should be proposing separate guidance con current with the C&D ELG rulemaking that sets forth more precise implementation strateg ies that reflect the need for site-specific flexibi lity. Under no circumstance should EPA be attempting to provide what appears to be ess entially a one-size-fits-all implementation strateg y 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 re vised C&D ELG, EPA should address more precisely th e requirements containe d in that regulation and use the existing extensive info rmation (and more) in developing separate non-manda tor y guidance that may assist site operators to more knowledgably implement such requi rements without unnecessarily complicating the prop osed CGP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

233 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 contr ol 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 require ment would be cost-prohibitive.” [FN 33] Now, EPA i s reverting to the type of overly-prescriptive BMP mandates that it addressed and dismissed in promulgating the final C&D ELG. Until now, EPA h as relied on a flexible program that allowed permittees to select their BMPs based on Best Professional Judgment and consideration of site c onditions. 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 proj ect every time. As the Agency has recognized in the past, however, many BM Ps are best assessed on a site-specific basis or may prove to be “cost- prohibitive” in certain circumstances. Thus, instea d of mandating the use of a specific BMP (or series of BMPs) that may be i neffectual or otherwise problematic, EPA should dev elop guidance for imple menting

the BMPs set forth in the C&D ELG rulemaking and then rely upon the individual permit tee 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 proce ss, not the current process subject to these comments), EPA should adopt a fina l 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 activiti es on steep slopes (i.e., slopes of 15% or greater”) a nd then require the permittee to justify in his or her stormwater management plan the appropriate steps that will be taken to achieve tha t end. EPA is not an expert in the geolo gy or topography of the nation and should not expect to set national standards that depend on a k een understanding of individual site characteristic s. Instead, EPA should propose a separate guidance concurrent with the C&D ELG rulem aking that sets forth more precise implementation strategies a nd options that reflect the need for sitespecific f lexibility. Under no circumstance should EPA attempt to provide a one-size-fits-all i mplementation strategy as proposed in the CGP.

[FN 33] 74 Federal Register 63,018 (December 1, 200 9).

Response See Response 3.5.



# Comment ID 0096-A1.001.018

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1Unformatted 2012 CGP Comment Response Essays February 16, 2012

234 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 crossings, minimize dust, and mandates regarding stabilization requirements i n sensitive areas and critical habitat are clear stretches of EPA’s authority and should be consider ed beyond the scope of this rulemaking.

Overall, NAHB suggests that EPA carefully reconside r 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 sites. Thi s approach would recognize the fact that larger sites typically pose a higher risk of pollutant dis charge while smaller projects and individual lots within subdivisions are less likely to have signifi cant erosion potential. Likewise, this approach would recognize there is limited flexibility for sm aller parcels to redesign or accommodate certain BMPs, such as the proposed steep slope and buffer requirements, and would reduce the costs associated with the additional steps because they would be imposed on fewer entities. Finally, applying the additional BMPs and other req uirements only to larger projects would also provide relief to small businesses, as directed by the Administration [FN 34]. Finally, such an approa ch

is consistent with the C&D ELG and earlier versions of the CGP, which dictated additional measures for larger sites only, but did not comprom ise environmental protection.

[FN 34] 76 Federal Register 3828 (January 21, 2011)

Response See Response 2.1.1. With regard to the concern abou t 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 stabilize area s discharging to sensitive waters relate to the min imization 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 su ch as "minimize," "avoid" and "limit" in the body o f this Part. Such terms are more suitable to guidance than to an enforceable documen t because they do not clearly identify what is requ ired of a permit holder. We understand that the Agency is trying to reduce its reliance on such subjective terminology in this permit and w e applaud that effort. We also understand, however, that the new ELG employs such words in several key sections. To the extent t hat the use of these kinds of subjective terms is not mandated by the ELG we urge EPA to further purge the final permit of such valu e-laden terminology.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

235 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 re quirements for covered activities, including requirements for site plannin g (including avoidance of impacts to sensitive area s), erosion and sediment controls, and pollution control measures. Many of these provi sions are clearer and more specific than in prior C GPs or in the C&D Rule itself. We agree with EPA that these provisions, to the extent they establish clear and enforceable requirements, are superior to the more generalized requirements typical of prior permits, in that they are better organized to follow the con struction process, clarify permittee obligations, and enable effective enforcement by EP A, states, and citizens under Clean Water Act autho ri ties. Importantly, EPA appears to recognize that bright- line requirements are usually more effective at pro moting compliance and should be utilized wherever p ossible, especially in general permits like the CGP.

Response EPA appreciates the comment.



# 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, establish a 50-foot buffer zone set back, and inst all truck wheel wash stations.

Response We appreciate the comment. EPA notes that the Agenc y does not feel it is appropriate to specify implem entation of specific st ormwater controls for all sites, because many controls are b est determined on a site-specifi c basis. Specificaly, active treatment is not a nec essary control for all sites, and EPA believes permittees should be able to determine if such controls are ne eded on their sites.



# Comment ID 0129-A2.001.002

Author Name: Lauenstein P. Organization: Issue Category: 2.1 Vegetative cover should be required as a control me asure. Without explicit requirements to retain vege tative cover, denuded l andscapes like the one shown in these photos [See Docket ID 0 129-A2 for photos] are all too common at constr uction and development sites. ThisUnformatted 2012 CGP Comment Response Essays February 16, 2012

236 inevitably results in loss of topsoil and pollution of nearby waterways.

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 includ e performance values for erosion and sediment contr ol technologies. The c urrent draft has insufficient performance requirements in the specifications.

The draft lacks a clear understanding of what the t urbidity measurement requirements are. GMA believes the performance measure should be based on turbidity levels rather than jus t C-factors and 50 foot buffer equivalents.

Response See Response 2.1.3.



# 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 I ndustry" (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 Rico, a tropical island of ir regular topography, with a central mountainous regi on, the need to retain this flexibility is particularly necessary in relation to turbidity.

Contrary to conditions in the continental United St ates, sur face water bodies in Puerto Rico are, with exceptio ns, mostly small streams orUnformatted 2012 CGP Comment Response Essays February 16, 2012

237 creeks with flows defined by the rainy season exten ding generally from April to November. Concerning t he amount of turbidity, generally determined by the number and size of part icles 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 variability significantly increases in areas which, like Puerto Rico, combine both high precipitation and mountain ous geography.

Aware of the presence of natural background levels of certain contaminants, the Puerto Rico Environmen tal Quality Board recently approved (March 31, 2010) significant revisions to the Island's water quality standards, including a n ew Rule 1305.2, establishing

mechanisms to address the existence of natural back ground concentrations which exceed one or more of t he water quality standa rds that apply to a specific water body classificat ion. EPA's prescriptive proposals are also in confl ict with this acknowledgement of site specific

circumstances.

The PRHBA has similar concerns for the establishmen t of fixed buffer zones, when other options, which take into consideration soil types, vegetation and topography, amongst other fac tors, less intrusive upon property rights, will att ain the same reductions in sed iment loads. In addition, the proposed 15% threshold, tak ing into consideration the Island's topography, is unrealistically limiting.

Response EPA notes that the turbidity limit is not included in the final permit. See Response 3.1. For the comm ent about flexibility regarding buffer zones, see Response 2.1.1 and 2.3.



# 2.1.1 AVOID SENSITIVE AREAS

No Comments are Applicable to t his Issue Category, and Thus No Response is Necessa ry.



# 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 clea rly mark off sensitive areas, including buffer area s, steep slopes that wil l be left undisturbed, and stream crossings. This is an excessive and onerous requirement for linear projec ts which often cover several miles.

Response See Response 2.2.1.



# Comment ID 0025-A1.001.002Unformatted 2012 CGP Comment Response Essays February 16, 2012

238 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 fo r 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 sectio n. Flagging, therefore, denotes avoidance. It seems strange then, to flag points wh ere a water of the US will be crossed. It is more c onsistent to flag the area 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 o f Ecological Restoration (DER) Issue Category: 2.1.1.1 Delineating and maintaining a flagged perimeter around resources ar eas presents a challenge for restoration projects. In almost all cases work is being done within rivers and wetlands since most restoration projects must first remediate his torical impacts to resource areas before implementing habitat restoration and modific ations to improve functionality. The intent of the stormwater permit requi rement is to prevent accidental intrusion into resource areas during conventional construction project. For aqua tic restoration work the opposite intent exists. For these reasons, the DER requests that the permit exempt pro-active restoration proje ct 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: 2.1.1.1Unformatted 2012 CGP Comment Response Essays February 16, 2012

239 Section 2.1.1 requires operators to "delineate, and clearly mark off, with flags, tape, or other simil ar marking device," any sensitive areas, including buffers, steep slopes, jurisdictio nal water cr ossings, protected habitat, species, and structures . For some projects, it may not be possible, or feasible, to mark off all of th ese areas before initiating construction. This is e specially true for long linear projects that are constructed in phases. Ins tead of requiring field marking, EPA should allow o perators to identify sensitive areas on their const ruction documents. Doing so will enable the operators, and their contractors, to adjust their access and opera tional 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 fe asible or effective at some construction sites. On and active runway, the use of flags or tape may be prohibited or restricted. There shou ld be an option to install alternative area control s. This could include fencing or protective barriers around the identified sites to prevent damage. Language allowing equivalent protec tive measures should be included with marking requirements which appear in a number of places in the permit. In areas with access restr ictions or alternative vehicle management procedures, the marking requirement shou ld be waived. An example of a vehicle control proce dure would be to escort all

vehicles on and off the worksite.

Response See Response 2.1.1.



# 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 li ne projects where activities are conducted across several miles of right-ofways (ROW ), often in phases, the delineation and marking off of the items liste d in 2.1.1.1 can become an extensive and costly exercise, and in som e cases, may be duplicative of compliance with othe r laws and regulations. For example, wetlands are typically already flagged, in compliance with the requirements of the state wetl ands protection act laws and the federal Clean Water Act. The use of multiple flags in the field may cause confusion for field crews, a nnulling the current be nefit 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 slopes, and within federally-listed critical habitat [FN 1]. Av oidance of these areas is impossible, as maintenanc e and development activities are required within an established ROW approved as part of the Federal Energy Regulatory Commission filing s or by state energy siting boards. The ROWs run cross country, over and throug h multiple sensitive areas.Unformatted 2012 CGP Comment Response Essays February 16, 2012

240 Where feasible, access to work areas is conducted v ia off-ROW easements to avoid access-related impact s to sensitive areas. On a case-by-case basis, National Grid already marks off sensitive areas for some projects and will continu e to do so. National Grid is concerned that the general language mandating such markin g (i.e. a "cook book" approach) across the entire l inear project is excessive and unnecessary. National Grid recommends either an exception for linear projects in compliance with C WA 404 provisions or an acknowledgement that sensitive areas are to be mark ed off on a case by case basis with locations inclu ded in the Stormwater Pollution Prevention Plan (SWPPP), based on field conditions and monitored in accordance with the SWPPP.

The proposed CGP requests that all flagging be remo ved upon completion of construction activities. Whi le this request may be appropriate in some instances, linear projects may have miles and miles of wetland flagging along a RO W. These flags are very rarely, if ever removed. National Grid is not in support of th e requirement to rem ove all flagging, except for those portions of the project that have localized flagging to assist contractors identify w ork areas and unique sensitive areas.

With respect to flagging of rare species habitats t hat fall along ROWs, National Grid is concern ed that Massachusetts Natural Heritage & Endangered Species Program is cautious about callin g attention called to the species in question. The CGP should mention that coordination with the appropriate state agency shou ld be conducted prior to flagging areas of threaten ed 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 zon e.

[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 Habit at). It is not possible to mark off these types of areas on a project site . National Grid recommends that clarification of this requirement b e provided (e.g. insert where feasible or if reques ted by the U.S. Fish and Wildlife Service).

Response See Response 2.1.1.



# 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 cro ssings, discharge locations, ESA habitat, historical properties, fueling and mai ntenance areas, vehicle and equipment wash areas, s taging and storage areas, and

concrete and material wash out areas. The visual cl utter of the flagging will not only be potentially confusing, but possibly dilute the intended effect which is to highlight or designate sensitive areas. We recommend the requirement be mo re general and flexible an d allow the applicant to decide the method of delineation o f sensitive areas. Areas may be flagged, signed, sh own on plan sheets, specified, or other methods to retain and protect.

Response See Response 2.1.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

241 

# 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 physical ly mark off, flag, tape or use a similar device to delineate certain areas. The

referenced Parts inclu de flagging requirements for buffer areas, steep sl opes (15%), crossings of waters of the US, historic al properties, endangered species related areas, wheel wash down a reas, fueling and maintenance areas, equipment or v ehicle washing areas, s taging and storage areas, building materials storage areas , equipment storage areas, vehicle storage areas, w ashout areas for paint, concre te and other materials, sampling/discharge locations, no d isturbance areas including setbacks, buffers, and s teep slopes.

Requiring a permittee to physically mark off and ma intain flagging in all of these areas on a construc tion site during the entire co urse of construction is an unnecessary burden that will not further the goal of minimizing the discharges of p ollutants.

It is prudent to mark off sensitive areas such as h istorical places and endangered species areas, as w ell as very steep slopes, but those tasks and requirements are usually conditions issue d 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 usua lly contained in the respective permits conditions of approval. Flagging for these items should be removed from the Proposed CGP and E PA should allow the appropriate regional regulatory agencies to establi sh 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 rul e does not include such a requirement. Flagging for the balance of the items is not needed and will pose an unnecessary cost and compliance b urden on the construction industry. What is the purpose and benefit of imposi ng such an arduous task upon the construction indus try?

Flagged delineation specifically of all slopes grea ter than 15% (6:1 slope) is not practical at most s ites, potentially costly, and unnecessary to achieve the intended purpose. Furthe rmore, the clear identification on and use of an ef fective SWPPP plan can adequately provide the necessary information and fu lfill the intended purpose; to make site personnel aware of areas that present elevated erosion risk as a result of slope steepnes s. Many construction sites have large quantities of ar ea that exceed 15% and often these areas may not be easily demarcated as they can be i nterspersed with less steep areas. Furthermore, slo pe steepness is only on e of many factors (slope shape, length, etc... ) affecting erosion on slopes. Identification of ar eas susceptible to increased erosion and potentiall y in need of aggressive stabilization is best judged by the engineer of record in developing a well designe d SWPPP. It may be appropriate, practical, and protective of the environment to cla ssify "steep slopes" as areas with slopes greater t han or equal to 25% (4:1 slope) and flag only in areas that are assessable safely and c an be maintained. Ideally the engineer should speci fically identify high erosion areas that may require flagging as part of SWPPP developm ent.

Construction sites by nature are subject to the ele ments and the flagging materials will require const ant maintenance. They w ill wear out, be subject to damage from normal construction opera tions and traffic and need replacement throughout t he course of construction, perhaps on a daily basis. Flagging materials will b e blown 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 con stantly being vandalized by children and "off-roade rs" during off hours andUnformatted 2012 CGP Comment Response Essays February 16, 2012

242 weekends. If chain link fencing or steel posts and "snow fence" are used in place of wood stakes and r ibbon, the costs would be significant and maintenance would still be a factor

.

A workable 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 cr eate a permanent record to document compliance with the permit. It would be a simple matter for the permittee to change the locat ions of these items as construction progresses. It would be the permittee's responsibility to implement the appropriate BMPs pe r the permit and SWPPP in the specified areas of co ncern.

Response See Response 2.1.1. For the comment on "steep slope s", 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 specif ied sensitive areas to be delineated and clearly ma rked, including areas o f federally listed critical habitat for endangered and threaten ed species and historic properties. MDT believes th ese specific areas should be regulated by the agencies with jurisdiction, and th at these areas are not appropriate as Clean Water A ct 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.



# 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 s lope." In the April 25, 2011 Federal Register notic e for the draft CGP, USEPA explained (79 Fed. Reg. 22887):

"When EPA was writing the C&D rule's final non-nume ric effluent limits listed above, it intended to pr ovide discretion to permitting authorities to determine how best to implement thes e provisions with respect to requiring controls and measures appropriate for the conditions in their permitted areas. For example, i n the preamble to the C&D rule, E PA states ‘* * * in the erosion and sediment contro l section * * * EPA simply required that permittees ‘ minimize the disturbance of steep slopes' leaving i t up to the permitting authority toUnformatted 2012 CGP Comment Response Essays February 16, 2012

243 determine the specific requirements applicable to o wners or opera tors 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 resp onsible for issuing stormwater permits for construction activities in four States, Indian Country lands, Federal facilities, Washingt on, DC, and U.S. territories/protectorates, EPA believes that it is important in this draft permit to include requireme nts that more specifica lly define what is necessary to implement each of the C&D rule's no n-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', ‘Minimiz e steep slopes', and ‘‘Minimize soil compaction'', among others. In EPA's view, adding specificity to the C&D rule- based requirements in the CGP will assist permittee s in understanding the Agency's view of what is required to comply with the permit." [emphasis adde d]

In regard to steep slopes, Part VII.1.1 of USEPA's Proposed Construction General Permit (CGP) - Fact S heet further explained:

"Purpose: Part 2.1.1.2 implements the C&D rule requ irement to ‘minimize the disturbance of steep slopes' at 40 CFR 450.21(a)(4). EPA added specificity to what is to be considered a ‘st eep slope' under the permit by defining steep slop es as those that are 15 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 of slopes close to 15 percent being used by the states to define st eep slopes..."

Accordingly, the draft CGP defines steep slopes as those that are 15 percent or greater throughout loc ations such as New Hampshire, Massachusetts, New Mexico, Idaho, Puerto Rico, the District of Columbia, Pacific Island territories, a nd Indian Country lands in many States including Alabama, Alaska, Florida, Minnesot a, Nebraska, New York, Oklahoma, South Dakota, and Washington. Collecti vely,

these locations include areas with a tremendous ran ge of climate, topography, soil, vegetation, and la nd use. The question then 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 slop es differently in their NPDES CGPs? Will USEPA now consider amending 40 CF R § 450.21(a)(4) to define steep slopes as those that a re 15 percent or greater?

Response

EPA notes that it has made the definition for "stee p slopes" more flexible in the final CGP to account for state, tribal, local, or industry-specific steep slope definitions or specif ications. See Response 2.2.2.EPA also notes that st ate 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 implem ent the C&D rule requirements, and if they choose to 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 loc ations. This is not a realistic requirement for mou ntainous areas of the United States.

Response See Response 2.2.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

244 

# 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 owne r, during the site planning phase of a project, to avoid earth disturbing activities on steep slopes (i.e. slopes of 15% or more), unless i nfeasible or inconsistent with the requirements 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 "S ite Planning" requirements, does EPA expect the own er of a proposed construction project to restrict the size of their development t o meet this requirement?

It is unclear from the definition for "Steep Slopes " in Appendix A as to the method for calculating sl ope. For instance, over what length is the slope calculated (i.e. 100 ft, 50 ft, 25 ft, etc.)? Is there a minimum width and length of stee p slope that would trigger this requirement? Does this requirement apply to any pie ce of ground with a slope of 15% or greater? For in stance, does the requirement apply to a small embankment or rolling terrain? Wha t was the basis for the steep slope criteria being set at 15%? EPA must provide a more detailed description for "steep slope" so that the requirement is implemented on a consistent bas is.

Response See Response 2.2.2.EPA notes that it has provided i nformation about what it means to "minimize" the di sturbance 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 fa ct sheet. EPA notes that it no longer includes this requirement under the "Site Planning" requirements. Accordingly, EPA does not expect the owner of a proposed construction project to restrict the size of their development to meet this requirement.



# 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 dis turbances on slopes exceeding 15% (8.5 degrees). On e of the objectives on linear projects constructed on servitudes is to minimize c hanges to pre- existing contours; therefore, vehicle trails and st ructure locations may frequently be located on slopes exceeding 15% grade to preserve the approximate original contour. Area s where construction oc curs 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 w hen construction is completed or will be temporaril y suspended for seven day s. As a point of reference, a 15% slope is the maximum grad e recommended for a logging truck haul road. Given the very narrow corridors required for utility line ROWs, diversion of site r un-on and installation of specialized erosion contr ols may not be pos sible due to space constraints. Entergy requests that EPA clarify that this provision is a recommendation only, which can be countermanded by other factors such as preserving original contours or res trictions created by the narrowness of linear proje cts.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

245 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 mountainou s regions in Wyoming, rock slopes commonly exceed 1:1, H:V (e.g., 100% slope) in native repose. WYDOT design standards on shoulde r fills are at 6:1 and steeper (AASHTO Design Guidance). Accordance to this requir ement, all WYDOT highways would need to comply with Part 2.1.4.2 including: linear diversions, specialized erosion a nd sediment controls, all fertilizing, seeding, wat ering and mulching item s completed within 3-work days of permanent/temporary ceasing o f earthwork with 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.



# 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 di sturbing activities on steep slopes (i.e., slopes o f 15% or greater), unle ss infeasible or inconsistent with the requirements of the project." Section 2.1.1.2. Due to the nature of lin ear utility projects, such activities will often be necessary because these projects are designed to av oid or minimize changes to pre-existing contours an d often extend through steep,

natural terrains. UWAG believes that the other cont rols 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

246 

# 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 worl d, a "steep" slope is one that is equal to or great er than 33% (3 horizont al: 1 vertical). A 15% slope is only a 6.67 H:1V slope which is not considered to be steep in construction/erosion appl ications.

Therefore, if you want to avoid slopes greater than 15%, then don't call them steep slopes. Or if you want to avoid what are 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; "min imize the disturbance o f steep slopes" and then require the permittee to justify i n its stormwater management plan the appropriate steps it will take to achieve that end. EPA should be proposing separate guidance concurren t with the C&D ELG rulemaking that sets forth more precise implementation strategies that reflect the need for site-specific flexibility. Under no circum stance should EPA be attempting to provide what app ears to be essentially a one-size-fits-all implementation s trategy 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: 2.1.1.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

247 MDT acknowledges that the new Effluent Limitation G uidelines require the disturbance of steep slopes t o be minimized. However, MDT does not believe that slopes of 15% or greater should be considered "steep". Unlike building·const ruction and subdivision development, linear transportation projects present unique challenges. The disturbance of steep slopes is often required in order to provide necessary access to transportation network s, as well as balance the earthwork needed to const ruct a project. Under the proposed threshold, greater right-of-way acquisition would l ikely be required, resulting in displacement of hom es and businesses, farmland conversion, increased project costs, etc . Montana's topography is such that avoiding the di sturbance of slopes 15 % or greater would be infeasible in many cases. As such, a substantial am ount 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 standar ds developed to comply with the Federal Highway Administration's requirements f or protection of public safety, typically specify d itch and fill slopes ra nging from 6: 1 (16.7%) to 1.5: 1 (66.7%). Steeper slopes are con sidered when necessary to avoid and minimize impact s to sensitive resources, such as wetlands, historic properties, endangered species h abitat, right·of.way acquisition, etc. In terms of MDT design, slopes of 15% are considered gentle slopes allowing complete rccovera bility for errant vehicles. In following our design standards, which were developed with public safety in mind, MDT would have to provi de an extraordinary amount of documentation to demo nstrate that th e disturbance to steep slopes is infeasible, as well as implement additional (sometimes unwarranted) control measure s on the vast majority of projects. It has been MDT's experience that slope steepness i s only onc variable influencing the likelihood for er osion. Other influences, such as soil types, distance traveled, etc. need to be cons idered as one metric is not appropriate. As a resul t, MDT does not believe a specific slope should be specified. If one must be specified , MDT recommends substantially incr eaSing the proposed 15% threshold, as well as allowing additional considerations for linear tramp ortation 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: 2.1.1.3 Brevard County Comment: Who decides what the "minim um necessary" is? Minimizing stream crossings may g reatly increase costs a nd time of construction for tight sites by limiting ha ul truck access.

Response

See 2.2.3.



# Comment ID 0075-A2.001.004

Author Name: McOmie DelbertUnformatted 2012 CGP Comment Response Essays February 16, 2012

248 Organization: Wyoming Department of Transportation Issue Category: 2.1.1.3 The contractor is expected to minimize stream cross ings which is very difficult on linear, narrow highway corrido rs crossing numerous drainages and structural design/construction elemen ts 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 stream crossing are need ed. While it is crucial to require permittees to li mit stream crossing as EPA has done in section 2.1.1.3, additional protection such as r equiring the wheel washing steps o utlined in section 2.1.3.7 (c) prior to driving thr ough the stream and gravel areas on both sides of the st ream crossing (with language that informs permittee s 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 comments, EPA has removed the requirement to minimize stream crossings. EPA believes that because stream crossin gs are addressed by the CWA section 404 program, th e requirement is outside the scope of the CGP.



# 2.1.2 PROTECTION OF SURFACE WATERS: NATURAL BUFFER S 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 wate rs of the U.S. to minimize sediment discharge. The buffer guidance in Appendix M provides a way to estimate t he percent reduction in sediment discharge assuming a 50 foot buffer is present based upon computer modeling. Fundamentally, if the agency is relying on modeling to estimate the redu ction in discharge through vegetation, then the agency should also be providin g information on the equivalency of Best Management Practices (BMPs) that will achieve the required sediment discharge reduction.Unformatted 2012 CGP Comment Response Essays February 16, 2012

249 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 right s of way and where a project uses all but a small portion ofthat right of way. In addition, desert so uthwest vegetation is sparse and does not tend to p rovide the same level o f "treatment"

for sediment as it does in the eastern United State s. As the EPA has done in other areas of the permit , ADOT urges some site specific considerations with regards to the buffer requireme nt.

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. Th e 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 ephe meral flow and mino r connections to downgradient waters. Implementing the buffer setbac k rules around these types of features would place additional permitting b urdens on the applicant while possibly providing only minimal downstream water quality benefits. The second conc er n is regarding the difficulty in defining which features at a site constitute "wa ters of the U.S." Following the U.S. Supreme Court cases Rapanos v. United States and Carabell v. United States, EPA and the U.S. Army Co rp of Engineers (COE) have provided me morandums and guidance that attempt to clarify which hydrologic features will be considere d "waters of the U.S." Despite these attempts, conf irmation of which featu res 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 a re, 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." withi n 50 feet of all projects, placing additional financial and timing burdens on the appl icant.

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. T hese are streams that have perennial or seasonal fl ow (generally those fea tures that flow at least seasonally and have groundwater contr ibution).

Response See Response 2.3.4.Unformatted 2012 CGP Comment Response Essays February 16, 2012

250 

# 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 "su rface 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 apply 40 CFR § 450.21(a)(6) more broadly to watercourses that are tributary to "waters of the United States," but tha t are not themselves "w aters of the

United States"? Such watercourses are sometimes a m ajor means of channeling pollutants from constructi on 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 permitti ng authority may apply the buffer requirements. EPA notes, however, that the C&D rule requirement was not intended to apply to stormwate r control features 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 buffe r,” and “naturally vegetated buffer.” The Appendix A definition of “Buffer” uses the term “natural vegetation.”

In such 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 previously disturbed riparian areas)? For example, if a ripari an area was disturbed long ago for agricultural, ti mber or mineral removal, or urban development purposes, but is now thickly vegetated (via planting or ecological succession) with non- native grasses, shrubs, or trees, is that current vegetation “natural vegetation”?

Two more examples: In a residential or commercial a rea, is a streamside lawn of perennial non- native grass “natural vegetation”? In an agricultural area, is a streamside pasture of peren nial non-native grass “natural vegetation”?

Also, if a few trees are harvested now and then fro m a streamside wooded area, can that area still be considered “undisturbed” natural vegetation?

Response See Response 2.3.3.Unformatted 2012 CGP Comment Response Essays February 16, 2012

251 

# 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 m inimum 50' undisturbed, natural buffers, or equival ent sediment controls (in tenns of erosion and sediment pollutant load reduction) if t he 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 infonnation available as to the pollution -ameliorating effects of good buffers.[FN 4]

[FN 4] Maryland Department of Natural Resources (St raughan Environmental Services, Inc.), Riparian Buf fer Effectiveness Liter ature Review, Annapolis, MD: January 2003; US EPA, Ripari an Buffer Width, Vegetative Cover, and Nitrogen Rem oval 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 Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.1.2 Natural buffers are great BMP for improving the qua lity of discharge from a site. However, EPA has mad e the assumption that w ater will flow from the site through the 50 ft buffer and int o the w aterbody. If the topography does not allow water in to the receiving body, there is no need for a buffer. If a Best Management Pract ice (BMP) is installed that captures all the water and diverts it to a new location, the buffer is not needed. In addition, s iting buffers in a development plan is something th at would have to happen during the design phase of the project and is outside the control of the contr actor (i.e. it is not a temporary erosion and sedim entation control measur e). The CGP as

it stands now focuses on "Construction". However, this requiremen t needs to happen before construction begins and pe rhaps should be a requirement of another permit such as the MS4 that focus on site development and local site design app roval.

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

"Waters of the U.S." can include small tributaries that have only ephemeral flow and minor connections to down gradient waters.Unformatted 2012 CGP Comment Response Essays February 16, 2012

252 Implementing the buffer setback rules around these types of features would place additional permitting burdens on the applicant and not really provide any water quality benefit. Buffer se tbacks should be implemented on streams that have p erennial or seasonal flows.

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 o ur projects whenever possible, we cannot use vegeta tive 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 on 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 no rm. For example, identifying use of a buffer strip in the arid environment of ArizonaUnformatted 2012 CGP Comment Response Essays February 16, 2012

253 will be very difficult to achieve since many of the waterways are dry arroyo' s that do not contain water except for flood flow c onditions.

Response See Response 2.3.7.



# 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, establish ing adequate vegetation in a semi- arid environment for a buffer strip may take up to two g rowing seasons. Thus, requiring buffer st rips 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 strips 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 the United States, but are not a realistic BMP in arid and semi-arid c limates. While use of buffer strips should be one BMP considered by any designer and re gulatory agency, EPA should not be mandating use of buffer strips 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 consid ered in the provided buffer requirements. These req uirements should be altered to allow the permitting authority to consider the qual ity of the buffer, in addition to its width, before approving it as a me asure of sediment control. Providing a uniform buffer standard is an important aspect of the Construction General Permit 's task of ensuring properUnformatted 2012 CGP Comment Response Essays February 16, 2012

254 sediment control, either through a wide natural buf fer or substitute measure. However, a designated wi dth of buffer does not adequately determine the pollutant removal potential for the b uffer. The quality of the buffer, including but not limited to, the vegetation type, vegetation coverage, gradient and soil type, affect s the pollutant removal potential and thus should be considered when determining the adequacy of a buffer.

Response See Response 2.3.3.



# 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 poll utant removal performance of 50-foot buffers will v ary from site to site. We propose that qualifications should be written into the perm it to account for this uncertainty in buffer perfor mance. An on- site evaluation of buffer quality by permitting authorities should be require d in instances where a construction site discharges into any waters with Total Maximum Daily Loads (TMDL), or impairments for subs tances related to discharge from construction sites . This should also apply to waters that are natural heritage areas or contain h abitat for endangered or threatened species. In the se evaluations , authorities should be granted the ability to require additional sediment controls, natural vegetation or artificial substitu tes as listed in Appendix M, prior to approving a permit. Furthermore, town conservation commissions or local conservation advisor ies should have the ability to contest the efficacy and quality of the buffer at any local sit e, with the guarantee that the permitting authority will respond to their comments and evaluate the site's buffer quality in the manner ou tlined above. This will allow for a specific evalua tion of buffer pollutant-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 t o minimize sediment discharges to any waters of the U.S. located on or immediately adjacent to their site by maintaining a natural buf fer or by using equivalent sediment controls. Pleas e define "or immediately adjacent to". This language is not clear and will be subject to different interpretations.

In addition, will the final "Guidance on Identifyin g 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? I t is our understanding that this document is curren tly going through a public review and comment process w ith comments due by July 31, 2011.Unformatted 2012 CGP Comment Response Essays February 16, 2012

255 Response See Response 2.3.4. EPA notes that the guidance reg arding waters of the U.S., once finalized, will pro vide assistance to permittees in determining what waters are required to be protecte d by buffers.



# Comment ID 0062-A1.001.008

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.2 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 exten ds well beyond construction activities and demands compliance with project design requirements, which are entirely beyond the control and expertise of the construction sector. One exam ple of this fundamental problem is the requirement of a 50-foot buffer zone. If a p roject 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 liabilities. 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 t he 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) manda te in Part 2.1.2 is another example of regulatory o ver- reach. In the C&D ELG, EPA eliminated many of the specific vegetated buffer re quirements because the Agency could not justify its initially prescriptive approach,Unformatted 2012 CGP Comment Response Essays February 16, 2012

256 ultimately requiring site operators to "provide and maintain natural buffers around surface waters..." t o "increase sediment removal." See 40 CFR § 450.21(a)(6). Now, EPA has proposed tw o pages of prescriptive permit language, 17-pages o f Fact S heet explanation and an additional 16-page permit "appendix," to mandate how sites must implement that requirement. EPA als o appears to ignore in the Proposed CGP the important language in the C&D ELG proposal that providing and maintaining a natural b uffe r is not required 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: 2.1.2

•Part 2.1.2 Protection of Surface Waters: Natural B uffers and Equivalent Sediment Controls. This part is too restrictive and/ or does not offer adequate alternatives. Linear transportation projects are frequently located immediately next t o waters of the U.S. in areas with limited Right of Way (ROW) and/or geography. An exa mple would be a mountain highway with a drop off to a river, which allows no opportunity for a buffer and limits the sediment an d erosion control options. A second example would b e a road way located next to a dry gulch, with a ROW that extends only a foot or two b eyond the edge of the road. Frequently, in situati ons such as these, admi nistrative

BMPs offer the best alternative to the buffer. CDO T encourages that administrative controls, such as sweeping, working only during the dry season, an increase in inspection frequency and so forth are added to or supplement the altern atives.

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 wher e practical; however, l inear 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 requir ement is impractical in these

situations

Response See Response 2.3.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

257 

# 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 vegetate d buffers adjacent to US Waters, toe stakes (e.g., disturbance boundaries) and no construction activities allowed within designated b uffer strips would have unintended consequences on steep highway fill slop es leading to increased erosion potential and enhanced sedimen t delivery to riparian zones, especially mass wasti ng (i.e., mud slides). Many WYDOT rural secondary corridors have a mere 66-80 f eet wide right-of-ways with 24-feet of that 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: 2.1.2 Similarly, the 50- foot "no construction activity" buffer would restri ct gravity flow and polymer treatment train positio ning 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 Organization: Target Corporation Issue Category: 2.1.2 1. Target requests that the Environmental Protectio n Agency (EPA) identify the significance of 50 foot buffer (100 feet of bu ffer around a surface water) distance and why the value was sel ected. Does this estimated reduction align with the Construction & D evelopment rule (C & 0 rule)? Target requests additional guidance o n all integrated performance standards that were ut ilized in addition to R USLE 2.0 in determining buffer performance.

2. Target requests that the EPA provide further exp lanation as to why a universal 50 foot buffer is de sired. Would a larger buffer be required for a larger drainage area or a reduced bu ffer for areas that do not receive runoff? Target s uggests that this could be included as a buffer 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

258 

# 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 interpretation. In order to prevent confusion on the part of designers and revi ewers, maps of waters to be protected should be dev eloped and the buffer r equirement 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 Appen dix M: The term "naturally vegetated" is somewhat c onfusing. Could a buffe r area be seeded with a native plant mix one year in advance of the proposed construction to qualify as a natura lly vegetated buffe r? If a buffer area was graded 5, 10, or even 20 years in the past and vegetation was established through natural processe s which include the est ablishment of invasive species or weeds, would this area quali fy as a naturally vegetated buffer. Though invasi ve 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. Fr om 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 main tain natural buffers around surface waters ..." to "i ncrease sediment remova l." 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 techno logy controls to support the C&D ELG rulemaking, du ring which EPA concluded 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 necessary,Unformatted 2012 CGP Comment Response Essays February 16, 2012

259 it can then issue non-mandatory guidance that may a ssist 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 buff er requirement will be particularly difficult to me et on linear highway projects where DOTs have limited rights-of-way and where mos t projects use all but a small portion of that spac e. Also, the proposed buffer requirements will be difficult to implement where l inear projects (roadways) abut wetlands, which is a common occurrence in coastal states. There are times that work must take place r ight up to the right-of-way line which is also besi de the wetlands area.

Response See Response 2.3.6.



# 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 ve getated buffer to control sediment from constructio n sites. We encourage you to consider expanded buffers in designated critical ha bitat for listed Endangered and Threatened species, on sensitive landtypes and on steep slopes. You should consider the effectiveness of a 50-foot vegetated buffer compared with the bu ffers established by the Forest Service and Dept. of Interior through the PACFISH a nd INFISH Strategies for protection of Riparian Hab itat Conservation Areas to protect and conserve listed 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 a t least 50 feet between construction activities and waters of the U.S. is a commonUnformatted 2012 CGP Comment Response Essays February 16, 2012

260 sense, practical provision that implements the C&D Rule and is analogous to the buffer zone requiremen ts of wetland protection laws, including Massachusetts's Wetlands Protection Act, M.G.L .c. 131, § 40. The Draft C GP's natural buffer provision cannot be considered unduly restrictive; it provides for compliance alte rnatives that result in a level of control equivale nt to the otherwise req uired buffer. CLF urges EPA to retain this requirement in the final p ermit.

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 critica l habitat deserve added protection. Amigos Bravos supports the addition of buffer requi rements and suggests adding language that requires permittees to identify in the SWMPP any already existing local or state stream bu ffer requirements. In addition, Amigos Bravos recom mends adding a buffer requirement of 25 feet to areas adjacent to drainag e features such as ditches, storm drains, and arroy os. An added benefit of the buffer requirement is the ability to better control the sp read of noxious weeds. Disturbed a reas, especially here in the arid southwest, are pr one

to serious noxious weed infestation and when these disturbed areas are adjacent to waterways or draina ge features noxious species are more easily and quickly spread to downstream areas.

Response See Response 2.3.3.



# Comment ID 0117-A1.001.003

Author Name: Robison Mary Organization: City of Syracuse, New York Issue Category: 2.1.2 The buffer requirement is based on Waters of the Un ited States, but the definition is very broad and s ubject to interpretation. In order to prevent confusion on the part of designers and revi ewers, maps of waters to be protected should be dev eloped and the buffer r equirement should be based on the maps.

Response See Response 2.3.4.



# Comment ID 0128-A2.001.009

Author Name: Robertson MikeUnformatted 2012 CGP Comment Response Essays February 16, 2012

261 Organization: Minnesota Chamber of Commerce Issue Category: 2.1.2 EPA's proposed 50-foot buffer (or equivalent) manda te in Part 2.1.2 is another example of regulatory o ver- reach. In the C&D ELG, EPA eliminated many of the specific vegetated buffer re quirements because the Agency could not justify its initially prescriptive 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 pa ges of prescriptive permit language, 17- pages of Fact Sheet explanation and an additional 16-page permit "appendix," to mandate ho w sites must implement that requirement. After a do zen years of studying technology controls to support the C&D ELG rulemaki ng during which concluded that a flexible approach is appropriate, why is EPA now attempting to implement an approach even more p rescriptive than the C&D ELG proposal by way of pro mulgating a new CGP permit? When the appropriate time arrives to implem ent a revised C&D ELG, EPA should require precisely what is contained in that regulation (as EPA states, "simply parroting" the C &D ELG), and use the extensive information (and mor e) in developing separate guidance that may assist site operators to more kno wledgably implement such requirements without unnec essarily complicating the 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 f or protection of surface waters. It is often infeas ible in linear transportation projects to provide an undisturbed naturally vegeta ted buffer between the disturbed portion of the sit e and waters of the United States. Additionally, specified buffer widths alone fail to account for site·specific conditions that influenc e water quality. As suc h, compliance flexibility is necessary and warranted.

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 d evelopment 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 33-5 0 of the EPA's fact sheet for the CGP, but are not particularly en couraged in the CGP. Perhaps EPA can find a way to encourage adoption of y et wider

buffers where feasible.Unformatted 2012 CGP Comment Response Essays February 16, 2012

262 Here in the Southeast, we have recommend a wider bu ffer of 75 feet on each side o f 1st and 2nd order streams and a 150 foot buffer o n each side of 3rd order or larger streams. Where slo pes are greater than 30% within the buffer, the buf fer width should be ext ended to the military crest of the slope.

Our recommendation for buffers wid er than the 50 foot recommendation presented in thi s CGP proposal may in part be justified by our experiences with stream channel widening that accom panies altered hydrologic conditions of urbanizing watersheds. On the Cahaba River, we have seen where an a dmittedly inadequate original buffer has been dimin ished dramatically by streambank slumping, leaving no buffer whatsoever (see photo below). [Please pag e 3 of original letter (Docket ID 0782-0145.]

This bank collapse removed the entire small existin g buf fer, leaving a mere 12 feet to the base of the adja cent building foundation. Thus, existing buffers can shrink significantly, resultin g in the loss of all water quality protection benef its.

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 designe d and implemented to achieve sediment removal capab ilities 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 constr uction site runoff. Bar field (2004) conducted simulations using the widely used Grassfi l model of Hayes et al. (1984) and showed that for Greenville County, SC, conditions during a 2-yr. storm on a slope of 12% a nd a slope length of SO ft in the active constructi on area would inundate a SO ft. buffer strip downstream of the source and the disch arge would contain sediment conc entrations 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 regularly mowed to keep dense vegetation, thus there would need to be a mai ntenance requiremen t. Under these conditions, the amount of sediment s torage before inundation is small and the filter quickly becomes ineffective. A VFS is not effective for reducing th e high sediment TSS load from construction sites unless it has a very long flow p ath thro ugh 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 I D 0153- A1.001) to view the graph of TSS concentration and Source Length and Filter Length.]

3. This is a back door way of requiring a % sedimen t removal on an annual basis. This is not supported in the Federal Register. 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 befor e failure. This is based on a RUSClE calculation no t considering the effect of flow. Suggest the EPA analysis be redone and the % remova l be set based on a design storm event that the buf fer can attain without being cleaned and maintained. In addition, this requireme nt appears to not require any additional controls i f you have a natural bu ffer in place.Unformatted 2012 CGP Comment Response Essays February 16, 2012

263 This idea will simply not work. There is no way DOT s 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 p ercentage of sediment r emoval on an annual basis, EPA clarifies that the requirement only applies to discharges to surface waters withi n 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 Organization: Nevada DEP Issue Category: 2.1.2 NDEP feels this approach will work in areas of the country with good vegetative cover and consistent r ainfall, but it won't w ork in other parts of the country where waters of the U.S. inclu de dry washes or ephemeral streams. Buffers in thos e arid regions would usually consist of sparse vegetation intermingled with larg e 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 th e economic 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 d ischarge that might leave these sites would soak in to the soil long before it would ever reach any waters of the U.S. It has been NDEP's pol icy that BMPs properly installed and maintained wil l minimize the amount of sediment and pollutants leaving a constr uction site. Nevada has stated numerous times to EP A that making a "one size fits all" guidance or regulation based upon climactic conditions on th e East Coast, South or the Midwest does not work in arid regions. Nevada and the Southwest have a unique clim ate and topography. Nevada is willing to implement new stormwater permit requirements when they make sense for our region, but it appears that this prop osed buffer requirement would require additional co sts for maintenance and modeling

with no visible environmental benefit.

Response See Response 2.3.7.



# 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): Plea se consider defining and allowing additional BMPs s uch as temporary crossings, flow diversion, coffer-dams with well-pointing, sil t curtains, and other measures as necessary to supp ort in-channel or shoreline work required for installation/maintenance of bridges, c hannel outfalls, utility crossings, and channel bank stabilization (includin g riprap and grouted riprap). Silt fence, bio- Iogs, mats and rock check dams may not meet this pa rticular need. Also, grouted riprap is listed as a BMP for channel work; there can be serious adverse in-s tream impacts associated with installing this type of bank protection without some other BMP to protect the waterway.Unformatted 2012 CGP Comment Response Essays February 16, 2012

264 Response See Response 2.3.5.



# 2.1.2.1 COMPLIANCE ALTERNATIVES [REQUEST FOR COMMEN T]

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 disch arges to your buffer area be

non

‐ channelized or non

‐ concentrated." Due to these inconsistencies, EPA sh ould clarify whether discharges through OR discharg es 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 nonconcentrated if compliance alternatives a or b are selected, the Southern Ute Growth Fund has the following comment. In the south west, there are often natural features (swales, rills or gullies) within the exis ting buffer areas for waters of the U.S. that chann elize stormwater runoff already. Therefore, even if the flow leaving the constructio n site is diffuse, it will have a tendency to recon centrate when the flow intercepts these

features. This Part should be modified to include a n exception to this requirement if the buffer has c hannelized 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: 2.1.2.1 The 50-foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear p rojects, many of which are not themselves more than 50 feet wide. Flexibility is n eeded to allow permittees to address concerns withi n the unique constraints of the particular linear project area. Often a utility lin e 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. Imple mentation 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 n eeded for this type of situation. Under the new EPA /Corps interpretation of WOUS,Unformatted 2012 CGP Comment Response Essays February 16, 2012

265 50-foot buffer requirements would apply to intermit tent and ephemeral drainages, which would be very p roblematic 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 Man agement Practices (BMPs), in order to evaluate and choose substitutes for the implemen tation of a full- scale buffer, if necessary. EPA and others have sho wn that the use of such efficiencies is often a "poor measure of BMP p erformance,[FN 5]" and that other method s 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, wh at is the effluent quality by way of any of a number of pollu tant parameters?).

[FN 5] Strecker, et aI., A Reassessment of the Expa nded 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/bm ptopic.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 fo r the imposition of the 50 foot buffer of natural v egetation. It is also u nclear 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 f eet of natural vegetation provides 75% removal of s olids, as an example, t hen there would be a standard (in this case 75% solids removal) by which other controls or even augmentation of the ex isting topogr aphy would provide similar reductions and could be implemented.

If EPA wishes to maintain the "natural buffer" prov ision, it will be imperative to define "natural veg etation" 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 consi st of weeds, invasive species, and sparse density. USS recommends that "natural vegetation" be defined in the final regulation.Unformatted 2012 CGP Comment Response Essays February 16, 2012

266 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 arou nd surface waters, ... unless

infeasible." There is no reference to a certain wid th of natural vegetation that must be maintained an d it seems arbitrary th at EPA would indicate this as a requirement. Further, if the sit e-specific situation indicates the maintenance of a buffer is infeasible, then the 50 foot requirement would be moot.

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 infeas ible" is left open to regulatory interpretation with vary ing opinions. We suggest that this language be remo ved 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 i s infeasible to provide an undisturbed naturally ve getated buffer of any size between the disturbed portio n of your site and the waters of the U.S....". The te rminology "if it is infeasible" is subjective and o pen to interpretation. The general permit must define the criteria that an owner can use to say that "it is infeasible" for t hem to provide a buffer.Unformatted 2012 CGP Comment Response Essays February 16, 2012

267 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 alternat ive selected above must be maintained... All discha rges through the buffer must be channelized or non-concentrated, and must first be treated by the site's sediment and erosion controls ."

•This requirement is overly burdensome. If an opera tor chooses to switch approaches and still meets CO P requirements, the permit should not prohibit such a switch in best managemen t 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 v egetated 50- foot buffer, a smaller buffer, or where any buffer is infeasible, "sediment and erosion controls achieve the equivalent sedimen t load reduction as an undisturbed naturally vegeta ted, 50-foot buffer." The CGP establishes the limits for stormwater discharges at a construction project, making the "operator" with "control over construction plans and specifications" (CGP 1.2) liable for any violat ions of those limits.

The 50-foot buffer requirement is not a constructio n 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 complia nce baseline.

Anticipating that the buffer zone requirement may b e unachieveable, the CGP incudes compliance alterna tives. Although the permit term on its face is beyond the rational scope of th is CGP, if the term is included, alternative means to comply are critical, because in most projects undertaken by CCWC members, the location a nd project footprint do not allow for a 50- foot or even smaller buffer. Alternatives must be available to achieve compliance when a buff er of undisturbed natural vegetation cannot be inst alled. However, 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 per mit lacks precision as to what alternative controls will be sufficient for complia nce.Unformatted 2012 CGP Comment Response Essays February 16, 2012

268 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 undist urbed natural vegetation near Waters of the U.S., w e find this requirement unreasonable and not practicable in many instances. In most cases it is almost impossible not to distu rb some of the areas surrounding and adjacent to surface waters. The alternatives li sted need to be more realistic in terms of what is actually obtainable in the field by passive stormwater BMPs, when compared to the sedim ent load reduction offered by a 50 foot buffer of u ndisturbed natural vegetation.

Suggestion: This requirement for maintaining a 50 f oot buffer of undisturbed natural vegetation or equ ivalent measures to equate to sediment load reduction is not practicable. In many instances, natural vegetation around waters of the U.S., is dissimilar and changes according to climate regime. What one area may offe r 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 i t modeled the sediment removal efficiency of 50-foo t buffers, accounting for different vegetation and soil types expected in the areas covered under the permit. EPA recognizes, ho wever, that some site c onditions will not be recognized in the tables of sediment re moval efficiency that EPA has provided, and therefo re, EPA allows sites to either choose the vegetation and soil type that most close ly matches their conditions, or peform a site-speci fic calculation.



# Comment ID 0086-A1.001.009

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 2.1.2.1 The 50-foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear p rojects, many of which are not themse lves more than 50 feet wide. Flexibility is needed to allow permittees to address con cerns within the unique constra ints of the particu lar linear project area. Often a utility transmission l ine right-of- way (ROW) is constructed parallel to a Water of the United States (WOUS) where line support structures can be staggered to s pan the WOUS, and no wetland permit may be needed. Implementation of the buffer requirement contained in the proposed COP could req uire significantly more wetlands permits because th e transmission line str uctures may not be able to span both the WOUS and meet the proposed buffer requirement. Tri- State believes this is unnecessa!), and relief from the buffer requirement is needed for this type of s ituation. Under the new EPNCorps interpretation of WOUS, the 50-foot buffer requirements would apply to intermittent and epheme ral drainages and will present impractical work sce narios that will do nothing to protect water quality.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

269 See Response 2.3.6.



# 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 Append ix M would be applicable to eastern North Dakota & northwestern Minnesota. Ou r operating region is significantly different than th e closes t areas indicated. Our current state DOT recommende d stabilization plans work the best in our operating region. Therefore, 2.1.2. 1 b (a combination of vegetation and other suppleme ntal controls) would no rmally be the best option since an actual 50 foot vegetative buffer would not normally be feasible for our subst ation 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 bu ffer width

Response See Response 2.3.6. In addition, EPA recognizes tha t some site conditions will not be recognized in th e tables of sediment removal efficiency that EPA has provided, and therefore, EP A allows sites to either choose the vegetation and soil type that most clo sely matches their conditions, or peform a site-specific calcula tion.



# 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 equi valent sediment controls as compliance alternatives to meet the buffer requirem ents, 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 re quirements because the Ag ency could not justify its initially prescriptive a pproach. In the end, EPA ultimately required site operators to “provide and maintain natural buffers around surfac e waters...” to “increase sediment removal.” [FN 46] Also in the C&D ELG rulemaking, E PA, in certain respects, opted for a more flexible approac h, as demonstrated by

certain non- numeric requirements. It is uncertain why and it is quite concerning that EPA is now attempting to imp lement an approach that is even more prescriptive than the C&D ELG pro posal through the new CGP permit. Instead of mandat ing compliance with unnecessarily strict standards, EPA should address the implementation of the forthcoming C&D ELG requi rements through separate guidance to assist site operators in complying with those requirements instead of unnecessarily compli cating the proposed CGP. EPA must also revisit the proposed alternatives.

The alternative measures provided in lieu of constr ucting a 50 foot natural buffer, as explained in th e proposed CGP are only theoretica l and not practical. There are many drawbacks that re quire further guidance. For example, one of NAHB’s concerns with the buffer requirement is the potential for the states to adop t similar provisions in their state permits. The

EPA CGP will be used as a m odel for states when revising their state CGPs goin g forward and some of the provisions such as the bu ffer requirements or equivalent method will be difficult for states to develop. Tables 1 through 8 in Appen dix M list very specifi c localizedUnformatted 2012 CGP Comment Response Essays February 16, 2012

270 vegetation and sediment removal performance for the specific States and territories covered by the EPA CGP.

These tables, however, will not necessarily be appl icable 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 rem oval tables for the various regions and cover vegetation typica l within their state. EPA should clarify that natur al buffer sediment remo val values in other states or regions within other states will no t necessarily be equivalent to these tables, and that they are deriv ed only for the specific localities where the EPA C GP is currently in force.

Further, the majority of the sediment removal value s presente d in these tables are unrealistically high for many rain events. Only Table 1 for Idaho may approach a realistic estimate when th e rain event is less than 1 inch in a 24 hour perio d. For most of these ta bles, the fine clay sediment is being predicted to be removed at o ver 80%, but this is a completely impractical estimate. Further, EPA appears not to h ave made any consideration as to the type of rain e vent intensity or duration in making these percentage removal predictions, even t hough these factors will have a significant impact on removal efficiencies.

Even within the Tables in Appendix M, EPA has ackno wledged 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 matches the site condi tions be selected; a higher slope should be calculated using RUSLE2 or some other acc epted model. EPA should consider that the “effective equivalent” sediment removal for most BM Ps is not a single, immutable number, but is fr equently given in theoretical ranges of effectiveness. It is clear that within the gener al guidelines presented here, there is a substantia l amount of subjective judgment required as to whether a given set of alternative B MPs will work, and there will not always be only one correct equivalent BMP setup for every situation. This actually is a good feature, a s long as EPA and the various state agencies recogn ize this, and do not su bject sites to

enforcement when the buffer solution used at a site is defensible using good engineering judgment.

Another issue is that several of the natural vegeta tive buffers in Tables 1-8 are shown to achieve ext remely high removal (90-99%), whereas for other soils and other natural vegetativ e cover, the same size buffer is cons iderably less effective, with some only removing

60% or less of the sediment. NAHB’s concern is that with certain soil types, natural vegetation, locat ions, etc., there will be no feasible equivalent BMP that will be able to theoretically r emove sediment

to the level that is calculated in the tables. For example, even complete diversion of the water to a sediment pond with polym er might not achieve 95% removal. If this is the case, the EPA C GP provides no solution. The RUSLE2 values calculat ed in the table are also approximate estimates that have a significant margi n for error, and may or may not be achievable in pr actice. Therefore, we s uggest that, in situations where it is infeasible to implement a full 50 foot buffer of natural vegetation, and where the estimated sedi ment removal for that buffer from the appropriate t able is greater than 80%, EPA allow the alternative BMP requirement for the site (in combination with any remaining buffer) to be co mpliance 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

271 

# Comment ID 0108-A2.001.001

Author Name: Paul Roger Organization: Bernalillo County Public Works, New Mexico Issue Category: 2.1.2.1 With regard to Subpart 2.1.2.1 (Buffer Compliance A lternatives) in the draft permit, the County of Ber nalillo states that buffers have

limited effectiveness in our arid area due to low c over percentages. Our preference is to only allow b uffers with a supporting RUSLE2 analysis and a minimum sediment removal 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: Natura l buffers and equivalent sediment controls

With regards to compliance Alternative 2.1.2.1.c, E PA should make available a set of tables to show po unds or tons per acre o f sediment that a buffer saves or prevents from reaching a wat er body in relation to the percent of sediment remo vals similar to Tables 1- 8 shown on Pages M-10 through M-12 in Tables 1-8. Such a relat ionship would be very useful in comparing actual to nnage 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 pou nds or tons that will be achieved by a buffer is very site specific, and dep ends on the amount of sediment entering the buffer. For example, if two sites have

buffers that achieve 50% sediment removal efficienc es, but have different sediment loads to the buffer , there will be differe nt 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 aut horized 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 req uirement.

Many streams and associated buffers in our region a re frequently narrower than 50' and/or at slopes gr eater than 9%, thereby making the Buffer Compliance Alternative not applicable. The 5 0' requirement seems too prescriptive without consi deration of other important factors such as: 1) existing vegetation, 2) slope o f the vegetated buffer 3) floodplain/floodway restr ictions etc. Additionally, Tables 1- 8Unformatted 2012 CGP Comment Response Essays February 16, 2012

272 may not be applicable given th eir limitations to slope and vegetative cover thus leaving the local regulator at a loss as to what re asonable 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.

Response See Response 2.3.5 and 2.3.2. In addition, EPA reco gnizes that some site conditions will not be recogn ized in the tables of sediment removal efficiency that EPA has provided, and there fore, EPA allows sites to either choose from the ta ble the closest match to 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 AL TERNATIVES. The requirement to maintain the selecte d alternative throughout the project duration is restrictive. As worded, you cannot apply different alternatives to different areas, or change the alternative to accommodate project changes. We requ est 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 adve rsely affected is with respect to the 50 foot buffe r requirement. Railroad rights-of-way (ROW) are generally 100 foot wide, wi th the track located near the center of the ROW. Th erefore a 50 foot buffer is not possible in most railroad applications.

Response See Response 2.3.6.



# Comment ID 0168-A1.001.003

Author Name: Jordan Jill Organization: City of DallasUnformatted 2012 CGP Comment Response Essays February 16, 2012

273 Issue Category: 2.1.2.1 Buffers (Section 2.1.2, Page 11-12): There are multiple issues about the buffer zone rul e: First, contractors bid plans developed by others who may not have included a buffer zone.Second, lon g narrow sites for projects like bike trails may no t accommodate a buffer zone. Third, determining whe ther the proposed BMP's meet the 98% effectiveness criteria. is going to be difficult and subject to p rofessional interpretation. Fourth, the proposed permit is not clear as to whether the buffer zone is permanent (p ost- construction) or only temporary during construction. Finally, the buffer zone requi rement is better addressed in EPA's current stormwa ter rulemaking focused on post-construction controls. An alternate approach f or the CGP would be to include language to retain a nd protect natural buffers as indicated on the construction documents, or "as pra cticable".

Response See Response 2.3.1, 2.3.6, and 2.3.9. EPA also clar ifies that the requirements in Part 2.1.2.1 only ap ply 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 le ss than 50 feet, along with the information used to rely upon the requireme nt to achieve the equivalent sediment load reduction a s an undisturbed, naturally vegetated 50

‐ foot buffer. In order to document t he percent sediment load reduction, the agency is proposing mo deling using RULSE (Appendix H). This is a perfect example of where EPA sh ould provide information on the equivalency of BMPs to r educe sediment discharge from a site. Requiring per mittee's to model locations

where less than a 50

‐ foot vegetative buffer is present is extremely burd ensome and an excessive recordkeeping requirement, especially for linear projects where multiple soil and vegetat ion types are encountered. Having information on th e equivalency of BMPs would significantly reduce the documentation burden to kn owing what soil types are present within the constr uction area and what BMPs are appropriate to achieve the sediment reduction requi rements. In addition, 2.1.3.2 requires the install ation of physical stormwater controls on any portion of the site. This would include all buffer areas. Having equivalency information upfron t in the design of stormwater controls will help ensure permittee's are meeting t he proposed removal limitations.

Response See Response 2.3.9 and 2.3.6.



# Comment ID 0037-A1.001.006

Author Name: Valdez BruceUnformatted 2012 CGP Comment Response Essays February 16, 2012

274 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 bu ffer areas within 3 workdays of initiating stabilization in the event that 1) a sto rm event occurred during the 3

‐ day deadline period which prevented stabilization activities from taking place or 2) soil conditions due to an earlie r storm event are too wet for stabilization activit ies, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period precludin g any further activitie s. If any of these events were to occur, EPA could require that stabil ization activities should be initiated as soon as p racticable.

Response See Response 2.3.8.



# 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 day s for sensitive areas and seven calendar days for non-sensitive areas are too short for completion and do not take into consideration rain versus dry season. See Section 2.1.2.2.b.; 2.1.4.2.ii; 4.2.2.2.b. A reasonable alt ernative could be "as soon as practicable, but no l ater than 30 days after the cessation of construction activity in that area unless weather c onditions (rainy session) make it impractical to in itialize stabilization." EPA also should define "working days" and clarify the defini tion 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 ac tivities have ceased either temporar ily or permanently (i.e. will not resume for a period e xceeding seven days). [Note: the same requirement i s found with respect to steep slopes in §2.1.4.2]. While better than what has bee n required in the past, seven days is actually the maximum period of time within which 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 nationa lly, citing our direct experience in the Chesapeake Bay watershed observin g 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 of co mments, we recommended that stabilization begin wit hin 72 hours of earth- disturbing activities' ceasing.) Given the ability to now depl oy earth-moving machinery quickly and cost-efficien tly in an almost "just-in-time"Unformatted 2012 CGP Comment Response Essays February 16, 2012

275 manner, there is no excuse in 2011 to allow any lon ger period of open soils than seven days on any con struction site. We strongly recommend that the 14-day general stabilization dea dline stated in 2.2.1 should no longer prevail on a ny part of a development site across the U.S. On the other hand, we still recomme nd, and think reasonable from an economic and effic iency perspective, a 72-hour limit in any and all special protection areas such as buffers, steep slopes, and proximate to sensitiv e waters.

Response See Response 2.3.8. With regard to the comment on t he 14-day requirement to initiate stabilization, EP A clarifies that the provision requires that stabilization be initiated "immediate ly" whenever whenever earth-disturbing activities h ave permanently or temporarily ceased on any portion of the site, consistent with the C&D rule requirement. In the final permit, perm ittees are required to complete stabilization within 14 days after it has been init iated. EPA believes that this clarification is cons istent with the commenter's

recommendation.



# Comment ID 0056-A2.001.005

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division o f Ecological Restoration (DER) Issue Category: 2.1.2.2 Restorations afford a unique situation with regards to stabilization. It has been the experience of DE R that some restoration sites are best left to naturally revegetate. Other sites, especial ly when invasive species eradication is a part of t he restoration objectives, require repeated denuding of the site to make inroads into long-term control.

As this examples illustrates, restoration may be ha mpered by immediate and generic revegetation effort s. The DER requests pro- active restoration projects be exempt from the stabilizati on 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 po rtions? So if I run the grader over the area once/wk no stabilization is necessary ?

Response See Response 2.3.8.Unformatted 2012 CGP Comment Response Essays February 16, 2012

276 

# 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 vegeta tive cover, all soil conditioning, seeding, watering, mulching, and any other required activities related to the planting and establishme nt of vegetation; and/or Brevard County Comment: Not practical for large areas witho ut sprinkler system. (2) For non- vegetative cover, the installation or application o f all non-vegetative measures.

Brevard County Comment: For example?

Response See Response 2.3.8.



# 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 bur densome. Perhaps remove "3 work days" and replace w ith "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 requir ements. The draft CGP requires completion of the fo llowing activities within three work days of initiating stabilization: (a) for vege tative co ver, all soil conditioning, seeding, watering, mulc hing, and any other required activities related to the planting and establishmen t of vegetation and (b) for non-vegetative cover, t he installation or application of all non-vegetative measures. This requirement does not allow enough flexibility to accommodate unique or u nplanned circumstances that might prevent the completion of these activities wi thin three days. The proposed rule should be modifi ed to allow exceptions to this requirement for unique or unplanned circumstances.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

277 See Response 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 ini tiated within 7 calendar days of work being tempora rily or permanently stopped on certain portions of a project site, with final stab ilization measures initiated within 14 days. The re quirement for having this completed within 3 work days of initiating stabilization is n ot practicable, and in our opinion is untenable. Ou r projects are often in remote areas where materials are not always immediately availabl e, and it may involve large areas that can't possib ly be conditioned, seeded, mulched, etc. within 3 days.

Suggestion: Leave the requirement the same as the e xisting permit.

Response See Response 2.3.8.



# 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 o f the buffer, will additional controls and reduced stabilization be requir ed on the entire

buffer?

Response EPA has removed the requirement for faster stabiliz ation for buffer disturbances. See Response 2.3.8. EPA has clarified in the buffer appendix (Appendix G) that if a portion of the buff er 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 stabilizati on (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 enge nder confusion in the field. A uniform standard is far better and more likely to f acilitate compliance than a "decision tree" structu re that results in the imposition of different requirements on different parts of a site depending on such variable factors as location, sl ope and the characteristics of theUnformatted 2012 CGP Comment Response Essays February 16, 2012

278 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 w ould require stabilization. Indiana receives severa l inches of rain in a given week. Would this still apply or is the 7 or more day requ irement a planned or known break in construction ac tivity? 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) Issue Category: 2.1.2.2 16. STABILIZATION REQUIREMENTS WITHIN BUFFER. Part 2.1.2.2.b.ii. 1 & 2. The 3 day stabilization requir ement in the buffer zone may be infeasible for large linear projects. T hat said, since Part 2.1.2.1 does not allow for dis turbance to the buffer, this requirement is confusing

Response See Response 2.3.8 and 2.3.6. EPA clarifies that, b ecause compliance alt ernatives 2.1.2.1a.i and 2.1.2.1a.ii allow for dist urbances within 50-feet of the surface water, the intent of this pr ovision was to require faster stabilization of thes e 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 mo re stringent timelinesfor stabilization in buffer a reas. The new Effluent Limitation Guidelines already specify that soil stabilization measures must be initiated on disturbed areas where activities have temporarily ceased and will not resume for a period exceeding 14 calen dar days. A more stringent timeframe was not found to be economically achi evable; as such the proposed technology based limit is unsu pported. Also, the proposed compliance timeframes d o not account for seedingUnformatted 2012 CGP Comment Response Essays February 16, 2012

279 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 allo w "buffer averaging" such that for 1st and 2nd orde r streams, the averaged buffer area for the subject property equals the surface area th at would have resulted from a strict appli cation of the buffer requirements, and for 3rd order or higher streams a minimum width of 35 feet is always maintained. In addition, averaging may on ly be applied to a maxi mum 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 "b uffer averaging" as a way to potentially secure buf fers that are, on average, wider than 50 feet, so long as some minimum width, somewh at less than 50 feet, is always maintained. This ap proach may bring more flexibility to this requirement. We acknowledge tha t 2.1.2.1 b. might provide that very flexibility if "a wider buffer 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.



# 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. F or example, if working on a very steep site for which the steep terrain goes to the edge of the stream, alternatives to a buffer could indeed work better, I think, durin g construction than leaving the natural buffer. The requirements n eed flexibility to accommodate site

‐ specific situations.

Response EPA appreciates the comment. EPA believes the compl iance alternatives in the permit support this comme nt.Unformatted 2012 CGP Comment Response Essays February 16, 2012

280 

# 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 adja cent to or crossing a jurisdictional WOUS. Often a utility line ROW is parallel to or spans a jurisd ictio nal WOUS; however, since the line support structure s can be staggered to span the WOUS, no wetland permit may be needed. Consequently , to satisfy the buffer requirement and the recomme ndation in the CGP to minimize stream crossings will result in unnecessa ry backtracking on the ROW and would be unachievabl e on narrow ROWs paralleling or crossing numerous streams and wetlands. Entergy requests that EPA remove this requirement where the requirement would resu lt in an unacceptable environmental impact

Response See Response 2.3.8 and 2.2.3.



# Comment ID 0070-A1.001.004

Author Name: Morton John Organization: Alcoa Inc. Issue Category: 2.1.2.2Q b. Natural Buffers or Equivalent - Alcoa agrees wit h 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 manufactur ing locations that 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

281 

# 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 con struction and water quality controls after completi on of construction. Also sediment controls (such as si lt fence, swales, 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 na tural buffer as one of the

sediment controls for those construction sites that immediately discharge into any waters of the US. A llowing for a buffer alternative provides flexibility in permit implementation witho ut compromising water quality. The proposed permit seems complicated and it is difficult to determine whether it is feasible to pr ovide a buffer of less than 50 ft or design a treat ment 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 recognizes that ma king the designing controls to meet the equivalent sediment reduction of a 50-foot buffer may be difficultfor some sites. Alth ough Appendix G may appear complex to some sites, E PA believes the specificit y in the guidance is necessary to assist permittees in m eeting 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 impl ementation of a sediment and erosion control measur e that achieves equivalent

sediment load reduction as the 50- foot buffer would achieve. This additional requirem ent may necessitate large sediment ponds or other measures that may not be feasible due to right-of-w ay constraints. This is the case particularly on L inear Transportation Projects located in urban areas where space simply is not available for structural BMPs.

Additionally, stream stabilization measures that in volve construction practices in the stream are requ ired to limit erosion and sediment loss in drainage ways due to urbanization in the wa tershed. The proposed CGP currently lists construct ion of water crossings, 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 al so be excluded from this requirement. "Trails" are another example of

infrastructure that should be added to the list of types of water crossings excluded from this require ment.

Finally, the Partners question whether the EPA will undertake the challenging task of establishing def initive removal efficiencies 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 on ly viable option.

Response See Response 2.3.6, 2.3.5, and 2.3.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

282 

# 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 circum stances where the provision of a buffer is infeasib le 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 situa tions in which it will be infeasible to provide and maintain a buffer of a ny width on a site. Some examples include, but are not limited to , the following: . . .

o Subdivided lots exist entirely within the buffer thereby making the retention of vegetated areas inf easible; and

Except for redevelopment that occurs within an urba n area where buffers are no longer part of the prev ailing development sche me, EPA should not allow permittees to locate entire su bdivided lots within the buffer. At a minimum, EPA should always require a combination of some buffer and additional BMPs in development n ot located in urbanized areas. To allow development to circumvent the buffer requirement by merely subdividing individual lots w ithin the buffer defeats the purpose of the buffer requirement.

Response See Response 2.3.3. EPA also clarifies that the exa mple provided would still require the equivalent se diment 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 propo ses requiring a 50-foot buffer (or equivalent contr ol) of undisturbed natural vegetation between the disturbed portions of the co nstruction 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 buf fer to the extent it is feasible or appropriate, or replaced with a "recom mendation" for a 50 foot buffer. Studies show that buffer strip's pollutant removal efficiency varies greatly and dep ends on many factors, such as soil type, slope, vegetative cover, and runoff character istics. This is further supported by the fact that buffer strip width used by various cities and states, referred to in the fact sheet, varies a nywhere from 10 to 300 feet depending on nature of slope and water quality in the receiving water body. TCEQ requests that flexibilit y be provided for operators and local authorities t o establish sp ecific buffer distance requirements based on regional conditions. TCEQ bel ieves that this would be consistent with the efflue nt limitations guidelin es (ELGs) for construction and development activities, 40 CFR §450.21(a)(6), which require that controls be designed, installed, and maintained to "provide and maintain natural buffers around surfac e waters, direct stormwater to vegetated areas to i ncrease sediment removal and maximize stormwater infiltration, unless infeasible ;...."Unformatted 2012 CGP Comment Response Essays February 16, 2012

283 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 fo r a 50-foot buffer or equivalent zone between the d isturbed portions of the sit e and the waters of the U.S. However, Dow does support th e 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 t hose 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 be given alternatives should uniq ue site geographical restrictions, practices or con siderations 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 sc enario, 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 veget ated buffers for protection of water bodies. Howeve r, Compliance Alternative b.) reduces the post construction benef its of a buffer by reducing the 50 foot width witho ut guidance on when it is acceptable to reduce the buffer width. Appendix M should inclu de guidance on what site conditions may make a 50 f oot buffer infeasible.

Response See Response 2.3.1. EPA clarifies that Appendix G a nd the fact sheet include guidance on when a buffer of any size may be infeasible.EPA also clarifies that operators are no t required to demonstrate that it is infeasible to comply with compliance alternative

2.1.2.1a.ii.



# Comment ID 0124-A2.001.005

Author Name: Eubanks Kevin Organization: Clark County Regional Flood Control District Issue Category: 2.1.2.2QUnformatted 2012 CGP Comment Response Essays February 16, 2012

284 It should be obvious that conditions in the desert call for different requirements than those that mig ht 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 draft permit would require developers to "implement sediment and erosion contr ols that achieve the equivalent sediment load reduc tion as an undisturbed naturally vegetated, 50-foot buffer" (paragraph 2.1.2.1.c). B ut the natural vegetation in a 50-foot strip of des ert 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 sit es that intend to implement buffer alternatives is warranted, we point out impacts of less stringent buffer requirements for smaller lots woul d 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 b urdensome and require a level of technical expertis e that is inappropriate for this permit. Effective sediment controls are essential t o minimizing the discharge of pollutants from a con struction site however EPA has embraced an approach th at is so complicated that it is unlikely that it ca n be instituted in the manner in which EPA intended . The use of mathematical models to determine compliance with th e sediment control requirements requires a skill se t that few, if any, con struction site operators possess. Furthermore, very few storm water professionals have experience operating the m athematical models that EPA

references in the CGP. These models are not user fr iendly, intuitive computer programs; these are high ly technical mathematical mode ls which require a signjfjcant amount of time and trai ning to become proficient in their use. The sedimen t removal efficiency calculation requirements should be removed from the permit and replaced with a more user friendly option. One alte rnative approach would be to include in the permit a list of pre-approved contro l measures or combinations of control measures whic h achieve known levels of sediment load reduction. This simple approach would essentially provide a "menu" of control measures f rom which the operator could

choose to achieve the desired reduction in sediment load.

Response See Response 2.3.9 and 2.3.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

285 

# 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 p rojects, many of which are not themselves more than 50 feet wide. Flexibility is n eeded to allow permittees to address concerns withi n the unique constraints of the particular linear project area.

Response See Response 2.3.6.



# 2.1.2.3 EXCEPTIONS

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 e quivalent sediment controls portion of the rule. Th e exemptions are limited to sites with CWA 404 permits or areas wher e no natural buffer area exists due to prior distur bances. Given the unique and complex conditions of linear projects, linear proje cts should be exempt from numerical discharge limit ations (as found in Appendix 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, t here should be exceptions for maintenance and repai r of these structures.

Response See Response 2.3.5.Unformatted 2012 CGP Comment Response Essays February 16, 2012

286 

# 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 except ions to complying with the requirement to either pr ovide and maintain a 50 foot buffer of undisturbed natural vegetation or implement one of the other two alternatives is in the situation wher e no naturally vegetate d buffer area exists due to prior disturbances. In Appendix M (pa ge M

‐ 8), EPA discusses situations whe re it will be infeasible to provide and maintain a buffer of any width, provides some example situat ions, and then states that the operator will need t o implement sediment an d erosion controls that achieve the equivalent sediment load 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 si gnificant disturbances within

the 50

‐ foot buffer (for example, sites where all vegetatio n 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 Par t 2.1.2."

However, the last sentence in the second paragraph of the Fact Sheet (page 47) appears to be in contra diction 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 pr oposed buffer requirement, by providing an alternative for stormwater controls to b e used that reduce sediment loads by the same amoun t as if an undisturbed, naturally vegetated buffer of 50 feet was established, offers a solution for facilitating the development of sit e

‐ constrained sites without a buffer but requiring at the same time t hat the lost vegetative buffer functions be retaine d." As written, this statement seems to negate the exemption from the buffer requirement for sites where no buff er area existed prior to development. It is assumed that EPA was referring 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 confusio n it is recommended that the last part of the sente nce is changed as follows ‘off ers a solution for facilitating the development of site

‐ constrained sites where providing a buffer is infea sible but requiring at the same time that the lost vegetative buffer functions be retain ed.' If the original sentence in the Fact Sheet sho uld 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 l anguage in the permit, fact sheet, and buffer guida nce regarding which sites qualify for an "exception" and which sites qualify for the compliance alternative where a buffer of an y size is infeasible. EPA notes that it has retained the exemption for sites where no na tural buffer exists due to preexisting development disturbances.



# 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 e xceptions 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 n ot required to comply with buffer requirements for construction projects that can be described as the development of a site where no nat urally vegetated buffer area exists due to prior disturbances. New construction on a pr eviously disturbed area has a high possibility of increasing the polluted d ischarge andUnformatted 2012 CGP Comment Response Essays February 16, 2012

287 potential soil erosion to levels harmful to the adj acent water body. Due to the already fragile state of the buffer and the l and adjacent to it, operators should be required to provide some method of sediment control to prevent the additional dama ge and pollution that might result from their construction activities. They sho uld be encouraged to create a naturally vegetated b uffer 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: Boesch 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 naturally vege tated 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 ex ists due to prior distu rbances, 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 o f Ecological Restoration (DER) Issue Category: 2.1.2.3 Certain restoration projects may appear to be incon sistent with the intent of the construction stormwa ter permit to protect waterways from degradation through direct redirection of runo ff and preventative measures to keep soils and sedi ments from entering a resource area. The best illustration of how a restoration pl an counters the basic foundation of the constructio n stormwater permit involves dam removal. Dams on rivers create low energy impoundme nts. Most impoundments gradually accumulate sedimen ts and this effectively

starves downstream reaches of the material needed t o maintain a stable gradient, slope and channel mor phology. Restoring a free flowing river by removing or breaching a dam can in clude a controlled release of the accumulated mater ial to the sediment starved downstream reaches to help a river system finds its natural leve l. This is critical to attain long term channel sta bility in the river system. In these situations it would be counterproductive t o the resource to prevent materials from being rele ased downstream though runoff during rain events are usually not a componen t of a controlled release. The DER proposes that re storation projects be exempt from this requirement under the general permit, subject to co mpliance with the limitations and conditions on the work and the materials release that would be imposed in the separate §404 permit.Unformatted 2012 CGP Comment Response Essays February 16, 2012

288 Response See Response 2.3.5.



# Comment ID 0056-A2.001.006

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division o f Ecological Restoration (DER) Issue Category: 2.1.2.3 The DER requests that pro- active restoration and revitalization projects be a dded to this list of exemptions. Similar to the con struction of water dependent structures and access areas [2.1.2. 3(b)], restoration work must be done in and adjacen t to water and wetland resources. Restoration projects are also approved under a CWA Part 404 permit.

Response See Response 2.3.5.



# Comment 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 buff er of undisturbed vegetation between active construction and streams. In many ca ses LCPs are located well in excess of 50 feet from any water of the Unit ed 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. Mor eover, given the extreme narrowness of the project sites for these projects, there is virtually no capability to deploy alternative measu res to supplement an existing sub-50- foot buffer or to replace the function of a buffer entirely by other means.

For these reasons we request that the Agency consid er adding a subsection (d) to Part 2.1.2.1 that exc uses all or a portion of any LCP from the 50-foot-or equivalent requirement where th e primary operator includes documentation in its SW PPP that implementation of that requirement is infeasible for some or all of i ts project site.

[FN 10] Particular examples of such parallel creeks and roadside ditches have been determined to be ju risdictional waters by the U.S. Court of Appeals for the Fourth Circuit, and some l ikely will be under EPA and the U.S. Corps of Engin eers' Draft Guidance on Identifying Waters Protected by the Clean Water Act

.

Response See Response 2.3.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

289 

# Comment ID 0065-A1.001.007

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.1.2.3 Section 2.1.2.3 of the draft CGP provides several e xceptions from the requirement to comply with the e ffluent limitations that are applicable to all discharges from construction site s. CCWC supports EPA's inclusion of an exception fo r water crossings; howe ver, the scope of the exception for water crossings needs to be clarified. Section 2.1.2.3 states that the effl uent limitations do not apply to "the following types of construction projects." It is un clear whether the effluent limitations do not apply just to the portion of the project where the water crossing is located or to the entir e 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 Bu ffers and Equivalent Sediment Controls. Appendix M notes an exemption whe n the buffer zone has been developed with impervious surf ace. CDOT agrees with this exemption and sees the need for additional exemptions for smaller linear sites with restrictiv e ROW (definition of small could be less than certa in acreage or based on project or ROW width). Additionally, exemptions should be co nsidered for projects where the buffer occurs i n 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: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.1.2.3 •Part 2.1.2.3 Exceptions. This Part should be modi fied to indicate that exemptions from this requirem ent should still requir e sediment

and erosion controls.

Response See Response 2.3.5. EPA believes that it is clear t hat the exceptions do not exempt the sites from all other effluent limit requirements.Unformatted 2012 CGP Comment Response Essays February 16, 2012

290 

# 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 r ule for roadway/utility crossings, and stream access authorized by a Clean Water Act (CWA) Section 404 permit.

Response EPA appreciates 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 rat her 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 dif ficulty indentifying it.

5. Target agrees with the EPA's exceptions of the 5 0 ft. buffer. Target will have many sites where nat ural existing vegetation is not present. However, Target would like clarification o n what constitutes "natural vegetation".

Response EPA has provided greater clarity in the permit rega rding buffers that have preexisting development imp acts. 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 ve getation between the disturbed portions of your sit e and the waters of the U.S." or equivalent sediment controls. We support EPA's deci sion to provide exceptions 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 crossi ngs authorized under a CWA Part 404 permit (where required) for water lines, sewer lines, utility lin es, and roadways." Section 2.1.2.3.a. This exceptio n should be helpful in linear utility projects involving water crossings. However, some o f those project s 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 loca tion, it may not be feasible to provideUnformatted 2012 CGP Comment Response Essays February 16, 2012

291 and maintain a 50-foot buffer, or equivalent contro ls, within a particular right-of-way. This is parti cularly true if this requirement will apply to intermittent and ephemeral waters in the s outhwest 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 buffers 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.



# 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 pro jects from any such riparian buffer requirement. Ri parian buffer requireme nts might be appropriate for the construction of buildings an d homes, but they are totally inappropriate and inf easible for linear util ity construction. Linear utility lines are designed to move natural g as across streams. They must cross streams, in orde r to deliver 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-A2.001.036

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 authorized 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), whic h allows permittees to not follow the buffer requir ements if the site is alreadyUnformatted 2012 CGP Comment Response Essays February 16, 2012

292 disturbed, is not needed and will result in increased water quality impacts. This exception wil l merely lead to more disturbance close to

waters of the US in areas where that disturbance wi ll have more of impact because there isn't any vege tative cover to slow down and filter runoff. This exception should be removed.

Response See Response 2.3.5.



# 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 exce ption for construction of water crossings authorize d under a CWA Part 404 permit for utility lines. National Grid requests a similar exception for Part 2.1.1.2 and 2.1.4.2 as well (Se e 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 buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear p rojects, many of which are not themselves more than 50 feet wide. Flexibility is n eeded to allow permittees to address concerns withi n the unique constraints of the particular linear project area. Often a utility lin e right of way (ROW) is parallel to a Water of the United States (WOUS) an d, since the

line su pport structures can be staggered to span a WOUS, n o wetland permit may be needed. Implementation of t he buffer requirement could trigger the need to obtain significantly more wetland permits because the structures may not be able to span both the WOUS and the buffer. Relief from the buffer requirement is n eeded for this type of situation. Under the new EPA /Corps interpretation of WOUS, 50-foot buffer requirements would apply to intermit tent and ephemeral drainages, which would be very p roblematic 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

293 

# 2.1.3 REQUIREMENTS APPLICABLE TO ALL CONSTRUCTION S ITES

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 t he project site will have space for the design of t opsoil storage areas, stormwater retention basins, vehicle washing areas, fueling areas, and entrance/exit tracking pads tha t extend a minimum of 50 feet from the entrance/exit point. Linear projects have limit ed right

‐ of

‐ way corridors, which make the installation of all o f these proposed controls infeasible. Also, linear utility projects are tempo rary impacts. Often, no new impervious surfaces are added. A stormwater retention pond should not be required for temporary impacts. Linea r projects should be exempted from these requiremen ts.

Response See Response 17.



# Comment ID 0060-A1.001.005

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.1.3 5. Section 2.1.3 - The heading for this section ind icates that the requirements apply to all construct ion sites. Given the variability in construction projects (i.e. size, soil type, slope, distance to surface waters, duration of constructi on/soil disturbance etc.) and the numerous erosion and sediment control practices ava ilable to a designer, EPA should consider developin g a national erosion and

sediment control technical standard that includes a ll erosio n and sediment controls available and then referenc e this technical standard in the general permit. EPA should not limit a project owner or their designer to just the erosion and sed iment controls listed in the draft general permit. In addition, not every erosion and sediment control identified in the draf t general permit may be required or applicable at every construction project. The proposed permit lan guage seems to require an owner to use all the prac tices included in the d raft permit for every project. The choice of which practices to use on a particular construction site should be de termined by the "qualified person" (i.e. a person knowledgeable in the principles and practices of erosion and sediment control) developi ng the SWPPP. If EPA de veloped a national technical standard, they would be able t o update the technical standard as technology chang es and not have to wait until the general permit was renewed. Please refer to the New York State Standards and Specifications for Erosio n and Sediment Control , dated August 2005, for a sample erosion and sediment cont rol technical standard (see http://www.dec.ny.gov/c hemical/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 Require ments Applicable to All Construction Sites" and "Er osion and Sediment Control Requirements Applicable to All Sites." The provisio ns under this section are those that all operators must implement at a minimum to beUnformatted 2012 CGP Comment Response Essays February 16, 2012

294 in compliance with the effluent limits in the permi t. EPA notes that the practices in these sectionsim plement 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 sectio ns 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: 2.1.3.1 2.1.3.1. The design criteria should also account fo r runon flows, i.e. waters needing conveyance acros s the property from adja cent 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 BM P failure can reasonably be expected to occur. BMPs in series or a BMP treatment train are preferred (i.e., use more of a toolbox ap proach and less of a modeling approach). If a desig n storm standard is imp lemented, we suggest that EPA provide 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 consi der project duration, timing relative to wet/dry se asons and other factors. Also, a limit should be placed on the project duration and/ or size, below which this standard would not necess arily apply.

Response See Response 2.9.



# Comment ID 0049-A1.001.006

Author Name: Fifield Jerald Organization: HydroDynamics IncorporatedUnformatted 2012 CGP Comment Response Essays February 16, 2012

295 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 c onstruction 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 professi onally designed SCS is meaningless!

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 ont o vegetative areas is not a realistic while constru ction activities occur. Using level spreaders is a good idea----but only after final st abilization 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 Organization: Logan Simpson Design, Inc. Issue Category: 2.1.3.1 The Permit states; "Use level spreaders..." Level spr eaders are rarely, if ever, installed correctly/eff ectively. Usually, true level is never achieved and rills/gullies form on one end of the s preader. This BMP is ineffective and costly. Please seek input from industry.Unformatted 2012 CGP Comment Response Essays February 16, 2012

296 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, b ut does not directly state, that it only addresses temporary stormwater controls. In addition, since the wording requires control of pea k flow and total volume, it also implies that pavem ent is to be included in the distu rbed area. If it is meant to include runoff from pavemen t during construction, for example, if 1/4 of the 1 0 acres is to be paved, then the required volume of storage changes to 33,000 cubic feet (0.76 acre-ft).

There are several things that must be taken into co nsideration in regard to item (b): 1) "to minimize erosion"-- If the downstream channel is non-erodible, such as limestone, or is lined, er osion would not be a problem. A requirement such as this which doesn't allow the

control to fit the need would lead to a needless ex penditure of federal funds. 2) "to control both pea k flowrates"--Peak flowrate is time dependent. Less vegetation = faster velocity = runo ff reaches outfall faster = higher peak. We are not aware of a method to c alculate how long (in minutes) it takes velocity dissipation dev ices (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 spreading out the relea se so the peak remains the same, but there is still more total volume. Reducing volume back to undisturbed w ould require infiltration or evaporation. Ten acres of disturbed soil would requ ire roughly 12,000 cubic feet (0.28 acre-ft) of sto rage for long enough du ration for it to evaporate or infiItrate.

Figure [Please see page 8 of the original letter (D ocket ID 0066-A1.001)].

Suggestion: There are instances due to physical sit e conditions where erosion may naturally not take p lace 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 t hrough evaporation or infiltration. There are regio ns where neither of these may be feasible. Inherently when a project is completed, s tormwater volumes in many instances are necessarily increased. If the inte nt is to rely on either of these factors to reduce volume, please explain how this would be achieved otherwise?

Response EPA has provided clarity to this requirement in the final permit, and describes that it only applies t o stormwater that will be channelized. See Response 2.6. EPA also notes that if downstream channel and streambank erosion are not a concern, then the requirement would already be achieved. EPA confirms that the requirem ent applies only to BMPs during the period of permi t coverage.Unformatted 2012 CGP Comment Response Essays February 16, 2012

297 

# Comment ID 0068-A1.001.017

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: 2.1.3.1 Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing constructi on stormwater controls. However, stormwater flowrate and volume on their own (absent "pollutant" control cons iderations) are not appropriate "parameters" for re gulation under the NPDES permit program. While retention/det ention ponds and other control devices must be size d to handle an appropriate volume to become effective at removing pollutants, EPA cannot other wise merely regulate flowrate or total volume of st ormwater that otherwise meets appropriate technology-based or wat er quality-based pollutant-related effluent limitat ions.

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-sto rmwater 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 fi re-fighting activities? Further, the standard does not make sense as applied to discharges such as uncontaminated, non- turbid discharges of groundwater or spring water. D oing so will only decrease the volume of the pond for stormwater and reduce its overall effectiv eness.

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 req uirement will make plan development and implementat ion more burdensome by requiring extensive stormwater calculations to supp ort decision making under the permit.

2. Control stormwater discharges including both pe ak flow rates and total stormwater volume - Again, this requirement will require extensive stormwater calculation sand make plan dev elopment and implementation more burdensome.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

298 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 an d sediment controls mus t address factors such as the amount, frequency, intensity, a nd duration of precipitation, the nature of resulti ng stormwater runoff, and soil characteristic - This is the overall goal of erosio n and sediment control.

6. Direct stormwater to vegetated areas - Minimizi ng directly connected impervious areas (MDCIA) is a prudent approach were applicable and in line with the COA's low impact de velopment (LID) goals.

Response EPA appreciates 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 wa ter beneficially reused for dust control or irrigat ion. This type of exemp tion would help to harmonize Section 2.1.3.1.d with Section 2. 1.3.4.c, which calls for "minimiz[ation of] the gen eration of dust...through the application of water or other dust suppression tech niques." We note that beneficial reuse is itself a stormwater best managem ent practice that has the effect of reducing erosion and sedimen tation.

Response See Response 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 focu s on dissolved pollutants requires full system cont rols that make little sense for a linear project. Unlike traditional projects, there is no long-term, sustained flow to "one source" whe re catch-and- control technology can be employed.Unformatted 2012 CGP Comment Response Essays February 16, 2012

299 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 st ormwater is minimized because (i) project disturbances involve excavating only a narr ow ditch in a narrow band of surface, and (ii) proj ects apply Best Management Practices (BMPs) to minimize this discharge. Most l inear construction projects receive a stormwater Ph ase II permit for construction affecting 1-5 acres. Still others fall within the P hase I rule for construction projects affecting more than 5 acres, because the gas lines will provide new natural gas service to housing developm ents (and thus may be deemed to be part of a larger plan of development). However, the gas utility line portion of these projects, for the most part, typically involve only a small tren ching area and are back-filled or "buttoned up" at the end of the day. These circumst ances 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 a nd sediment controls to minimize discharge of pollutants from earth-disturbing activ ities to reduce sediment load equal to that achieve d by 50 feet of natural vegetation, including stabilization and re-establishment of sur rounding 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 as king linear project managers to reestablish already stable vegetative a reas, creating more earth disturbance and potential erosion than the projects themselves entail. Preexisting best practices are a sufficient alternative to proposed buffer complian ce measures-pipeline construction operators discharge wastewater so that sediment set tles out into a preexisting vegetative area and is never vulnerable to direct d ischarge into surface waters. These best practices are consi stent with discharge requirements EPA proposes in t he Draft Permit under 2.1.4.6 (a)(iii) to "utilize vegetated areas of the site to infiltrate wastewater from dewatering activities" associated with trenches and shallow

excavations.

Response EPA clarifies that the design requirements apply to all construction sites, but that the requirement t o design controls to control peak flowrates and total stormwater volume only applies to stormwater flows that are channelized. For flexi bility 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 constructi on stormwater contro ls. However, stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not approp riate "parameters" for regulation under the NPDES permit program. While retention/det ention ponds and other control devices must be size d to handle an appropriateUnformatted 2012 CGP Comment Response Essays February 16, 2012

300 volume to become effective at removing pollutants, EPA cannot otherwise merely regulate flowrate or to tal volume of stormwate r that otherwise meets appropriate technology-based or wat er quality-based pollutant-related effluent limitat ions.

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 rare ly installed correctly or effectively. Contractors have found that "true leve l" is never achieved in rills/gullies and this BMP is ineffective and costly.

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.



# 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 constructi on stormwater controls. However, stormwater flowrate and volume on their own (absent "pollutant" c ontrol considerations) are not appropriate "paramet ers" for regulation under the NPDES permit program. While retention/det ention ponds and other control devices must be size d to handle an appropriate volume to become effective at removing pollutants, EPA c annot otherwise merely regulate flowrate or total v olume of stormwater that otherwise meets appropriate technology-based or wat er quality-based pollutant-related effluent limitat ions.Unformatted 2012 CGP Comment Response Essays February 16, 2012

301 Response See Response 2.6.



# Comment ID 0137-A2.001.004

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 2.1.3.1 The permit requires the control of peak flow rate a nd total stormwater volume, which we believe is to 2 year storm event a lthough it is not specifically mentioned in the regulations. The regulation is absent of a specific goal to be met s uch as reduce discharge to the runoff amount from a wooded site, meadows or pasture, crop land, the existing condition at the time of disturb ance, etc. Since the goal is not identified, it will be difficult to make a determin ation of an impact to achieving the goal. In additi on, in Maryland, there are effectively 3 types of devices that can release water. The first is silt fence or other perime ter filtering devices which have no mechanism to co ntrol a

release rate that can be measured. In addition the requirement implies storage behind the silt fence w hich would cause failur e, increasing sediment leaving the site. Second, sediment traps t hat use a stone weir on flat sites; it is not possible cont rol 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 ra ised. The concern would be the increased failure ra te of earthen embankments that are raised higher wi th little or no increase in proper construction method s. Thirdly, for sediment traps with pipe outfalls o r sediment basins, it would be possible to provid e 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 volum e to control a storm event and therefore increase t he sediment discharg e. This is due to the time necessary to allow sediment to settle o ut and slowly discharge clearer water through a dew atering device as it do es depend on

lack of flow and time to allow the sediment to sett le.

Response See Response 2.6.



# Comment ID 0153-A1.001.006

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.1.3.1 The requirement to control storm water volume is ou tside the scope of the Federal Register requirement s. We suggest EPA refer to non-erosive discharges to minimize downstream erosi on.

Response See Response 2.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

302 

# 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-s torm water discharge that is sediment free should b e discharged to receiving waters or to vegetated areas not to the sediment co ntrol device. This will absorb capacity and not imp rove the quality of discharge.

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 t o sediment controls be provided. We are assuming fr om your comment that the intent is to pump water thru the sediment device. G enerally, we are not allowed to pump water into dir ected to a sediment control.

Constant use of the sediment control will make it l ess likely to provide the necessary volume to contr ol 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 clear er water thru a dewatering device as it does depend on lack of fl ow 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. Instal ling, and Maintaining Stormwater Controls. Requirem ents Applicable to All Construction Sites, General Design Requirements, st ates "if fine silts, clay or colloidal soils are pr esent, then the use of enhanced sediment controls such as sand filtration and/or po lymers or flocculon ts may be necessary." We suggest that a definition be given for fine silt, clay, or colloidal solids. Clearly defining a t what levels each soil type would require use of e nhanced treatment will provide the industry with more direct guidance. For instance, w ill enhanced treatment be required only when fine s ilts, 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

303 

# 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 d ue to the probability of exceedance being low because

of the restricted time frame for most construction sites. The greatest weakness I observed with the pr evious 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 see ms overly large. 2-year, 24 hour storm events are m ore 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 t raditionally found in erosion guidance documents and seems more appropriate for i nitial sizing regulation. Also with a specific 24 h our 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 da y.

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 comme nts on the 2

‐ year, 24

‐ hour storm design standard for stormwater controls. This type of design is not easily produced from a site operat or and permit holder which is usually the owner or general contractor. This design

standard would have to be subcontracted out to an e ngineerin g firm thus increasing construction cost substantia lly. Design would have to be constantly changing as the site layout changes, impervious area changes, BMP configuration changes, etc. Stormwater controls andUnformatted 2012 CGP Comment Response Essays February 16, 2012

304 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 lifecyc le 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 b eneficial for the design of some stormwater control s such as a sediment basin, level spreader, or drainage\diversion channel. A 2

‐ year, 24

‐ hour storm would be an appropriate minimum design s torm standard to use for these types of controls. However, there is not a lot of readily available information on designing other types of stormw ater controls such as sediment barriers, inlet protection, water bars, or check dams to a design storm standard or b ased on the criteria in Part 2.1.2.1 (i.e., the amount, frequency, intensity, and durati on of precipitation, the nature of resulting stormw ater runoff, and soil characteristics, 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. T herefore, many operators wil l need additional information or tools that they ca n use in order to show that they have selected/designed t heir stormwater controls based on the permit's desi gn criteria (either the current requirement in the proposed permit or the proposed requirement to design of stormwater controls for th e local 2

‐ year, 24

‐ hour storm). It is recommended that EPA provide guidance on designi ng 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 requi rements, but no standard is yet set. It requests co mment upon the standard used in previous permits, i.e. designing and managing for t he two year, 24- hour storm. We believe that a standard is important , and that this one is appropriate for these regulations.

Response See Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

305 

# 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 sugge st 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. Als o, EPA should consider a limit be placed on the project duration and/or size, below which this standard would not ne cessarily apply. Xcel Energy has many projects that are completed in a matter of wee ks, sometimes days depending on the project. BMPs s hould always be used, howeve r it is not always necessary for a project to spend a dditional 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 iden tified have been 10-, 25-, 50-, and 100- year storm events. In assessing whether there should be a set storm design, EPA should consider t he frequency of occurrence relative to these, and o ther, storm design years. In practice, design for 100-year, 50- year, and even 2 5-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 y ear/24 hour storm event as the design standard to be used for the purpose of sizin g stormwater controls. We agree that inclusion of a design standard is a ppropriate for traditional construction, including the traditional projects that the EHSCP's members are engaged in e ither independently or when theyUnformatted 2012 CGP Comment Response Essays February 16, 2012

306 lay utility lines within another developer's tradit ional footprint development. However, a design stan dard of this sort does not appear to be feasible for LCPs. That design standard would of ten require installing a stormwater retention pond at end of a roadside sw ale where it would otherwise discharge into a stream, to collect sediment and reduce velocity at the outfall. As no ted above, the LCP operator's easement typically would give it no right to instal l such a pond or basin, which furthermore might som etimes require a width greater than

that of the easement itself.

Even if the LCP operator had the legal an d practical ability to install such a basin, it wou ld be disproportionate for the Agency to require that. That same swale would otherwise be carrying t he same amount of stormwater from the same drainage area, whether or not t he LCP

was installed there. It would seem anomalous for the happenstance of an LCP being placed in or near, with its minimal if any i ncremental effect on sediment loading, to trigger such a const ruction requirement.

We therefore request that, if a design requirement of the sort described in the Draft Permit is adopte d, there be an exclusion for LCPs where the primary operator includes documentation i n its SWPPP that implementation of the design stand ard 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 de velopers and property owners to follow this. Append ix 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 i s revising and digitizing the rainfall statistics. Including the charts and tables in this document me ans

the document will be out of date and based on erron eous data within the year.

Response See Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

307 

# Comment ID 0064-A1.001.011

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.1Q Section 2.1.3, page 13 - Full "Request for Comment" paragraph

•These requirements seem feasible and would allow f or 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 establishing a 2-year, 24- hour design storm standard for stormwater controls. Contractors can find the closest weather station o n the NOAA website and gather the historical data. Note that in some c ases weather stations within 5 miles do not exist, specifically for remote projects.

Response See Response 2.9. EPA notes that the numeric limit is not in the final 2012 CGP, and therefore permitt ees are not required to monitor the occurrence of a 2-year, 24-hour storm event to qual ify for the 2-year, 24-hour storm event exception. However, EPA does require operators that are complying with the bi- weekly inspection frequency to record rainfall even ts. EPA allows operators to use a rain gauge at their site, or storm event information from a we ather station representative of their site's locati on.



# 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 i n order to add flocculants, EPA should note that for areas whe re the 2 year, 24- hour event corresponds to a 6 inch rain or more (mu ch of Entergy's service area), detention capacity would be approxim ately 163,350 gallons per acre of watershed assuming satu rated soil conditions. For a linear electric utility line construction project , spanning numerous watersheds, that runoff storage capacity would be impossible to accomplish within normal ROW boundaries. This requi rement would also very likely result in an unnecess ary over-engineering of the

siltation/erosion controls measures with an associa ted inflation in installation costs. Entergy reques ts that EPA remove this provision as impracticable in application to linear ROW-type pro jects.Unformatted 2012 CGP Comment Response Essays February 16, 2012

308 Response See Response 2.9.



# 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 ev ent, should be specified in the CGP. It is difficult to choose one storm size that would be effective in e very location or in eve ry area of the country for every situation. Alcoa does recognize the advan tages that a fixed design storm size has for the de sign 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 st orm standard for stormwater controls, such as the 2-year, 24 hr. storm. CDOT fe els this will create an achievable standard, wherea s, 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 stor m standard for all sediment control devices due to the fact that site cond itions and variables can differ greatly from project site to p roject site across the state. It would take a treme ndous amount of time, effort and additional cost to run hydraulic analysis for the 2 -year, 24- hour event for each sediment control device, or sys tem of devices. For certain sediment control devices, such as a sediment basin, the 2- year, 24-hour stoml event would be more re asonable to design for; however, for applications, such as ditch checks this standar d would be impractical because of the many variable s (e.g., slope, area, soil type,Unformatted 2012 CGP Comment Response Essays February 16, 2012

309 compaction, storm intensity, runo[fve!ocity, etc.) that would have 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) Issue Category: 2.1.3.1Q The DEQ would prefer to retain flexibility within o ur stormwater controls. Having the 2-year, 24- hour storm as a minimum standard is acceptable as long as provisions are made for varia nces 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 refer enced in the 2003, 2008 and C&D Rule. This inclusion provides a consistent desi gn standard and the ability to consistently determi ne compliance for permitted projects for design professionals, inspectors and r egulators. 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 somethin g easily calculated by staff working for a "traditional" CGP holder or construct ion site operator. These organizations would likely need to procure the se rvices of a storm drainage engineer or other qualified professi onal. The services of the qualified professional wo uld need to be retained throughout the duration of the project as the site will likely change over time until its completion. The Partner s recommend that the EPA add language stating that this criterion is applicable only to temporary stormwater control during constru ction. Municipalities i n the arid westUnformatted 2012 CGP Comment Response Essays February 16, 2012

310 require permanent water quality BMPs that are desig ned 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 cu rrently the standard design for jurisdictions implementing sediment control. Ro ckville encourages EPA to investigate the efficacy of this standard, particularly in light of climate change. EPA should also include language referencing the source of IDF curve numbers and req uiring that operators design controls to the most current numbe r provided. From an anecdotal perspective, the 2 year storm seems to oc cur 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 desi gn storms for specificsites based on historic rainf all data. Will models and other alternatives be acceptable for the calculation of r ainfall 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 shou ld require a 2-year, 24- hour design storm standard for stormwater controls, which

would need to be met unless it was infeasible to ac hieve 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 rea sonable settling time for) a 2- year,Unformatted 2012 CGP Comment Response Essays February 16, 2012

311 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 gre atly from state to state and location to location, AGC questions whether it would be more appropriate for EPA to select a quantity of ra infall (in inches) as a guideline. For example, som e AGC members suggested a guideline of two inches in 24 hours.

In the alternative, AGC finds that a 1-year, 24-hou r storm event would be a more reasonable standard. The 1-year, 24- hour storm event accounts for the majority (upwards of 90%) of the p recipitation annually. Adopting a 2-year, 24-hour s tandard would achieve only a

minor incremental increase in TSS reduction at a si gnificant increase in cost. Many state and local go vernments 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 be nefit in proportion to the

increased cost.

Setting the volume based standard such as the 1-yea r, 24- hour storm event would be reasonably applicable to volume based BMPs such as detention ponds. However, beyond ponds, it is no t clear what other BMPs exist where the size would be considered adequate for a 2-year, 24-ho ur rain event. Sizing and placement of many, if not most BMPs other than ponds are not based on any pa rticular volume of rainfall. For example, silt fences, rolled fabric, soil enhancers, etc. are primarily sized and locate d 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-b ased standard would not apply to flow based BMPs such as check dams which are impact ed 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 po nd

should be sized so as to contain and allow reasonab le settling time for a 2-year, 24-hour rain event. H owever, the feasibility clause is very important. Many sites do not have the area for such a large pond, and for some sites, especially for r oads or other linear projects, they cannot accomodate any ponds at all.

However, beyond ponds, it is not clear what other B MPs exist where the size would be considered adequa te for a 2-year, 24-hour rain event. Sizing and placement of many, if not most BM Ps other than ponds are not based on any particular volume of rainfall. Fo r example, silt fences, rolled fabric, soil enhancers, etc. ar e primarily sized and located on exposed slopes, wi th their size based on the topography and length of th e immediate slope behind them. Any reference to spe cific sizes being equal to a given rain event would contain so many caveats and except ions so as to make the requirements useless.

Passive Treatment Systems (PTS) such as PAM- infused fiber check dams or PAM logs upstream from ponds do require a rather narrowUnformatted 2012 CGP Comment Response Essays February 16, 2012

312 range of flow for optimum performance. However, the ir size also depends on the location of the ditch in which they are install ed and the upstream watershed. Significant trial and error is often required to appropriately size a passive treatment system at a particular site. Also, “desig ning” a passive treatment system strictly for a 2-y ear, 24-hour rain event may not be optimum for normal sized rain events, because small er rain events may cause the flow through or over t he 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 fol lowing factors in designing your stormwater control s... The soil characteristics at the

site.” Sediment controls must be des igned with consideration of the range of soil parti cle sizes expected to be present on the site. If fi ne silts, clay or colloidal soils are present, then th e use of enhanced sediment controls such as sand fi ltration and/or polymer s or flocculants may be necessary. Even EPA recognizes that a design standard is not always the best criteria in develop ing a stormwater control. EPA must clearly define w hich BMPs must meet thi s standard and how compliance will be measured. NAHB suggests the 2-year, 24-hour criteria be limited to ponds on ly.

Response See Response 2.9.



# 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 sit e work activities and cannot be constructed prior to const ruction 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 Category: 2.1.3.1Q Section 2.1.3 describes USEPA's consideration of pr oposing 2-year, 24-hour design storm standard for s tormwater controls. The City believes the 2-year, 24-hour design storm is not al ways the most appropriate s ize storm for the design of stormwater controls. Th e City does not always use the National Standard.

Response See Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

313 

# 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 o f "stormwater controls" in this context? Is this design requirement valid for all f eatures or basins only? If for all, this seems to b e a larger design storm event than is normally used (up to four times as much - see the 3 600 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 i n the 2008 CGP for this design requirement is for sediment basins, which are used less often and in few numbers when compared to smal ler devices (i.e., sedi ment traps, check dams, etc.). If the proposed design storm is intended for all features, this may be an overly-co nservative approach. A more reasonable approach may be to use a design storm th at 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 sto rm 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 determ ine the design storm event.

Response See Response 2.9.



# 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 p roposes that operators design controls to account f or three factors: the amount, frequency, intensity and duration of precipitation; the nature of runoff; and the soil characteristic at the site. EPA suggests further proposing a 2-year, 24- hour design storm water standard for storm water co ntrols, which would need to be met unless it was in feasible to achieve at the particular site. EPA states that inc luding this standard will assist the permittees in design and selection of controls, and argues that it is it already used as design criteri a for sedimentation basins required for constructio n sites greater than 10 acres.

TCEQ requests that the EPA's CGP not include a spec ifi c 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 stormwater volume and velocity within the site to minimize soil erosion;" and "(2) Contro l stormwater discharges, including both peak flowra tes and total stormwate r volume, to

minimize erosion at outlets and to minimize downstr eam channel and streambank erosion;...."

Response See Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

314 

# 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 meas ures (Part 2.1.3.1). CLF agrees with EPA's suggesti on that sizing for all structural control measures and best management practices ("BM Ps") be specified in the CGP, and urges EPA to incl ude this requirement in the final permit -- at minimum, BMPs should be sized fo r the 2-year, 24 hour storm. Such a uniform minimum standard would give site operators the clear directive needed to build adequ ately sized control measures into their budget and standard operating procedures. In turn, this would provide a more level ‘playing fiel d' among site operators. A sizing requirement would also promote enforceab ility of the permit and provide predictability of impacts for th ose who use and enjoy downstream receiving water s. CLF strongly recommends that EPA enlarge the minimum sizing requirement in the f inal permit to account for climate change, which ha s increased and will co ntinue to increase the frequency and intensity of storm event s in many regions including the Northeast United St ates.[FN 2]

[FN 2] See Union of Concerned Scientists Northeast Climate Impacts Assessment Synthesis Team, Confront ing Climate Change in t he Northeast: Science, Impacts, and Solutions, 8 -10 (2007) (finding that during the 1980s and 1990s , the Northeast experienced a rise in heavy-precipitation events and predicting further i ncreases), available at http://www.northeastclimate impacts.org/pdf/ confronting-climate-change-in-the-u-s-northeast.pdf

.

Response See Response 2.9.



# 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 agr ees 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 conse rvative for design purposes and if the permittees are not r esponsible for conditions greater than this, that t he receiving waters will be severelyUnformatted 2012 CGP Comment Response Essays February 16, 2012

315 polluted with sediment when the larger events do oc cur. Many cities and counties across the country u se design storms that are much greater, such as the 10, 25 or even the 100 yr even ts.

Response See Response 2.9.



# Comment ID 0110-A1.001.021

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 conse rvative for design purposes and if the permittees are not r esponsible for conditions greater than this, that t he receiving waters will be severely polluted with sediment when the larger events do oc cur. Many cities and counties across the country u se design storms that are much greater, such as the 10, 25 or even the 100 yr even ts.

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 requir es stormwater controls to control both peak flow ra tes and total stormwate r volume for a construction site, without comparison of pre- development versus postdevelopment runoff rate or v olume. 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 no rtheast. On a linear pr oject the need to control storm events of this magnitude within a ROW would require the construction of basins and di version 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 efficien t manner and initiation of final stabilization is a n 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 p eriod, constructing significant stormwater control structures is not feasible.

Construction of basins and diversion structures wou ld require more earth disturbance than that require d for many utility projects and would significantly increase the design and constru ction costs, as well as the length of time to compl ete 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 forthco ming) by the underlying property owner thereby incr easing project costs and

timeframes.Unformatted 2012 CGP Comment Response Essays February 16, 2012

316 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 re quires stormwater controls to control both peak flo w rates and total storm water volume for a construction site, without comparison of pre- development versus post-development 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 no rtheast. On a linear proj ect the need to control storm events of this magnitude within a ROW would require the construction of basins and di version structures, as well as perimeter controls. It is noted that, in addition t o proper design and monitoring of sedimentation and erosion controls, completion of construction in a timely and efficient manner and i nitiation of final stabilization is an equally impo rtant component to stormwater management. Because linear projects are constructed in phases which move along/within a ROW, as oppose d to being focused on one parcel of land for a several month period, construc ting significant stormwater control structures is n ot feasible. Construction of basins and diversion structures to control a 2 year, 24-ho ur 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 r easons identified within the Request for

Comment.

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 sedime nt basins as long as regionally appropriate standar ds are used. The CSC do es not support applying a design storm standard to all tem porary BMP's and believe BMP's should be implemente d on other, effectiveUnformatted 2012 CGP Comment Response Essays February 16, 2012

317 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 standa rd 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 standa rdfor stormwater controls, including criteria that addresses snow melt. Sp ecifying a certain design stonn standard would greatly simplif y design and would increase uniformity and application of storm water controls. The 2·year, 24·hour stonn event seems reasonable given its use in the Effluent Limitation Guidelines.

Response See Response 2.9.



# 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 st ormwater engineers a st andard to which their design efforts may be directed. This wo uld help eliminate the variability in stormwater ma nagement goals adopted by the diverse community of developers and would likely el evate and improve the stormwater management goals a t some sites to an achievable, relatively consistent level.

In many urbanizing watersheds, the sediment delivery rate into the str eam is higher than the stream's capacity or compete nce to keep thatUnformatted 2012 CGP Comment Response Essays February 16, 2012

318 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 actually deliver sediment into the stream. For example, nearly every rain event that generates stormwater in the Cahaba River watershed results in delivery of significant sediment loads into the mai nstem channel. Once that sediment is delivered to t he mainstem, however, the flow velocity is not typically high enough to keep that sediment suspended. Rain events large enough to cre ate flow that is fast enough to resuspend that sediment and move it downstream happ en only once every or every other year. Moreover, t hose 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 d esignated the "effective discharge" or "effective f low" of that stream.

Based on the previous paragraph, effectively treati ng stormwater (volume and delivery rate) up to the 2- year, 24- hour standards would appear to be a reasonable first step toward matchin g an acceptable sediment delivery rate with a river 's competence to actual ly move that sediment downstream. However, the 2-year, 24-hour d esign storm standard does not offer much of a "marg in for error" in this respect. We recommend the design storm standard be the 5-yea r, 24-hour storm.

This is a difficult topic and we recognize it is fr aught with technical issues and economic considerat ions. However, in our w atershed we have noticed that projects that "over-designed" the stormwater controls compared to the "typical" leve l of care taken, have had a much lower (but not non-existent) failure rate. The wide ly used standard designs have consistently failed h ere. For many years, the standard stormwater management standards, even when met, hav e failed to keep our river from experiencing excess ive sedimentation. It i s well past time to raise the bar for stormwater managemen t 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 st andard appears appropriate.

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. Us ers are familiar with the concept and data bases ar e 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 aUnformatted 2012 CGP Comment Response Essays February 16, 2012

319 good approach.

2. We know that a combination of a performance stan dard (i.e., % removal of sediment) for a specific d esign storm event can be a successful control strategy. For example, South Car olina's Storm Water Management and Sediment Reducti on Act of 1991 (48-14-10 and following), and pursuant Regulation 72-300, req uire an 80% TSS removal efficiency of sediment duri ng a design storm of 10- year 24-hour as defined by NCRS. This has proved very ef fective since 1991 as there are very few waterbodie s now listed on the 303d l ist in South Carolina as impaired for sediment or turbidit y. Many sediment control BMPs can be designed using a variety of techniques to meet the 80% TSS removal requirement. See the South Carolina Design Aids for examples of how this is d one. We encourage EPA to consider this approach and eliminate the buffer ana logy. We encourage EPA to set a % TSS removal requi rement for a lO-year, 24- hour design storm event for all sediment control devices . This will also encourage the use of source contro ls. We also encourage EPA to consider an alternative fallback requirement to mee t a settable solid standard much like the 0.5 mill used by Office of Surface Mining (OSM).This combination allows much flexibility in d esign of systems to prevent sediment 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, which would need to be met unless it was infeasible to achieve at the particular site. We ag ree that the inclusion of such a standard wou ld have the benefit of assisting construction operators in the design and selection of controls b y introducing a definitive standard by which to ass ess compliance.

Response See Response 2.9.



# Comment ID 0159-A1.001.003

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.1.3.1Q 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 no t specifically mentioned in the regulations. The re gulation is absent of a specific goal to be met suc h as reduce discharge to the runoff amount from a wooded site, meadows or pasture, cropland, the existing c ondition 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 Maryland, there are effectively 3 type s of devices that can release water. The first is s ilt fence or other perimeter filtering

devices which have no mechanism to control a releas e rate that can be measured. In addition you are im plying the use of stora ge behind the silt fence which is not a good idea as it could case failure, hence creating what you are trying t o prevent which is sediment leaving theUnformatted 2012 CGP Comment Response Essays February 16, 2012

320 site. Sediment traps that use a stone weir can be p roblematic as well. For flatter sites with a stone weir, it is not possible control the release rate unless there is a secondary pipe to us e as a control structure. This will not happe n in flat sites because there is insufficient fall to a discharge point unless the embankment was to b e raised. The concern would be the increased failur e rate of earthen emban kments that are raised higher with little or no increase i n proper construction methods. Additionally, sedime nt traps with pipe outfalls or sediment basins; it would be possible to provide a control structure of sorts to provide quantity cont rol.

Since many of the devices would not easily be able to provide a measured control rate equal to some st orm event, it would be next to impossible to state a specific release rate has bee n met.

Response See Response 2.6.



# 2.1.3.2 INSTALL STORMWATER CONTROLS BEFORE CONSTRUC TION 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 a long all down slope areas of disturbance prior to c onstruction starts in an y portion of the site. This section should be clarifi ed to specify that physical controls are only neede d on down slope areas wher e 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 con trols at the limits of our property.

Response Refer to Response 2.11.



# Comment ID 0038-A1.001.012

Author Name: Minervini W.Unformatted 2012 CGP Comment Response Essays February 16, 2012

321 Organization: Issue Category: 2.1.3.2 The requirement in this provision should also not a pply to earth-disturbing activities that are necess ary 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 sinc e such a standard is realistically applicable only to Sediment Containment Systems (SC S) such as sediment ponds.

Applying such a standard for the many s mall barriers found on a construction site (e.g., s ilt fence barriers, fiber rolls, inlet barriers, et c.) is not realistic. Few, if any, typical barrier BMPs found on construction sites will be effective in r emoving 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 discha rge end of a storm drain pipe? Installing silt fenc e barriers at the discharge end of a pipe ensures failure and should always be avoided.

Response

Refer to Part 2.1.2.2 of the 2012 CGP and section V II.1.1 of the 2012 CGP Fact Sheet.



# Comment ID 0049-A1.001.011

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.3.2 Installing sediment controls in accordance with "so und engineering practices" has no meaning to the co ntractor. Since sediment and erosion control is NOT an engineering discipline, a better statement would be to "select" sediment and erosion control practices based upon sound science and engineering.Unformatted 2012 CGP Comment Response Essays February 16, 2012

322 Response

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 o f 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 t o restore ecological function and a sustainable sys tem requires fit-in-the-field work.

This could result in stormwater controls interferin g w ith this sensitive work. Restoration activity is fo cused within the resource area so installing temporary stormwater controls may lead t o an increase in disturbance to the resource areas in order to fit both the active working area and stormwater control s tructures. The DER requires all sponsored designs i ncorporate the best resource area protections 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 in stall stormwater controls be waived for restoration work

Response Refer to Response 2.3.5. Refer also to Response 2.1 0.



# 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 feasi ble for all

areas of disturbance on LCPs. Disturbance will cons ist of several miles of trench, each linear foot of which will be actively subject to trenching activity for only a short time period. In stallation and subsequent removal of perimeter cont rols of the kind listed in this Part

will create more land disturbance and sediment loss than would preservation of undisturbed adjacent ar eas. Moreover, in projects that run parallel to roadways, perimeter BMP installatio ns would need to be placed in roadside ditches, whi ch could adversely impact carefully engineered roadway drainage and also like ly would violate access agreements with state and l ocal departments of transportation. For these reasons, LCPs should not be subject to the requirements 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 Office Issue Category: 2.1.3.2 Install perimeter controls. You must install stormw ater controls along all down slope areas of disturb ance at your site , including areas to be used for stockpiling soils removed during constr uction, and along those side slope boundaries that will receive stormwater flow from 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 fr om the toe of the slope, and with the ends of the c ontrol placed up slope from the rest of

the control.Unformatted 2012 CGP Comment Response Essays February 16, 2012

323 Brevard County Comment: Add if the entire site slop es?

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 pr ojects are at water body crossings. The requirement to install "All down slope sediment controls...at a distance down slope from t he toe of the slope..." would locate such controls too close to or within those water bodies. Side slope sediment controls present pr oblems in the case of linear projects. The width of the disturbed earth, over which runoff flows before laterally leaving the site, may be ver y narrow and easily controlled with a relatively na rrow buffer. Controls l ike silt fence may not be necessary at all, and tend to funnel wat er towards the main downslope boundaries. This freq uently causes erosion and undercutting of the silt fence, and can cause non-c ompliance with the permit.

Suggestion: Add language in the permit that allows some flexibility on this item for linear transporta tion 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 th e "flattest area possible at some distance from the toe of the slope." This would be extremely difficult to achieve within the boundaries of ROWs on linear projects given the topographic relief in parts of Entergy's service ar ea. Entergy requests that EPA remove this provision as impracticable in application to linear ROW-type projects.

Response Refer to Response 2.10. Refer also to Response 2.11

.



# 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 stor mwater controls before construction begins is not p ractical. The provision s of this permit encourage phasing of projec ts, which by nature would phase construction BMP in stallation during the project. Target believes that this expectation fails to address phasing of BMPs that m ay be encountered in urban redevelopment projects s uch as demolition. Large buildings that are demolished and rebuilt may have paved surfaces that require a different phasing of BMPs. Target suggests that theUnformatted 2012 CGP Comment Response Essays February 16, 2012

324 intent of this proposed requirement should be addre ssed by requiring a stormwater BMP phasing discussi on or clearly delineate d plan in the Stormwater Pollution Prevention Plan (SWPPP) do cument.

Response Refer to Response 2.10.



# Comment ID 0087-A1.001.020

Author Name: Smith Brooks Organization: Utility 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, but one that needs to be qualified or waived in situations where the controls may create unsafe conditions (e.g., f looding around the inle ts). To avoid such situations, alternative controls, such as up-g radient 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 f lattest area possible at some distance from the toe of the slope. Section 2.1.3.2.b. These controls would be e xtremely difficult to achieve within the boundaries of rights-of- way for linear projects given the topographic relief in parts of certain se rvice areas, due to the distances that may be invol ved, lack of legal access to these areas, and the need to obtain property owner approvals.

Response Refer to Response 2.10. Refer also to Response 2.11

.



# Comment ID 0088-A1.001.008

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: 2.1.3.2 Among the unrealistic requirements are:

-- the obligation to install all BMPs before initia ting construction, including the 50-foot buffer req uirement

Response Refer to Response 2.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

325 

# 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 lan downers to install stormwater controls before comme ncing earth disturbances, because the CWA framework focuses NPDES regulatory authority entirely on actual discharges of pollutan ts to navigable waters. Congress defined “discharge of a pollutant” to mean the addition of pollutants to waters from a point source. [FN 47] Discharges are prohibited unless they are authorized under an NPDE S permit or otherwise allowed under the Act.[FN 48] Nothing in the CWA authorizes EPA to require operators to take affirma tive steps before any actual discharge occurs and c ertainly not before construction activities begin.[FN 49] If a construction site ope rator (or any other potential discharger) generates a point source dischar ge 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 N PDES permit coverage (and who are not statutorily e xcluded from the permitting program) simply do not have authorizatio n 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 poten tial discharger) generates a point source discharge without an NPDES permit, the discharger is subject to an array of enforcement me asures for the discharge. Rather, under the CWA fra mework, 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. [FN 50] Congress established this enfor cement framework to discourage and punish any unaut horized discharge, but it did not affirmatively require any potential (or even li kely) discharger to take affirmative steps before i ni tiating construction activities. Thus, “the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges – not potential discharges, and certainly not point sources themselves.”[FN 51] Absent such d ischarges – even if future discharges are possible – EPA has no authority to impose NPDES obligations, to impose c onditions on construction activities, or to impose conditions on pre-construc tion activities [FN 52] In other words, the CWA “do es not prohibit construction of a new source without a permit,” just as it does not p enalize the failure to install controls before begi nning earth disturbing activities.[FN 53] In fact, the installation of controls on a cons truction site would likely require earth disturbing activities, so this requir ement is counter-intuitive.

[FN 47] “Discharge of a pollutant” is defined as “a ny addition of any pollutant to navigable waters fr om any point source.” 3 3 U.S.C. § 1362(12)(A). [FN 48] See 33 U.S.C. § 1311(a) (“[e]xcept as in co mpliance with this section and [other] sections . . . of this title, the discharge of any pollutant by any person shall be u nlawful.”). [FN 49] Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005) (“unless there is a ‘disch arge 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 th ey statutorily obligated to seek or obtain an NPDES permit.”). [FN 50] See 33 U.S.C. § 1319. [FN 51] Waterkeeper Alliance, 399 F.3d at 504 (emph asis in original); National Pork Producers Council v. EPA, 635 F.3d 738, 750 (5th Cir. 2011) (“the scope of the EPA’s a uthority under the CWA is strictly limited to the d ischarge 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 d ischarge ofUnformatted 2012 CGP Comment Response Essays February 16, 2012

326 pollutants, not the construction of sources. The Ac t does not prohibit construction of a new source wi thout a permit; . . . [t]he Act only prohibits new sources from dis charging pollutants without a permit, or in violati on of existing NSPS standards.”); 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, prohibiti ng, or conditioning the pollutant discharge. . . . And, contrary to EPA’s assumption, the CWA does not empower the agen cy to regulate point sources themselves; rather, EP A’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 pendin g permit issuance, so the agency is powerless to im pose permit conditions unrelated to the discharge itself.”) (em phases 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 install ation of primary stormwater controls. This clearing should be limited to that n ecessary to establish entry, exit and access for th e purpose of installing other BMPs. The exemption should not be so broadly stated as to be capable of being interpreted to include exposin g the entire acreage of a site.

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 clarif ied to include a provision to allow earth disturbin g activities if it is specifically required to implement the stormwater control. For e xample, a permittee may need to excavate a pit for primary sediment control.

Response Refer to Response 2.10.



# 2.1.3.2Q INFEASIBLE TO INSTALL CONTROLS BEFORE DIST URBANCE

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 conside r inlet protection controls for installation priorUnformatted 2012 CGP Comment Response Essays February 16, 2012

327 to any land clearing activity.

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 requ irement to make operational all stormwater controls before earth disturbing activities. It is of my opinion that additional ver biage should be incorporated stating that "all stor mwater controls should be installed before earth disturbing activities and before the n ext anticipated storm event." This would give opera tors more flexibility to stage the construction pro cess and perhaps begin land disturbing activities i n concurrence with perimeter BMP installation if no storm events are anticipated. There also needs to be a more objectiv e definition of "initial site clearing". This can b e interpreted in many fashions and numerous types of construction activities can be co nsidered initial site clearing. The industry's defi nition 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 inst all and make operational all sediment controls prior to conducting earth disturb ance operations." many temporary BMP's are not capa ble of being installed prior to whatever earth disturbance operation is contemplate d; therefore this often copied pa ragraph should be changed to indicate that sediment

controls shall be installed before earth disturbanc es in any given area of the work may proceed, and w here infeasible to install in advance, those sediment controls shall be installed as soon as practicab le in any given area, such as inlet protection, str aw wattles, outlet filter risers, temporary and permanent sediment bas ins. Earthwork and drainage work shall proceed from downstream to upstream with

construction of sediment and erosion controls takin g precedence over any mass grading operations.

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 comm ent: 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 simultaneously with the construction. DOT s typically phase larger construction projects and there is little benefit installingUnformatted 2012 CGP Comment Response Essays February 16, 2012

328 stormwater controls in a portion of the project whe re there is not scheduled to be ground disturbance for an entire year.

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 conducte d in phases to limit and control the amount of surf ace disturbance. Approp riate BMPs are initially included in the initial design and si te 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 dr ainage swales all require earth disturbance and wou ld be installed after initial perimeter BMPs. A second example is linear constr uction, in which BMPs are designed to move with con struction. Linear construction

sites that start on one street but are not schedule d to occur on the next street until later don't hav e BMPs installed on the inactive street. If BMPs are installed too early, there is a risk of re quiring BMP maintenance prior to any upgradient dis turbance occurring (because of traffic hazards, slow flows through municipal inlet s due to heavy precipitation, unattended BMPs, 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.



# Comment ID 0037-A1.001.009

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.3.2Q It is not always feasible or possible to install al l stormwater controls before commencing earth distu rbances. Stormwater controls are often selected based on the phase of construction. It would be more practicable to require the stormwa ter controls to be installed based on the phase of the project. Situations where it is in feasible or impractical to install all stormwater c ontrols prior to earth disturbances include the following:

 Stormwater controls used to protect storm sewer in lets cannot be installed until the storm sewer pipe is installed.

 The location and type of down slope controls as we ll the down slope control area will change during t he construction of a s ubdivision. As storm sewers are installed, the storm sewer inle ts become part of the d own slope control area. If there is any disturbance or stockpile soil located up stream of the inlet, sediment contr ol 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 cu lvert or ditch is installed.

 Temporary slope drains are frequently installed du ring the grading phase once slopes and grades have been established.Unformatted 2012 CGP Comment Response Essays February 16, 2012

329  Surface roughening cannot be implemented prior to earth disturbances.

 Sediment control barriers installed along the cont our at intervals along the length of a slope to red uce slope length canno t 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 o n the amount of precipitation / runoff for which de sign 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 he avy highway construction, the installation of the B MPs may require earthwork. Sedimentation ponds that are created in fills, acce ss to install silt fence, temporary causeways to dr ive sheeting and driving piles all require earthwork to make the BMP functional. In ad di tion, access along limited width Rights of Ways can be a challenge and projects with multiple traffic control phases sometimes limi t what can be feasibly accomplished.

Response Refer to Response 2.9. Refer also to Response 2.11.



# 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 phas es to limit the amount of disturbance. Appropriate BMPs are included in the design (initial, interim and final) and site development p lans, 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/p onds/traps and drainage swales all require earth di sturbance and would be installed after perimeter BMPs are installed.

Linear construction sites often design the project to move the BMPs with construction. Xcel Energy pro jects are encouraged to work aUnformatted 2012 CGP Comment Response Essays February 16, 2012

330 section of the line, stabilize, than move on to the next section. This approach keeps the area of dist urbance minimized and eliminates BMPs installed on inactive areas and thus subject t o potential damage and maintenance requirements.

Xcel Energy recommends the permit langu age address BMP installation requirements for indiv idual phases of construction, rather than requiring all BMPs installed prior to commencing in itial earth-disturbing 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 occu r. Only a fter grading activities begin will construction of an SCS occur, which is the mos t effective method to remove sediment from runoff.

Response Refer to Response 2.10.



# Comment ID 0053-A2.001.008

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.3.2Q The Permit states: "Prior to commencing earth-distu rbing activities in any portion of your site, you m ust first install and make operational all stormwater controls required in thi s Part and described in your SWPPP."

This clause is unachievable. Interim BMPs cannot be installed in areas that have not been graded to de sign or partially grade d. In these examples below, BMPs would not be considered relate d to initial site clearing.

Examples:

• Check dams in V-ditches that have not been excava ted.

• Cut/Fill Transition rock armor in transitions tha t do not exist yet. • Sediment Basins cannot be installed where vegetat ion 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)Unformatted 2012 CGP Comment Response Essays February 16, 2012

331 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 F R 63012]." Further, disturbing small portions of a larger construction site can also reduce the potential impacts of denuding the entire construction area. Neither of these concepts suppo rted by EPA aligns with mandates on permitees to install all storm water controls pr ior to beginning construction. In some cases, the s pecific s torm water control may not be feasible or adequate for the corresponding phase of construction.

Recommended Change: USS recommends that EPA revise the requirement for permittees to identify the appr opriate controls for each construction phase as part of the Storm Water Pollu tion Prevention Plan (SWPPP) and allow for the impl ementation 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. Inst allation of all storm water controls listed in the SWPPP is not feasible o r warranted for projects where disturbance w ill not occur at a specific location along the proj ect site until some distant time in the future. Ins tallation and maintenance of all BMPs prior to the commenceme nt of construction in such cases would not only add cost without any environmental benefit, the installation, inspection and maintenance of BMPs in otherwise undisturbed a reas would result in increased environmental impact.

For these reasons we suggest that the Agency exclud e LCPs from this requirement, because it would be b oth infeasible and environmentally counterproductive as applied to tho se 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 ear th-disturbing activities in any portion of a site, all stormwater controls must be installed and operational. The draft CGP additionally clarifi es that "this requirement does not apply to earth d isturbances related to initial site clearing and establishing entry, exit, and access t o the site." CCWC supports the inclusion of this ex ception for earth disturbances because installing initial stormwater controls will include earth- disturbing activities while the initial best manage ment practices (BMPs) are installed (e.g., track-out at entrances, exits, birms).

Response Refer to Response 2.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

332 

# 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 reques ts comment on whether there are other situations where it would be infeasible or impractical to install and make operational all sto rmwater controls before commencing earth disturbanc es. If so, please describe these situations." In the case of linear construction, wh ich may progress through time along the length of t he project, installing sediment controls in areas that have not been disturbed (and may not be disturbed for some period of time) woul d unnecessarily increase

disturbance in otherwise undisturbed areas. At othe r times, certain porti ons of a site may be under very intensive and activ e construction, working to achieve final grades, which then could h ave their perimeter controls installed when complet ed.

Suggestion: Allow flexibility in the timing of sedi ment control installation so that it may be customi zed 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 con trol measures in advance of initiation of construct ion. While perimeter controls are typically installed in advance of construction, som e of the controls, notably dry crossings of stream beds to minimize tracking, require significant excavation to install.

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 op erators to install and make operational all stormwa ter controls described in the SWPPP before commencing earth disturbances. Linear road projects require continuous phasing that neces sitates installation and

modification of erosion and sediment controls conti guous with construction progress. Outfalls and flow directions can change daily; therefore, installing "all" BMPs prior to the start of construction is impractical. Installation of co ntrols prior to the tim e of their functional necessity only leads to additional maintenance and inspection costs. Only those stormwater controls th at are needed and will be functional for the current phase of a project shoul d be installed and operational.

Response Refer to Response 2.10. Refer also to Response 2.11

.Unformatted 2012 CGP Comment Response Essays February 16, 2012

333 

# 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 (BMP s) prior to general sit e clearing. MoDOT commends the EPA for acknowledging the fact that in many instances (e.g., forested are as, steep terrain, etc.) it is impractical to install perimeter controls before initial site clea ring and the establishment of site access. However, there are also other i nstances where installing "all stormwater controls" prior to comme ncing other earth- disturbing activities is impractical. For example, highway projects often involve significant cuts and fills in order t o reach the desired roadbed grade. As such, project phasing is crucial to assure the b est

use of time and resources. It is difficult to devel op adequate "phased" project plans ahead of time th at will cover every erosion and sediment control scenario that may arise during thi s period of transition. Most designed erosion and s ediment 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 occ ur during active grading, based on best judgment and are then handdrawn into site p lans.

MoDOT is concerned with the all inclusive language currently written in this Part. The following langu age gives more flexibil ity to the construction team while at the same time assuring t here is no discharge of pollutants from the constru ction site. MoDOT's suggested language for this Part would be: Prior to commencin g earth-disturbing activities in any portion of you r 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 s ite.

Response Refer to Response 2.10. Refer also to Response 2.11

.



# Comment ID 0074-A2.001.007

Author Name: Thompson Steven 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 st age of construction cannot be completed before that specific stage is started, i. e. on sites with certain types of geological limita tions 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 s tormwater controls be installed before commencing e arth disturbance activities. The Partners question th e word ALL and suggests alternative language such a s "all stormwater controls should be installed befo re earth disturbing activities or prior to a "significant" p recipitation event." The SWPPP would further addres s this issue if phasing were to beUnformatted 2012 CGP Comment Response Essays February 16, 2012

334 incorporated into the scheduling of the constructio n project. Also, it is unclear whether EPA requires all stormwater controls be operational for the entire site "prior to commencin g earth-disturbing activities in any portion of the site" or whether controls must be installed and operational for only the disturbed po rtion of the site. Perhaps the EPA could better def ine terms such as earth disturbance, initial site clearing, etc. Clearly defining these terms for Municipalities and CGP holders will great ly assist th e regulated community in implementing the Permit and help in understanding E PA'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 pr ior to construction is reasonable. However, this se ction should reference the emergency related construction exceptions contained in 1.3.2. Furthermore, the emergency related exceptions shou ld be clarified to include emergency construction related to the failure of ag ing infrastructure.

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: 2.1.3.2Q 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 uti lity projects, especially those that are constructe d in phases over differ ent periods of time. We urge EPA to revise this section to allow land di sturbance 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 S WPPP, including BMPs, i s conducted prior to the soil disturbing activities in the area of the actual soil di sturbance). EPA should also clarify that controls a re 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 bu ffer requirements and Part 2.1.2.2 on perimeter con trols.



# 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 g raded prior to their use for other activities (e.g. , laydown area, maintenan ce, storage), it will not be possible to install the BMPs associated with those subsequent activities prior to the eart h disturbing activities . For instance, pollution prevention BMPs for the maintenance area cannot be installed until the site is cleared and l eveled for the maintenance area. Similarly, the permit should allow incremental remo val from the project's permitted area those areas w here earth disturbing activitiesUnformatted 2012 CGP Comment Response Essays February 16, 2012

335 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 mu st

― design, install, and maintain ‖ these controls and have them operational prior to commencing earth- disturbing activity. [FN 7] It is unfeasible to ins tall and make operational all stormwater controls b efore commencing earth disturbance. Depending on the project, some l inear projects may be backfilled the same day that the work is begun. Further, due to limited space at the work site, soils may be simply trucked out of the work location and erosion contr ols could not realistically be installed until the actual work begins (e.g. silt f ence s around the bore pits or soil piles). The operatin g procedures are a stark contrast to the large-scale, open excavation that characterizes initial earth disturbance from commercial or resid ential construction activity. AGA asks EPA to clarify that the pro posed requirement that controls be installed and ma de operational before commencing earth disturbance does not apply to linear projects, on the grounds t hat this requirement is impractical, unnecessary an d infeasible for linear projects. [FN 7] 76 Fed. Reg. at 22886.

Response Refer to Response 2.10. Refer also to Response 2.11

.



# 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 co ntrol features should be installed at the site in a dvance of upstream soil disturbing activities. Larger constructions sites may include multiple phases for earthwork. Installing all storm water controls pr ior to construction may not be feasible. Control structures such as swa les and perimeter dykes may be constructed with nat ive soils removed from the construction area. Natural barriers such as hay may become degraded before the upstream earthwork begi ns. Recommend that the

SWPPP include milestones for establishment of storm water controls prior to various phases of earthwor k.

Response Refer to Response 2.10.



# Comment 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 distu rbing activities in any portion of the site, stormw ater controls would be required. EPA has requested comment on whether there are situations i n which it would be infeasible or impracticable to make operators install all stormwater controls before commencing earth disturb ances.Unformatted 2012 CGP Comment Response Essays February 16, 2012

336 AGC finds that it would be infeasible, impractical and pollution producing to install all controls pri or 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 (o r disturbed) at one time; other portions of the site may remain undisturbed for man y months. For example, oftentimes during a road con struc tion project, lanes (or other project features) on the one side of the roadway wi ll have no disturbed earth for more than a year whi le the other side of th e roadway is being modified. Installation of controls on the sid e of the roadway with no activity will serve no pur pose and will increase the cost of construction through the installation of controls t hat will only need to be replaced prior to the actu al start of work in that portion of the site. Installation of the controls before they are needed and then needing to replace them prior to ac tual construction will generate unnecessary waste (pollution). On a very large, pha sed-development site, the same situation could occu r.

While most often the SWPPP will specify all BMPs th roughout all phases, BMP inst allation is predicated on the work to be completed within each phase. Furthering the example used abov e, a roadway project has numerous phases including clearing and rough grading 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 d itches wo uld not exist. In addition, there are many areas du ring the construction season where it is next to impossible to get the perimeter control BMPs installed prior to any construction. These areas may be in f lood plains, areas with brush and small trees, area s on bridge construction sites, slopes, etc. For th ese reasons, it is not feasible to install "all" st orm water controls prior to commencing earth disturbing activities.

AGC requests that EPA clarify that the requirements under this Part are for the port ion of the project that is being disturbed only. AG C also asks that EPA modify the term "all" with "all applicable."

EPA must acknowledge that most construction project s are phased, with BMP selection and installation c orresponding to each phase. AGC requests that EPA allow contractors to install controls as they are needed so that they can contin ue to limit the amount of area cleared at one time. Such phasing helps maintain na tural vegetation, which is the best control. A requ irement to install all contr ols prior

to start of construction would cause the contractor to "hop around" the site installing controls befor e they are needed. Cont ractors would also have to inspect and maintain those controls. T hese may exist in areas where the contractor has no acti ve work for quite some time. We see this as an item that will greatly increase t he cost of construction without a definable environ mental benefit.

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 c ontrols are required. This language is very restrictive and cannot be met under many scena rios. Below are a few examples that illustrate the problems with this provision.

First, many stormwater basins require the importati on of material to construct their walls. The effici ent way, in terms of cost, land disturbance, and reducing energy use and air pollut ion, is to clear the area around the temporary basi n and use the material from the surrounding area. In many cases, disturbance and co nstruction must start before stormwater controls ca n be installed. But if EPA’sUnformatted 2012 CGP Comment Response Essays February 16, 2012

337 language is too restrictive, it will lead to even more problems because if the area cannot be cleared without a basin in place, the ma terial has to be imported. Then, the material adjacent to the basin (that could have been used in the basin c onstruction) has to be exported to keep the job balanced. EPA must ensure that the pro posed language allows for the minimal clearing nece ssary to obtain suitable soil needed to build required stormwater devices.

Similarly, in some cases, construction must occur b efore stormwater controls are installed and some st ormwater controls do not work until grading is partially completed. In these inst ances, building stormwater controls early on the co nstruction process is a waste of time, costs more, and sometimes cannot be physically cons tructed. 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. Pri or to building the road elevation up (i.e. placing the fill), a silt f ence 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 di verted to the new lowest elevation where a basin wo uld be constructed. A d iversion ditch cannot be built prior to road construction pr ocess. EPA’s provis ion should clarify those scenarios where a stormwat er control will not need to be implemented prior to construction. A t a minimum, it must recognize that sometimes insta lling controls before construction starts is infeasible and provide for t hese occurrences.

Response Refer to Response 2.10.



# Comment ID 0115-A2.001.008

Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.3.2Q 2.1.3.2 General Installation Requirements. National Grid recommends acknowledgement of phased projects in this part of the proposed CGP. Typically, for cross country distribution/tran smission projects, erosion, sediment and stormwater controls are installed only in areas where construction is active. For example, wh ile earth disturbing activities (e.g. excavation fo r pole replacements, drilling for foundations, or grading for access and work envelop es) may be underway on the northern portion of a ut ility corridor, similar activities may not be occurring for months in the southern sec tion. As crews move from structure to structure, controls are installed befo re ground disturbance takes place but after mowing and cleari ng (not grubbing), access road upgrades, and swamp mat installations are c omplete (unless road upgrades include significant grading). All controls are then monitored and maintained thr ough all phases of construction.

Therefore, National Grid suggests that installation of stormwater controls prior to earthdisturbing ac tivities on ANY portion of the "site" (ROW) is not feasible or practicable for linear pro jects 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 i f the disturbance is cr eation of a stormwater control (i.e. detention/retention basin construction). There also may be sites that have a phased approach w here it would notUnformatted 2012 CGP Comment Response Essays February 16, 2012

338 make sense to install a permanent stormwater contro l until the tributary area is constructed.

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 Ken 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 com mencement of earth dist urbance, so in the typical case, this approach is feasible. However, there are some situations where due to field conditions, the location, scale and scope, and minimal risk for a discharge ,that it ma y be appropriate or environmentally beneficial to c oncurrently commence earth

disturbance and install controls rather than instal ling controls first. In some ca ses, installation of perimeter controls is infeasib le prior to

minor earth disturbance. This can be the case in lo cations that are in extremely rough terrain, in ver y rocky soils (or no so il), or are very densely wooded such that proper and effective insta llation of perimeter controls is extremely challeng ing without some minor grading. It

can also be difficult to discern the difference bet ween earth disturbance and storm water control inst allation (e.g., in a po nd construction project, wetland restoration, etc...) Accordingly, LBA requests that the permit pro vide for situations in which installing controls be fore

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) Issue Category: 2.1.3.2Q The proposed pennit condition requires the installa tion of all stormwater controls before commencing e arth·disturbing activit ies in any portion of the site. This requirement is overly bur densome and is not feasible in many instances. Line ar transportation projects are dynamic and require flexibility. Erosion and sedim ent controls that are necessary at the beginning of a project change as co nstruction progresses and final stabilization commences. Addit ionally, linear transportation projects are often c onstructed in phases, and in fact, phased construction is explicitly encouraged in the new Effiuent Limitation Guidelines. It does not se em 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 additionalUnformatted 2012 CGP Comment Response Essays February 16, 2012

339 flexibility be provided.

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 Prope rties (MAIOP) Issue Category: 2.1.3.2Q

Installation of all stormwater controls before construction starts is i mpractical under many circumstances. Phasing of a p roject may make installation of all devises impossible. Installatio n of devices may require significant grading. Also, projects utilizing Environmental Si te Design may not have "controls" as contemplated by t he permit and may require detailed grading to contr ol flows.

Response Refer to Response 2.10.



# 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 wh en it is allowable for developers to begin earthdis turbing activities prior to installation of operational stormwater controls. Ex ceptions that allow earthdisturbing activities prio r to installation should 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 a ll stormwater controls before commencing earth dist urbances does not adequately address the unique nature of linear construction pr ojects. Because linear construction projects are ty pically undertaken using a phased approach, this requirement will result in the insta llation of control measures in areas of a project w here no earth disturbin g activities will take place for a significant period of time. This w ill subject an operator to unnecessary maintenance and in spection costs with no benefit to the environment. A more effective approach would be to allow the operator to install control measur es in areas of disturbance immediately before they are disturbed. We respectfu lly suggest the following language be used in Part 2.1.3.2(a): "You must intall and make operational any stormwater controls required i n this Part and described in your SWPPP before upgr adient land is disturbe d." This approach will allow operators the flexibility neede d to effectively manage their stormwater controls w hile maintaining an equivalent level of environmental protection.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

340 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 i f the disturbance is cr eation of a stormwater control (i.e. detention/retention basin construction). There also may be sites tha t have a phased approach where it would not make sense to install a permanent stormwater contro l until the tributary area is constructed

Response Refer to Response 2.10.



# 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?" F or example, does this mean it is operating in a man ner 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 allowing water to discharge in a correct manner----as determ ined 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 t he effectiveness of any BMP to remove sediment from runoff waters. It would be helpful if the EPA could provide some guidelines fo r 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: 2.1.3.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

341 a. Keep stormwater controls in effective operating condition. The Permit states: "You must ensure that all stormwater control s remain in effective operating condition and are protected fro m activities that reduce their effectiveness."

This clause is too vague. It is improbable to prote ct 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 Office 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, press ure 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 fi ll 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 specifically directing how the material m ay be managed. Since specific management actions ar e defined, tracking may be required to demonstrate this material was managed i n accordance with the permit. One use that is not l isted is to transfer the material to a third party for use. On sites with excess fill th e material could be added to the fill transferred o ffsite. Reuse and beneficial use of any excess construction material should be encouraged b efore disposal.

Response

See R esponse 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 stormwa ter controls remain in effective operating conditio n and are protected fro m activities

that reduce their effectiveness." AGC maintains tha t this clause is too vague. It is not possible to protect all BMPs from damage, wh ich is why this permit includes corrective action provi sions. AGC requests that EPA define the meaning of this statement.Unformatted 2012 CGP Comment Response Essays February 16, 2012

342 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, subs ection b - Remove accumulated sediment

a. Where does the 1/2 of exposed silt fence require ment come from? Many manufacturer s state the proper height of removal is at 1/3 of exposed height. This height depends upon the materi als used, and whether the silt fencing is backed wi th chain link fencing ( "super silt fencing"). Please specify the context of this requi rement. .

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 sup ports the language in this part. It is useful to ha ve a discrete measure for

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 p aved areas must be cleaned up by the end of the sam e workday. However,

2.1.3.7 indicates vehicle tires must be washed and "No visible signs of soil tracking from vehicles sh ould be present on public or pr ivate roadways exiting the site". The two conditions cont radict each other. In addition, requiring vehicles to be washed at exit po ints creates a significant problem for linear projects already wor king within a narrow access corridor. Requiring veh icle washing would result in tracking pads to become inundated with sediment and increase the likely hood of the release of oil and grease from vehicles i nto the wash water. Good housekeeping practices, such as cleanin g of paved areas each workday (or more frequently i f required) are effective methods for controlling sediment tracking.Unformatted 2012 CGP Comment Response Essays February 16, 2012

343 Response See Response 2.14.



# Comment ID 0025-A1.001.014

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.3.4 For a DOT project, many of the resulting soil stock piles are so large as to be completely infeasible t o cover or contain them. Addition ally it makes more sense to have one large pile to contr ol versus many small ones. It also may not be reaso nable to provide final s tabilization to these stockpiles if their product is to be reinc orporated into the project later. As a common pract ice for ADOT, we requir e 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 ut ility projects that have small piles that exist for only one week and have protection around the toe of the pile). The proposed requirement migh t apply to stockpiles t hat 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 pe rmit for short duration piles and when working in a rid and semi- arid regions? (For example, linear utility projects that have small pi les that exist for a matter of days have protection around the toe of the pile). This proposed language should only apply to larger proje cts that will have stockpiles for a longer duration

Response See Response 2.17.Unformatted 2012 CGP Comment Response Essays February 16, 2012

344 

# 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 mus t sweep, shovel, or vacuum these

surfaces to remove track-out material or other sedi ment deposits."

•Is this section suggesting that sweeping, shovelin g, or vacuuming can be done in lieu of stabilized c onstruction 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 o f discharges from sediment or soil piles, by "provi ding cover or other appropriate temporary or permanent stabilization to avoid direc t contact with precipitation or to prevent sediment discharge." Providing cover for major infrastructure and other similar projects ope n to the elements is infeasible. As an alternative, CCWC recommends that EPA modify the requirement to require the installation of proper BMPs, followed by evaluation of the effec tiveness 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 soi l piles from wind unless they are actively being us ed. This requirement is vague. In order to be able to c omply with this requirement, further clarification is necessary regarding the sufficiency of "to the extent possible" and what it means for s ediment and soil piles to be "actively" used. CCWC recommends the installation of proper BMPs associated with these piles, followed b y evaluation of the effectiveness of those BMPs pri or 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)Unformatted 2012 CGP Comment Response Essays February 16, 2012

345 Issue Category: 2.1.3.4 Section 2.1.3.4(c) requires minimizing the generation of dust. This requirement is unreasonabl y vague. No specific criteria are provided to give regulated entities assurance they are in co mpliance with the requirement. Therefore, even if r egulated entities apply water and use other dust suppression techniques, the adequacy of those measures will be subjectively assessed by an inspector.

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 th e storm water conveyance channel or inlet is an int egral part of the construction project itself. It's impossible to prevent sediment from being deposited in or near a ditch when the p urpose of th e activity is to build the ditch in the first place. Additionally, when buildi ng 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 ditch when the ditch is part of the system designed to remove sediment from runoff.

Suggestion: It appears impracticable to ask on one hand for someone to do water sampling during a stor m event, and on the other ask us

to clean out the sediment at the same time. Allow f or 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 an d poses a huge safety risk. The types of curb inlet controls that can be i nstalled at drop inlets adjacent to active traffic at the very minim um slow water and in some cases block it ( excavating a pit in front of it isn't an option because that's where the road and traffic is, or po tentially could enter the area accidentally). This means that runoff backs up into active traffic lanes during storm events, which presents s afety and liability issues.

Suggestion: Revise this section's language to take the safety of the travelling public into considerat ion. 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 in let, or in some cases even 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 JeffreyUnformatted 2012 CGP Comment Response Essays February 16, 2012

346 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 w ind dispersion. To the extent that stormwater collects dust as sediment, appropriate c ontrols can be implemented to control dust-generati ng activities or treating the dust-laden stormwater. To the extent that EPA is pr oposing to use the NPDES permit program to regulate airborne dust clouds that m ay leave a construction site aloft, FSWA does not beli eve that airborne dust clouds are subject to permit ting under the NPDES program. That program only regulates pollutants associated w ith certain construction operations that are discha rged 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 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-out ma terial 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 chan nel or storm drain inlet and complete the removal by the close of the next full work day. AGC is concerned about these new requirem ents - that are not part of the 2008 CGP - would indirectly require daily site insp ections, which AGC believes is XXXX (see AGC's Comm ents 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 stock piled or land clearing debris composed, in whole or in part, of sediment or soil, you must ... [p]rovide cover or other appropriate tempora ry or permanent stabilization to avoid direct conta c t with precipitation or to prevent sediment discharge ... [and to] the extent possible, contain and securely protect from wind unless activ ely being 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 ones. I t also may not be feasible to provide final stabilization to these stockpiles if their product is to be re-incorporated into the pro ject at a later date. AGC recommends that EPA delete these provisions and instead requir e perimeter controls around any stockpiles.

Response See Response 2.17.



# Comment ID 0093-A2.001.044Unformatted 2012 CGP Comment Response Essays February 16, 2012

347 Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 2.1.3.4 The Draft also attempts to regulate "dust" leaving construction sites. To the extent that stormwater c ollects dust as sedimen t, appropriate controls can be implemented to control dust-generat ing activities or treating the dust-laden stormwate r. To the extent that EPA is proposing to use the NPDES permit program to regula te airborne dust clouds that may leave a constructi on site aloft, AGC does not

believe that airborne d ust clouds are subject to permitting under the NPDE S program. That program only regulates pollutants a ssociated with certain construction operations that are disch arged from a property via stormwater through a poin t source to a water of the U.S. General dust dispersion that settles off site is no t subject to such permitting.

Response See Response 2.15.



# Comment ID 0096-A1.001.029

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.4 EPA is proposing to require dust suppression to avo id 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 t he 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 quite 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 ha ve a clean air permit and requirements for dust suppression that may conflict with the proposed req uirements of the CGP. For example, in Maricopa County, Arizona, the Dust Permits allow wa ter 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 temporar y 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 emiss ions limitations and measures” for the “prevention of significant deterioration.” [FN 56]. In other words, dust is already addressed through several provisions of the CAA and state implementin g 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 conta in any language about dust suppression because the CAA already does so and EPA’s Office of Water does not have the expertise o r the authority to regulate air pollutants.

[FN 54] 42 U.S.C. 7401 et seq. [FN 55] 42 U.S.C. §7407(d).Unformatted 2012 CGP Comment Response Essays February 16, 2012

348 [FN 56] 42 U.S.C. §7471.

Response See Response 2.15.



# 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 require ment to manage removed sediment by spreading it over exposed areas or utilizing it as fill. Removed/eroded earth typically loses th e cohesive properties inherent in native soil. As a result, sediments may be unacceptable as fill and more erosive than other, more appropria te cover materials.

Response EPA notes that the 2012 CGP does not include the pr oposed 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 sedi ment being present on impervious surfaces. However, the December 2 009 C&D ELG rejected proposed provisions associated with mandat ory wheel washing and "same-day" street cleaning be cause 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 a ddress any track-out concerns.

This Part also attempts to regulate "dust" leaving construction sites. To the extent that stormwater c ollects dust as sedimen t, appropriate controls can be implemented to control dust-generat ing activities or treating the dust-laden stormwate r. To the extent that EPA is proposing to use the NPDES permit program to regula te airborne dust clouds that may leave a constructi on site aloft, FSWA does not

believe that airbo rne dust clouds are subject to permitting under the NPDES program. That program only regulates polluta nts associated with certain construction operations that are disch arged from a property via stormwater through a poin t source to a water of the U.S. General dust dispersion that settles off site is no t 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 workda y in which the track-out is discovered. Again, this condition fails to account for the unique challenges presented for linear tran sportation projects. Dis turbed areasUnformatted 2012 CGP Comment Response Essays February 16, 2012

349 must be kept open for the traveling public even whe n construction is not actively occurring. This can result in track-out sediment into areas outside of the project limits. The proposed t imeframes also do not account for times when active construction is no longer occurring such as winter shut down. It would be imp racticable for our maintenance forces to implement these req uirements onc e active

construction is over and stabilization measures hav e been implemented. Additionally, no consideratio n is provided for rural areas where dirt roads are common. MDT requests that more reaso nable time frames be provided and that exceptions b e included for sites th at 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 oth er stabilization measures to be provided for all so il piles. This condition fails to address times when the piles are being actively han dled. MDT recommends incorporating additional flexi bility 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 ar eas that do not directly discharge to a sediment co ntrol 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 se eding stockpiles to assure they stay aerobic.

Response See Response 2.18.Unformatted 2012 CGP Comment Response Essays February 16, 2012

350 

# Comment 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 b asis 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 ap plauds the specification for utilizing native topso il and especially the statement "to maximize the native topsoil's continued function, w hen stockpiling nati ve topsoil, you should mound "no higher than 4 feet for less than 1 year, and preferably less than 6 months." OCSCD w ould prefer to have this recommendation further spe cified. Maintaining a soil's "function" requires consideration of the all three soil quality (or health) parameters: chemical, biol ogical and physical.

OCSCD agrees that this approach is the most practic al when the soil is suitable for vegetation growth. OCSCD in partnership w ith NRCS conducted a study which is attached. "Impact of Soi l Disturbance During Construction on Bulk Density a nd Infiltration in Ocean County, New Jersey" This study was conducted of und isturbed and disturbed urban soils in Ocean County, New Jersey, to investi gate the impact on soil infiltration rates due to modificati on and compaction during construction operations, t o examine if the effects are significant enough to alter the Hydrologic Soil Gro up (HSG) classification or Runoff Curve Number, and to provide additional guidance in the use of TR-55 for the design of structural st ormwater management practices. It illustrates the i mpact that typical construction practices have on the ability of soil to function.

USDA Natural Resources Conservation Service (NRCS) in NJ regarding the use of the current New Jersey S oil Survey data on the web at the following URL: http://www.nj.nrcs.usda.gov/technical/soils/#soilsu rveyproducts. This Soil Survey information shall be utilized by Soil Conservation Districts, the NJDA State Soil Conservation Committee (SSCC) as well as engineers, planners and others to ascertain the intrinsic characteristics, capabiliti es and limitations of soils. These factors impact engineering design.

A2501 Requires State Soil Conservation Committee to adopt standards concerning soil restoration measur es. * New Jersey rule amend/soil restoration signed by Governor on Januar y 5, 2011. This new rule requires that soils be ret urned to functioning upon completion of construction activities.

"Soil restoration measures" means those measures ta ken to ensure, to the maximum extent possible, cost -effective restoration of the optimal physical, chemical, and biological function s for specific soil types and the intended land use

.Unformatted 2012 CGP Comment Response Essays February 16, 2012

351 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 t he disturbed areas. To include a limitation of "not longer than 1 year " is problematic since some roadway projects may la st longer than a year. In Arizona, the DOT has an agreement with the Bureau of Land Management and Fo rest Service that soil stockpiles will not be talle r 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 a nd not on height. Higher piles allow for smaller footprints and may allow for high er soil moisture content than shorter piles that ar e spread out. It is difficult to interpret whether EPA guidelines and recommendations are actu ally requirements. This may be a section of the per mit that needs 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 Departmen t encourages growing grass on its topsoil piles. Ha ving a nice thick veget ative growth on a humus pile is very effective at control ling erosion, retaining nutrients and increasing or ganic matter in the soil. This requirement appears to drift into invasive plant co ntrol and is not water quality based.

Response See Response 2.18.Unformatted 2012 CGP Comment Response Essays February 16, 2012

352 

# 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 owne r to stockpile and reuse native topsoil for establi shing 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 m eets this specification. In addition, the l anguage "unless infeasible" is subjective and should be deleted. This language makes it difficult for a regulator to ensure that an owner is complyi ng 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 inf easible, you should sto ckpile and reuse it in areas that will be stabilized with vegetation if applicable. To maximize the native topsoil's co ntinued function, when stockpiling native topsoil, you should mound the soil and cover to prevent soil erosion and weed growth. As a guid eline, soil should be m ounded no higher than 4 feet high for less than 1 year, and p referably for less than 6 months.

Brevard County Comment: Mounding less than 4' is im practical on most sites. Enforcement will require m ultiple handlings of soil. Reuse encourages invasive and other non desirable v egetation 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 Section 2.1.3.5, page 15 - Full "Use of native tops oil" paragraph

•Consider stating that stockpiling topsoil for exte nded periods can cause topsoil to become inert and, therefore, reduce likelihood of achieving final stabilization through re-vegetation.

Response See Response 2.18.Unformatted 2012 CGP Comment Response Essays February 16, 2012

353 

# 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 yea r, preferably

for less than 6 months. It is unclear whether or no t this is a permit requirement or just a guideline. Because of restricted and oftentimes limited ROWs, state DOTs may need to store soil hig her than 4 feet. Due to long and varying project du rations this material may be stockpiled on site for more than 1 year. The recomm endation for mounding topsoil no higher than 4 feet for less than a year t o protect the microbial activity in the soil which would be destr oyed within large stockpiles is understood. However , the recommendation for covering the stockpiles to control erosion and prev ent weeds would also result in killing microbial ac tivity. The impact is that you are destroying the nutrient and microbial value of tops oil and making it useless. Plant growth on the stoc kpile s is a good method for erosion

control.

Suggestion: Consider modifying this section's requi rement to cover topsoil stockpiles, as this may res ult in reduced or total lack of microbes in the soil when it is ultimately replaced on a project site where veget ative cover may be the final BMP. This section also needs clarification; it is our opinion that this should n ot be a requirement, but more generally a best mana gement practice guideline (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 timelin e. If the EPA's desired outcome is erosion control performance, are there alternate BMPs that would allow larger stock piles to be s tabilized longer than I year?

2. Targets requests that the EPA consider adding a definition 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: 2.1.3.5Unformatted 2012 CGP Comment Response Essays February 16, 2012

354 The Draft states: "As a guideline, soil should be m ounded no higher than 4 feet high for less than 1 y ear, and preferably for less than 6 months." This timetable is problematic because many construction projects, especially large infrastruc ture projects such as highways, last for more than a year. At the conclusion of the project, it is common practice to reuse topsoil st ockpiles to expedite ve getative 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 a nd 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 mana gement to the areas where compaction should be avoi ded.

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 veg etative stabilization will occur at your site:

a. Restrict Vehicle/equipment use or

b. Use soil conditioning techniquesUnformatted 2012 CGP Comment Response Essays February 16, 2012

355 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 encourage s 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 s oil to support vegetation growth is recommended. Ho wever, discing, deep- ripping, and sub-soiling is impractical and dangerous on slo ped areas of 3:1 or greater (steeper). Placing equi pment on 3:1 or steeper slopes destroys the integrity of the slope and is very dan gerous to equipment operators. In many instances, t hese 3:1 or greater 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 g reater.

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 desire d outcome of this requirement? For sites that have known soil contamination, is infiltration still a priority for the EPA? Target i s concerned that this requirement seems site specif ic and does not utilize best design practices for all sites to ensure environmental pri orities are realized.

Response See Response 2.19.



# Comment ID 0080-A2.001.018

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3 , et al.Unformatted 2012 CGP Comment Response Essays February 16, 2012

356 Issue Category: 2.1.3.6 7. Minimize soil compaction and preserve topsoil - Both of these practices are supported by the COA i n an effort to minimize stormwater runoff as it promotes infiltration techn iques which is a key component of LID implementatio n 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 greater than 30%, a mi nimum level of compaction will be required (suggest greater tha n 85%) to ensure that the slope will be geotechnically stable. Other geo technical considerations should also be reviewed by the designer.

Response See Response 2.19.



# 2.1.3.7 STABILIZE CONSTRUCTION ENTRANCE AND EXIT PO INTS [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 w ash (not feasible in freezing temperatures), it wou ld be impossible to "Eliminate" track-out with "no visible signs of soil tracking f rom vehicles". Even the most meticulous sites will have evidence of som e tracking, even in dry summer weather.

Proper stabilized exits, wheel washes, and daily sw eeping will not totally eliminate track- out; there will still remain "visible signs of soil tracking".

This phrase will essentially place every constructi on site in non compliance at all times. The verbiage utiliz ed in the 2008 CGP "track out should be minimized to the maximum extent practicab le" should be retained.

Response See Response 2.20.



# Comment ID 0030-A2.001.015

Author Name: Keyes JenniferUnformatted 2012 CGP Comment Response Essays February 16, 2012

357 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 proj ects for most construction sites. In many cases, th ey tend to cause more o f a problem. Water is also not always available, particularly in arid, rural locations such as oil and gas developm ents, 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 t o address sediment track out and this is not addres sed in the CGP. Also, "eliminate" is an absolute term that is nearly impo ssible to truly comply with; "minimize" is a more r easonable term in terms of achieving compliance.

Response See Response 2.20.



# Comment ID 0037-A1.001.011

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.1.3.7 It is requested that EPA clarify whether the requir ement to wash vehicle tires or provide a similarly effective way of preventing track out (Part 2.1.3.7b) is in addition to the requirement t o 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) Issue Category: 2.1.3.7 These BMPs are effective and should be required. Ho wever, it is not attainable: to require "no sedimen t is discharged during storm

events".

2.1.3.7.b. Eliminate track-out from vehicles.

Track-out cannot be eliminated but it can be contro lled. It is not prudent to require wheel washing in New Hampshire. It is cold in theUnformatted 2012 CGP Comment Response Essays February 16, 2012

358 winter and wheel washing is not feasible. It would be very problematic if it were required. Stabilized construction entr ances and e:xits, and sweeping are generally very effective at contro lling track-out. EPA should also consider contactin g equipment manufacture to determine the effect on construction vehicles, espe cially 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 "eliminat e" track-out. The more appropriate term would be to "minimize" this type of pollutant source. Requiring wheel wash outs is not an effecti ve BMP and in some cases will cause other problems especially with control ling the wastewater and disposal methods. Some types of cons truction projects ju st do not have the space for such a BMP (see commen t 8 above). In addition, water is also not always available at the site which would then require trucking it in an d storing it onsite. The more appropriate BMP, which is not addressed in the CGP, would be to use mechanical sweeping to address sed iment 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 de fine the difference between "Trackout" and "Stainin g". Trackout has been defined as materials that adhere to and ag glomerate on the surfaces of paved areas accessible to the public. Staining on the o ther hand is fine material, or even a dried liquid that remains in the cracks/crevices of pavements accessi ble to the public that cannot be swept up or remediated. Typically, violations are not ass essed for staining.

Response See Response 2.20. Refer also to Response 2.14.



# 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 des ignate wheel washdown a reas 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 e stablished consistent with Part 2.1.2; iii. Refrain from the use of soaps and solvents; an dUnformatted 2012 CGP Comment Response Essays February 16, 2012

359 iv. Direct wash water into a sediment trap or alter native control that provides equivalent or better t reatment prior to discharge.

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 reg arding track out. A change to "minimize track out t o MPE" will be more ach ievable.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0065-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 e ntrance and exit points be stabilize d for a minimum of 50 feet from the entry 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 follo wed by evaluation of theUnformatted 2012 CGP Comment Response Essays February 16, 2012

360 effectiveness of those BMPs. For example, possible alternatives where space is limited include establi shing a suitable exit point for wheel wash downs in order to prevent tracking sedim ent offsite. Another alternative might be designati ng vehicles for onsite use only and not permitting any other vehicles on the jobsit e.

Response See Response 2.20.



# Comment ID 0066-A1.001.020

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.3.7 Discussion: Because of limited ROW and safety conce rns, when active traffic must be maintained through the construction project, it may be unreasonable not to have some material track ing on public roads within the project limits (the material has not left to project limits). It is not practicable to suggest that no o ff site tracking occur during storm events. Previou sly 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 creates an unreasonable standard of "no visible signs" of sedi ment being present on impervious surfaces. However, the December 2009 C&D ELG rejected proposed provisions associated with mandat ory wheel washing and "same-day" street cleaning be cause 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 a ddress any track-out concerns. In fact, the2008 CGP language (see Part 3.1(B)) provides such flexibility and should be used in lie u of the overly-prescriptive language in the Propos ed 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 poin t requirements that require stabilization for a min imum of 50 feet as well as a standard that "no" soil can be left exposed and "no" sedimen t can be discharged during storm events. The basis for the 50- foot limit is unclear andUnformatted 2012 CGP Comment Response Essays February 16, 2012

361 therefore appears to create an arbitrary standard. The combination of the arbitrary 50- foot limit as well as the unreasonable standards th at "no" soil can be left exposed and "no" sediment can be discharged creates an difficult and unreasonabl e 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) Elimina te track-out from Vehicles and Part 2.1.3. Good hou sekeeping 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 instanc es of track out, whereas Part 2.1.3.7(b) requires the eli mination of track out. Elimination is not feasibl e. Even the suggested wheel wash could leave staining due to dust or water residue. Altering the language from "eliminate" to "minimiz e, 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 R OW or geography could be difficult to impossible, a s the wheel wash requires a sediment trap. In addition, the wheel wash will cau se a backup in traffic, which cannot be accounted f or on a restricted site. A wheel wash might be merited on one site and not another. Tracking on sandy soil s might be accomplished on one site with a 20 ft. t racking pad, but on a site with clays, even a 50 ft. might not b e adequate. Add language that states "vehicle washo ut 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) Remo ve deposited sediment, which requires sweeping at the end of the day in instances of track out, where as this Part requires the elimination of track out.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

362 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 befor e exiting the site or p rovide a similarly effective way of removing sediment from wheels and preventing track out and lists rumble strips and ag gregate 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 a nd 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: 2.1.3.7 The permit proposes to require construction entranc es to be fifty feet long, and to require tire washi ng. Neither of these is practical for

residential home construction. The Blue Book allows for a thirty foot length for residentia l sites. Tire washing is not practical for most small sites. The requirement to eliminate track

‐ out should be simply that no significant signs of s oil 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 requiremen ts at Section 2.1.3.7.c, which are far too detailed for a general permit a nd should be addressed, if at all, in a permittee's SWPPP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

363 Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0088-A1.001.019

Author Name: Graves John Organization: Minnkota 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 wo uld 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 s hould be present on pub lic or private roadways exiting the site" is not practical. If BMP s are in place and small amounts of sediment are st ill tracking o ut of the site, it seems reasonable to implement an additional daily BMP to sweep or remove sediments tracking out. Request a c hange to above statement to allow minimal amounts of track out with a requireme nt to sweep tracked sediments at the end of each wo rk day.

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 overrea ching. Part 2.1.3 of the Draft would mandate street cleaning and wheel wash requirements to control "track out." In doing so, i t would create an unreasonable requirement for "no visible signs" of sediment being present on impervious surfac es. In December of 2009, when it took what it thoug ht would be final action on the C&D ELG, EPA reject ed such mandates for wheel washing and "same-day" stre et cleaning, because the appropriate implementation of such provisions must be based on the particul ar "site's configuration." See 74 Fed. Reg. at 63,0 18. EPA should continue to take this more flexible and reasonable approach to the control practices necessary to addr ess any track-out concerns.

Response See Response 2.20. Refer also to Response 2.14.Unformatted 2012 CGP Comment Response Essays February 16, 2012

364 

# 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 d ischarge from a construction exit to be unreasonabl e. Construction exits by their

function remove mud from vehicle wheels. This mud a ccumulates within the construction exit aggregate. During a single storm event mud can accumulate to the point where it discharges as storm water runoff passes through the aggregate . I n addition, EPA in Subsection B states that "No visible sign of tracking from veh icles should be present on public or private roadwa ys exiting the site." T he term "No

visible" is too restrictive and unreasonable. Even the most rigorous methods of mud remov al such as wheel washing will leave traces of silt on a roadway. It is impossible to completely r emove all traces that construction vehicles are exi ting a site. EPA should remove this provision.

Finally, it is common for construction sites to hav e separate (one- way) construction entrance and exit points. Limited or no stormwater management value is gained from stabilizing, or ins talling a construction exit, at a designated one-wa y 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: 2.1.3.7 The Draft states: "No visible signs of soil trackin g from vehicles should be present on public or private roadways exiting the site." This is impossible even when exiting from fields which h ave no construction on them. The phrase "exiting th e 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 visib le to the public, but it cannot be swept up or remedia ted easily.

Response See Response 2.20. Refer also to Response 2.14.



# Comment ID 0096-A1.001.030

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.3.7 The 50-foot minimum length for stabilizing the cons truction entrance is not possible for small construction sites, such as single lots withi n a larger subdivision. Such sites can also be found in urban areas or where a locality may seek t o increase the density of housing, in which case this requirement cannot be met. A clause shoul d be added to the language of the 50-ft stabilization requirement that specifically exempts 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 constru ction entrances at the site. Perhaps including language such as “as feasible” or “where practical” would provide sufficient flexibility.Unformatted 2012 CGP Comment Response Essays February 16, 2012

365 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 w heel wash requirements to control “track out.” In doing so, it creates an unreasonabl e standard of “no visible signs” of sediment being present on impervious surfaces. However, the final 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.” [FN 57] EPA should develop more fle xible and reasonable 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: 2.1.3.7 The permit proposes to require construction entranc es to be fifty feet long, and to require tire washi ng. Neither of these is practical for

residential home construction. The Blue Book allows for a thirty foot length for residential sites. Ti re wa shing is not practical for most small sites. The requirement to eliminate track

‐ out should be simply that no significant signs of s oil 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 ar e a number of measures that can reduce track-out, it is not possible to completely eliminate it under all conditions. For example, dur ing cold weather conditions, wheel washing is not practicable. Furthennore, like all m itigation measures, the other methods described in the pennit, rumble strips and aggregate stone, are effective at minimizing track out rather than completely eliminating it. Therefor e, the pennit should be revised to require minimizing (not eliminating) track-out.Unformatted 2012 CGP Comment Response Essays February 16, 2012

366 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. Yo u 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 lef t exposed and no sediment is discharged during stor m events. Examples of s tabilization techniques include use of a 6

‐ inch thick pad of crushed rock, course aggregate, o r stone (greater than 1.5 inches) with an underlyin g filter

fabric.

Concern

Areas that have a directional one

‐ way entrance should not be required to have stabili zed entrances, only stabilized exits. This is an unnecessary cost and maintenance burden.

Suggested Correction

Specify exit points only requiring stabilization.

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 con struction 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 unrealist ic (i.e., minor trackout and subsequent clean- up with no further downstream transport on roadway surfaces occurs at a lmost every site) and conflicts with C & D rule 450 .21 (a) (5) which requires the minimization of sedi ment discharges from the site. Part 2.1.3.7 (b) is title d "Eliminate track out from vehicles". Sediment is not listed as a dischar ge prohibition in the C & D rule. Further, sediment is not included i n part 2.3.2 of the Proposed CGP titled "prohibited 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 "e liminate" or "prevent" the discharge of sediment.Unformatted 2012 CGP Comment Response Essays February 16, 2012

367 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 stabi lized at a minimum of 50 feet. GMA also recommends additional language be added to 2.1.3.7 Entrance and exit points, subsecti on 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 tracki ng from vehicles should be present on public or private roadways exiting the site."

Eliminating track out is possible. However, wheel w ashes are not feasible in areas where public water is not readily available, and often create a bigger mess to work with at the entrance/e xit of the site. A well- constructed construction entrance and daily street cleaning (not just sweeping - sometimes bobcats or shovels are needed) should b e substituted.

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 n ot 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 languag e, "that no soil is left exposed and no sediment is discharged during stormUnformatted 2012 CGP Comment Response Essays February 16, 2012

368 events..." The no sediment discharge language would r equire permitees to establish and maintain conditio ns that may not exist when the site is in its natural state. This language appears to exceed water quality standards and exceed perfo rmance criteria elsewhere in this permit. EPA should show cause for this level of reg ulation

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 a dditional guidance for paved surface access points- are they considered stabilized? They likely need additional bumper pad or other con trols to shake off loose materials from tires.

Response See Response 2.20.



# 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 f or the stabilization of entrance / exit points for a minimum of 50 feet. There are situations where is infeasible. For example, someti mes there are small satellite areas of a constructi on site separate from the main site where a contractor constructs a small building. Thi s small separate site can often times has limited a ccess and limited materia l laydown

where a 50 foot stabilized entrance in not feasible . Since these sites are small, so is the traffic an d potential for sediment transport considering the limited workers in the area and the small amount of disturbed area. I agree with the 5 0 foot minimum for the main entrances/exits and most situations but it is of my opinion that additional verbiage be incorporated t o relieve the operator of these requirements where 50 foot is not able to be achiev ed. We could document the reasons for not being ab le to meet the requirement in our

SWPPP.

Response See Response 2.20.



# Comment ID 0028-A1.001.002

Author Name: Jones P. Organization: Issue Category: 2.1.3.7QUnformatted 2012 CGP Comment Response Essays February 16, 2012

369 Additionally, EPA has requested comments on the fea sibility of the requirement to stabilize entrance a nd 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 b uilding lot where the structure and or construction activities will incorporate most of the construction area. The requirement of a stabil ized exit would not be feasible due to useable area constraints, and may even result in a safety hazard. Minimum standards, in these cases co uld include daily sweeping, limiting access to the site by vehicles, etc.

I believe most areas over 1 acre could include a st abilized entrance/exit, however, there should remai n latitude for the SWPP P designer to make the determination based on specific site re quirements.

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 traditional VT Cs

with rock have a minimum 50- foot length. However, there are small projects that may be part of a larger plan of development (or li near projects) where traditional VTCs will cause more disturbance than b enefits. These projects often use TRMs or proprieta ry products such

as mud mats. Mud mats come in 15-foot sections and are used when there is limited vehicle access into vegetated areas, such as pole removals or a bore pit for the installation for an underground utility. Also, not all sites need a sta bilized construction entrance (for example, a well pad off a dirt road or other rural sites accessed by dirt road). Construction sites ar e highly variable in n ature and may not be large subdivisions in urban or suburban areas wh ere requiring a 50-foot construction entrance is ap propriate.

Response See Response 2.20. Refer also 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 lo ts particularly if buil ding setback is

less than 50 feet from the street and construc tion access to the lot is principally via the futur e driveway. For example, it is not uncommon

to have a 20 or 25 foot setback in subdivisions in our area. For these types of projects, the minimum stabilized construction entrance/exit length should be base d on the setback or distance between the building a nd the street used for ingress and egress by constr uction 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-A2.001.010Unformatted 2012 CGP Comment Response Essays February 16, 2012

370 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 n ecessarily be large developments where requiring a 50-foot construction entrance is appropriate. For example, small projects that may b e part of a larger plan of development where tradit ional rock vehicle trac king control pads will cause more disturbance than benefits. Or linear projects, such as pole removals or a bore pi t for the installation for an underground utility, that have limited space for ve hicle access and a typical rock vehicle tracking co ntrol pad. Xcel Energy has often used other alternative BMPs in these types of situa tions such as regular sweeping, turf reinfo rcement 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: 2.1.3.7Q a. Stabilize construction entrance and exit points. The Permit does not address the width of the stabi lized construction entrance points. Additionally, construction entrance/exit points may not be able to realize the full 50 foot length fro m the point of entry/exit. Alternatively, permittees are able to stabilize the entry/exit point to the full extent of property th at they own or have a temporary

construction easement. Maricopa County Air quality Department Rule 310 sta tes this scenario. "Minimum dimensions must be 30 feet wide by 3 inche s deep and 50 feet long, or the length of the longe st haul truck, whichever is greater. If an unpaved surface exit does not have a dequate 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 ex it and such shorter width must be adequate to preve nt 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 distan ce for stabilization on either side of the point of entrance/exit. The req uirement 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 le ss stabilized distance, but the incorporation of ot her methods. The specif ied distance does not provide for flexibility in meeting this re quirement and may actually promote sediment dischar ge in certain instances.Unformatted 2012 CGP Comment Response Essays February 16, 2012

371 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 n or a feasible method to create stabilized entry or exit points. Doing so typically would be infeasible, because development of such p oints would require disturbance extending beyond the narrow right-of-way that legal ly constrains where work can be done.

Even if land were available, development of stabili zed entry/exit locations would result in the distur bance of a greater area than is required to perform the work, doing so would be cou nterproductive for environmental protection. That i s because equipment used in LCPs does not repeatedly arrive at or depart from t he 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 entrance/e xit at a point that will be used by vehicles only once or a few ti mes therefore would disturb more area and create mo re run-off risk than it would

prevent.

To address this circumstance, we suggest that a pro viso be added to Part 2.1.3.7. a stating that, for LCPs, stabilization need only occur where there exists an entry or exit point that is u sed 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 Issue Category: 2.1.3.7Q Request for Comment: EPA requests comment on the fe asibility 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 acro ss/ beside waters of US will render 50' minimum pro blematic. Many sites (majority in Brevard County) have access near water s of the US. Small scale crossi ngs of minor ditch systems combined with 50 buffer requirement will result in contradictory requiremen ts at some sites.

Response See Response 2.20.



# Comment ID 0064-A1.001.014

Author Name: Dees Richard Organization: City of MeridianUnformatted 2012 CGP Comment Response Essays February 16, 2012

372 Issue Category: 2.1.3.7Q Section 2.1.3.7 .a, page 16 - Full "Stabilize const ruction entrance and exit points" paragraph

•DOT projects and pipeline projects often have tigh t right-of-way that can make meeting this requireme nt 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 m ay be impossible to have 50 feet reserved for these entrance/exit construction points. Additionally, the width of the construction may act ually be less than 50 feet.

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 trackin g. Meeting this requirement will not always be comp atible with ROW width 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 op erators to stabilize all construction entrance and exit points for a minim um 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 t he project and a temporary entrance/exit location m ay not have sufficient space for a 50 foot structure that can achieve these requirements. EPA should consider differentiating between permanent and temporary entrance/exitUnformatted 2012 CGP Comment Response Essays February 16, 2012

373 locations, or provide some flexibility in this leng th 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 a nd exit points. A 50 ft. pad is not always feasible . Linear transportation projects are limited by ROW, utilities and geography. Sometimes there is simply not 50 ft. available for a tracking pad, for example highway medians. Additionally this limited space also poses safety issues, such as when installation interfere s with providing a clea r shoulder for vehicles to pull off the highway. In such cases CDO T freq uently needs to alter the design and add additional BMPs, such as sweeping. A benchmark for alternate technologies similar to the 50 foot buffer benchmark might be a feasible alter native. There are constantly new technologies or innovative site techniques that mig ht be as effective or more effective than a trackin g pad. A way to evaluate these methods (rumble strips, bamboo mats, etc.) would al low greater flexibility and compliance. Additionall y, administrative contr ols such as more frequent sweeping (end of day, throughout the day, as determined by site conditions, etc.) and re stricting access to essential vehicles. Administrative controls such these, use i n combination with a modified tracking pad provide a reasonable alternative. These practices are essen tial when ROW is restrictive on a linear project. A 50 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 p oints 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 smal l subdivision. However, the linear nature of highwa y projects, often traversing several miles within a given corridor, leads to man y access points along the project alignment. MoDOT has found that installing and maintaining stabilized construc tion entrances (our contractors primarily utilize r ock/aggregate entrances) at each of these points ca n be extremely costly and problematic. Problems arise wh en the continual passage of equipment causes the in terstices of the compac ted rock

to fill with sediment and the control device is ren dered ineffective. The contractor must then either clean or replace the rock. This is a recurrent process that has become a point of conten tion on many jobs. The cost of installing a wheel w ash station at each entrance/exit would be much more cost prohibitive. As often as st abi lized entrances/exits become ineffective, most contractors find it necessary to maintain clean pavement by supplemental pavement sc raping and sweeping.

Additionally, though a 50-foot stabilized construct ion 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 additi onal lanes may be just a few feet away from existing lanes.Unformatted 2012 CGP Comment Response Essays February 16, 2012

374 In this scenario, where cuts or fills are in proxim ity 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 exi sting lanes. Suggested language for this Part would be: Where pract ical andfeasible, you must stabilize all construction entrance and ex it points for a suggested distance of 50 feet Fom t he entry/exit so (hat n o soil is left exposed and no sediment is discharged during storm events. When necessary, supplemental pavement s craping and/or sweeping may be necesswy at entry/exit points to maintain clean pav ement on public or private roadways. (Also, it seem s reasonable that if vehicle track-out is located upgrade of an effective sedime nt capture device, then the sediment captur ing BMP should be a recognized practice for dealing with track-out.)

In line with the above statement, and also under th is Part, MoDOT would like there to be language that would protect permit holders 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 situa tions like rural mailbox turnouts, agricultural field entrances, rural county road entrances and private driveway entrance s that line highway corridors and are often found within the project limits of construction jobs. Tho ugh many times these types of entrances do introduc e sediment and/or grave l onto our paved roadways, these materials are not the result of construction vehicle track-out, and therefore sh ould be exempt.

A suggested note for this Part would be: Note: Perm ittees are only responsible for track-out materials that originate from construction-related ingress and egress from constr uction sites, and shall not be held accollntable fo r non-construction related track- ollt associated with mailbox turnouts, agricultural fiel d 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 circumsta nces.

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 ma jority of construction sites. However, on small urban infill development and redevelopment (retrofi t) sites with restricted access and limited plan ar ea available, meeting this 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 th ese cases this approach would be acceptable to the EPA. This language should be added to the proposed CGP. It is recommended that t he EPA also add language that states that in additi on to the 50- feet minimum criteria that all vehicles entering and exiting the construc tion site must use or drive over the BMP when gaini ng access or leaving the s ite. Our experience has been that the Vehicle Tracking Contr ol (VTC) BMP is not always utilized as the only poi nts of access and egress.Unformatted 2012 CGP Comment Response Essays February 16, 2012

375 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 Pa rt 2.1.4.1.b, EPA should clarify whether visible so il tracking from vehicl es constitutes a violation of the CGP. The current language only m andates washing or similar sediment removal techniq ues, it does not set an enforceable standard for performance, ie. no sedime nt may be tracked off site.

Response See Response 2.20. Refer also to Response 2.14. Ref er 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 e ntrance and exit points for a minimum of 50 feet is excessive and particularly unworkable for linear projects, as it will rarely b e compatible with right-of-way width and orientatio n. For example, entrance and exit points often cannot be stabilized for a minimum of 50 feet for linear projects because the area availa ble for tracking c ontrol is constrained by conditions where the access points for dirt road s meet the paved roads. Also, often there are not m ain or permanent construction entrances associated with a linear utility construc tion area. Access points are usually provided by la ndowners, and there may be several that are infrequently used along the length of the right-of-way. Some landowners' properties are resid ential 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 da ys with construction ac tivities) 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 of 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 linea r 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 projectsUnformatted 2012 CGP Comment Response Essays February 16, 2012

376 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 exi t stabilization requirements from Part 2.1.3.7of th e Draft Permit reflect a concern that operators should remove sediment deposits that are tracked out of the site or accumulated near sedimen t controls, to protect on-site controls and prevent discharge to surface waters.[F N 8] EPA requested comment on its proposal to requi re stabilization of all such points for a minimum of 50 feet into the operation area. F or 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 purpo rted "entry" and "exit" points from the ROW are merely pipeline installation work space facilitating on-road and off-road activity, stagin g areas for storage, accommodations for projects in curved areas, or dro p 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 thi s rule. AGA urges EPA to clearly exempt linear proj ects from Part 2.1.3.7: "where a pipeline construction project ope rates parallel to and within 50 feet of a public RO W or a private utility easement on private landowners' access roads, the points of ing ress and egress between the public road or easement and the adjacent operating area does not constitute an "entry" or "exit" for the pu rposes of this subsection." While this subsection c oncerns sediment deposi t and tracking concerns, linear pipeline projects already employ best practices to minimize ground di sturbance and maintain clear, unsoiled roadways. Examples include the use of timber mats and street sweepers. Thus, AGA asks EPA to narrowly define "en try and exit" points for the purpose of stabilization activity to exclude workin g points of ingress and egress in pipeline linear p rojects.

[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 u nacceptable to AGC. The language should read 50 fee t in length to eliminate confusion. The current wording would require stabilization of all points ( presumably in all directions) 50 feet from the poin t of exit or entrance. On a home site this is the whole front yard.

Length is only one factor which must be balanced wi th others including available space for safe ingres s and egress to the construction area. EPA should allow the site operator flexibilit y to stabilize the proper width distance as necessa ry for anticipated traffic.Unformatted 2012 CGP Comment Response Essays February 16, 2012

377 In addition, EPA must also recognize that a 50- foot limit is not practical at all sites. AGC recom mends that EPA provide an exemption for space constrained projects such as highway proj ects where work area space may not allow a 50-foot construction exit (e.g., within medians of roadways) or projects in highly develope d areas such as central cities.

Response See Response 2.20.



# 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 fee t.

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 ac ceptable

Response See Response 2.20.



# Comment ID 0103-A3.001.007

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 2.1.3.7Q

In Part 2.1.3.7.a Stabilized construction en trance and exit points, EPA requires permittees to stabilize all construction entrance and exit points for a minimum of 50 feet from the point of e ntry/exit so that no soil is left exposed and no se diment 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 believes the specific distance should be left at the discretion of the permittee, and recommends this requirement f ollow 40 CFR §450.21(a) (6), which requires the controls be designed, installed, and m aintained to "provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration, unles s infeasible;....".

Response See Response 2.20.Unformatted 2012 CGP Comment Response Essays February 16, 2012

378 

# 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 stabiliz e all construction entrance and exit points for a m inimum 50 feet from the point of entry/exit so that no soil is left exposed and no s ediment is discharged during storm events. Dow is c oncerned that some site geographies may prohibit a 50 foot length. Dow encourages EPA t o consider a more flexible approach and allow the p ermittee to implement an "equivalent" BMP control in lieu of the 50 foot ent rance/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 worthwh ile on many development sites with a main access point that is used repeatedly an d over a long duration during the course of con struction, the requirement for a 50 foot access point may not be necessary on utility mainte nance projects. Linear projects typically do not ha ve only 1 or 2 main acc ess points. As work progresses along a ROW, access follows the work activities with access points from different c ross streets and easements. Access may be required for several trips over a few days before another access is used further down th e ROW. Using multiple access points is often used to avoiding crossing wetlands along the ROW between structures. Many utility corr idors contain existing, established access roads along the entire length of the ROW. Many of these roads are hard packed dirt, gravel or grassed. The se access points do not necessarily need to be stabilized as presented in the draft CGP. In those instances wher e they do need upgrade work, National Grid concurs that a length of 50 feet is a ppropriate.

Additionally, short term utility maintenance work c onducted during dry periods may not need the constr uction of a 50 foot access point because work is conducted with minimal ground distu rbance and without multiple crossings. Installing a stabilized access point may

result in more soil disturbance than the actual act ivity.

Finally, in those instances where access is granted across private property to reach a part of the ROW while a voiding 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 maintena nce projects and smaller construction projects, thi s requirement be necess ary only where field conditions warrant. Further, National G rid recommends that the project-specific SWPPP spec ify the locations for entrance/exit point stabilization and the method of stabilization.

Response See Response 2.20.



# Comment ID 0123-A2.001.006Unformatted 2012 CGP Comment Response Essays February 16, 2012

379 Author Name: Kelley Forrest Organization: Capitol Region Watershed District (CRWD) Issue Category: 2.1.3.7Q Comment: CRWD supports the proposed permit language

.

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 constru ction access points is reasonable. However, this am ount of space is not always available. The CSC believes an alternati ve 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 projec ts have restricted widths and it may be difficult t o meet the 50 foot requirement. We believe the current permit requirem ents to prevent track out are adequate and easily v isually 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 entran ce and exit points for a minimum of 50 feet pursuan t to Part 2.1.3.7 (a). There is however, language contained in part 2.1.3.7 that sh ould be revised to properly reflect the practical r ealities at constructio n sites and intent

of the rule.

Response See Response 2.20.



# Comment ID 0133-A2.001.017Unformatted 2012 CGP Comment Response Essays February 16, 2012

380 Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.1.3.7Q The proposed permit condition requires all construc tion entrance and exit points to be stabilized for a minimum of 50 feet fr om the point of entry/ex it so that no soil is left exposed. As discussed above, this requirement fails to accou nt for the unique challenges presented for linear transportation projects. No consideration is provided for rural areas where dirt roads are comm on, the many access points that must be maintained within project limits, or the ne cessity to keep disturbed areas open for the travel ing pUblic. All of these factors present challenges in implementing such a condition . Additionally, it is not clear to MDT which entran ces and exits are subject to this requirement. As such, MDT recommends defining "cons truction" entrances/exits, as well as providing gre ater flexibility for linear

constraints.

Response See Response 2.20.



# Comment ID 0137-A2.001.006

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 2.1.3.7Q

50 foot stabilization is achievable in some cases b ut it should be made clear that small sites such as commercial / retail pad sites and urban locations are not subject to 50 foot stabiliz ation. 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 r equire permitees to est ablish and maintain conditions that may not exi st when the site is in its natural state. This lang uage appears to exceed water quality standards and exceed performance criteria elsewhere in this p ermit. EPA should show cause for this level of regu lation.

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 stabi lized for at least 50 feet. The comparatively heavy impacts entrances and exits experience make them especially significant potential sources of sedimen t discharge. Any exceptions to the 50 foot minimum should 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: 2.1.3.7QUnformatted 2012 CGP Comment Response Essays February 16, 2012

381 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

filter fabric" to not confuse with fabric such as s ilt fence material. 2. The requirement for a 50-foo t stable entrance/exit is a minimum. This is not specified in the Federal Register and d oes not belong in this Permit. As guidance, you can make a recommendation. However, most tractor/trailer rigs will need more space to e liminate 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 b ut it should be made clear that small sites such as commercial / retail pad sites and urban locations are not subject to 50 foot stabiliz ation.

Response See Response 2.20.



# Comment 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 m inimum of 50 feet entrance /exit

stabilization is excessive for the urban environmen t, and would be prohibitive on small or narrow site s. A minimum of 25- feet should be adequate for most sites, with the caveat that the e ntrance/egress protection may need to be extended i f there is evidence of off-site tracking.

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 construc tion entrances and exits is not feasible for many s mall projects and li near projects. Small construction sites (i.e., less than 5 acres), quite often do not have the available space to pro vide 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 w here sufficient space is not available to meet the 50' minimum. Also, a li near project may have many points of access which would result i n an excessive amount of disturbance to install and remove the stabilized construction access points. EPA should consider a l ess prescriptive approach to the prevention of trac k-out. This approach should include a requirement to use a stabilized construct ion access point, where feasible, along with a perf ormance standard which would prohibit visible signs of track-out from the constr uction site.Unformatted 2012 CGP Comment Response Essays February 16, 2012

382 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 nee ds to go elsewhere in the permit or eliminated.

Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 7.2.14.



# Comment ID 0064-A1.001.017

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.1.3.8 Section 2.1.3.8, pages 16-17 - Full "Compliance wit h Safe Drinking Water Act underground injection con trol requirements for certain

subsurface stormwater controls" section

•Many states maintain jurisdiction over groundwater pollution as it does not fall under the jurisdicti on of NPDES. This requi rement may conflict or cause unnecessary additional coordinati on if a state maintains jurisdiction over a groundw ater pollution pre vention program.

Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 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 un derground injection con trol laws and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA includes them in the Proposed CGP. To avoid creating additional and unnecessary liabil ity under the NPDES program for requirements found in the SDWA and to simp lify the Proposed CGP, FSWA recommends that EPA avoid su ch unnecessary cross-referencing. Approp riately regulated sites are subject to these requirements whether or not they also must ob tain NPDES stormwater permits. If additional "guida nce" is necessary, EPA

references a 2008 memorandum that clarifies such is sues, and the Agency can use that memorandum in fut ure CGP compliance assistance guidance. See Proposed CGP Fact Sheet at 55.Unformatted 2012 CGP Comment Response Essays February 16, 2012

383 Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 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 underground injection control laws and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA includes th em in the Draft. To avoid creating additional and unneces sary liability under the NPDES program for requirem ents found in the SDWA and to simplify the Draft, AGC recommends that EPA avoid s uch unnecessary cross-referencing. Appropriately re gulated sites are subject to these requirements whether or not they also must ob tain NPDES stormwater permits. If additional "guida nce" is necessary, EPA

references a 2008 memorandum that clarifies such is sues, and the agency can use that memorandum in the future CGP as compliance assistance guidance. See proposed CGP Fact Sheet at 55.

Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 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 und erground injection control requirements. National G rid recommends an exception for linear projects that are in compliance with sta te regulations regarding dewatering

Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 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 und erground injection control requirements. It is rec ommended that an exception for projects that are in compliance with state regulati ons regarding dewatering.

Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 7.2.14.



# Comment ID 0128-A2.001.012

Author Name: Robertson Mike Organization: Minnesota Chamber of CommerceUnformatted 2012 CGP Comment Response Essays February 16, 2012

384 Issue Category: 2.1.3.8 Part 2.1 also proposes to adopt through reference c ertain Safe Drinking Water Act requirements to unde rground injection control laws and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA include s them in the Proposed CGP. To avoid creating additional and unnecessary liabil ity under the NPDES program for requirements found in the SDWA and to simp lify the Proposed CGP, FSWA recommends that EPA avoid su ch unnecessary cross- referencing. Appropriately regulated sites are subj ect to these requirements whether or not they also must ob tain NPDES stormwater permits. If additional "guida nce" is necessary, EPA

references a 2008 memorandum that clarifies such is sues, and the Agency can use that memorandum in fut ure CGP compliance assistance guidance. See Proposed CGP Fact Sheet at 55.

Response EPA notes that the requirement is to document compl iance with other Federal requirements. Refer to Par t 7.2.14.



# 2.1.4 REQUIREMENTS APPLICABLE TO SPECIFIC STORMWATE R 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 constr uction costs.

Suggestion: Suggest that EPA consider drafting rule s on this issue specifically for linear DOT project s.

Response Refer to Response 2.1 and Response 2.11.



# 2.1.4.1 CONSTRUCTED STORMWATER CONVEYANCE CHANNELS

Comment ID 0025-A1.001.016

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.4.1 For a DOT that is constructing a road project, it m ay not be feasible to complete stabilization of a s tormwater conveyance within the timeframes identified. Stormwater conveyances chann els typically parallel the roads - often on both si des and in the median. For any given project, this condition would app ear to require that we "armor" tens of miles of cha nnel. This will be incredibly expensive and of

limited benefit.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

385 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 t o channels that carry stormwater runoff that runs o nto 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? The Southern U te Growth Fund believes that the stabilization require ments in Part 2.1.4.1.b are not practicable for sto rmwater conveyance channels that convey stormwater runoff from disturbed areas withi n 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 tha t divert concentrated flow of stormwater running on to the

site and within the site to avoid contact with soil s exposed during construction must be completed bef ore the first predicted storm event or within 7 days, whichever is sooner. It is not cl ear when this stabilization must be initiated. It i s assumed that it should be initi ated as soon as the channel construction is completed. EPA should clarify when the stabilization activities mu st 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 storm water conveyance channels as soon as they are const ructed, specifically conveyance channels or drainage swales used to manage stormwat er runoff that originates within the project area. These types of channels are frequently roughed in during the initial phase of t he project. An appropriate sediment removal control measure (e.g., sediment trap, sediment basin, rock filter berm, etc.) is installe d to remove sediment in the runoff prior to dischar ge offsite. A reas discharging to and/or adjacent to these channels may be actively under co nstruction for a significant period of time after t he channel is installed. For some projects, it is not practicable to install sediment barriers along the length of the channel to prevent sediment discharges from the disturbed areas into the channel. Thus, sediment deposition i n the channel is likely during the construction pha se.

In addition, the channel itself may be disturbed du e 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 gradi ng activities. Therefore, any stabilization that was implemented will need to be replaced. It should be left up to the operator to determine whether or not vege tative or nonvegetative stabilization of the conveyance chann el as required by this Part is appropriate for thei r project. The Southern Ute GrowthUnformatted 2012 CGP Comment Response Essays February 16, 2012

386 Fund recommends that the stabilization requirements in Part 2.1.4.1b should not be applicable for conv eyance channels that will carry

stormwater runoff from disturbed areas and this Par t 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 probl ematic. Our state regulators require prestorm event inspection for "predic ted storms of greater than 0.5" of rain". It has taken years t o 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 precipit atio n events, how much is liquid,

ice or snow? Unless you are ready to specify these issues, you m ay 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 o f dry mulch, hydraulic mulch, tackifiers, and so fo rth are suitable for embankment protection as long as they are not used where conce ntrated flows occur.

Response Refer to Response 2.21.



# 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 bef ore the first predicted storm event, or within 7 days, whichever is sooner. Examp les of vegetative and non-vegetative stabilization techniques include cha nnel liners, rolled erosion control products (e.g., erosion cont rol blankets and turf reinforcement mats), riprap, geotextiles, or other armoring

materials that are suitable for use in areas with c oncentrated or channelized flow. You are prohibited from ap plying mulch, hydromulch, tackifier, or similar erosion prevention practices that are not suitable for use in areas with concent rated or channelized flow in stormwater conveyance channels.Unformatted 2012 CGP Comment Response Essays February 16, 2012

387 Brevard County Comment: Small site penalty. Summer time in Florida means daily Tstorms and you can't s tabilize 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 sta bilization of channels prior to the establishment o f permanent vegetation is infeasible. The use of ve getative and non-vegetative stabilization techniques before the first predicted storm is expensive and not prac tical.

Suggestion: It not cost effective to utilize channe l liners as a temporary erosion control device in r oadside ditches, only for them to be replaced later. Sediment control devices such as si lt fences, rock check dams, and sediment control lo gs could be used to protect the channel until final construction of the conveyance is completed. Once final grades are achieved, chann el 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 o f stormwater conveyance channels before the first p redicted storm event, or within seven (7) days, whichever is sooner ... [using] ... arm oring materials that are suitable for use in areas with concentrated or ch annelized flow." On a highway project, it may not be feasible to complete stabilization of a stormwater conv eyance channel within the timeframes identified. Stormwater conveyance channels typicall y parallel roadways - often on both sides and in the median. For any give n project, EPA's proposed provision would require highway cont ractors to "armor" tens of miles of channel. This w ould be incredibly expensive

and of limited benefit.

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 stormwat er channels which minimize disturbed areas and to r educe erosion. However, Dow is concerned with the requirement that stormwater c onveyance channels must be stabilized before the fi rst predicted storm event or within seven days, whichever is sooner. The verbiag e "first predicted storm event" is ambiguous and sh ould be removed, as thi s could beUnformatted 2012 CGP Comment Response Essays February 16, 2012

388 dependent upon the particular news source. Dow is a lso 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 crit ical path timeline for stabilization of stormwater conveyance channels.

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 cha nnels before the first predicted storm event, or wi thin 7 days, whichever is sooner. Examples of vegetative and non-vegetative stabiliza tion techniques include channel liners, rolled eros ion control produc ts (e.g., erosion control blankets and turf reinforcement mats), ripr ap, geotextiles, geogrids, geomembranes, geocells, geocomposites, synthetic turf 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 convey ance channels. It is not practical and a waste of m oney to stabilize a channel that carries turbid water to a sediment trap because it would quickly be covered in mud, and it accomplishe s far less than correctly spaced

check dams in the channel.

Response Refer to Response 2.21.



# 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 requi rement. All of these requirements are much too pres criptive for inclusion in the general permit. As suggested previously, set the performanc e standard for design and the storm event to be use d will provide boundary conditions for the BMPs yielding these sections mos t in the permit.

Response Refer to Response 2.21.Unformatted 2012 CGP Comment Response Essays February 16, 2012

389 

# 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 c alendar days of the permanent or te mporary completion of earth disturbing activities, and that all stabilization must be comp leted within 3 working days of initiation of stabil ization. The onset of s ite stabilization within 7 calendar days of the permanent or temporar y completion of earth disturbing activities should be clarified "if site conditions allow", and completion of stabilization activities "as soon as possible and as site conditions allow".

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" an d requiring additional controls without recognizing site specific conditions is too restrictive. Site specific inform atio n, such as land contours, the area down slope (i.e. , if it is an actively cultivated field) should be considered before requiring the use of sp ecialized controls.

Response Refer to Response 2.2.2.



# Comment ID 0025-A1.001.017

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 2.1.4.2 The requirement for final (vs. temporary) stabiliza tion when work has ceased on a particular slope, wi ll cause great-added expense to DOT projects in the form of multiple mobilizations of seeding subcontractors. It may not be feasible t o stabilize a partial slope as

identified in this condition. Please consider addin g language to allow the contractor to maintain temp orary stabilization unt il the end of the project, and then the seeding contractor can se ed the entire project area at once. The fact of the matter is that this requirement will only lead to contractors never "fmishing" with a sl ope. They will continue to push dirt around on it u ntil the end of the project in orde r to avoid fmal stabilization. I would much prefer that the contractor initiate temporary stabilization tec hniques with extra documentation/insjlections required in the SWPPP.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.Unformatted 2012 CGP Comment Response Essays February 16, 2012

390 

# 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 o r 14 days.

Response Refer to Response 2.2.2. See also responses in sect ion 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 sect ion 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 g reater) the Permit directs to design requirements in Part 2.1.4.2 of the permit starting on page 17. Part 2.1.4.2.c stabilization requiremen ts are required.

In Part 2.1.4.2.c the Permit states that installati on or application of all non-vegetative measures be complete within 3 working days of stabilization initiation for the greater than 15% s lope areas.

Typical linear transportation projects span great l engths and have a majority of 3:1 slopes (33%) over the length of the proj ect. In the arid southwest, initiation of vegetative cover or even n on-vegetative cover within 3 working days is unreal istic and/or unachievable. Consider including provisions for linear transporta tion projects.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# Comment ID 0053-A2.001.003

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

391 • Conflict exists between the first sentence and se cond sentence of this paragraph. In the first sente nce it states "You must immediately initiate stabilization in any exposed steep slope a reas where earth-disturbing activities have permane ntly or temporarily ceased ...

" In the second sentence it states "Any area of you r construction site". This sentence is not specific to "steep slope areas", yet the entire clause of Part 2.1.4.2 is specifically addressed to steep slope areas. Additionally, many projects are worked in phases and may have separate areas of varying stabilization.

Response Refer to Response 2.2.2. See also responses in sect ion 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 rea ched." Stabilization is required whether final grade is achieved or not in areas whe re the ground has been disturbed. Permittees could arg ue this particular language as part of the entire d efinition, inclusive of the sum used to define the benchmark, and would therefore exclud e/excuse stabilization in these areas because final grade has not been reached.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# Comment ID 0053-A2.001.005

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 2.1.4.2 • Consider including language pertaining to weather , such as: "Where stabilization by the 3rd day is p recluded 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 sect ion 2 of this document on stabilization.



# Comment ID 0060-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 sect ion 2 of this document on stabilization.



# Comment ID 0064-A1.001.018Unformatted 2012 CGP Comment Response Essays February 16, 2012

392 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 immediatel y 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 calend ar days."

•Why did EPA reduce the timeframe for initiating st abilization 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 sect ion 2 of this document on stabilization.



# Comment ID 0066-A1.001.009

Author Name: Saenz Amadeo Organization: Texas Department 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 transportation projects. The major components of linear construction projects of ten involve excavation and embankment work. On larg e projects this may involve vast quantities of materials; to expect that excava tion to take place and be stabilized within a three day period is not practicable. (e.g. steep slopes are often excavated to get materials f or other areas to be filled on the same project sit e-movement from material positive areas to material negative areas) Safety, cost, pub lic 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 s teep slopes of 15 percent or greater

and to either divert the flows around the slopes or use specialized cont rols such as BMPs. This will increase the cost of t he project when in most cases this is not necessary. In many cases, TxDOT ROWs are very limited and will not provide e nough space to implemen t these special requirements.

When a slope is determined for a project, it is alr eady given special consideration through use of exi sting internal standard specifications and general roadway design principles.

Suggestion: Suggest changing this to a general requ irement to "minimize disturbance to steep slopes," to allow for project-appropriate measures, rather than requiring specifics that may not be possible in all instances. Allow this to be addressed in the SWPPP, and give the opportunity for the SWPPP and project site developer to use reasonable judgment to make i t practicable for linear construction projects.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# Comment ID 0066-A1.001.023

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.4.2 Discussion: The seven day period (calendar days) wh en earth- disturbing activities have permanently or temporary ceased is too short. ItUnformatted 2012 CGP Comment Response Essays February 16, 2012

393 should be at least 14 days as in the last general permit. During construction act ivities 7 days without soil disturbance is very unc ommon and restrictive. If a sloped area is left undisturb ed 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 area s. As mentioned previously, it will also be impossi ble to complete stabilization activities within 3 days in some instances.

Suggestion: Increase the timeframes, and/or create a performance-based standard (e.g. stabilize on a t imeframe such that there are no preventable off-site discharges of sediment).

Response Refer to Response 2.2.2. See also responses in sect ion 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 commen t ID 0075-A2.001.003]

Response Refer to Response 2.2.2. See also responses in sect ion 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 o f temporary stoppage of earthwork activities or per manent completion in stead of 7 days.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# 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 da ys instead of 3 work days.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# Comment ID 0077-A1.001.002

Author Name: DeStefano AnthonyUnformatted 2012 CGP Comment Response Essays February 16, 2012

394 Organization: Village of Solvay Issue Category: 2.1.4.2 The steep slope requirement should be modified to i nclude a length. It is very common to have short le ngths of steep slopes p resent on a site, either to get back to adjacent grade at prope rty lines or to construct landscape berms. Since soil loss is deter mined by both length and slope, it would make sense to eliminate special req uirements for short steep slopes.

Response Refer to Response 2.2.2. See also responses in sect ion 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% o r greater. In areas with steep slopes, EPA would re quire avoidance unless infeasible, in which case EPA would require the use of speciali zed controls.

While the language provides some flexibility, AGC r emains concerned about how this proposed requiremen t would be applied on the ground. Typical linear transportation projects span great lengths and AGC highway contractors report t hey commonly have a 3:1 slope (33%) over the majority of the project. AGC suggest s that EPA require specialized controls only for ve ry steep slopes - i.e., outside of what is typical on a highway project. Of course, th e operator would have the option of using these spe cialized controls on typical highway projects if effective and conditions make t hese controls practical.

Response Refer to Response 2.2.2. See also responses in sect ion 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: 2.1.4.2 The Draft provides that if it is not feasible to av oid disturbing steep slopes, the operator must imme diately initiate stabilization on any exposed steep slope areas where earth-disturbing ac tivities have permanently or temporarily ceased, an d will not resume for a period exceeding seven (7) calendar days. For the purposes of this permit, earth-disturbing activities have t emporarily ceased when clearing, grading, and excavation within any area of a constr uction site will not resume for a period of seven ( 7) or more days, and earth- disturbing activities have permanently ceased when clearing an d excavation within any area of a construction site has been completed, and final grade has been reached.

AGC wants to point out that a conflict exists betwe en the first and second sentences of the paragraph above. In the first sentence, EPA refers to "any exposed steep slope areas." But in t he second sentence, EPA refers to "any area of your construction site." AGC also

recommends that EPA remove the phrase "... and final grade has been r eached." Stabilization appears to be required wheth er or not final grade is achieved in areas where ground has been di sturbed.

This Part goes on to require contractors to complet ely install all vegetative and non- vegetative cover "[w]ithin 3 work days of initiatin gUnformatted 2012 CGP Comment Response Essays February 16, 2012

395 stabilization." This final (as opposed to temporary ) stabilization requirement will add huge expense t o highway projects beca use seeding subcontractors would need to be brought to the jobs ite multiple times. For a large slope, three days m ay not be sufficient time to complete these activities. Moreover, it may not be feasible to stabilize a partial slope as EPA assume s by this provision.

For the reasons outlined above, AGC recommends that EPA retain the 2008 CGP requirement or 14-day dead line for achieving final stabilization. In addition, EPA should consider inc luding language pertaining to weather, such as: "Wh ere stabilization by the [insert date] is not possible due to snow cover or frozen ground conditions, stabilization measure shall be i nitiated as soon as practicable." In the alternative, EPA should consider adding permit lang uage that would allow the contractor to maintain te mporary stabilization until the end of the project - at which time the seeding cont ractor would come in and seed the entire area at on e time.

Response Refer to Response 2.2.2. See also responses in sect ion 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 greate r. In areas with steep slopes, EPA’s proposal requires avoidance unless infeasible, in w hich case specialized controls must be in place. NAHB is concerned with EPA’s definition of s teep 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 re garded as exceptionally steep in most stormwater management manuals until they are greate r than 25%. For example, roadways commonly try to keep the slope under 25% if possibl e in cuts and fills. However, slopes of 15% are frequently disturbed for general grading purpos es. Most of the sediment controls listed in Section 2.1.4.2.b [FN 45] are intended for slopes m uch steeper than 15%. We suggest two improvements t o these requirements, which can be utilized separately or in combination. First

, EPA should 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 operator would have the option of using these controls on slopes <25% i f effective and conditions make these controls practical.

While the language appears to provide sufficient fl exibility, 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 d irect land use and dictate outcomes.

[FN 45] Sediment controls include such as temporary and permanent seeding with soil binders, erosion c ontrol blankets, surface roughening, reducing continuous slope lengt h with terracing or diversions, gradient terraces, interceptor

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.Unformatted 2012 CGP Comment Response Essays February 16, 2012

396 

# 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 specif ic factors that increase runoff including sparse ve getation and steep topography (Gautam et al, 2010). Desert soils can often consis t of the silty low permeable vesicular A (Av) horiz on (Ritter et al. 2002) which can lead to low infiltration rates resulting in more ru noff and erosion potential than areas with more hum id soil and associated layers of organic litter. Thus, paying attention to the topog raphy 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 support s the proposed requirement to avoid disturbance on slopes 15% or greater and reco mmends adding language to section 2.1.4.2 that expl icitly requires limiting unavoidable disturbance on sleep slopes to the smal lest area possible.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document 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 referen ce to Part 2.1.4.2. As described further under comm ents to part 2.1.4.2 be low, utility projects may not be able to avoid areas of steep sl ope within ROWs. National Grid supports the use of specialized controls, however, National Grid has concerns about the requirements o f 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 disturb ances. Where feasible or practicable, stormwater ca n be diverted, however, in many

instances this could result in increased flow to ad jacent properties. In these circumstances, the use of specialized controls is critical to maintaining a stable and safe work environment. Car eful monitoring is also employed under such situati ons.

With respect to 2.1.4.2 c., cross country tr ansmission/distribution construction is performed i n 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 work, crews may change location day t o day or week to week. As a result, there may be pe riods where work within one segment may cease for a period of 7 or more days. In these instances, tem porary stabilization measures are applied and monit oring is conducted. How ever, it is not feasible or practical to apply permanent stabil ization measures when work will continue.

National Grid recommends an exemption from the stab ilization requirements set forth in 2.1.1.2 for lin ear utility projects th at have obtained Clean Water Act approvals.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# Comment ID 0115-A2.001.012Unformatted 2012 CGP Comment Response Essays February 16, 2012

397 Author Name: Smith Timothy Organization: National Grid Issue Category: 2.1.4.2 2.1.4.2 Steep Slope Controls. As in our comments ab ove regarding part 2.1.1.2, the CGP needs to allow for site specific flexibility. Linear utility projects cannot comply with these re quirements in all instances. National Grid recommen ds that compliance wi th 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 stab ilization requirements set forth in 2.1.4.2.c for l inear utility projects that have obtained Clean Water Act approvals.

Response Refer to Response 2.2.2. See also responses in sect ion 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 i nclude a length. It is very common to have short lengths of steep slopes present on a site, either to get back to adjacent grade at prope rty lines or to construct landscape berms. Since so il loss is determined b y both length and slope, it would make sense to eliminate special req uirements for short steep slopes.

Response Refer to Response 2.2.2. See also responses in sect ion 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.i

Proposed Language

Stabilization requirements. For all disturbances to steep slopes, you must comply with the following s tabilization requirements, which replace the corresponding requirements in Part 2.2. 1: i. You must immediately initiate stabilization i n any exposed steep slope areas

where earth

‐ disturbing activities have permanently or temporari ly ceased, and will not resume for a period exceedi ng 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 you r construction site has been completed, and final g rade has been reached.

ConcernUnformatted 2012 CGP Comment Response Essays February 16, 2012

398 Compliance could be difficult to achieve and potent ially damaging to the site. There are no exceptions for weather delays, wet site conditions, frozen ground, arid conditions, other c onstruction delays, etc.

Suggested Correction Revise requirement to requir e immediate stabilization as soon as site condition s permits.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# Comment ID 0137-A2.001.007

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 2.1.4.2 This section strongly suggests avoidance of disturb ance to all steep slopes at 15% or greater. This wi ll dramatically affect areas in Western Maryland as most slopes are greater than 15 %. This will also affect many other areas in the co untry including places like San Francisco or Pittsburgh that have steep slopes. Thi s will effectively minimize the ability to develop a project, road, etc.

Response Refer to Response 2.2.2. See also responses in sect ion 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 disturb ance to all steep slopes at 15% or greater. This wi ll dramatically affect areas in Western Maryland as most slopes are greater than 15 %. This will also affect many other areas in the co untry including places like San Francisco or Pittsburgh that have steep slopes. Thi s will effectively minimize the ability to develop a project, road, etc.

Response Refer to Response 2.2.2. See also responses in sect ion 2 of this document on stabilization.



# 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 d rains) will divert runoff and causes downstream flooding and sedimentation. Placing barr iers around an inlet opening should only occur when the structures are in a "sump" condition. However, when overflow condit ions occur at these barriers, little sedimentation will take place and a majority of the sediment in runoff waters will enter the storm sewer systemUnformatted 2012 CGP Comment Response Essays February 16, 2012

399 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 stormwate r discharges from your site, and for which you have access, you must comply with the fol lowing ..."

Municipalities' jurisdiction may prevent addressing BMPs a city has established, yet are still within your project area/access . The simple fact you have access, does not provide permission t o address the property of a separate party(s). Cons ider 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 fol lowing ... ." Municipalities' jurisdiction may preven t addressing a BMP that a city has established, yet are still within a contractor' s project area/access. The simple fact that a contr actor has access, does not provide permission to address the property of a separate pa rty(ies). AGC suggests that EPA consider changing t he word "access" to "jurisdiction," "authority," or "easements."

Response Refer to Response 2.12.



# 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 st orm 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’ juris diction may prevent 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”, “auth ority”, or “easements.” The prescriptive language of this section does not take into account storm drain inlets that do not discharge offsiteUnformatted 2012 CGP Comment Response Essays February 16, 2012

400 before 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 limitation s, 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 com mon 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 measures should be re stricted 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 Prope rties (MAIOP) Issue Category: 2.1.4.3 it appears that inlet protection must be provided f or all inlets even if drain to a sediment trap or b asin. There are a numbe r of issues with this requirement on most sites for inlet protection in closed section roadways when implemented for al l inlets. Open section roadways have a larger margin for handling the flows. This d oes not mean that if the inlet protection is the on ly treatment practice t hat it should be eliminated, only the ones that drain to another tre atment Concerns are as follows.

a. Contractors use the inlet protection as a form o f ramp which then allows the truck to drive over a storm drain inlet top a nd breaking 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.

c. When it is somewhat effective. The sediment is s pread over the roadway and then gets tracked around the site. 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.



# Comment ID 0146-A1.001.003

Author Name: Matthews JeanUnformatted 2012 CGP Comment Response Essays February 16, 2012

401 Organization: Water Quality & Erosion Control of Tennessee Issue Category: 2.1.4.3 Storm drain inlet protection on roads will create a hazardous back up of water that can result in floo ding 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 then hit an occupied home. Injury to persons and property resul ted. Storm drain inlets will back up water if they are working properly; it's the way that they trap sediment. Maintenance (cleaning) wou ld be required after every rain event, and will be very expensive. I consider storm drain protection one of the tools in our toolbox, and sometimes, it's not the best choice. I would el iminate this as a construction permit requirement and shift the burden of keeping storm d rain systems clean to the municipalities to require evidence of a clean storm drain system before it is accepted and the bonds released . The contractors should be delivering a clean syst em 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 a ppears that inlet protection must be provided for a ll inlets even if they drain to a sediment trap or basin. There are a number of issue s with this requirement on most sites for inlet pro tection in closed secti on roadways when implemented for all inlets. Open section roadways have a larger margin for hand ling the flows. This does not mean that if the inle t protection is the only treatment practice that it s hould be eliminated, only the ones that drain to an other treatment Concerns are as

follows.

a. Contractors use the inlet protection as a form o f ramp which then allows the truck to drive over a storm drain inlet top so as no t 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.

c. When it is somewhat effective. The sediment is s pread over the roadway and then gets tracked around the site. 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 tra ck the 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 DavidUnformatted 2012 CGP Comment Response Essays February 16, 2012

402 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 sedime nt before it reaches 1⁄2of the capacity of the sedime nt basin. Brevard County

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 ab le to function properly. To keep these operational would require more frequent inspection and maintenance, and thus increase proje ct costs.

Suggestion: Provide flexibility and make this an al ternative BMP, due to their high maintenance costs and frequency of clogging.

Response

EPA thanks the commenter and notes that the 2012 CG P 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 skimmer s may be vandal prone and have potential plugging i ssues with litter. Rural, temporary detention ponds normally designed with ro ck weirs for lower maintenance and high runoff allo wance (an emergency spillway) may be more effective.

Response

EPA thanks the commenter and notes that the 2012 CG P does not require the use of skimmers.Unformatted 2012 CGP Comment Response Essays February 16, 2012

403 

# Comment ID 0078-A1.001.001

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.1.4.4 EPA must require (when feasible) operators to insta ll one or more SCSs at the beginning of grading act ivities that meet at least 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 2 0 microns and larger TSS particles.

• Discharge waters of the V2,24 for each structure must have NTU turbidity readings that are n o greater than 5% to15% (see comments on Section 3.2) above historic conditions.

• Each structure must safely discharge at least 5-y ear, 24-hour flood flows via a professionally desig ned overflow system.

• Designers must assess and report on the effective ness of their structures to remove sediments and re duce turbidity when overflow

conditions occur.

• Designers and regulatory agencies must be account able for the use of polymers in runoff waters enter ing and discharging from each structure that happens for during grading, during c onstruction and after construction activities.

Response

EPA thanks the commenter and notes that the 2012 CG P does not require the use of sediment basins. See Part 2.1.4.4.



# 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 sedime nt traps from top water withdrawal requirements.



# 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 floccu lants for treatment of stormwater runoff, which con tradicts the current CGP forUnformatted 2012 CGP Comment Response Essays February 16, 2012

404 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 are as 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 pol ymer. If the EPA prohibits the discharge of cationi c polymers, then the discharge of

cationic chitosan cannot occur!

Response Refer to Response 2.22.



# 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 elimin ate potential discharge of stormwater from this are a. Brevard County Comme nt: If the materials are suitable for treating runoff then why is containment needed?

Response Refer to Response 2.22.



# Comment ID 0062-A1.001.022

Author Name: McClure BachUnformatted 2012 CGP Comment Response Essays February 16, 2012

405 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 tabl e (i.e., 4 feet or less); Brevard County Comment: Most of FL

iii. Limit any use of sediment containing polyacryl amide, chitosan, and other biopolymers as fill mate rial 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 w hen necessary. ?

Route stormwater treated with polymers, flocculants , or other treatment chemicals through sediment tra pping, filtering, and/or settling device(s) to ensure adequate removal of sediment fl occulent; Brevard County Comment: Why specificity? Water shou ld 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 requir ements. This section discusses the proper storage o f Chemical Treatment, such as flocculants. It is unclear what an appropriate seco ndary containment would be for flocculants. Does th e secondary containmen t need to be lined to prevent groundwater contamination? Ber med? Or would silt fence or sediment control log be adequate?

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 restrictio ns. ii. Perhaps 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 wat er table (i.e., within 4 feet of water table)". The current language could imply, for example, that if you had a 10' water table you coul d dig a sediment basin to within 3' and add floccul ent.

Response Refer to Response 2.22.Unformatted 2012 CGP Comment Response Essays February 16, 2012

406 

# 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 restricti ons.vi. This Part states that you cannot discharge cationic polymers. Unli ke sediment, polymers are not visible in water, therefore you ca nnot visibly assess whether they are present. What is your measure 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 othe r treatm ent chemicals to enhance sediment removal will be r equired on construction sites that must comply with any numeric turbidity l imit. Given the wide array and variations among che mical products on the m arket, it is not practicable for EPA to issue broad permit re strictions on the use of chemical treatments. Restr ictions 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 health supplement.

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 o f polymers, flocculants, and other treatment chemicals. Some of the proposed polymer u se restrictions are common sense, such as the storage requirements, managing the chemicals so that they are not spilled, following the precautions in the MSDS, and insuring that chemical ly treated sediment is routed through some sort of trap or basin before discharge, which presu mably would be necessary to also remove the turbidity. However, there are some provisions that are 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 A TS systems to trap sediment from storm water discharges and prevent it from entering water ways, we remain concerned about theUnformatted 2012 CGP Comment Response Essays February 16, 2012

407 required use of any chemical treatment.

First, the “do not apply (polymers) within areas es tablished under Part 2.1.2 (vegetative

buffers within 50 feet of a water of the United Sta tes)” 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 vegetative buffer, i t is not clear whether polymers can be used in these alternative setback areas. These would likely

be situations where site constraints force active c onstruction 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 n ot be optional; it may be required to meet the C&D ELG turbidity limit or a TMDL. EPA should clarify this section to either allow chemica l 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 ma y be applied in areas with a shallow water table (defined as four feet or less). This pr ovision is far too restrictive, to the point of making construction impossible for many tracts of l and. Compliance with this restriction may completely prohibit polymer use in most coastal are as and in many other areas of the USA. Furthermore, the water table in most areas is varia ble depending on the season and how much rain has been received in the area and can very eas ily be within 4 feet of the surface at times. In light of the new C&D ELG (depending on the final nu meric effluent limit), the use of polymer in most areas may not be optional, since a numeric tur bidity limit must be met unless that turbidity limit is set sufficiently high that polymers are no t necessary even under adverse conditions (e.g., high intensity rain, high clay content in soil, etc .) or an exemption from the turbidity limit has

been allowed in the situation.

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, orUnformatted 2012 CGP Comment Response Essays February 16, 2012

408 other biopolymers as on-site fill material to not c loser than 100 feet from waters of the US. This rule seems to imply that even sediment basins withi n 100 feet of a water of the US where the polymer was used to settle sediment cannot be fille d in (if the basins were temporary) without first excavating out all the sediment that settled there. This, as written, is totally impractical. Again, the settling basins or ponds very often must be located near drainage areas, and many will necessarily be within 100 feet of a water body give n the Agency’s broad interpretation of this term. Likewise, because the sediment in question ha s likely existed within 100 feet of the water of the US for a long period of time already, it is unclear what is gained through the prohibition. Either this absolute prohibition needs to be remove d or EPA must create an exception that allows temporary sediment basins, traps, or ponds to be fi lled in place, even if they are within 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 poly mers (except chitosan) may not be discharged except in compliance with state and loca l requirements that are designed to protect water quality from such discharges. The use of poly mers for the purpose of sediment control is heavily regulated and all of the states prohibit th e 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 th e 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, e quipment failure, additive/ polymer release, etc.). We are concerned about the potentia l acute and chronic impacts that the polymers and other chemical additives may have on f ish and aquatic organisms if released in sufficient quantities or concentrations . In addition to anecdotal evidence of polymer releases causing aquatic toxicity in Califo rnia, the literature supports this concern. For example, cationic polymers have been s hown to bind with the negatively charged gills of fish, resulting in mechanical suff ocation. Due to potential toxicity impacts, which may be caused by the release of addi tives/polymers into receiving waters, residual polymer monitoring and toxicity requiremen ts have been established in this General Permit for discharges from construction sit es that utilize an ATS in order to protect receiving water quality and beneficial uses .” [FN 58]

If a progressive state like California has reservat ions about the use of polymers, EPA should takeUnformatted 2012 CGP Comment Response Essays February 16, 2012

409 heed and remove any requirements for its use. Furth er, 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 a bsence 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 wi th many existing demands on their permitting programs.

Further, the true passive systems examined by EPA i n 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. Th is might be due to the current unavailability of chitosan in block or log form, which is a popular p assive method of administering PAM, or some other, unknown reason. But because polyacrylamide f locculation chemicals can be formulated in cationic, nonionic, or anionic forms, it is not cle ar which one(s) the Agency is referring to. For example, the McLaughlin 2009 study [FN 59] used fib er check dams with PAM (FCD/PAM) on two sections of a North Carolina highway construction p roject. 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 i n the runoff. Given these uncertainties, EPA should be more explicit as to which polymers ma y be used and discharged in passive turbidity removal systems.

[FN 58] 73 Federal Register 72,573 (November 28, 20 08). [FN 59] Passive Treatment To Meet the EPA Turbidity Limit, TMDL 2010 Watershed Management to Improve W ater 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 t o treat stormwater discharges is suspect. Studies have found that polymers and cationic polym ers, including chitosan, are “quite toxic to aquatic organisms and should never be used in an op en environment or allowed to discharge to the environment without complete reaction to the in tended target.” [FN 60] Similarly, EPA found, “This polymer [chitosan] is listed as Resource Cons ervation 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 be used, if required); (2) expected polymer dosages and how the se are impacted by the site-specific features, such as the turbidity of the water to be treated, t he surface charge of particles to be removed,Unformatted 2012 CGP Comment Response Essays February 16, 2012

410 water temperature, pH, and the presence of constitu ents 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 of chemicals to treat storm water runoff also is evident in states’ reactions to its use. Tellingly, there are currently only fou r states (MI, WI, WA, CA) that require the use of polymers to address sediment in stormwater runof f, 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 a nd the waste products it contributes to (including infused sediment sludge) must prompt EPA to conduct 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. Iwi nski, 2008, accessed at http://www.remtech2008.com/watertech/20 08/pdf/Paper23.pdf. [FN 61] Development Document For Proposed Effluent Guidelines and Standards for the Construction & Dev elopment Category, November 21, 2008, Table 7-28. Chitosan A cetate Study results, p. 7-94. [FN 62] City of Tacoma, WA, Surface Water Managemen t Manual, September 22, 2008, Appendix B, accessed at www.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 p revention 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 ch emically-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 duplicative with reasonable BMPs. This requirement should be addressed by the permittee during develop ment and implementation of

the SWPPP and related BMPs.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

411 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 allo w chemical treatment or additives.

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 u nnecessary on most sites when properly designed pas sive control strategies have been implemented, the use of passive chemical treat ment represents a potentially viable and safe alter native in a limited number of

situations where conventional treatment alone is ch allenging or inadequate. LBA recommends that flexib ility in the application and appropriateness of chemical treatment be broadly al lowed, but not mandated, and that the means and met hods for their proper application are the responsibility of the design en gineer in developing an appropriate SWPPP for a sit e based on site specific 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 Prope rties (MAIOP) Issue Category: 2.1.4.5 This treatment is alternately described as "natural & biodegradable" and "potentially toxic to fish and other aquatic li fe". The best observation I read was that using a c hemical (even a naturally occurring one) in a water treatment plant is far different th an in a construction site. The former has a relativ ely constant flo w rate and the chemical is introduced accordingly, by highly trained perso nnel. At the construction site, the water flow is h ighly variable, and even if the operator is sufficiently trained, there is a tempta tion to use more than necessary since the objec t is to keep the turbidity below permitted release values. Strategies generically originating from potable water treatment are inherently risky a s the goal is to make the water so clean as to be devoid of any life which can be coun terproductive to maintaining the integrity of natur ally occurring receiving waters. Clear swimming pools are not hospitable habitats.

If not enough earns you a citation for too much tur bidity, and too much earns you one for toxicity/fis h kills, this approach may be moreUnformatted 2012 CGP Comment Response Essays February 16, 2012

412 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 th e permit requirements may include advanced treatmen t, are susceptible to larger

unintended releases.

This underscores the need to rethink using floccula nts in constructions sites at all. To the extent th at there are toxicity concerns, the

so

‐ called cure could be worse than the original proble m.

Response Refer to Response 2.22.



# 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 treatme nt as a tool to improve water quality by reducing o ffsite sediment dischar ges. Other

states do utilize the use of chemical treatment to improve water quality in offsite discharges. It wou ld be beneficial if the CGP could

authorize the use of chemical treatment on a nation al 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 to xicity testing requirements for the chemicals beyon d what is included in M SDS. The results of these toxicity tests should conclude the toxic (acute and chronic) level of the specific ch emical typi cally given in ppm. These results can then be used to require that the applic ation of the chemicals do not reach the toxic level s from the toxicity tes ting results. The end result would be a maximum dosage rate for all c hemicals, whether it is chitosan, an ionic, neutral, or a net positive (cationic) produc t. 2. This section is inadequate based on the prescrip tive nature of the previous sections. The EPA has n o idea how to administe r chemicals in a passive treatment system. The actual applicati on dosage procedures are complicated.

Response Refer to Response 2.22.



# Comment ID 0159-A1.001.017

Author Name: Seawright Stephen Organization: Maryland State Builders AssociationUnformatted 2012 CGP Comment Response Essays February 16, 2012

413 Issue Category: 2.1.4.5 This treatment is alternately described as "natural & biodegradable" and "potentially toxic to fish an d other aquatic life". The best observation we read was that using a chemical (even a naturally occurring one) in a water treatment pl ant is far different than in a

construction site. The former has a relati vely constant flow rate and the chemical is introdu ced 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 tem ptation to use more than necessary since the object is to keep the turb idity below permitted release values. Strategies ge nerically 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 counterproduc tive to maintaining the integrity of naturally occurring receiving waters. Clear swimming pools are not hos pitable habitats.

If not enough earns you a citation for too much tur bidity, and too much earns you one for toxicity/fis h 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 th e permit requirements may include advanced treatmen t, are susceptible to larger

unintended releases.

This underscores the need to rethink using floccula nts in constructions sites at all. To the extent th at there are toxicity concerns, the so-called cure could be worse than the original pro blem.

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 provid es a significant cause for concern. This may be a c ase 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 regulat ory requirements. Our experience has been that give n time and adequate design, passive measures are generally effective in achievi ng background concentrations of turbidity and suspe nded sediment, and chemical treatment may not be necessary or desirable. If an applicant elects chemical treatment to reduce sedim ent transport, then the minimum permit requirements as proposed should be sufficien t.

Response Refer to Response 2.22.



# Comment ID 0401.001.001

Author Name: Unknown Unknown Organization: Colorado Department of Public Health and Environmen t - 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 us ed. The Division requires allUnformatted 2012 CGP Comment Response Essays February 16, 2012

414 chemicals used in the treatment process be identifi ed on the permit application or through permit modi fication for our construct ion sector general permits (i.e., stormwater, dewatering, reme diation, and hydrostatic discharges). The Uivision has not authorized discharges with

chemical treatment under our stormwater constructio n general permit to date. Under our other general p ermits, the Division wi ll 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 Divisi on recommends that the EPA evaluate if the limitati ons in Part 2. 1.4.5 will be effective at preventing discharges that are in exce edance of stream standards due to pollutant additio ns resulting from chemical treatment. Specifically, for storm event driven dis charges, where holding times and other variables ma y change dramatically, has the EPA evaluated the potential for the discharges to c ontain contaminants at concentrations that result i n exceedance of stream standards due to the addition of flocculants? Has the impacts on beneficial uses from flocculants and associated pollutants in the discharge been

evaluated? Are additional limitations and monitorin g necessary to address dissolved pollutants and pot ential changes in pH associated with all chemicals that may be covered in this auth orization?

Response Refer to Response 2.22.



# 2.1.4.5Q RESTRICTIONS ON POLYMERS, FLOCCULANTS OR O THER

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 a ble to show zero or very low toxicity to fish and other aquatic life rather than r equiring 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 a nd other adverse affects. Chemicals can do a great job in helping pr ecipitate fine soils but if we are using toxic chem icals to assist in that effort, the risk t o the environment would be less if we just capture th e sediment that we can through strictly mechanical means and let 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 a nd 3 waters. Residual standard should be manufactur er driven and specific to each product.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

415 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.

Comment: Do not limit chitosan residuals in dischar ge water to levels that would limit their effective ness.

Discussion: This section as currently written provi des reasonable flexibility to employ appropriate se diment treatment technology. If residual testing is required and limited to the poi nt of inadequate performance, some technologies wou ld no longer be available. Depending on the extent, it could place the dischar gers in a position of requiring treatment but havin g few, if any, viable options.

Recommendation: Recommend that the permit maintain adequate flexibility to employ appropriate treatmen t.

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 practicall y eliminate the use of PAM or other polymers as a s oil stabilizer. PAM and other polymers attach readily and irreversibly to soil pa rticles. The PAM would hardly penetrate 4 inches in to the soil and would n ever reach to a 4-foot water table. Like the condition below, it may be more practical to require a 100' buffer f rom Waters of the US or require 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 const ruction sites should be implemented by the manufacturer prior to use as an approved chemical. Continued commissioning of the p roducts should also be the responsibility of the manufacturer. Requiring testi ng to be included in the project budget, could resu lt in a reduction of a chemical's use,

whether beneficial or not.Unformatted 2012 CGP Comment Response Essays February 16, 2012

416 Response Refer to Response 2.22.



# Comment ID 0062-A1.001.023

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.1.4.5Q Brevard County Comment: Max dosage too high for mos t applications. So default max dosages are always w rong.

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 treat ment" section

•Attempting to dictate a specific dosing or maximum dosing given uniqueness of each project and applic ation would be difficul t. Suggest that operator should be required to follow manufact urer recommendations and that the permit not specif y 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 Commen t" paragraph

•The presence of chitosan residuals does not necess arily indicate overdosing. In addition, during EPA presentations on Constr uction & Development Effluent Guidelines during a March 2010 webcast, EPA staff noted that the acute toxicity l evel of anionic PAM for daphnia and rainbow trout is orders of magnitude hi gher than the effective dose. This suggests that si gnificant overdosing resulting in significant residual would be required to have nega tive impacts on receiving water bodies. By requirin g 2.1.4.5.b, this should limit dosing to only required amounts as recommended by m anufacturer information.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

417 Refer to Response 2.22.



# Comment ID 0066-A1.001.025

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 2.1.4.5Q Discussion: Requiring the use of flocculants and ch emical treatments (e.g. chitosan, polyacrylamide) t o enhance sediment removal would have a large impact on construction costs. Th e use of these chemicals could potentially require applicants to clean up the water after these chemicals were used, where the chemical s used have now become a pollutant. Many of the ite ms required by this sec tion seem to be overly burdensome and will have a negative ef fect on construction projects and could double or t riple 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 re commended application levels. If EPA is uncertain o f the safety of chemical treatments, then an ELG should not be established that requires thei r use.

Response 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 supporti ve 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 stor mwater control. Therefore, it is not necessary to r equire residual testing and specify a maximum dosage rate. The DEQ encourages t he use of a combination of sediment and erosion con trol measures in order to achieve maximum pollutant removal. If chemical trea tment is used, the chemical pollutants shall not be allowed to discharge to the waters of the US. Residual testing may be an onerou s requirement for owners/operators.

Response Refer to Response 2.22.Unformatted 2012 CGP Comment Response Essays February 16, 2012

418 

# Comment ID 0075-A2.001.014

Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 2.1.4.5Q 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 liqu id treatments in linear applications. When it is us ed on haul roads, steep cut and fills and topsoil piles, it makes it hard to set up enoug h filtration devices. A maximum dosage rate should be included in the permit.

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 s uspensions in water that can be subsequently sand f iltered producing a clear filtrate that may be legally discharged directly to surface water. Unlike most water treatment agents, chitosan becomes bound to the sediment particles and is completely captured in the sand fi lter so that only clear, pure water is discharged. Chitosan contains no polyacrylamide, polyamine, aluminum, or toxic byproducts and is bio degradable. (From IECA web site). Would the state o f New Mexico even allow the use of chemical additives for this purpose? Based o n the limited turbidity testing that has been condu cted in the Albuquerque metropolitan area it is unclear if the purposed lim its would be reached. The EPA must recognize that s ome states will not all ow chemical treatment or additions for the purposes of surface water TSS removal. Requiring or recommending the us e of chitosan or other bio-polymer and further prescribing dosage rates se ems inappropriate language to be included in the CG P.

Response Refer to Response 2.22.Unformatted 2012 CGP Comment Response Essays February 16, 2012

419 

# 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 u se of chemical flocculants and encourages EPA to fu rther investigate the risks and benefits of using these treatments.

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 contr ol, in Part 2.1.4.5 of the Draft Permit. AGA understands that some local permi tting authorities believe that anionic polymers are important additions that keep sediment on-site, and that some local SWPPP permits require their inclusion. In general, chemical treatment is effect ive only if properly designed and maintained. Natural gas utilities have had limited experience using polymers. Their use t ypically requires expertise to ensure both the proper use of the correct polymer a nd adequate mixing. As for EPA's proposal on requir ing residual testing in connection with the use of chitosan, AGA supports the inclusio n of a maximum dosage rate as an alternative to tes ting the residual. For example, in areas with fine silty clay, polymers may be the onl y option available to keep these soils from leaving the site during dewatering or stormwater discharges.

Response Refer to Response 2.22.



# Comment ID 0096-A1.001.069

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.1.4.5Q EPA is proposing to require residual chitosan testi ng, presumably to ensure no adverse effects from it s use. EPA, however, has not provided any justification for only selecting this particular chemical polymer for re sidual testing. Does the Agency now believe chitosa n is much more toxic than any other polymer? If so, h ow would the Agency know this, as chitosan was not used in any of the true passive treatments examined by EPA when developing the C&D ELG. In short, the proposal for residual chitosan t esting does not have any foundation and runs counter to EPA's justification in the C&D ELG that chitosan was a safe natural pro duct. NAHB raised several concerns with the use of chemicals during the devel opment of the ELG including toxicity of such chemic als. EPA dismissed the comments regarding potential toxicity of chitosan a nd stated that passive treatment, by its nature, do es not tightly control the polymer dosage, stating that the only documented case of po ssible toxicity or adverse effect was due to misman agement and/or misuse of the polymer. The Agency justified the final ELG and its turbidity limit in part by stating:Unformatted 2012 CGP Comment Response Essays February 16, 2012

420 "EPA has determined that when properly used, enviro nmental impacts from polymers or flocculants sh ould not occur through the use of passive treatment systems."

and

"Based on the information in the record EPA has det ermined that when polymers are properly applied the risks of toxicity to a quatic life or adverse effects to the receiving water are minim al." [FN 79]

Now, EPA may not only require monitoring for chitos an, but apparently the Agency is also considering d raconian measures even from the mere detection of any chitosan, such as 24 hour notification, immediate corrective action, and mea surement of chitosan every two hours (day and night?) until the discharge ends. Th is 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, a dminister exact dosages of polymer (otherwise the systems wou ld cease to be passive), and thus could potentially introduce too much pol ymer with adverse effects. The main examples of passive treat ment exam ined by EPA were those used and studied by McLaughl in, which simply applied scoops of polymer (PAM, not chitosan) to fi ber check dams as they were installed in runoff dit ches and simply allowed the rain events to cause water to dissolve the polymer. PAM lo gs and PAM blocks were also used in other McLaughli n tests and papers. These systems clearly did not meter out exact dosages of polymer, and did not use chitosan. McLaughlin state s in his papers that he does not believe that these systems posed any real ha zard 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 f or chitosan, or any other polymer used in passive t reatment. EPA was warne d

in comments to the C&D ELG that this could be a problem with an ELG that relied on passi ve treatment to meet a mandatory turbidity limit, and this was dismissed out of hand by EPA. N ow EPA is essentially repudiating what was determin ed in the ELG, and addi ng costs to that ELG that were not p art of the consideration for that rule. EPA should either not require testing for chitosan or any othe r polymer, or remove the C&D ELG the numeric limit ( which is the reason why polymers such as chitosan must be us ed).

Finally, the requirements for immediate corrective actions during actual discharge from a passive syst em are not practical. Polymers such as chitosan are likely in the form of logs or socks under flowing water, upstream from ponds or s ettling traps. Getting to them might be hazardous, depe nding on the rain event and volume. Furthermore, pu lling out the logs would almost certainly result in a violation of the yet to be determined numeric turbidity limit an d the SWPPP, and it is uncertain what could be used instead to guarantee no further detection of polymer. The end result could well be violations both for the discharge of chitosan (or o ther polymer) and also exc eeding the turbidity limit.

NAHB remains strongly concerned about any permit re quirement that essentially mandates the use of uns tudied or questionable

chemicals. It is clear that EPA lacks sufficient da ta on the use of various polymers for this purpose. EPA must refrain from enacting any permit requirement that relies on chemical treatmen t, at least until which time it has sufficie nt data to demonstrate both its benefits and

detriments.

[FN 79] 74 Federal Register 63,008 (December 1, 200 9). [FN 80] Dr. Richard A. McLaughlin's Publications. h ttp://www.soil.ncsu.edu/people/detail.php?who=36 Ac cessed July 11,

2011Unformatted 2012 CGP Comment Response Essays February 16, 2012

421 Response Refer to Response 2.22.



# Comment ID 0102-A2.001.003

Author Name: Williams Tim Organization: Water Environment Federation (WEF) Issue Category: 2.1.4.5Q a. c, i, what are the areas "established" in Sectio n 2.1.2? All Waters of the U.S. or just impaired/se nsitive?

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/a llowances by allowing this cationic material to be released when all others 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 us e 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 ?Unformatted 2012 CGP Comment Response Essays February 16, 2012

422 Response Refer to Response 2.22.



# 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 w ill likely lead to runoff that may be toxic to aqua tic species.

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 shou ld be included in the Permit. EPA should include ma ximum dosage rates to p revent over application. Typically,construction workers or operators are not trained in the harmful effects o f these substances on aquatic organism and over application may occur. The use of polymers, while providing a good sediment control system, must be monitored closely to reduce or eliminate the possible added p ollution and environmental degradation it would cau se if excess amounts are released into a receiving stream. It appears that EPA does n ot have enough data to determine what level of cert ain polymers (i.e. Chitosan) in the discharge can have an impact on plants and benthic organisms. Therefore, EPA should provide funding fo r 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 t he use of chitosan can in some cases be a highly ef fective tool for addressing turb idity at challenging sites. The allowance for chitosan to be used as a potential tool can be hindered throug h the potential over re gulation of its use through excessive monitoring requirements. Prac tical design of treatment systems and passive deplo yment of chitosan based coagulants can be accomplished without the need for residual chitosan testing. The requirement for res idual testing potential ly precludes chitosan's use in many simple passive treatment sys tems, the specific technologies that have been use d in the past by EPA in helping to establish effluent limitation guidelines for turbid ity reduction at construction sites.Unformatted 2012 CGP Comment Response Essays February 16, 2012

423 In addition, the levels of acceptable chitosan resi duals should be established specific to the receivi ng water. There are many receiving waters where it is likely that low level chitosan r esiduals would present little or no likely harm to the environment.

Rather than require testing on every site that empl oys chitosan (or other coagulants such as polyacryl amide), it would be much more

cost-effective for EPA or the states to conduct mor e well thought out studies of potential passive app lications and toxici ty tests and then develop appropriate guidance on their use (e.g. est ablish appropriate application/dosage rates, etc.)

Response Refer to Response 2.22.



# 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 c hemical treatment for compliance purposes. At this time, chemical treatment has not been used in the state of Montana for construction storm water controls. MDT is concerned thaI the inclusion of residual testing an d/or a maximum dosage rale would be problematic to implement and would dri ve up costs, likely discouraging the use oj these innovat ive technologies. Th at said, MDT sees value in testing to ensure Montan a '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 Prope rties (MAIOP) Issue Category: 2.1.4.5Q From an environmental perspective, the use of chemi cals such as flocculants and polymers poses a risk to the environment and human health if used improperly. If chemicals are to be u sed for enhanced sediment removal, then an addition al permit and residual testing should be required. Optionally, the operator could supply credentials such as training in the use of t hese chemicals and give a reason that

the chemicals will be better suited for the treatme nt 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 AssociationUnformatted 2012 CGP Comment Response Essays February 16, 2012

424 Issue Category: 2.1.4.5Q From an environmental perspective, the use of chemi cals such as flocculants and polymers poses a risk to the environment and human health if used improperly. If chemicals are to be u sed for enhanced sediment removal, then an addition al permit and residual testing should be required. Optionally, the operator could suppl y credentials such as training in the use of these chemicals and give a reason that

the chemicals will be better suited for the treatme nt of the wastewater to warrant their use.

Response Refer to Response 2.22.



# 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 Specifi c Stormwoter Controls, Chemical Treatment, begins, "If you are using polymers, flocculants, or other treatment chemicals (e.g., ch itoson, polyacrylamide (PAM)) to enhance sediment r emoval, you must..." It is appropriate to include the classes of chemistries t hat are proven methods for enhancing sediment remov al. It is inappropriate , however, to specificlly mention any potential treatment chemistry in detail. Specif ying a particular chemistry like chitosan could be read as EPA's

endorsement of that chemistry,and give it an unwarranted and unfair com petitive 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 sedimen t containing polyacrylamide, chitosa n, 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-feet requirement seems excessive, and is not tied to a specific mark - bank, high water mark, stream midpoint, etc. Mor e clarity is n ecessary 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 PRACTICESUnformatted 2012 CGP Comment Response Essays February 16, 2012

425 

# 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 ba re soil areas is prohibited.

Response Refer to Response 2.23.



# 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 a reas where natural vegetation can remove sediment. If the discharge oc curs within the construction area, it should be acc eptable to discharge to an upland

area and allow the water to infiltrate without havi ng 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 com ment is in reference to the sentence "Uncontaminate d, non-turbid dewatering wastewater, such as well point groundwater, can be discharged without being routed to a control..." Cons ideration needs to be g iven to the situation of produced water from coal bed metha ne. In some instances, the surrounding soil may hav e a relatively high salt conte nt. Often produced water from coal bed methane wells is so clean that when it is discharged onto the groun d, it leaches salt from t he soil and

increases the salt content in the water. This could pose a problem in the Colorado River Basin, where salt contents are already 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 disc harging groundwater orUnformatted 2012 CGP Comment Response Essays February 16, 2012

426 accumulated stormwater that is removed from excavat ions, trenches, foundat ions, vaults, or other points of accumulation assoc iated with a construction activity, unless such waters are fir st treated by an appropriate control for sediment.

Comment: The term "treated" may imply requirements beyond traditional structural sediment controls suc h as those included in a

Stormwater Pollution Prevention Plan.

Discussion: Many control measures may not fit the d efinition of "treatment.". Deleting the word "treat ed" reduces confusion r egarding types of control measures that are acceptable.

Recommendation: Recommend changing first sentence t o "You are prohibited from discharging groundwater or accumulated stormwater...unless appropriate controls for sediment are applied."

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 t o be. It seems prudent to say that discharges need to comply with State Water Qualit y 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 Re medial General Permit (RGP). Let the RGP permit sta nd on its own and do not mix t he

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 r egulate the discharge and not attempt to control th e 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 in forming permittees that separate permits and/or monitoring conditions may be require d to cover "dewatered" discharges to "waters" based on TMDL limits or designatedUnformatted 2012 CGP Comment Response Essays February 16, 2012

427 drinking water intake stream reaches, such as Aquif er Protection Permits or Department of Water Resour ces notification.

Response Refer to 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 sho uld clarify that an appropriate sediment control fo r groundwater removal from

shallow linear excavations is the traditional "sedi ment sock" method of covering the ends of discharge hoses to filter out sediment. Also, uncontaminated, non-turbid dewatering wastewater sh ould be clarified to include all groundwater, not j ust "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 reaches, such as Aquifer Protection Permits or Department of Water R esources 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 whene ver runoff events occur. If "prevent" means total removal of sediment from runo ff waters, then this is an unrealistic criterion th at nobody can meet! How ever, it is feasible to "minimize" the discharge of sediment.Unformatted 2012 CGP Comment Response Essays February 16, 2012

428 Response: EPA agrees with the commenter that the objective of typical stabilization measures is to minimize eros ion. The final permit does not depart from this goal. EPA’s decision to not final ize the proposed C-factor approach and associated s tabilization criteria likely

addresses the commenter’s concerns.



# Comment ID 0056-A2.001.008

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division o f Ecological Restoration (DER) Issue Category: 2.2 Restoration projects often rely on natural processe s to perform the final stabilization. A specific ex ample is a dam removal to restore a free flowing stream where there is an impoundment. A created channel accompanied by planting throughou t the former impoundment area can actually be count erproductive. The river may not naturally follow a designed and excavated river channel despite best e fforts to intuit the preferred river channel. The newly resto red freeflowing river will eventually find its own path through the former impoundment and this self-selected course will be t he most sustainable one. Aggressively stabilizing a restoration site may delay the river's ability to create its preferred and more st able channel. DER requests that EPA provide more fl exibility in the permit to allow for a natural-processes approach for pro-active restorati on 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 th is Part is unclear. Restructuring this section migh t be beneficial. For example, breaking the sections down into Requirements for ea ch type of Stabilization, Deadlines for establishin g 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 Organization: New Mexico Department of Transportation, District 3 , et al. Issue Category: 2.2 3. Minimize the amount of soil exposed during cons truction - Phasing is always a good idea.

Response:Unformatted 2012 CGP Comment Response Essays February 16, 2012

429 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 n ot identical to the definitions for these terms in Appendix A. The Appendix should include the "for the purpose of this permit" defini tions.

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.



# 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 req uirements that are detailed in Part 2.2. The stabilization requirements 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 langua ge in the final ELG. Overall, EPA has removed the language from the ELG that allows for s tabilization initiation ‘as soon as practicable’ and instead relies on prescriptive dea dlines. This is very problematic, as many times

it is unclear whether there will be further disturb ance of the area within a specified timeframe due to perfectly legitimate and reasonable continge ncies (i.e., weather, scheduling, etc.). EPA’s mandate on the stabilization requirements is unreas onable, arbitrary, and capricious. EPA must provide flexibility in the stabilization requiremen t 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 sed iment runoff both during construction and post cons truction is to limit th e amount of ground that is disturbed during the construction ac tivity. Because New Mexico is so dry and it is diff icult for vegetation to get established, it important to maintain the natural a nd preferably native vegetation that already exists . Too often homebuilders and developers will blade an entire 3, 5, or 10 acre pl ot of land to put in one small house or trailer in a misguided belief that they should get

rid of the "brush" around the home. This brush is o ften native vegetation like sagebrush or rabbit bus h that provides critical erosionUnformatted 2012 CGP Comment Response Essays February 16, 2012

430 control functions. In addition, once the native veg etation is removed noxious weeds almost al ways take over. Amigos Bravos would like to see incentives for disturbing less area incorpor ated into the permit. Perhaps if a permittee can sh ow that a minimum footprint was

disturbed a more lenient stabilization deadline cou ld be given. Regardless, there should be multiple i ncentives for disturbing less area built into the structure of the permit. The lack of adequate incentives for minimizing the constructio n footprint is the bigg est 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 Services Issue Category: 2.2.1 2.2.1 Add additional requirements for stabilization of stockpiles. We suggest "stabilize all stockpile s within 7 days of cessation of materials adds to the pile."

Response: EPA appreciates the comment. The final permit adop ts erosion and sediment control requirements for st ockpiles. See Part 2.1.2.4. Although the permit does not specify stabilization requirements for such stockpiles, the operator is s ubject to controls that the Agency believes are similarly effective.



# Comment ID 0046-A1.001.012

Author Name: Hemmerlein Mark Organization: New Hampshire Department of Transportation (NHDOT) Issue Category: 2.2.1 The Department supports this condition

Response: EPA notes the commenter’s support for this requirem ent.



# 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 stabilizat ion, depending on other practices implemented at a construction site. See e.g.,Unformatted 2012 CGP Comment Response Essays February 16, 2012

431 Sections 2.1.2.2.b (stabilization for sites with bu ffers less than 50 feet in which disturbance occurs ), 2.1.4.1.b (stabilization for stormwater conveyance channels), 2.1.4.2.c.ii (stab ilization 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 deadlin es 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 condition s that operators will encounter. Specific stabiliza tion practices and timeframes vary widely around the country depending on geography, c limate, and terrain. EPA needs to revise its stabil ization deadlines to reflect this variation, and to provide relief to operators whose particular site conditions make stabilization with in a narrowly prescribed period impracticable. We support EPA's proposal to do so f or projects in arid and semi-arid areas (Section 2. 2.1.4), but we ur ge EPA to extend this relief to other areas, as well. Specifically, we urge EPA to replace the proposed stabilization d eadlines with a "as soo n as practicable" standard or, alternatively, to provide longer time periods for completing initial stabilization for si tes that meet a certain acreage and/or

linear threshold.

Response: Refer to Essay Responses 2.28.1, 2.28.3, and 2.28.4

.



# 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 perma nently ceased and are not anticipated to resume in the future than for sites where earth-disturbing activities have temporarily ceased but in some instances may

resume. Immediate stabilization of an area where co nstruction activities have been temporarily ceased but are expected to res ume within a short period of time, could result in a redisturb ance of a recently stabilized site and is considere d unnecessary in instances where additional BMPs are installed providing protection. Stabilization should be encouraged to occur quickl y, but immediately seems impractical.

Additionally, there needs to be clarification on th e language that "within in any area of your constru ction site" will trigger these stabilization requirements. If you have final grade s on a small area of your site but you are schedule d to finish another area two days later, is this requirement stating you must immedia tely stabilize the smaller a rea and can't wait two days to stabilize both when there are

additional sediment BMPs and the area has been surf ace roughened to reduce the potential of erosion?

We recommend stating that stabilization practices w ill be initiated as soon as feasible at s ites where earthdisturbing activities have been either temporarily or permanently ceased.

Response: Refer to Essay Response 2.28.4.Unformatted 2012 CGP Comment Response Essays February 16, 2012

432 

# 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 te mporarily ceased (and will not resume for a period exceeding 14 calendar days) if 1) soil conditions d ue to an earlier storm event are too wet for stabil ization 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 stabil ization activities should be initiated as soon as p racticable.

Response: Refer to Essay Responses 2.28.2 and 2.28.4.



# 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 p ossible, but "immediately" is not always practical or feasible. Weather and site conditions quite often can impede "immediate" stabi lization measures and in some instances can cause m ore damage (i.e. if th e ground is frozen, or too wet for equipment to access). That i s why additional BMPs should be used such as surfac e roughening or perimeter

control.

Xcel Energy recommends stating that stabilization p ractices will be implemented as soon as possible/fe asible 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-A1.001.025Unformatted 2012 CGP Comment Response Essays February 16, 2012

433 Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.2.1.1 Brevard County Comment: Which "final" grade? Subbas e, 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) Issue Category: 2.2.1.1 In several parts of the Draft pertaining to the sta bilization requirement, EPA states: "You must immed iately initiate stabilization ... ." This language appears in every stabilization scenar io 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 te chnical compliance with such a standard is often no t 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 del ay 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 initiate 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 mor e importantly, often technically impossible to comply with this standard. Any EPA inspector or any environmental watchdog group could claim that a ny stabilization was not started “immediately,” and this generally cannot be disprov ed because technically, even a minor delay is not “immediate.” A Site Operator/Owner may not be a ware that land disturbance is complete for the next fourteen days (or shorter for some spe cialized situations) until someone verifies that the grading is correct. For example, stabilization is often performed by a different work crew, which would need to be summoned after grading was c omplete, and may not commence work until the following day. Also, separate surveying c rews 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 immediate action.

Instead, the stabilization requirements should give a time frame within which theUnformatted 2012 CGP Comment Response Essays February 16, 2012

434 stabilization must be completed. For example, Part 2.2.1.2 states that even general stabilization must be complete within seven calendar days, and sp ecial situations have shorter time limits for completion of stabilization. With these deadlines f or completion, it is clear that an operator cannot delay the initiation of stabilization for ve ry long, even if that were the intent. NAHB suggests the language should read, “Stabilization s hould be initiated as soon as is practical after grading or disturbing activities have permanently c eased, or have temporarily ceased and it is verified that they will not resume within the next 14 days.” This, coupled with the requirements for stabilization to be complete, is a standard tha t 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 initia ting and completing stabilization on construction s ites that will not resume 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 such activities will resume in the future. The City beli eves the 7- day suggested timeframe is not practical in the lea st. Fort Wayne experiences several days of rain, especially in the spring. The re are often instances where there are only limited non- rain days within a month's time.

USEPA should take this into consideration and deter mine 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 immedi ate stabilization of "any area of your construction site" when earth disturbing activity is temporarily or permanently ceased. Eart h disturbing activity is defined as clearing, gradi ng, and excavation.

This is written such that work areas including fron t yards, back yards, side yards, drives and sidewal ks, or streets, etc. that have been graded and are used for access to the active constr uction areas will need to be stabilized during acti ve construction. This presents an impossible situation. It is suggested that working areas surrounding active construction activity are to be stabilized in accordance 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

435 

# 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 c lause, but also introduces a 7 day clause for certain conditions. T he EGL stated 14 days, so suggest staying consistent with that requirement . The 7 day stabilization requirement may become a scheduling nightmare es pecially if the 7 days have exceeded, but . work is to be do ne on day 10 because of weather, or working days (w eekend).

2. The 7-day timeframe is probably not achievable f or DOT projects. In some cases, weather may create a situation where work is ceased for 7 days invoking this requirement. A 14 day dead line is more reasonable.

Response: Refer to Essay Response 2.33.1 and 2.33.2.



# 2.2.1.2 DEADLINE TO COMPLETE STABILIZATION ACTIVITI ES

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 i s not feasible? It may not be feasible to stabilize large areas in 7 days. On some project s the construction activities associated with stabili zation 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 calenda r days of initiating stabilization on exposed porti ons of your site you are required to have completed vegetative cover or non

‐ vegetative cover. It is not feasible to complete st abilization activities within 7 days in most cases. This is a labor intensive scope of work that can often times take weeks or even months dependin g on the project's size. If it is the EPA's intent to categorize a site into smaller port ions for this requirement than further verbiage nee ds to be incorporated stating such. Often times, large areas are final graded and becom e ready for stabilization all at once and it is not p ossible to complete these activities in 7 days.

Response:Unformatted 2012 CGP Comment Response Essays February 16, 2012

436 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 Stabilizati on. Consider including language: "Where stabilizati on by the 7th day is precluded by snow cover or frozen ground conditions, stabilization measures shall be initia ted as soon as practicable."

Response: Refer to Essay Response 2.33.3.



# 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 provide d on the temporary and permanent stabilization timi ng to clarify if a site needs to be stabilized within 7 (Time to begin stabilization), 10 (+3 days to compete stabilization) or 14 days (c alendar / 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 contra ctors to complete final stabilization seven (7) day s after initiating stabilization onUnformatted 2012 CGP Comment Response Essays February 16, 2012

437 exposed portions of the job site (and three (3) day s after initiating stabilization practices on slope s in excess of 15% and for projects impacting sensitive areas or discharging to impaire d waters). First, the industry standard for constru ction scheduling, particularly on large projects, is to 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 operat or in violation of the CGP if he completes work ahe ad of schedule because the stabilization deadline may elapse prior to the next schedule update or because the contractor ma y not have enough response time fulfill the permit requirements. Similarly, if construction on an area is completed in the middle of the week, the stabilization deadline may expire over a weekend. Secondly, it is common for o perators to use subcontractors for stabilization. S tormwater contractors tend to be small business. The seven-day requirement would not provide enough time for a subcontractor to mobiliz e and complete the stabilization. This would force operators to elimin ate the use of these subcontractors in favor of sel f- performing this work which would place a disproportionally negatively impact on smal l and disadvantaged business. Third, when sod is re quired, at times there are limits on the receipt of sod (the fields are wet, transportat ion challenges, etc). These items are not in the co ntrol of the contractor. Fourth, the language in the Draft is far more prescriptive than the language in the final C&D ELG. Overall, EPA ha s removed the language from the

C&D ELG that allows for stabilization initiation ‘a s soon as practicable' and instead relies on prescr iptive deadlines.

AGC recommends that EPA consider an approach that w ould require contractors to start stabilization pra ctices when construction is substantially complete and then make weekly prog ress until completion of the stabilization practice s. EPA should also include language recognizing weather conditions like snow cover or f rozen ground that would preclude stabilization prac tices from taking 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 Stabi lization. Similar to our comments on Part 2.1.1.2 c ., linear utility projects cannot always comply with the timeframes for achieving com pliance with the current language. Specifically in sensitive areas, because of construction phasing associated with larger utility projects, activities along portions of the line ma y not be active for a period that may exceed 7 days (2.2.1.3). These areas continue to be monitored and maintained in accordance with the SW PPP, and temporary stabilization measures are typically employed (incl uding straw mulch and the installation of check dam s and diversion swales). 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 s equencing (e.g. foundation drilling, followed by po le installation, followed by wire pulling) this requir ement is not feasible.

Response: Refer to Essay Response 2.35.



# Comment ID 0158-A1.001.010Unformatted 2012 CGP Comment Response Essays February 16, 2012

438 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 day s 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 reason able alternative could be "as soon as practicable, but no later than 30 days after the cessation of construction activity in that area unl ess weather conditions (seasonal wet periods) make it impractical to initialize stabilization." EPA also should define "working day s" and clarify the definition of "immediately" in r eference to how soon one must

stabilize an area. Id.

Response: Refer to Essay Responses 2.27 and 2.35.



# 2.2.1.2Q PRACTICABILITY OF THE STABILIZATION TIMEFR AMES

Comment ID 0015-A2.001.008

Author Name: Cox Kim Organization: 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 initiating

stabilization in the event 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 du e to an earlier storm event are too wet for stabili zati on activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) th e 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 p racticable.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.Unformatted 2012 CGP Comment Response Essays February 16, 2012

439 

# 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.



# Comment ID 0060-A1.001.009

Author Name: Gasper David Organization: NYS Department of Environmental Conservation Issue Category: 2.2.1.2Q

9. Section 2.2.1.2 - This section requires the owner to complete stabili zation activities within 7 calendar days of initiat ing stabilization on exposed portions of the site, with no exceptions. W hile the 7 days may be sufficient on some sites, it may not be practical for every construction site. The time frame to complete stabi lization can vary based on site conditions (i.e. si ze of the disturbance to be stab ilized, final topography/steep slope areas, etc.) and by th e weather conditions (i.e. several days of rain tha t prevents the construc tion 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 ti me 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 i n 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 s tabilization procedures after permanently ceasing e arth-disturbing activities, or when activities cease for more than 14 calendar days or for more than 7 days under certain circumstanc es. Stabilization must be completed inUnformatted 2012 CGP Comment Response Essays February 16, 2012

440 7 days.

These timelines should be revised to allow addition al flexibility for unique or unusual circumstances, which can reasonably b e expected to occur. For example, it may not be possible to me et either the 14- or 7-day timeline if there are no workers available to complete the task because a union has gone on strike. Additional ly, it may not be possible to initiate stabilizatio n activities within 7 d ays on sensitive areas where BMPs need to be significantly re-design ed or modified, which would require engineers to re assess the circumstances and re-design or modify the BMPs. The CGP should not re quire less than a 14-day period for stabilization i nitiation or completion, which will ensure projects have a reasonable ability to c omply.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# 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 seedi ng operations, often in remote areas of the state. For this reason, we are concerned that 7 days to co mplete 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 oper ators to complete stabilization activities within 1 4 days for all areas, 7 days for sensitive areas, steep slopes and stormw ater conveyances, and for buffer areas within 3 day s. For linear projects where the construction sequence is always in flux due to weather, soil con dition, unexpected rock, and a host of other factor s, a 3- day stabilization requirement would be overly burdensome and often completely imp ractical. Consideration of specifying more stringen t requirements for certain potentially sensitive areas is more appropriate for the SWPPP design level where site conditions can b e directly assessed and not arbitrarily required by a "one size fits all" permi t requirement. The language of this section should be modified to recommend the

reduced stabilization times for sensitive and buffe r areas, but allow flexibility of this period to be based on consideration of site and project conditions that would be addressed in the S WPPP.

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 ac tivities. 7 days to initiate stabilization is too r estrictive in certain c ircumstances. Most specifically, when projects are very large, remote (limits availability of contractors and supplies), and/or whe n terrain or soil conditionsUnformatted 2012 CGP Comment Response Essays February 16, 2012

441 are difficult. In these instances completing stabil ization within 7 days is not be feasible. Allowing the engineer to determine and

document extensions in the SWPPP is a reasonable al ternative 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: 2.2.1.2Q •Part 2.2.1.2 Deadline to complete stabilization ac tivities. CDOT is supportive of timelines, but not as requirements, as many site specific conditions could impact this deadline. For example, breakdown of equipment in a mountain area where replacing the e quipment may take a few days. See Comments on Proposed Requi rements 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 un usual conditions or scenarios by documenting the reason and a new deadl ine 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 i nclement weather should occur either before or during the 7-day window, which wou ld 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 allowa nce is because of the potential to create more erosive conditions fro m rutting or other equipment damage if the s tabilization practices were applied during

wet site conditions.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 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 circu mstances.

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 TransportationUnformatted 2012 CGP Comment Response Essays February 16, 2012

442 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 model ing. The contractor would be missing critical input data on particle size analys is on a 10 mile long linear project.

Response: Refer to Essay Response 2.46.



# 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 o f temporary stoppage of earthwork activities or per manent completion inste ad 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. m ay be a bit difficult to complete. WYDOT has specific windows for seeding, (spring pla nting - frost free ground until June 15) (fall plan ting - September 1 until frost in ground). Construction completed outside these windo ws 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 probl ematic particularly in the arid west where there are months at a time when precipitation is unlikely to occur. Without rain stab ilizing these disturbed areas in 7 days (or 14 days) simply does not make sense nor is it attainab le through vegetative means.

The 7-day deadline would also add considerable cost to the overall C&D project. On construction projec ts where the contractor commences soil disturbing activities at several dif ferent locations within the site, additional time i s needed to provide adequate temporary stabilization. Special consideration must be given to earth disturbing activities in the ari d west where the task of completing stabilization is labor intensive and often requires weeks or months to occur depending on project size , complexity, and the amount of natural precipitation.

On linear transportation projects, to stabilize con structed stormwater channels in 7 days the contract or needs to stabilize the roadside ditches while still working on the roadway, shoulde r, pipe installation, or other activity adjacent to ditches. This requirem ent is infeasibleUnformatted 2012 CGP Comment Response Essays February 16, 2012

443 during construction since other work may be perform ed in the same area.

Additionally, if final stabilization (seeding) will be implemented at the end of a project; why requir e in the CGP that addit ional steps be

taken to stabilize channels earlier at a time when construction is still in progress and BMPs are in p lace to mitiga te the runoff from these

same disturbed areas?

Finally, in arid areas, if the site is being stabil ized using a 70 percent vegetative cover criteria, erosion control measure s (e.g., degradable rolled erosion-control products) must be selected a nd installe d with an appropriate seed base to provide erosion control for at least three years while awaiting cover. In arid areas, final st abilization is anticipated to take the entire three year period, and may s till not result in a 70% vegetative cover. This scenario provides furthe r evidence that the one size fits all approach to s tormwater regulation including establishing prescriptive stabilization deadlines d o not apply very well in Albuquerque and the arid w est.

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 Category: 2.2.1.2Q The timeframes for installing stabilization appear reasonable. EPA should consider how it plans to ass ess compliance with these time frames. Frequent inspections would be one way to as sess 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, In c. Issue Category: 2.2.1.2Q The proposed deadline for initi alizing stabilizati on is unrealistic. Three working days for sens itiv e areas and seven calendar days for non-sensitive areas are too short for completion an d do not take into consideration rain versus dry se ason c limatic conditions. See Section 2.1.2.2.b.; 2. 1.4.2. ii; 4.2.2.2.b. A reas onable alternative could be "as soon as practicable , but no later than 30 days after the cessation of construction activity in that area unl ess weather conditions (rainy season) make it impra ctical to initialize stabilization." EPA 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: 2.2.1.2QUnformatted 2012 CGP Comment Response Essays February 16, 2012

444 Among the unrealistic requirements are:

-- the proposed deadline for completing initializat ion of stabilization of three working days for sens itive areas and seven cale ndar days

for non-sensitive areas we conSider too short for c ompletion. They also don't take into consideration wet versus dry periods. A reasonable alternative could be "as soon as practic able, but no later than 30 days after the cessation of construction activi ty in that area unless weather conditions make it impractical to in itialize stabilization. Additionally, if it is too lat e in the season, the grass may not have a chance to become fully established until the foll owing spring. Therefore, time frames longer 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 permi ts already may require site stabilization within a certain number of days. EPA should take note that those stabilization requireme nts may be as short as a 7-day period or more than a year; for example, vegetative stabilization in the desert-southwest could take a lmost 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 an d 4.2.2.2.b: These deadlines may not be practical d uring cold weather when ground is snow covered, frozen or temperatures are below free zing. In some cases, overnight frost, it ma y not be appropriate to seed the site. The type of day should always be identified clearly to avoid confusion. The terms 14 calendar days, 14 or more days, 7 or more da ys, 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 o n large sitesUnformatted 2012 CGP Comment Response Essays February 16, 2012

445 Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# 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, withi n 7 calendar days of initiating stabilization on exposed areas of the construction site, certain aspects of stabilization have to be c ompleted. These aspects include: (1) For vegetative cover: soil conditioning, seeding, w atering, mulching, and other all other activities r elated to planting and establishment of vegetation; and (2) for non-vegetative cover: th e installation or application of all non-vegetative measures.

TCEQ believes that this timeframe is too restrictiv e and requests that the EPA maintain the timeframe as in the current CGP. The current

time frame is to initiate stabilization measures as soon as practicable, but in no case more than 14 d ay s after the construction activity has ceased. This timeframe corresponds to the TPDES CGP TXR150000. TCEQ believes there will be too many in stances 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 stabilization of disturbed areas be initia ted immediately whenever construction activities ha ve temporarily ceased on any portion of the site and will not resume for more th an 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 requireme nt to complete stabilization activities (after init iation) on exposed portions of the site presents an unreasonable burden to the permitt ee. For example, weather may pre vent the safe operation of equipment that is requir ed to complete stabilization efforts after initial sta bilization measures have occurred. Dow suggests tha t alternant verbiage be considered: "Complete stabilization activities as soon as pract icable. If stabilization can not be completed in a timely manner, then 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 stab ilization requirements.Unformatted 2012 CGP Comment Response Essays February 16, 2012

446 Response: EPA disagrees with the commenter. EPA has tried to minimize exceptions to the stabilization requireme nts, but the Agency believes there are legitimate reasons to inc lude flexibility in the stabilization requirements to account for unforeseen

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 o f installation of stabilization BMP's or scheduling with 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 req uests comment on specific

instances when the 7

‐ day deadline to complete certain aspects of stabili zation may not be practicable or where exceptions s hould be provided.

Concern

Compliance could be difficult to achieve and potent ially damaging to the site. There are no exceptions for weather delays, wet site conditions, frozen ground, arid conditions, other c onstruction delays, etc.

Suggested Correction

Add acceptable allowances/ exceptions for delays, e spe cially when completing the certain aspects of stabi lization that could cause more

harm than corrective actions.

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34.



# Comment ID 0131-A1.001.009Unformatted 2012 CGP Comment Response Essays February 16, 2012

447 Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 2.2.1.2Q The 7-calendar day deadline to complete stabilizati on is not practical considering there will be varia bility in the size and nature of the areas of disturbance and the availability of suffic ient labor, equipment and materials to complete the task. Addit ionally, by establishing a 7 calendar day requirement EPA is suggesting that certain projects will need to be staffed on Saturd ay and Sunday in order to meet the deadline for stabilization. This will require the o perator 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 m ore economical to mobilize and work on a larger area that it is to mobilize severa l times to work on smaller areas. If the operator i s 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 i f the operator is required to work on Saturday and Sundays. It would also likely extend the period of unstabilized porti ons 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-vege tative cover on areas that will not have further ea rth- disturbing activity to be of the utmost importance. We urge EPA to adopt the deadlin es 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, pa ge 21): Performing site stabilization within 7 days of terminating earth-moving activities is not always practicable. Twenty (20) w orking days (28-calendar days) or "as soon as pract icable", whichever is longer, is more realistic, and reasonable - particularly for l arge, or complex sites. Considerations for stabiliz ation in arid and semi-arid areas are supported. It may be reasonable to also incorporate language to allow additional time for site stabili zation in areas where there is a federal declaration of drought (by the United State s Department of Agriculture, or National Weather Se rvice), or documentation of a related declared state of emergency. Many areas in the south and west, such as Dallas, are curr ently experiencing a regional drought with multiple 90-plus degree days, making initial germin ation 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 CooperativesUnformatted 2012 CGP Comment Response Essays February 16, 2012

448 Issue Category: 2.2.1.2Q The proposed deadline for completing initialization of stabilization is unrealistic. Three working day s for sensitive areas and seven calendar days for non-sensitive areas are too short for completion and do not consider limitations dur ing 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 mist aken 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 thi s condition; however, we are concerned about the la ck of specificity of when stabilization should be initiated. Some may say tha t it may not be practicable until the end of the pr oject to begin stabilization. In the Arizona CGP, stabilization is to be initiated withi n 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 areas, on steep slopes, or on sites that discharge to a sediment or nutrient impaired water where earth

‐ disturbing activities have perman ently ceased or temporarily ceased (and will not resume for a perio d exceeding 7 calendar days) if 1) soil conditions due to an earlier storm event are too wet for stabilization activities (e.g. preparing th e 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 stabil ization activities shou ld be initiated as soon as practicable.Unformatted 2012 CGP Comment Response Essays February 16, 2012

449 Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, 2.35 a nd 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 wi thin buffer areas, on steep slopes, or on sites that discharge to a sediment or nutrient impa ired water within 3 workdays of initiating stabiliz ation 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 du e to an earlier

storm event are too wet for stabilization activitie s, (e.g. preparing the soil for planting, seeding a nd mulching, etc.), or 3) the soil was frozen during this period precluding any further ac tivities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as soon as practicab le in these sensitive areas.

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, 2.35 a nd 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 c omments upon whether stabilizatio n deadlines noted previously for buffers and on steep slopes should generally prevail in these situation s as well. As noted above, we

believe that the maximum amount of time within whic h stabilization on any;regular construction site sh ould begin to occur is seven da ys, and that in the special geo-physical situations des cribed in this section (as previously), an even sho rter timeframe for beginning stabilization-- 72 hours after earth-moving disturb ance has stopped temporarily or permanently -- shou ld prevail.

Response: EPA appreciates the comment. EPA has tried to bala nce the need to stabilize exposed portions of const ruction sites as soon as possible with the need to recognize the pra ctical challenges that operators face in meeting de finitive 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: 2.2.1.3 13. Page 21; 2.2.1.3 Stabilization criteria and dea dlines for discharges/disturbances to sensitive are as.

Consider language discussed in comment number 2, ab ove. [See Comment Id 0053-A2.001.002]

Response: See related response.Unformatted 2012 CGP Comment Response Essays February 16, 2012

450 

# 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 guideline s. We do not see the need to require additional sta bilization requirements if effluent limitations warrant more stringent sediment control s.

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 subjec t to regulatory interpretation and should not be in cluded.

Response: Refer to Essay Response 2.36.



# Comment ID 0056-A2.001.009

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division o f Ecological Restoration (DER) Issue Category: 2.2.1.3 As above, the criteria for stabilization for sensit ive areas may be overly rigid for a restoration act ivity which, by definition, is likely

within or associated with a sensitive area. Returni ng a wetland or waterway to a functioning system with na tive species is an important milestone in restoration. In some restoration proje cts revegetation and stabilization may need to be a n iterative process to achieve long term ecological diversity and sustainability. Rushi ng to meet time constraints has the potential to in terfere with restoration goals. For example, during salt marsh restoration it may be ne cessary to track tidal inundation over a full month 's neap to spring cycle to determine if the micro- top ography of the marsh surface is correct. Unintentio nal depressions or mounds could result in invasive species intrusion onto the site. Small elevation changes in a New Eng land marsh surface can allow Phragmites australis t o establish quickly, which out competes native salt marsh grasses. As these exampl es illustrate, stabilization requirements may not b e 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.



# 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 (with in 50 feet of US jurisdictional waters,Unformatted 2012 CGP Comment Response Essays February 16, 2012

451 certain impaired waters and slopes of at least 15 p ercent) stabilization must commence in 3 days, cons istent with Parts 2.1.2.1.i.4, 2.1.4.2c, and 4.2.2.2. As identified above, there s hould be flexibility with the schedul e to allow time to achieve stabilization and not th e 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 stabilizatio n on a 3% slope is too restrictive. These

are often the most difficult to stabilize as instal lation is more difficult and slopes are more dangerous. Restricting the deadline may of ten result in poor installation of the product. CDOT of ten works in mountain areas where slopes are very s teep, even up to 90%. S tabilization in these scenarios is time consuming and difficult. Allowing ex tensions to be documented in the SWPPP may be a rea sonable 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 schedu les for buffers, slopes and the balance of the site . Target recommends that the

stabilization criteria be consistent across all are as of the permitted site for consistency and ease o f implementation, while not lessening environmental provisions.

Response: Refer to Essay Responses 2.35 and 2.36.



# 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 deadline s for discharges/disturbances to sensitive areas, E PA established deadlines for

stabilization of sites located in sensitive areas. EPA suggests that stabilization should be initiated immediately if work is ceased for mor e than 7 days.

Once again, TCEQ believes that this timeframe is to o restrictive and might not be practicable to meet. TCEQ recommends clarif ying that stabilization must be initiated immediately if cons truction is not planned for the next seven days or ha s not occurred within the previous seven days.Unformatted 2012 CGP Comment Response Essays February 16, 2012

452 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 p ermit.



# 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 stabilizati on deadlines specified in Part 2.1.2.1.i.4......... There is no such part in the propo sed permit. Perhaps the reference was meant to be t o Part 2.1.2.2.b?

Response: EPA appreciates the comment, and notes that it has corrected typographical errors found in the draft p ermit.



# Comment ID 0133-A2.001.020

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 2.2.1.3 MDT does not believe it is reasonable to require mo re stringent stabilization timelines for sensitive 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 period exceeding 14 calen dar days. A more stringent timeframe was not found to be economically achievable; as such the proposed technology based limit is unsu pported. In addition, disturbance in these sensitiv e areas already requires implementation of additional controls. More stringe nt 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 Prope rties (MAIOP) Issue Category: 2.2.1.3 This section requires accelerated stabilization whe n impairment or certain conditions such as 15% stee p slopes are present. P rojects may stop work for more than 7 days due to bad weather. This permit would require stabilization in those ca ses. The three day stabilizationUnformatted 2012 CGP Comment Response Essays February 16, 2012

453 requirement is not feasible. Even larger companies stabilize at a rate of about 5 acres per day when w e are usually working on 20 acre grading units. The language contains no provisions for weather or difficulties with contractor schedul ing or default. We also see no technical justification or sufficient nexus between accelerated stabilization of sediment and the pres ence of excess nitrogen or phosphorous in the adjacent water body. EPA should consider that accelerated stabilization often re quires the use of nutrient fertilizers that will increase the discharge 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 whe n impairment or certain conditions such as 15% stee p slopes are present. P rojects may stop work for more than 7 days due to bad weather. This permit would require stabilization in those ca ses. The three day stabilization requirement is not feasible. Even larger companies stabilize at a rate of about 5 acres per day when w e are usually working on 20 acre grading units. The language contains no provisions for weather or difficulties with contractor schedul ing or default. We also see no technical justification or sufficient nexus between accelerated stabilization of sediment and the pres ence of excess nitrogen or phosphorous in the adjacent water body. EPA should consider that accelerat ed 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.



# 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 propos ed permit for initiating

stabilization in arid/semi

‐ arid areas, i. e., "...,you must initiate stabilization as soon as practicable following the temporary or per manent 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 initiat e stabilization as soon as practicableUnformatted 2012 CGP Comment Response Essays February 16, 2012

454 following the temporary or permanent cessation of construction activities, in lieu of me eting the deadlines in Parts 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 fin al 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-ari d 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: 2.2.1.4 Section 2.2.1.4 provides stabilization criteria for arid/semi-arid areas. CCWC supports requiring stab ilization "as soon as practicable" after ceasing construction. A more specific deadlin e such as "no later than 28 days after the cessatio n of construction activities 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. T his 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 mee ting the deadlines in Parts 2.2.2.1 (Vegetative Sta bilization) & 2.2.2.2 (Non- Vegetative Stabilization). The only deadline in these sections deals specifically with arid/semi-arid areas. The wording implies that stabilization needs to be initiated but not completed. Was the in tent to refer to different Part(s) of the permit?

Response: Refer to Essay Response 2.39. Also, refer to requi rements in Part 2.2.2.b related to the deadlines fo r providing vegetative stabilization within 3 years.Unformatted 2012 CGP Comment Response Essays February 16, 2012

455 

# 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 i s a common practice in the arid regions to expect these species to germinate three years after seeding and to expect the plants to tak e three more years to develop into plants that will achieve a 70% re-vegetation standa rd.

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 compl eting stabilization of exposed areas

of the site in arid and semi-arid areas. Arid and s emi-arid areas present problems for stabilization because there are periods of the year where a veget ative cover cannot be readily established without irrigation, and irrigation is not always pr acticable. Of course, during these dry periods, there most often is very little rainfall. The follo wing is an excerpt from the current Nevada state CGP (Section 5.c.iii) that could serve as a guide f or stabilization in arid or semiarid areas:

In arid areas (areas with an average annual precipi tation of 0 to 10 inches), semiarid areas (areas with an average annual precipitation of 10 t o 20 inches), and areas experiencing droughts where the initiation of stabilization meas ures.... (original Nevada CGP says “by the 14th day, which is their standard stabilization time frame)...after construction activity has tempor arily or permanently ceased is precluded by seasonal arid conditions,

stabilization measures shall be initiated as soon a s 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 a rid or semi arid regions. Why are semi arid regions given this exemption? While vegetative cover may be diffi cult to establish in these areas (almost all of New Mexico falls into these twoUnformatted 2012 CGP Comment Response Essays February 16, 2012

456 categories), it is still critical to quickly stabil ize a site to stop discharges. Degradable erosion c ontrol products can be quickly installed (just as quickly as putting in soil and seeds in no n arid regions) and permittees in arid and semi arid regions should have to meet the same deadlines as other locations. Many construction act ivities occur during the summer months when New Mex ico has a regional mons oon period, which can deliver daily rain in the afterno on making stormwater controls and site stabilization critically important. No exempti on should be given and if one is a specific fallback d eadline should most certainly be set.

Response: Refer to Essay Response 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 const ruction activities, in lieu of meeting

the deadlines in Parts 2.2.2.1 and 2.2.2.2. There w ere no deadlines in 2.2.2.1 or 2.2.2.2. These two p arts describe how to achieve vegetative or nonvegetative stabilization. It appea rs the contents would leave ~ as soon as practicabl e- as the only description of when stabilization is required on projects in arid and s emi-arid areas. This is a very widely interpretable statement. Sornething more measureable would be appropriate for a stabilizatio n deadline. Clarification .and/or correction to thi s part is required

Response: EPA believes that it has provided more specificity with respect to the stabilization requirements in a rid and semi- arid areas. Refer to Essay Responses 2.37 and 2.38.



# Comment ID 0157-A2.001.002

Author Name: 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 cou ntry. Until recently, Nevada was in a decade-long drought and w ater conservation became a necessity. NDEP believes this re quirement 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 allow states to develop flexible stormwater programs that work for their particular region. When using a "one size fit s all" approach, EPA as sumes that climate, topography, soil conditions, population de nsities and other factors are consistent throughout the country. Obviously, that is not

true. EPA needs to have a serious discussion with t he states and listen to the different ways the stat es will be affected if EPA requires states to include some of these proposed measures o f this draft GCP in new state GCPs.

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44

.Unformatted 2012 CGP Comment Response Essays February 16, 2012

457 

# 2.2.1.4Q STABILIZATION IN SENSITIVE AND ARID/SEMI-A RID 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 slope s within 3 workdays of initiating stabilization in the event that 1) a storm event oc curred during the 3

‐ day deadline period which prevented stabilization a ctivities from taking place, 2) soil conditions due to an earlier storm event are too wet for stabilization activitie s, (e.g. preparin g the soil for planting, seeding and mulching, etc.), or 3) the soil was fro zen during this period precluding any further activ ities. If any of these events were to occur, EPA could require that stabilization activit ies 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: 2.2.1.4Q It is not appropriate to include a specific fall ba ck deadline for the initiation of stabilization act ivities (e.g., no later than 28 days after cessation of construction activities in an area) in addition to the proposed requirement to initiate s tabilization as soon as practicable following the temporary or permanent cessation of c onstruction activities for the following reason. Th e timing of the seeding is often

critical in the southwest. Sufficient moisture is r equired to establish the seedlings. If seeding is t o 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 s eed in the southwest is during the dormant season s o that the seeding is complet ed in the late fall or early winter so that the seed does not germinate till spring taking advantage of resi dual winter moisture. If there is a requirement to seed within a certain number of days after the cessation of construction activities whi ch results in the seeding being conducted at the wrong time in the fall, the seedli ngs may not survive the first killing frost. The op erator should have the option to delay the seeding so that the seed does not germinate unt il spring. It is recommended that no change is made to the proposed permit requirement, i.e., initiate stabilization as soon a s 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: 2.2.1.4QUnformatted 2012 CGP Comment Response Essays February 16, 2012

458 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 t he Endangered Species A ct (ESA) exist should be subject to the stabilization requir ements that apply to sensitive areas. The CGP shoul d not include stabilization requirements related to listed species or critical habitat, which are protected most effectively throu gh the ESA analysis and any conditions required to meet eligibility criteria fo r utilizing the C GP. Requirements for species and habitat are highly variable and unique to each species and location. Even a requirement th at stabilization be initiated "as soon as practicab le" may not be appropriate for any given species. For example, if there are endang ered nesting species with specific protective requi rements, requiring stabilization as soon as practicable after construction could result in d isturbing the area where the nest is located, and c ould conflict with 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, the refore, immediately initiating vegetation restoration is no t necessary. The CGP should not create the potentia l for inconsistencies between regulatory requirements by adding requirements that are duplicative of conditions otherwise covered by the permit.

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 fo r arid/semi-arid areas, as well as sensitive areas. The DEQ believes the proposed stabilization deadlines (see Parts 2.2.1.1 and 2.2. 1.2) were revised to reflect those special conditio ns (such as sensitive area, impaired streams or site slopes of 15% or greater), and it i s not necessary to create new criteria for special stabilization deadlines.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, an d 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 da ys instead of 3 work days.

Response: Refer to Essay Response 2.35.Unformatted 2012 CGP Comment Response Essays February 16, 2012

459 

# 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 recommen d "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, an d 2.44.



# Comment ID 0085-A2.001.010

Author Name: Charles 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. Ho wever, Rockville supports strict requirements to stabilize disturbed areas as quickl y as possible after construction ends. As a general comment, the portion of the CGP covering stabilization criteria for discharges/dist urbances to sensitive areas is confusing. Part 2.2. 1.3.b refers to req uirements contained in 2.1.2.1.i.4, but no part numbered 2.1.2.1.i.4 ap pears elsewhere in the document. Furthermore, Rockv ille questions whether enforcement officers and construction managers will be able to keep track of differing stabilization t ime frame s for different areas of a site. While the intent 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, In c. Issue Category: 2.2.1.4Q

The Section 2.2. 1.4 deadlines for arid and semi-ar id areas also should apply in sensitive areas. Alth ough EPA has acknowledged regional variation, its approach to conditions in t he arid west may not be adequate to protect permitt ees operating under arid conditions.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, an d 2.44.



# Comment ID 0091-A2.001.006

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.2.1.4QUnformatted 2012 CGP Comment Response Essays February 16, 2012

460 6. Fact Sheet Item 8. Part 2.2.14: Are the special stabilization deadlines applicable only to the area s identified or to all other disturbed areas on the site? The terminology "as soon as prac tical" should be adequate for the subject arid site s. In some cases, it might not be practical to seed an arid site within 28 days.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, an d 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 end angered species exist, AGC recommends that EPA instruct all permit holders to adhere to th e provisions of the Endangered Species Act (ESA), w hich is designed to ensure the protection of species and their critical habitats - rather than add an additional set of unnecessary an d potentially burdensome requirements.

24. Part 2.2.1.4. Stabilization Deadlines for Arid/ Semi-arid Areas and Sensitive Areas.

EPA has requested comment on the proposed deadlines for initiating and completing stabilization of exp osed areas of the site in arid and semi-arid areas. EPA also requested comment on trea ting as a sensitive area for stabilization purposes sites t hat will conduct construction

activities in critical habitat areas or areas where listed endangered species exist.

See response above concerning reducing stabilizatio n timeframes. Regarding arid/semi-arid areas, EPA s hould retain the language "as soon as practicable" due to the extended time requi red to establish vegetation and because the risk of discharge is low given the lack of precipitation in these areas. The requirement for s tabilization to be complete at the time of the noti ce of termination is sufficient.

For stabilization in arid or semi-arid areas, the f ollowing 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 (a reas with an average annual precipitation of 10 to 20 inches), and areas experiencing droughts w here the initiation of stabilization measures.... (or iginal Nevada CGP says "by the 14th day, which is their standard stabilization tim e frame)...after construction activity has temporaril y or permanently ceased is precluded by seasonal arid conditions, stabilizatio n measures shall be initiated as soon as practicabl e.

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 p ossibility of establishing separate requirements for permittees who conduct constructio n activities in critical habitat areas or areasUnformatted 2012 CGP Comment Response Essays February 16, 2012

461 where listed endangered species exist. Rather than adding unnecessary and potentially burdensome requi rements for construction projects conducted in critical habitat, EPA should instead instruct all permit holders to adhere to th e provisions of the Endangered Species Act (ESA), which is designed to ensure the protection o f species and their critical habitats. The ESA also imposes lengthy and extensive planning and con sultation requirements on federal agencies and applicants to ensure their activities meet its requirements, including those established to protect land designated as critical habitat. In sho rt, under the ESA, habitat modifications cannot

reduce the value of the critical habitat both in te rms of the survival and recovery of a listed species. Those that may potentially adversely modif y 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 Ha bitat” in a mandatory biological opinion; b) Develop an “Environmental Baseline” analysis whi ch provides information on the current condition of the targeted Critical Habitat area; c) Conduct an “Effects of the Action” analysis whic h characterizes the direct and

indirect effects of the action and those of interre lated and interdependent actions on the proposed or designated critical habitat; and d) Conduct a “Cumulative Effects” analysis to chara cterize the effects of future, nonfederal actions reasonably certain to occur in the action a rea.

Enforcing the current provisions through the ESA, w hile flawed and at times costly to the permitee, is more logical than adding a new set of provisions to a program that already contains extensive requirements. Importantly, adding additio nal provisions does not guarantee the preservation of a listed species; it can, however, make the regulated community resistant to working on projects in impacted areas regardless of agreements such as Habitat Conservation Plans (HCPs) and other collaborative processes inte nded 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-fede ral parties to conserve the ecosystems upon which listed species depend, ultimately contributin g to their recovery. Given these benefits, it would be a shame for EPA to embargo these opportuni ties.

While it is well understood that EPA’s CGP is tailo red for the states and territories for which it is the permitting authority, it is also se rves as the baseline for all other stormwater permits across the nation. It is important to note, however, that EPA’s CGP permit, which by design is intended to be operated by EPA delegated states, is by definition not a “federal permit or approval” (except for those 5 states where EPA a dministers the CWA 402 program) and thus does not “trigger” the ESA Sec. 7 process when a la ndowner is getting a CGP permit for activities within “unoccupied critical habitat.” A number of courts have found that where an agency lacks the requisite discretion to act, the a gency (likewise) simply does not possess the authority to implement measures that inure to the b enefit of the protected species.63 Simply because EPA has the decision-making authority to im plement the CGP does not empower theUnformatted 2012 CGP Comment Response Essays February 16, 2012

462 agency to act to protect endangered species or thei r critical habitat.

Response: Refer to Essay Response 2.40.



# Comment ID 0108-A2.001.003

Author Name: Paul Roger Organization: Bernalillo County Public Works, New Mexico Issue Category: 2.2.1.4Q With regard to implementing soil stabilization in a rid, 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 so il stabilization is unnecessarily delayed while the meaning of the term is debated. E stablishing a specific timeframe for soil stabiliza tion, in consultation with Cooperative Extension Service experts in arid regio ns, 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 ar ea and areas where listed endangered species exist as sensitive areas. Response: Refer to Essay Response 2.40.



# 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 an d 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-ari d areas also should apply to sensitive areas. Further, alth ough EPA has acknowledged regional variation, its approach to conditions in t he arid west may not be adequate to protect permitt ees operating under ari d conditions. For example, Section 5.1.3.2, which allows for redu ction in frequency of inspections in arid and semi- arid areas, appears to contradict the Section 4.2.2.3 requirement of daily inspection s of BMPs.Unformatted 2012 CGP Comment Response Essays February 16, 2012

463 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 Public 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 re flect the fact that these areas require a different approach to inspection and stabilization timeframes. APS urges EPA to keep the se important provisions in the permit.

Furthermore; Part 5.1.3.2 provides, "For arid and s emi-arid areas. You may reduce the frequency of ins pections to once per month if your site is located in an arid area (i.e., areas w ith an average annual rainfall of less than 10 inch es) or semi

- arid area (i.e., areas with an average rainfall of 10 to 20 inches)." EPA should a pply this approach to sensitive areas and to Part 4 .2.2.3. Currently Part 4.2.2.3 and

Part 5.1.3.2 contradict each other and create confu sion as to what the proper inspection frequency sho uld 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.



# 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 othe r projects that might require significant cuts or f ills that create steep slopes may need non-traditional seeding options as wel l as exemptions from furrowing or tilling where it is too steep to safely operate equipment on a steep slope. Soil compaction may occur on these s lopes due to the act of cutting or filling the slop e (for example, a road cut or well pad). Well pads are trad itionally built with steep side slopes that are dif ficult to safely work on with heavy equipment. If t he slopes are made less steep, the disturbance footprint is large r. In some cases, crews installing erosion control blanket are tied off due to the steepness of the slope. For these reasons, we recom mend there be more flexibility in dealing with soil compaction, while recognizing that traditional sites should use techniques to red uce the impacts of soil compaction during construct ion to the extent feasible.

Response: EPA appreciates the comment. Part 2.1.2.8 includes modifications that make this provision more flexib le by focusing on the minimization of impacts and on those areas wher e vegetative stabilization will occur or where infi ltration practices will be used.



# Comment ID 0030-A2.001.018

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE)Unformatted 2012 CGP Comment Response Essays February 16, 2012

464 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% vegetative cover within 3 years? It is d ifficult in arid or semiarid areas to get good vege tation growth. We recommend changing to state that final stabilization is antic ipated to be within thre e growing seasons. However, if stabilization is not achieved during this time period, an area will be reseeded or other wise 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: 2.2.2 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 cont rol BMPs can be used on flat or sloped ground that will also reduce erosion and provide effective sediment control. Silt fencing, w attles, and other BMPs can be used alone or in comb ination with some other materials or practices to provide protection in many instance s. Sometimes providing temporary cover after one ph ase of construction may 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 a re used.

Response: EPA agrees with the general idea of the comment, bu t notes that some of the BMPs recommended are desig ned for sediment control and not for erosion control, and w ould 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 pe rmit. 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-ve getative practices cannot apply to "temporary stabi lization" measures. Temporary stabilization methods must include non-vegetative t echniques such as hydraulic mulch, soil binders, EC Bs, and other methods.Unformatted 2012 CGP Comment Response Essays February 16, 2012

465 Response: EPA appreciates the comment, and notes that it has expanded the types of examples listed for non- vegetative 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 stan dard based on soil loss C-factor associated with th e Revised Universal Soil Loss Equation (RUSLE) regression formula. See Proposed F act Sheet at 62. However, EPA rejected such an appr oach in the December 2 009 C&D ELG ("EPA [believes] it would be difficult to c alculate an area-weighted C- factor. Permitting authorities may want to adopt su ch an approach in their permits, but EPA has chosen no t to implement such a requirement in the national r ule.") However, the Proposed CGP is essentially national in scope. Once again, E PA can require appropriate stabilization requiremen ts, but it should reserve its lengthy discussion in the Proposed CGP, Fact Sheet and Appendix H for a subsequent guidance document t hat 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.



# 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 s hould not be limited to only cover-type BMPs. See S ection 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. The se alternatives may also help to avoid unnecessary damage resulting from the removal of temporary cover in preparation for subse quent phases of construction.

Response: EPA agrees with the general idea of the comment, bu t notes that some of the BMPs recommended are desig ned for sediment control and not for erosion control, and w ould 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 the unrealistic requirements are:

-- temporary stabilization requirements should not be limited to only cover-type BMPs. Other non-veget ative, non-cover erosion and sediment control BMPs can be used on flat or sloped ground that will effectively reduce erosion and pr ovide effective sedimen t control. Silt fencing, wattles, and other BMPs can be used a lone or in combination with some other materials or practices to provide p rotection in many instances. Sometimes providing temporary cover after one phase of construction may mean that more dama ge is done to the area toUnformatted 2012 CGP Comment Response Essays February 16, 2012

466 remove the temporary cover in preparation for the n ext phase. This unnecessary damage may be avoided i f other types of temporary

stabilization are used

Response: EPA agrees with the general idea of the comment, bu t notes that some of the BMPs recommended are desig ned for sediment control and not for erosion control, and w ould 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) Issue Category: 2.2.2

The Draft would also set a site stabilization stand ard based on the C-factor associated with the Revis ed Universal Soil Loss Equation (RUSLE) regression formula. See explanation in prop osed CGP Fact Sheet at 62. EPA rejected such an app roach for the C&D ELG, explaining that it would be difficult to calculate an area-weighted C-factor. Once again, EPA can requ ire appropriate stabilization requirements, but it should reserve the lengthy dis cussion included in the Draft, proposed CGP Fact Sh eet and Appendix H for subsequent guidance that would provide insight and assistance for site operators, but not fundamentall y change the legal requirements

that the C&D ELG establishes.

Response: 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 arbitraril y chosen. They seem to be extremely conservative, and would limit the choices of BMPs found in Table H-1. Under the Draft, EPA w ould require three levels of C-factor. A factor of 0.05 or less would be require d for all final stabilizations, which appears to be basically equal to fully mature vegetative cover or sod. (The only other choice fro m Table H-1 with a C-factor "less than 0.05" is a r ock surface cove r.) Vegetative cover equal to a 0.05 C-factor may not be achievable duri ng winter in many areas of the country. In fact, fo r arid and semi-arid areas, a 0.05 C-factor could never be achieved with native cover, and non-native grass would require constant an d permanent irrigation to maintain, which may not be practical at many construction sit es. For temporary stabilization, a factor of 0.1 or less would be required for all disturbed areas of slopes less than 15%, where dist urbance activities would not resume within 14 days. A factor of 0.3 or less would be required for temporary stabilization of slopes grea ter than 15%. Only two similar BMPs - "straw fiber with netting" or "straw fiber with tackifier" - are able to meet these requirements ac cording to Table H-1. These specific choices of req uired C-factors need to be thoroughly vetted by the construction community as to the reasons for the specific "C" factor requirem ents EPA has chosen.

What is more, contractors working on or constructin g sites are not familiar with all the various C-fac tors and would have to rely on someone 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 c onducted, C- factor does not stay constant over time or with var ious runoff conditions such as high runoff or spring runoff.

The 70% cover approach is much easier to use. The m ain 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 i nches annual rainfall) the amount of cover could be reduced to 30%.Unformatted 2012 CGP Comment Response Essays February 16, 2012

467 Response: Refer to Essay Response 2.46.



# 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 200 8 CGP's 70% criteria an d the new cover management factor "C-factor value" approach. For the 7 0% criteria, EPA does not specify what happens to t he remaining 30% 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 stan dard based on soil loss C-factor associated with th e Revised Universal Soil Loss Equation (RUSLE) regression formula. See Proposed Fact Sheet at 62. However, EP A rejected such an approach in the December 2009 C&D ELG ("EPA [believes] it would be difficult to c alculate an area-weighted C- factor. Permitting authorities may want to adopt su ch an approach in their permits, but EPA has chosen no t to implement such a requirement in the national r ule.") However, the Proposed CGP is essentially national in scope. Once again, E PA can require appropriate stabilization requiremen ts, but it should reserve its lengthy discuss ion in the Proposed CGP, Fact Sheet and Appendix H for a subsequent guidance document that would provi de 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 cont rol BMPs can be used on flat or sloped ground that will also reduce erosion and provide effective sediment control. Silt fencing, w attles, and other BMPs can be used alone or in comb ination with some other materials or practices to provide protection in many instance s. Sometimes providing temporary cover after one ph ase of construction may mean that more damage is done to the area to remove the temporary cover in preparation for the next phase. This u nnecessary damage may be avoided if other types of temporary stabilization a re used.Unformatted 2012 CGP Comment Response Essays February 16, 2012

468 Response: EPA agrees with the general idea of the comment, bu t notes that some of the BMPs recommended are desig ned for sediment control and not for erosion control, and w ould therefore not be appropriate for stabilizing a site.



# Comment ID 0171-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 sedimen t control best management practices can be used on fl at or sloped ground that will also reduce erosion and provide effective sediment control. These options should be considered and inc orporated for use in the permitting effort.

Response: EPA agrees with the general idea of the comment, bu t 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 w ould therefore not be a ppropriate for stabilizing a site.



# 2.2.2.1 VEGETATIVE STABILIZATION [REQUEST FOR COMME NT]

Comment 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 y ou determine if your stabilization method will provide erosion control for at least 3 years? I.E. rolled erosion c ontrol 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 reasonin g behind this section. However, would argue that th e product pool that may meet this condition may be very limited, thus adding con siderable cost to projects.

Response: Refer to Essay Response 2.45.Unformatted 2012 CGP Comment Response Essays February 16, 2012

469 

# 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 area s. ADOT specifically uses custom- designed native s eed mixes containing seeds that germinate in different seasons. The requirement for watering defeats the purpose of using native se eds that grow in 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 reve getation 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 t he 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 th e same as for permanent vegetative stabilization, i.e., 0.05 or less? In Ta ble H

‐ 1. Reported RUSLE C

‐ Factor Cover Values in Appendix H

‐ Compliance with the

C

‐ Factor Stabilization Criteria, three types of veget ative surface covers are listed. All have reported C

‐ Values of 0.5 or less. The vegetative cover with the lowest percent cover of t he three is described as ‘thin stalked grass (> 60% density) w/mulch). Thi s particular vegetative cover probably has a greater percent cov er than non

‐ dis turbed vegetation in some project areas in southwes t Colorado. Why does EPA not allow a greater C value for temporary vegetative stabilization? The operator will be incl ined to just apply stra w mulch for temporary stabilization rather than utilizing veget ative stabilization (which may be a better temporar y stabilization measure on some sites than just mulch).

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0037-A1.001.025Unformatted 2012 CGP Comment Response Essays February 16, 2012

470 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 tha t ‘as applicable' is replaced with

‘'unless 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 clea r of using words like "must" in the permit. More appropriately it would be better t o say where feasible, sites should use techniques t o reduce the impacts of soil compaction during construction to support vegetativ e 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 c hoice of a seed mix. Many permitting authorities (i .e. cities, counties, US Forest Service, BLM, etc) dictate what has to be used and some federal jurisdictions may have requirements th at do not comply with this permit. Need some clarification with this language - Is the prim ary intent to ensure 70% vegetative cover within 3 years? It is difficult in arid or semiarid areas to get good vegetative growt h; in some cases it can take as long as 3 to 5 year s to establish growth t o the 70 percent pre-disturbance level.

Response: Refer to Essay Responses 2.43, 2.44, and 2.45.



# Comment ID 0049-A1.001.023

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: 2.2.2.1 Mandating "uniform perennial vegetation" using perc ent of vegetative cover is not advisable.Unformatted 2012 CGP Comment Response Essays February 16, 2012

471 • EPA's mandate means that it will be possible to i ntroduce broad leaf vegetation (e.g., weeds) to mee t the EPA's proposed 70% cover criteria, which has minimal root systems for erosio n control..

• Stem density, which indirectly accounts for a goo d root system to minimize erosion, is more importan t than canopy cover. EPA's standard should be 70% of the stem density when com paring to historic conditions----not ground cover.

• EPA must mandate that establishment of perennial vegetation consist of in digenous species that are native to the area. • EPA 's wording

for arid or semi- arid regions appears to mandate a 70% vegetative co ver 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 n eeds to occur for the following reasons:

• EPA should NOT be dictating what is necessary to establish vegetation on disturbed lands that may n ot 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 ma y violate water right decrees.

• Establishment of native vegetation in arid and se mi-arid environments may require up to two 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 liabi lity prematurely. Germination may take place, the p ermittee submits a Notice Of Termination and within a week, cover will die off o r be predated resulting in lower coverage percentag es and exposed areas. What established criteria are there to determine an appr opriate seed base cover for the 3 year determinatio n? Example: Pure Live S eed (PLS) recommended amounts will not guarantee germination, or coverage amounts for any time period. This is e specially true in the arid southwest and the variable of animal predation of s eed. Most permittees successfully terminate permit coverage well before as

establishment timeframe and are under no further ob ligation to continue maintenance of vegetation. Sim ply putting in writing that adequate seed has been applied does not equate to e rosion/sediment control. A 70 % cover of establishe d vegetation would be a better

condition with a definition of the term "establishe d" being "independently viable plants" without irri gation systems operating.Unformatted 2012 CGP Comment Response Essays February 16, 2012

472 This wording of the clause 2.2.2.1.a. i. requires c larification: " ... provide erosion control for at le ast 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 c over which covers 70% or more of the area that was covered by vegetation prior to co mmencing earth-disturbing activities. EPA should re quire the owner to establish vegetation that covers 100% of the disturbed area s o that all areas of disturbance are adequately stab ilized. The establishment of vegetation is one of the most basic and efficient m easures for controlling erosion.

Response: EPA appreciates the comment. EPA supports the co ntinued use of the 70 percent criteria for vegetati ve stabilization, and notes that it correlates with very high erosion con trol effectiveness as evidenced by the C-factor val ues 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 ar eas 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 requirem ents: i. If you are relying on the C-factor values in App endix H, you must apply and maintain the cover meas ure(s) consistent with the specifications provided in Table H-1 in Appendix H; ii. If soil compaction has occurred in areas that y ou intend to apply vegetative stabilization, you mu st use techniques that condition the soils in locations where soil compaction has occurr ed to support vegetative growth, consistent with Pa rt 2.1.3.6;

Brevard County Comment: IE: increase erodibility.Unformatted 2012 CGP Comment Response Essays February 16, 2012

473 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 ar ea with furrows trending along the contours of the slope. After seeding, you must wate r, as applicable, until the seeds germinate and gro w, re-seed areas that failed to germinate, and protect seeded areas from further di sturbance; and

Brevard County Comment: Reseed w/ in how long? To p revent 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 seedin g operations will lead to pronounced expenditure in creases. For example, TxDOT seeds approximately 18,000 acres per year; the vast majority of this is broadcast seeding. Our specs c all 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 mulches or covering. Requiring mulches or erosion control blankets (ECB) on 18,000 acres w ould lead to increasing costs to TxDOT, at an estimated 90M per year. Providing a mu lch cover can cost approximately $5,000 per acre. R equiring this on temporary seeding will only compound this issue.

We agree that soil roughening is a good tool and BM P. TxDOT's specifications call for seedbed prep, bu t soil roughening along the contours and slopes will be extremely expensive a nd dangerous. Seedbed preparation is usually done o n an up and down method on steep slopes for safety reasons. Requiring contouring alo ng the contour on steep slopes cannot be achieved w ithout jeopardizing the slope and equipment operators.

The use of vegetative watering will also increase c ost tremendously and also result in the frequency o f failed seeding operations. Watering on linear projects is very expensive due t o trucking charges associate with the transportatio n of the water. Also, w atering from water trucks can easily cause germination to occur, but without natural rainfall the seedlings will di e (without continuous wa tering). It is best to not start supplemental watering until after a natural rainfall has occurred. Repeatedly trucki ng in water to establish vegetation on 18,000 acres (many of which are in remote areas of the state) is cost prohibitive. Additionally, in ca ses where we have truck ed in water, we have gotten public complaints from nearby reside nts that may be under local water restrictions (e.g . can only water their lawns on certain days of the week). This issue would be comp ounded if we were to water the roadside adjacent to agricultural property suffering

from lack of water.Unformatted 2012 CGP Comment Response Essays February 16, 2012

474 Suggestion: The requirement of for covering seeding operati ons and vegetative watering should be a BMP that ca n be incorporated into the project's SWPPP, and given flexibility based on local conditions while the project is being constr ucted.

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 se ction that states: "When background vegetation cove red less than 100 perce nt of the ground prior to commencing earth-disturbing activities, the 70 percent coverage criteria is adj usted as follows: if vegetation covered 50 percent of the ground prior to construction, then t he requirement would be to provide a total vegetati ve cover at final stabi lization of 70 percent of 50 percent (0.70 X 0.50 = 0.35), or 35 percent of the site." W e 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 no t practicable for a variety of reasons. First, accessible water supplies for these projects are often not available. Second, watering is actua lly 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 aft er the permit has been closed for achievement of stabiliza tion. (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.



# 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 d iscusses the establishment of vegetation based on t he area covered by veget ation prior to commencing earth-disturbing activities. Does thi s mean pre-existing historic? Or does this mean ju st prior to the earth disturbing activities associated with the permit? For example if earth disturbing activities were in what had pr eviously been a dirt parking lot, would pre-existing conditions be considered zero pe rcent cover?

Response: Refer to Essay Responses 2.44 and 2.45. See clarif ied language in Part 2.2.2.1, which EPA believes be tter articulates theUnformatted 2012 CGP Comment Response Essays February 16, 2012

475 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). Th is Part is awkward and unclear. Does vegetation nee d to be established with in 3 years in

arid/semi-arid areas or does the seed mix need to b e 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 remain open until vegetati on 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., <1 0-inches annual precipitation and extreme evapo-tra nspiration (ET) rates), it is not unusual for four growing seasons to recover 70% of the baseline vegetative cover post-construction. Th is 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 incl uding an extreme labor commitment for a whole proje ct install of 100 acres or more. The WYDOT actual weighted bid prices, FY2010, Bid I tem 216.03955 erosion prevention using Long Term Te mpo rary Rolled Blanket (100% coconut) including seed and fertilizer = $8,7 21/acre installed versus Bid Item 216.03900 erosion prevention using Crimp ed, Dry Mulch (cereal straw) including seed and fertilizer = $4921acre.

The proposed 100% blanket stipulation would increas e erosion prevention costs by $8,229/acre or in typ ical 100 acre- disturbed project by $822,900 cost inflation. This cost inflation wou ld not increase speed of vegetative cover under hig h desert climates since the surface rolled erosion blankets hold and quickly evaporate or sublimate precipitation in high evapo-transpirat ion conditions in contrast to soil-crimped straw mulches that infiltrate flashy s torm events and improve soil moisture conditions. D esert DOT's like Wyoming only operate under arid conditions but should not be pen alized for natural vegetative climate restrictions beyond their control. In contrast, construction disturbed agricultural lands with much higher erosion potential are exempt from this fina l 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: 2.2.2.1Unformatted 2012 CGP Comment Response Essays February 16, 2012

476 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 clas sifying slopes as greater than 15% or greater as st eep, it is implied that a user co uld pick any of the products in the list of Appendix H for a slope as st eep as 30 to 60 %, and many products/technologies o n the list will fail miserably.

Response: Refer to Essay Response 2.46.



# Comment ID 0110-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 b ackwards. With a steeper slo pe, you would want a lower C -Factor requirement as more sediment would likely b e eroding. To follow up with my previous suggestio n 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 f acilities/field locations. I have developed an equation that allows for this to happe n and would be happy to discuss this further. Usin g the reported C-Factors from various laboratory/field conditions in their curren t form does not provide for a proper comparison and will lead to non-conservative

results.

Response: Refer to Essay Response 2.46.



# Comment 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 circumsta nces, achievement of 70% vegetative stabilization m ay contradict special permit conditions regarding certain state rare or threaten ed species. For example, in Massachusetts, the MA N atural Heritage & Endangered Species Program (NHESP) may specify that post const ruction conditions leave portions of the ROW as ope n sandy areas suitable for turtle habitat. Therefore, National Grid recommends that the language regarding percentage cover inclu de recognition of u nique 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 JonUnformatted 2012 CGP Comment Response Essays February 16, 2012

477 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 eithe r of the two following criteria are

met:

a. A uniform (e.g., evenly distributed, without lar ge bare areas) vegetative cover with a density of 7 0 percent of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by perma nent structures. Vegetated Stabilization of a site requires stabilization with vegetation to a 70% coverage rate. This does not m ean that 30% of the area to be stabilized with vegetation can remain bare. The cov erage is defined as looking at a square yard of cov erage, in which 70% of that square yardage is covered with vegetation.; or

b. Equivalent stabilization measures (such as the u se 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. Fo r arid areas, the draft permit requires "an appropr iate 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 r esource. Local municipal entities have been buying up turf- meaning homeowners are paid not to grow grass and other non-desert plants because they use so much water, which has been in u nusually short supply during the recent drought. EPA's stormwater program should not encourage wasteful uses of water, especially durin g 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 Prope rties (MAIOP) Issue Category: 2.2.2.1 We oppose idea of using another method other than 7 0% stabilization as the factor to determine if the site is stabilized for the following

reasons.

a. Many people in the industry are not familiar wit h using the Universal Soil loss equation. I am spec ifically referring to inspectors, contractors, technicians, agency staff, many engin eers and other specialties. The purpose of the equa tion appears to be calc ulation of a volume of soil loss. This is important if the inten t is to determine the amount of sedim ent 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

478 b. The effort to train the tens of thousands of peo ple who will need to make the determination will be time consuming and expensiv e for little apparent effect.

c. The calculation to determine a value of less tha n 0.05 for a site cannot be done with any precis ion 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 implement issue s noted above, for this to work, a constant for the C

‐ value must be established to use in an equation oth erwise 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 Organization: Greenville County, South Carolina Issue Category: 2.2.2.1 This item is too prescriptive to include in the per mit. These practices vary from site to site and sho uld 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 Scott 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 stabili zation requirements should be removed from the permit. This requirement is overly prescriptive, may have negative consequences to th e 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 morta lity once watering has stopped. To establish a pere nnial vegetative cover, the plants must be allowed to germinate and grow as the natura l environment dictates. Furthermore, watering seede d areas can result in the rapid growth of noxious weed species.

Watering seeded areas at linear projects may not be feasible in man y situations. Linear projects that pass through rug ged terrain may not have a water source available or may be located in areas where water transport equipment cannot access . APS regularly achieves vegetative stabilization at construction sites with out watering. The watering requirement is not neede d 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-A1.001.004Unformatted 2012 CGP Comment Response Essays February 16, 2012

479 Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 2.2.2.1Q Comment: I believe the two option approach as propo sed will work well. It will be difficult, though, t o objectively judge the 70% of preconstruction cover. Allowing this flexibility is good, but putting it into practice will be very su bjective.

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, although 8 0% cover seems more consistent with other regulatio ns and best guidance.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0017-A1.001.014

Author Name: Metcalf Mark 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 t he 70% coverage criteria. The C

‐ factor approach requires that the site,once established, has a C

‐ factor of 0.05 or less, but does not take into acco unt the conditions of the site prior to constructio n (where the C

‐ factor may have been higher). The proposed rule ind icates 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" crushe d stone. This should be the standard for evaluating whether or not a site has a chieved stabilization, and not 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 Arizon a, vegetative cover can be very sparse. The method for determining stabili zation in the 2008 CGP (achieving 70% of background) provides a quantifiable goal that can be used for determini ng whethe r fmal stabilization

has been achieved.

Response: Refer to Essay Response 2.47.



# Comment ID 0049-A1.001.024

Author Name: Fifield JeraldUnformatted 2012 CGP Comment Response Essays February 16, 2012

480 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 Ta ble H-1 have not been substantiated for constructio n 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.



# 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 a nd 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" conce pt. Let designers and regulatory agencies determine values for their locations based upon historic vege tative conditions.

• Much more research needs to be completed before a ssuming all C-Factor values in Table H-1 are accura te 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% rev egetation standard and the new "C- factor" approach should both be included inUnformatted 2012 CGP Comment Response Essays February 16, 2012

481 the final permit. The EHSCP supports the inclusion of both methods as criteria to support final stabil ization. The 70% revegetation

standard is a functional and effective measure of f inal stabilization. Additionally, that standard is understood by those involved with implementation of the SWPPP without the requirement for additional documentation, new calculations whi ch serve to increase cost without the realization of any environmental benefi t, and without adding unnecessary confusion on the jobsite.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0062-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 tr ack of this.

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 restri cting the contractor to using only the Cfactor. CCW C supports allowing contractors the choice of using either the 2008 CGP S 70% criteria or the C-factor. Contractors should be provided this choice because some stabilization methods may be more efficient an d productive for the contractor to implement than u tilizing the C-factor methods provided in Appendix H. Neither approach is more ad vantageous from an environmental protection perspec tive, 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 whe ther the C- factor stabilization criteria should be used as the sole option for complying with the permit's stabilization requirements, as op posed to allowing, as the draft permit does, permit tees to choose either the C-factor method or the 70 percent areal cover approach. We r ecommend keeping both options, as more experience w ith the day-to-day practicality of the C-factor method under various c onditions should be acquired before its use is mand ated in the permit.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0071-A3.001.030

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT)Unformatted 2012 CGP Comment Response Essays February 16, 2012

482 Issue Category: 2.2.2.1Q •Part2.2.2.1 Vegetative Stabilization. CDOT is supp ortive of having both the option of 70% pre-existin g vegetation or the C-Factor method. This still establishes vegetation requireme nts, but allows some flexibility. CDOT would not be supportive of only the

C-Factor method.

Response: Refer to Essay Responses 2.46 and 2.47.



# 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 prop osed 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 alter native; however, design engineers are really going to have to do their homework and apply the cr iteria correctly in order to achieve compliance und er the proposed CGP. The Partners support having multiple options in achievi ng compliance under the CGP. The proposed language and alternative approach to achieving site stabilization would not limit contra ctors or the Partners from using the C-factor optio n or the 70% criteria. The Partners support a tool- box approach for permit implementation and complian ce. However, this new requirement will add to the w orkload of the engineers designing the BMPs to assure that the req uired 0.05 C factor in the RSULE is reached by fina l stabilization. As mentioned earlier in our responses, in arid areas it is diffi cult enough to get 70% of existing cover through pr ecipitation. The additi onal requirement would add to the project workload and cost and incr ease the difficulty in file CGP Notice of Terminati ons (NOTs).

The Partner's interpretation of the draft permit la nguage is that this criteria only applies to tempor ary 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 continue s to accept stabilization achieved solely through vegeta tive stabilization, then EPA should consider requir ing final cover densiti es well above 70% for non-arid regions. For example, Maryland has required densities as high as 95%. See Maryland Standards an d Specifications for Soil and Erosion Control (1994).Unformatted 2012 CGP Comment Response Essays February 16, 2012

483 Response: Refer to Essay Responses 2.46 and 2.47.



# 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% vegetati ve cover requirement in lieu of solely utilizing th e C-Factor requirements. The 70% requirement has been, and continues to be, an e ffective and easily understood requirement for vege tative stabilization.

Response: Refer 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-fa ctor value approach noted in Part 2.2.2.1 under Cri teria for stabilization will incorporate the 70% cover option as a means of obta ining 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 2.47.



# 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 allow ing 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 stabiliz ing exposed portions of the site with vegetation, i ncluding the 2008 CGP's 70% criteria and the new C-factor value approach. EPA h as requested comment on whether the C-factor stabil ization 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% area cover approach.

AGC finds that the C-factor approach should not be the only crit eria for stabilization. As stated above, EPA reject ed such an approach for the C&D ELG, explaining that it would be difficult to calculate an area-weighted C-factor. ("EPA [beli eves] it would be difficult toUnformatted 2012 CGP Comment Response Essays February 16, 2012

484 calculate an area-weighted C-factor. Permitting authorities may want to adopt such an approach in t heir permits, but EPA has chosen not to implement such a requirement in the national rul e.") However, the Draft is essentially national in scope. EPA can require appropriate stabilization requirements, but it should reserve i ts lengthy discussion in the Draft, proposed CGP Fa ct Sheet and Appendix H for subsequent guidance that would provide insight and assistance for site operators for implementing the final C&D ELG and subse quent

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 perm it’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 the Revised Universal So il 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 ar ea-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.” [FN 64] Howeve r, because the proposed CGP will likely have a national impact, it is uncertain why EPA now believ es such an approach is appropriate.

The “C” factor approach should not be the only crit eria for stabilization. It is not always practicable in every circumstance, and operators ma y need the flexibility to define stabilization by some other parameter. In some cases, the 70% veg etative 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” fac tor method, as discussed below.

First, the BMP approaches for erosion control and s tormwater management need to be flexible enough to cover a wide range of site and w eather conditions. Requiring that only the “C” factor method can be used unnecessarily boxes o perators into a corner, and forces them to

make decisions that are not best for the site situa tions they confront. The requirements for

stormwater erosion control at construction sites ha ve gotten exponentially more complex over the years, and reducing acceptable options makes th e issues more difficult, not easier.

Second, the specific “C” factors identified by EPA are not explained and seem to be arbitrarily chosen. They seem to be extremely conse rvative, 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.)Unformatted 2012 CGP Comment Response Essays February 16, 2012

485 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 semiarid area s, a 0.05 “C” factor could never be achieved with native cover, and non-native grass would requi re constant and permanent irrigation to maintain, which may not be practical at many constr uction sites. For temporary stabilization, a

factor of 0.1 or less must be achieved for all dist urbed areas of slopes less than 15% where

disturbance activities will not be resumed within 1 4 days. A factor of 0.3 or less must be achieved for temporary stabilization of slopes grea ter 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 ident ifying the source(s) of the “C” and the justification for the specific “C” factor requireme nts EPA has chosen.

Third, the assignment of specific “C” factors to va rious 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 the non-vegetative BMP materials, the “C” factors given in the table for specific BMPs ar e presented as a very large range of values. For example, “hydromulch with netting” has a “C” fa ctor 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 st abilization. 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 document ation would EPA require to ensure compliance with the CGP? There needs to be a more d efinitive explanation as to how an operator will verify compliance with specific “C” f actors 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 techn ology is currently not listed in Table H-1, EPA says that the operator must provide documentati on 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 ambig uous. The practical effect is that no BMP technology that is currently not 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 Agen cy asks whether the C-Factor approach alone should be adopted as the test for finalUnformatted 2012 CGP Comment Response Essays February 16, 2012

486 stabilization or whether the new permit also should retain the traditional 70% cover standard. We beli eve that making bo th approaches available to define final stabilization is appropri ate because the 70% standard is familiar to site pe rsonnel who have implem ented it for years and because the C -Factor approach requires highly technical skills t hat are not commonly found on construction sites. W e also suggest utilizing the C-Factor approach when the es tablishment of 70% density of cover over 100% of th e exposed soils in difficult or unlikely, such as in arid climates.

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 provi des detailed description of vegetative stabilizatio n coverage. EPA continu es the 2008 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 opt ion and the new C-factor value option, as they prov ide flexibility to the permittees. The 70% vegetation calculation may be e asier for permittees to implement, since it is rela tively easy and familiar; particularly in the short term as operators gain ex perience in calculating a C-factor.

Response: Refer to Essay 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 wi th, so it is good to have that as an option.

The C-Factor method needs to be worked on quite a b it to develop a consistent method for users to dete rmine the values and not have a table of values for various products/techniques wit h C-Factors that are not comparable (most of the C- Factors provided in Appendix H tables were developed from varied testing/field con ditions 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 o f the relationship between C- Factor and Turbidity should be explored as I have performe d som e 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

487 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 demons trate 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 recom mend offering the C- Factor approach as an optional alternative to the 7 0% vegetative stabilization requirement.

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 t he feels that having both options is the best alter native 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 v egetatively stabilizing exposed portions of the site, including the 2008 CG P ‟ s 70 percent criteria and the new C-factor value ap proach.

ITD ‟ s preference is to keep both the 70% vegetation cri teria and the "C- factor" criteria. The "Cfactor" is based on ASTM 64 59. This test is for rolled erosion control products (i.e. blanke ts). Many manufacturers also use this test to deter mine a "C-factor" for hydraulically applied erosion control products. There is consider able 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 slopes 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 a modified ASTM 6459 test will be required. Given these issues it seems absolutely necessary to keep the 70% vegetative cover approach, and furthe r analysis is required by EPA into the C-factor requirements presented in the permit

Response: Refer to Essay Responses 2.46 and 2.47.Unformatted 2012 CGP Comment Response Essays February 16, 2012

488 

# 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 se mi arid regions which would naturally not have such a C- factor in most cases. The only permanent stabilization that will comply with a C-f actor of 0.05 is crushed rock, vegetative surface c over 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 c over. However, in areas with low rainfall, irrigation must compensate for the lack o f 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 i s costly and water conser vation must be

taken into consideration.

LBA suggests instead that EPA retain the 70% aerial cover (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 natura l C factors. Fire suppressio n 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 stab ilization: vegetatively stabilizing exposed portion s of the site and the new Cjactor value approach. Especially in arid and semi-arid ar eas, flexibility must be provided to reach final st abilization.

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: 2.2.2.1Q 1. This requirement is not consistent with typical determination of 70% coverage. Typical interpretati on of 70% vegetation establishment is that when analyzing an area (squar e 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 e arthdisturbing activiti es, it must be 70% covered with vegetation at the completion of th e project! This says that a construction site can o nly result in a maximum of 30% non-vegetated area. This is a landuse requirement o r a maximum imperious area requirement which would allow only 30% of the proje ct area to be built upon. The permit allows for the 70 % rule or the C-factor rule, but the 70% rule as de fined here would be very difficult to implement..

2. Based on experimental studies, the C factor is r elated directly to the % coverage and the presence of stabilized mulch (mu lch 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 withUnformatted 2012 CGP Comment Response Essays February 16, 2012

489 time after soil preparation and seeding. In the rea l world, climate factors such as sunshine, temperat ure, and precipitation along with proper fertilization determine how long it actua lly takes to establish 90% cover. Taking a C factor from a chart does not 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 stabilizati on post construction.

4. If you meet the 70% criteria for stabilization, you should be close to meeting a cover practice per centage of 0.05.

Response: Refer to Essay Responses 2.46 and 2.47.



# Comment ID 0159-A1.001.010

Author Name: Seawright Stephen Organization: Maryland State Builders Association Issue Category: 2.2.2.1Q We are against the idea of using another method oth er than 70% stabilization as the factor to determin e if the site is stabilized for the following reasons.

a. Many people in the industry are not familiar wit h using the Universal Soil loss equation. I am spec ifically referring to inspectors, contractors, technicians, agency staff, many engine ers and other specialties. The purpose of the equat ion appears to be calculation of a volume of soil loss. This is important if the inten t is to determine the amount of sediment that could reach a lake or may be trans ported 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 peo ple 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 tha n .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 .05. Leaving aside the training and c ost 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 i s subject to a wide range of interpretation and therefore doomed to fail.

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: 2.2.2.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

490 Assigning C-Factor values to temporary measures may be meaningless.

• C-Factor values are not meant for temporary condi tions.

• There is no sustaining information on the longevi ty 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 us ing non- vegetative cover methods (e.g., hydromulch or straw /fiber with netting, soil bonding agents with polyacrylamide, riprap, geotext iles, gravel) to stabilize an exposed portion of yo ur 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 conta minants in many instances.

Response: EPA believes that if properly applied to exposed ar eas there should not be significant loss of organic ally-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 signifi cant loss of materials from a stabilized site sugge sts improper application of the stabilization

cover.



# Comment ID 0071-A3.001.009

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 2.2.2.2 •Part 2.2.2.2 Non-Vegetative (b) Final Stabilizatio n. It would be valuable to have the 70% pre- existing cover option in this Part as well.

Response: EPA disagrees with the commenter. Where non-vegeta tive cover is used it should be applied to all expo sed surfaces . See

Part 2.2.2.2.



# Comment ID 0086-A1.001.011

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. 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 reduc e erosion and provide effec tive sediment control. Silt fencing, wattles, and other BMPs can be used alon e or in combination with other materials or practic es to provide protection in many instances. Sometimes providing t emporary cover after one phase of construction may mean that more damage i s done to the area to remove the temporary cover in prepar ation fo r the next phase. This unnecessary damage may be av oided if other types of temporary stabilization are allowed to be used in t he CGP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

491 Response: EPA agrees with the general idea of the comment, bu t notes that some of the BMPs recommended are desig ned for sediment control and not for erosion control, and w ould 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 us ing non- vegetative cover methods (e.g., hydromulch or straw /fiber with netting, soil bonding agents with polyacrylamide, riprap, geotext iles, geogrids, geomembranes, geocells, geocomposit es, synthetic turf, gravel) to stabilize an exposed portion of your site, you must comply with one of the following criteria dependin g on whether you are providing temporary or final stabilization:

Response: EPA notes that it has added geotextiles to the list of examples. The examples provided by the comment er, if applied correctly, are all good examples of non-vegetative stabilization covers.



# 2.2.3 USE OF SITE STABILIZATION TO REDUCE DISTURBED ACRES COUNTED TOWARDS APPLICATION OF NUMERIC TURBIDITY LI MIT

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 w ithin the C&D rule, which creates reduced monitorin g 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 h as 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 stabiliz ation 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 appreciates the comment. As noted elsewhere in the comment response document, the permit does not include a numeric turbidity limit, therefore this provision h as removed.Unformatted 2012 CGP Comment Response Essays February 16, 2012

492 

# 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 ot herwise allowed by the December 2009 C&D ELG. For e xample, EPA specifically allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Propo sed CGP creates an absolute prohibition. EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be qua shing that flexibility in implementing any ELG.

Response: EPA has modified the permit to better reflect the l anguage of the C&D rule with respect to prohibited discharges. See Part 2.3 and 40 CFR 450.21(e). For instance, in the pro posed permit, all discharges from the washout of co nc rete were prohibited, whereas in the 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 debris, and sanitary waste."). The purpose of obtai ning a NPDES permit for stormwater asso ciated with construction activity is to obtain authorization for pollutants that are expected to b e present in such stormwater discharges, such as co nstruction waste or debris. "Construction waste" is defined to include many lik ely and mostly harmless pollutant discharges (in re asonable quantities), including "soil generated by construction activity." (Appendi x A at 3). Obviously, EPA cannot expect 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 possible floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibitio n and each subsequent m ention of

the term "constructi on waste" throughout this Part, and eliminate the u nreasonable or illogical obligations it has propose d to impose site

operators.

Response: EPA has modified the permit to remove the reference d language from the list of prohibited discharges. The final permit reflects more precisely the list of prohibited disc harges in 40 CFR 450.21(e).Unformatted 2012 CGP Comment Response Essays February 16, 2012

493 

# 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 establish ed facility procedures, spill plans, and onsite fir st responders. In these cases the permitee should comply with installation requiremen ts.

Response: EPA allows for use of existing plans such as these to the extent that they are sufficient to co mply with the requirements in Part 2.3.1. See Part 7.2.11.1.b of the final permi t.



# Comment ID 0093-A2.001.005

Author Name: Pilconis Leah Organization: Associated 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 managed by appropriate controls. This is another example of th e 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 th e C&D ELG on which its revisions to the CGP are bas ed.

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 ot herwise allowed by the December 2009 C&D ELG. For e xample, EPA specifically allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Draft creates an absolute pr ohibition. 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 , floatable debris, construction debris, and sanitary waste."). The purpose of obtai ning a NPDES permit for stormwater associated with construction activity is to obtain authorization for pollutants that are expected to b e present in such stormwater discharges, such as co nstruction waste or debris. "Construction waste" is defined to include many lik ely and mostly harmless pollutant discharges (in re asonable quantities), including "soil generated by construction activity." (Appendi x A at 3). Obviously, EPA cannot expect 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 possible floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibitio n and each subsequent ment ion of the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obliga tions it has proposed t o impose siteUnformatted 2012 CGP Comment Response Essays February 16, 2012

494 operators.



# Comment ID 0096-A1.001.043

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 2.3.1 EPA proposes to prohibit certain discharges otherwi se 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 is managed by appropriate controls. This is another ex ample of EPA providing more flexibility within the context of promulgating a fi nal C&D ELG, only to subsequently propose implement ing 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, co nstruction debris, and sanitary waste.”). Arguably, the purpose of obtaining a NPDE S permit for stormwater associated with constructio n activity is to obtain authorization for pollutants expected to be present in such stormwater discharges, such as constructio n waste or

debris. Construction waste is defined to include al l sorts of possible discharges, including “soil gen erated by construction activity.” (Appendix A P. 3). Construction debris is undefined , but arguably might be interpre ted to include saw dust, wood chips or other possib le

floatable materials that are otherwise environmenta lly benign. EPA must remove or clarify this prohibi tion and each subsequen t mention of the term “construction waste” throughout this Pa rt so that it do es not create unreasonable or illogical obligations on the part of the site

operator.

Response: EPA has modified the permit to remove the reference d language from the list of prohibited discharges. The final permit reflects more precisely the list of prohibited disc harges 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 discharges ot herwise allowed by the December 2009 C&D ELG. For e xample, EPA specifically allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Propo sed CGP creates an absolute prohibition. EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be qua shing 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 obtai ning a NPDES permit for stormwater associated with constru ction activity is to obtain authorization for pollutants that are expected to b e present in such stormwater discharges, such as co nstruction waste or debris. "Construction waste" is defined to include many lik ely and mostly harmless pollutant discharges (in re asonable quantities), including "soil generated by construction activity." (Appendi x A at 3). Obviously, EPA cannot expect 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 possible floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibitio n and each subsequen t mention ofUnformatted 2012 CGP Comment Response Essays February 16, 2012

495 the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obliga tions it has proposed t o impose site

operators.

Response: EPA has modified the permit to remove the reference d language from the list of prohibited discharges. The final permit reflects more precisely the list of prohibited disc harges in 40 CFR 450.21(e).



# 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 activi ties to consider. They can be significant pollution sources when leaking o r vandalized. Such bacterial discharges are discussed later in th e permit.

Add spill training to requirements for any material s stored onsite. Training should include identifica tion of emergency response ag ency or firm and the location and use of spill materials that are onsite.

Response: The final permit addresses “portable toilets” in Pa rt 2.3.3.3.f. EPA’s training requirements are incl uded in Part 6 of the permit, and provides for procedures on spill preven tion 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 main tenance of equipment and vehicles and for staging a nd storage a reas (Part 2.3.2). The implementation of such standards, including seconda ry containment and the requirement of onsite spill kits, is a practicable solution for the necessary prevention of chemical pollution.

Response: EPA notes the supportive comment. The final requirements are reflective of the langua ge 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 preventio n requirements, which are far too detailed for a ge neral permit and should be addressed, if at all, in a permittee's SWPPP, inclu ding requirements pertaining to washing of equipmen t of vehicles (Section 2.3.2.2); washing of applicators and containers used for pain t, concrete, or other materials (Section 2.3.2.4); and storage, handling, and disposal of construction waste (Section 2.3.2.5). Furthermore, in Section 2.3.2.1, EPA should simply state that "p ermittees are required to complyUnformatted 2012 CGP Comment Response Essays February 16, 2012

496 with applicable SPCC laws and regulations." Similar ly, in Section 2.3.2.5, EPA should simply state tha t "permittees are required to comply with applicability solid and hazardous waste laws and regulations."

Response: EPA has streamlined Part 2.3 to provide more flexib ility to the operator to determine how best to mini mize pollution

sources at the site and to document such controls o r procedures in the SWPPP. See Part 7.2.11.



# Comment ID 0168-A1.001.028

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 2.3.2 -- Pollution Prevention Standards (Section 2.3.2, p age 25- 27): The pollution prevention measures as proposed in the draft permit should be sufficient to provide adequate site protection f rom spills or accidental release. There are no comparable asso ciated benefits that would justify the significant costs that would be associa ted with adding a requirement for secondary contain ment or covers for the fueling and maintenance areas of the site, nor for the staging and storage areas of the site. This would not be pr actical for any construction site.

Response: EPA has added flexibility to the proposed permit’s requirements to provide cover or secondary containm ent. 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 m eans referenced as exam ples are spill kits.



# 2.3.2.1 FUELING AND MAINTENANCE OF EQUIPMENT OR VEH ICLES [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 li near project where all fueling must occur is not fe asible. 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 compact ion of soil that will need to be restored as the ma chinery travels to and from the work area, and 4) result in increased air emissions. Hav ing a designated fueling location for a linear proj ect is not a feasible, viable alternative. Industry standard is to have a fueling truck come t o the heavy equipment. Existing regulations cover t he reporting and cleanup of chemicals and petroleum products. As long as fuelin g is being conducted outside of a sensitive area, w hether the fueling is in a designated area or out within the job site, and the activity is being conducted in a responsible manne r, the overall goal of prev enting of spills from getting to waters of the US is achieved

.

Response: The requirements in the final permit address the co mment er’s requirements by adding in greater flexibility to the prevention measures that are required. See Part 2.3.3.1. The se requirements were specifically modified from the proposal to provide fl exibility to vehicle fueling and maintenance activities for li near projects given the constraints that these type s of projects operate under related to the fact that vehicles and equipment move as the projec t progresses.Unformatted 2012 CGP Comment Response Essays February 16, 2012

497 

# 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 vehi cles and equipment that have signs of leaks or spills. It is inevitable that equ ipment will have signs of leaks. However, t he sign of a leak does not mean that there is a release to the environment. Requiring maintenance o f equipment whenever a leak is detected is overly b urdensome and should be limited to the visible presence of a spill (a drip or visib le staining of the ground). Maintaining equipment w ith 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 o ther releases. If these conditions are found, Part 2.3.2 requires that action be taken to fix the problem immediately. EPA agrees with t he commenter that a lea k does not necessarily mean that a discharge of that substance has occurred. However, the permit requires as sta ted 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 seconda ry containment for all staging and storage activiti es (or other effective means) "to eliminate discharges of stormwater from these areas " (emphasis added). The purpose of BMPs is to contr ol and minimize the dis charge of pollutants in stormwater, not to eliminate the d ischarge completely

Response: The discharges that are prohibited are listed in Pa rt 2.3.1. Regarding the commenter’s observation ab out secondary containment, see response to Comment 0168-A1.001.02 8.



# 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 a nd not all maintenance activities are relevant to s pills and leaks. These requirements need more focus on stormwater.

Response: EPA has modified these requirements to bring more f ocus to maintenance that targets the proper functio ning of pollution prevention 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 JeraldUnformatted 2012 CGP Comment Response Essays February 16, 2012

498 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 desi gnated refueling areas? Clarification by EPA on this issue is necessary. Response: No, EPA is not prohibiting access to the site by ve hicles or equipment. However, sources of pollution from vehicles or equipment are controlled under the permit. See Par ts 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 o f Ecological Restoration (DER) Issue Category: 2.3.2.1 The DER appreciates that EPA is soliciting input on this permit requirement. Good housekeeping practic es for refueling and maintenance are a necessity but the practicality of providing secondary containment and cover for area s used for these activi ties would be a burden to smaller, short-term restoration proj ects. 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 accepted on-site prev entive 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 Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.1 Brevard County Comment: No contractor will follow o n a regular basis without vigorous enforcement. How will areas be cleaned? Burn

off?

Response: EP A has made the requirements in the final permit cle arer and has provided greater flexibility. It is E PA’s expectation that sites will be able to comply with these requirement s.



# 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 requ irements" section

•How does EPA propose daily inspections be document ed on a weekly basis?

Response: EPA found that it was unnecessary to have additiona l inspections focusing exclusively on pollution pre vention requirements when there are already site- wide inspections required in Part 4. Given that th e operators is already required as part of their inspection to examine the pollution prevention meas ures, it is unnecessary to impose additional stand- alone inspection requirementsUnformatted 2012 CGP Comment Response Essays February 16, 2012

499 focusing on pollution prevention. Therefore, the i nspection requirements have been removed from this section of the final permit . No additional response is necessary.



# Comment ID 0065-A1.001.019

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC) Issue Category: 2.3.2.1 Section 2.3.2.1 provides pollution prevention stand ards for fueling and main tenance of equipment or vehicles. These provisions should be eliminated from the CGP because they unnecessari ly duplicate requirements in Spill Prevention Contr ol and Countermeasure ( SPCC) plans. There is no reasonable basis to impose two s eparate standard s 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 fu el/lube truck is utilized to service heavy equipmen t, and does that servicing at numerous locations throughout the project limits. O n some projects, it is not economically feasible or practicable to have a central or designated location for fueling (i.e. it could invo lve driving tens of miles through the project to ge t to It, or it may not be possible to move the equipment if it is involved in a complex or tim e-sensitive stage of the project.

Suggestion: This requirement to have the locations clearly delineated and marked is not practicable in all situations. An exc eption should be considered for when mobile fuel trucks are being utilized.

Response: EPA ha s removed the location restrictions from the final permit in part due to the concerns of linear constr uction projects.



# 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)). T he 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)Unformatted 2012 CGP Comment Response Essays February 16, 2012

500 Issue Category: 2.3.2.1 The CGP includes pollution prevention standards for fueling and maintenance of equipment and vehicles that are not appropriate or feasible for linear utility projects. Section 2.3.2 .1. In linear projects, fueling and maintenance ten d to be mobile instead of fixed. EPA needs to allow different pollution preventions stan dards (e.g., mobile BMPs), if pollution preve ntion measures are warranted, for these

activities.

At a minimum, linear projects should be exempt from any and all designated storage and staging area re quirements (e.g., Secti on 2.3.2.3) due to infeasibility and limited space within the c orridor.

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 ma intenance activities at your site for equipment or vehicles u sed for your construction activities... you must ... [c]learly flag off and desig nate areas to be used for fueling and maintenance a ctivities and conduct such activities only in these areas." AGC maintains that this would be very problematic. Moving equipment t o central areas will be hard on road projects. It would be a waste of fuel, waste o f time, and result in inefficient operations and po tentially more environmental harm (e.g., further land disturbance and dust). Contract ors need to maintain the ability to perform mobile fueling.

Response: See response to comment 0066-A1.001.028.



# 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 maintena nce of equipment or vehicles / Staging and storage areas - Design requirements

Dow believes that the proposed design requirement f or secondary containment structures or similar effe ctive means to prevent the discharge of spilled or leaked chemicals from fueli ng and maintenance of equipment or vehicles / stagi ng and storage areas is overly burdensome. Dow believes that a more reasonable app roach would be to allow the permittee to implement containment and control s for the most likely failure scenario (of a de minimis a mount), 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 applic ability threshold aboveground oil storage of 1,320 gallons (55 gallons or larger oil storage containers), then the provisions of SPCC sh ould be incorporated as appropriate.

Response: See response to comments 0168-A1.001.028 and 0087-A 1.001.026.



# Comment ID 0115-A2.001.017Unformatted 2012 CGP Comment Response Essays February 16, 2012

501 Author Name: Smith Timothy Organization: National Grid Issue Category: 2.3.2.1 2.3.2.1 Fueling and Maintenance of Equipment or Veh icles. National Grid makes every effort to avoid re fueling and maintaining equipment within 100 feet of wetlands, however, the provision of 50 foot buffers and vegetative buffer s is not feasible along utility ROWs. National Grid recommends provision of an exce ption similar to the utility exception within 2.1.2 .3.

Response: EPA has removed many of the proposed location restr ictions from the final permit. Where such restrict ions are included, they are provided as examples of effective controls . See for example Part 2.3.3.2.a. EPA notes that w here the permittee will retain a natural buffer in compliance with Part 2.1.2.1 of t he permit, earth-disturbing activities in those are as 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 requirement s 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 t o 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.



# 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 requires that fue ling and maintenance activities be located outside of any buffers. However, fixed equipment, such as large cranes and drilling equipm ent, must be fueled in place. Moreover, other const ruction equipment such as excavators, backhoes, etc. that are not registered for on-road travel and requires movement off-site b y a trailer, are commonly fueled by

a fuel truck that comes to the construction site. T o move this equipment outside ofthe buffer for regu lar fueling or maintena nce would be impractical and 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 repre sentative 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 c ontairunent structures be provided for all fueling and maintenance activities is impracticable. Exemptions need to be included for p ortable fuel distribution where it is necessary to carry fuel to grading equipmentUnformatted 2012 CGP Comment Response Essays February 16, 2012

502 located large distances from fixed fuel storage loc ations. Secondary containment requirements are alre ady addressed under existing SPCC regulations. Inserting additional and/or contr adictory requirements within the COP creates potent ial for regul atory confusion and would more appropriately be addressed by updating S PCC rules. Additionally, MDT is unsure of the speci fic equipment intended to be subject to this condition. As such, MDT recommends addressing SPCC deficiencies through SPCC rulemakin g e fforts. If this condition must remain, MDT requests thai greater flexibility, such as the use of spill kits as suggested, be pro vided in the permit, as well as a specific listing of the equipment subject to this c ondition and a threshold (i.e. gallons) above which this condition is triggered.

Response: See response to comments 0168-A1.001.028 and 0087-A 1.001.028.



# 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: 2.3.2.1Q Q10 & 11. Secondary containment - Agree. Cover and berms or other containment vessels should be requir ed. Spill kits should be required within 100 feet of any inlet that leads di rectly offsite without any other treatment facility downstream.

Response: EPA notes the supportive comment. However, EPA not es that it has provided flexibility in the final pe rmit that focuses less on the actual control selected, and more on th eir effectiveness at “eliminating the discharge of spilled or leaked chemicals.” See Part 2.3.3.1 and response to comment 0168.A1.001.02 8.



# 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 seconda ry containments and spill kits are reasonable requi rements; covering a fueling location is not. On a large construction project, a fueling location may consist of several large (tho usands of gallons) above-ground storage tanks. Covering such a location would be pr ohib itively expensive. As an alternative, consider incl uding language regarding the prevention of water accumulation in the secondary c ontainment 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 26Unformatted 2012 CGP Comment Response Essays February 16, 2012

503 It will be difficult to supply covered fueling area s for smaller projects or linear projects where it is likely that equipment is fueled using mobile units. Providing a spill kit should be adequ ate. Stationary fueling and maintenance areas over a certain size, for pro jects that are anticipated to occur for more than one year, may be appropriate to require a c over. Adding a minimum project size and duration to this requirement would allow more flexibility for smalle r 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 containmen t for fueling and maintenance operations for small equipment such as gas engine pumps or generators that might be used on construct ion sites. Smaller construction sites may not have a staging area but equipment fueling or maintenance may need to be conducted on site on occasion. It is not practicable to require secondary containment for these types of activities. Having spill kit s available on site and/or implementing procedural best management practices (BMPs) for fueling and maintenance should be sufficient. The operator shou ld have the option to select effective means of pre venting the discharge o f spilled or leaked chemicals that are appropriate for their job site.

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 constru ction equipment to a central fu eling location can be difficult, and expensive. Existing traffic patterns, safety barriers, right-of-way res trictions, 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 comments 0168.A1.001.028 and 0115-A 2.001.017.



# 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 sm aller or linear projects where typically the equipm ent is fueled using mobile units. Providing a spill kit should be adequate for these types of projects. Stationary fueling and maintenan ce areas should use secondary containment but it is not practicable to have to co ver the area. If a project elects to use a cover as a BMP that is great, but it should not be requiredUnformatted 2012 CGP Comment Response Essays February 16, 2012

504 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, "seconda ry means of containment for the entire capacity of the largest single container plus additional capacity to contain precipitatio n." It has been represented as 1.5 times the capacity of the larges t container Consider defining the term "secondary c ontainment" in the Permit and include calculation of volume requirements to be re flected in the SWPPP document.

Response: EPA included examples of secondary containment in P art 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 co nsidering the existing regulations under the Clean Water Act, specifically 40 CFR 112. The Spill Pollution Control a nd Countermeasures (SPCC) program lays our specific ally what needs to be contained and has a low aboveground container threshold (1,320 gallons), wh ich most construction projects would easily exceed. Therefore, it is unnec essary for the GSP to pose separate and potentially conflictin g requirements.

Recommended Change: USS recommends that EPA referen ce 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, h owever, the location of the construction effort and equipment -- and thus the f ueling activities -- can change by miles from day t o day as the project progresses. Utility construction in particular utilizes small m obile containers transported to the current equipme nt location, therefore there are no dedicated equipment fueling locations at which stru ctures or berming would be appropriate. Moreover, a ll fueling occurs consistent w ith applicable SPCC requirements, and the presence of s pill 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 un der Part 2.3.2.1.b and, instead, be required to pro vide protections required by applicable SPCC regulations.Unformatted 2012 CGP Comment Response Essays February 16, 2012

505 Response: See response to comments 0168-A1.001.028 and 0087-A 1.001.028.



# Comment ID 0062-A1.001.033

Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 2.3.2.1Q Brevard County Comment: The site may not allow desi gnation of a fueling area. If fueling takes place a t the equipment instead of centralized location then secondary containment may not be possible. In general, spill kits are not us eful because they can c onveniently be "forgotten" until an inspector shows up on site.

Response: EPA has provided flexibility in the final permit fo r the operator to select and implement controls tha t provide “an effective means of eliminating the discharge of spilled or le aked chemicals.” See also response to comments 016 8-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-h ose" 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 construction

vehicles transit the ROW numerous times to return t o refueling areas rather than having a single fueli ng vehicle distribute fuel to the construction equipment at the work location. This r equirement is counterproductive to the intent of th e stormwater regulation s. Entergy requests that EPA remove this requirement where the requirement would result in an unacceptable enviro nmental impact.

Response: See response to comments 0168-A1.001.028, 0066-A1.0 01.028, 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 pol lution prevention standards for fueling and mainten ance of equipment and vehicles and the need to provide secondary containment or co ver for fueling and maintenance areas on the site. The current language is too broad and would seem to apply to all fueling and maintena nce activities, no matter how minor. This requireme nt would be very burdensome to small projects that don't have the space or resourc es for a dedicated fueling/maintenance area. Oil st orage has been covered by other rulemaking. The EPA CGP should simply refer to 40 C FR 112 for compliance requirements and not double-r egulate the same fuel storage situation.

Response: See response to comment 0168-A1.001.028.Unformatted 2012 CGP Comment Response Essays February 16, 2012

506 

# Comment ID 0072-A2.001.008

Author Name: Muenks Nate Organization: Missouri Department of Transportation Issue Category: 2.3.2.1Q MoDOT believes the spec requirements outlined withi n 40 eFR 112 and Section 311 of the eWA are suffici ent to cover any second ary containment requirements for construction sites dis cussed in this Part. Any site not exceeding the 1 , 320-gallon above-ground storage capacity requirement should not be required to prov ide secondary containment as outlined in 40 eFR 112 . We do understand that under 40 eFR 110 we must comply with Part 2.3.1 (Prohibit ed Discharges) of this eGP, and there are multiple ways to comply with that Part beyond just providing secondary containment, as out lined in Part 2.3.2.1.c.

For a specific example, Part 2.3.2.1 (Pollution Pre vention Standards) is currently worded in a manner implying that any fueling or maintenance activity on the site would require seco ndary containment, which is more stringent than the current spec regulatio ns. To give a realistic scenario of this regulatory contradicti on, think about portable diesel refueling tanks sit uated on the bed ofa pick-up. Under current spec regulations, these tanks are exempt wh en mounted on the truck. This exemption is importan t when you consider that in linear transportation projects, these truck-mounted portable tanks carry fuel to grading equipment tha t may be located a mile or more from a fixed fuel storage location. It would be imp ractical to require the pick-up and the dozer to ha ve secondary containment around them oul on an active grading location just fo r refueling the dozer, or to require the dozer to t rack a mile back to the 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 a nd 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 availab le at the site. This would not be required when mob ile vehicle fueling 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 w ith a covered, designated area in miles-long corrid or. SPCC requirements are currently met with good housekeeping spill containm ent at these mobile stations and equipment lines at daily shutdowns. Spill kits should be sufficient to contain spills.

Response: See response to comment 0168-A1.001.028.Unformatted 2012 CGP Comment Response Essays February 16, 2012

507 

# 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 fue ling and maintenance areas on small sites may be im practicable since costs and disturbances for installation of such a system coul d 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: Verhage Kathy Organization: New Mexico Department of Transportation, District 3 , et al. Issue Category: 2.3.2.1Q Partner Response: Secondary containment is not alwa ys a practicable pollution prevention (P2) approach at active construction sites. Secondary containment of storage containers is perm issible a nd 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 provision for secondary containment. Additionally, active const ruction sites often require temporary storage of ma terials. Does EPA intend to require that temporary storage areas have secondary contain ment? If not, is there a time element or duration t hat applies to the temp orary storage of materials and the need for any required addition al P2 measures. Are the P2 measures the same as for permanent storage areas - secondary containment, covering, etc.? The Partners recommend that the EPA further define, in the prop osed CGP, what specifically secondary storage is and what specific materials re quire secondary storage. These definitions will hel p clarify for the regulated community the specific CGP requirements.

Response: See response to comment 0168-A1.001.028.



# Comment 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 hyd rocarbons is a frequent cause of accidental dischar ges and Rockville suppo rts efforts to reduce the frequency of these discharges. EPA should not only consider requiring spill kits be ke pt on site, but also requiring that the operator provide training to their employees on spi ll response.

Response: See response to comment 0168-A1.001.028.



# Comment ID 0091-A2.001.008

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 2.3.2.1Q 8. Fact Sheet Item 10. 2.3.2.1.b: Fueling often occ urs in the field for heavy equipment. At these loca tions secondary containment or a cover are not practical. Procedures to prohibit una ttended fueling should minimize the risk of a spill . Proper spill response proceduresUnformatted 2012 CGP Comment Response Essays February 16, 2012

508 will address spills before they are released to sto rmwater. At sites with SPCC coverage and establishe d first responders the permitee should follow the established spill response proced ure for the installation or facility.

Response: See response to comments 0168-A1.001.028 and 0087-A 1.001.028.



# 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 cont ractors to keep spill kits on the jobsite at areas where equipment fueling and/or maintenance activities occur. On linear projects, f or example, a mobile fuel truck refuels equipment l ocated 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 seconda ry containment for fueling and maintenance areas on the site beyond what is already required under the Spill Prevention Control and Countermeasures (SPCC) requirements in 40 CFR 112 and Section 311 of the CWA. Secondary containment will not work for vehicl es that move up and down the road and this is recog nized by the SPCC rules that exempt "motive power" sources. Fueling and mai ntenance activities do not always occur in centrali zed areas; larger proje cts rely on mobile refueling/maintenance trucks to service cons truction vehicle at their working location. The com mon practice of conducting maintenance and fueling at the equipment's current location limits the potential volume of spills at a ny one location and reduces fuel consumption and exhaust emissions by eliminating the need to transfer equipment to centr alized locations. The use of spill kits at a site is a good practice that is adequate in preventing s pills from becoming an issue.

In addition, AGC maintains that it is not reasonabl e for EPA to require contractors to "cover" a fueli ng 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 b e appropriate secondary containment or if drain pans and drop clo ths must be used in addition to the cover and berms . If a spill kit is made available onsite, additional containment should not be necess ary.

Response: See response to comment 0168-A1.001.028.



# Comment ID 0097-A1.001.007

Author Name: Knutsson John Organization: Daniel CorporationUnformatted 2012 CGP Comment Response Essays February 16, 2012

509 Issue Category: 2.3.2.1Q 10. Secondary containment should be required

Response: EPA notes the support for secondary containment. E PA received numerous comments on this issue, and fo und that providing flexibility in terms of what specific con trols provide “an effective means of eliminating th e 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 equipmen t or vehicles, EPA provides pollution prevention st andards for fueling and maintenance of equipment or vehicles. Storm water c ontrols for on-site fueling are required to have se condary containment structur es or other similar effective means of preventing the dis charge of spilled or leaked chemicals from the area

.

TCEQ requests the EPA provide flexibility in the pe rmit. Permittees might use either spill kits or con tainment. For some site s, requiring containment is neither practicable nor feasible. Pl us, on some linear construction sites these fueling stations move 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 fue ling and maintenance areas on small sites may be im practicable since costs and disturbances for installation of such a system coul d 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: 2.3.2.1Q Comment: The proposed language to require secondary containment is reasonable.

Response: EPA notes the support for secondary containment. E PA received numerous comments on this issue, and fo und that providing flexibility in terms of what specific con trols provide “an effective means of eliminating th e discharge of spilled or leaked chemicals” was warranted. See response to comment 0168-A1.001.028.Unformatted 2012 CGP Comment Response Essays February 16, 2012

510 

# 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 a chievable. Staging and storage areas should be required to have spill kits and spi ll 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 need s to be clarified to make sure com pliance is feasible and practical. As written, it c ould be interpreted to mean that the entire fueling and maintenance area needs secondary containment or nee ds to be under cover. S econdary containment structures are not defined in the Appen dix and have a wide range of meanings including str uctures that are built out of concrete or other materials. The purpose of this se ction should be to keep oil and other vehicle relat ed fluids from coming i n contact with the ground. The permit should require the use of d rip pans or other appropriately sized secondary con tainment measures to capture leaks or spills from equipment, fueling nozzles and stora ge tanks.

A fueling area for a large earthmoving operation us ing heavy earthmoving equipment could require a hal f-acr e or more. To develop an entire half-acre as a secondary containment structu re or keep a half acre under cover would not be pra ctical 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 con tainment measures are needed for containing leaks or spills from maintenance and fue ling 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-A 2.001.017.



# Comment ID 0137-A2.001.013

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (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 co nducted outside of a certain buffer area of streams , wetlands, and other ecologically

sensitive area.

Response: EPA notes that support for locating activities outs ide of the buffer. EPA agrees with the commenter t hat where a buffer isUnformatted 2012 CGP Comment Response Essays February 16, 2012

511 provided in compliance with Part 2.1.2.1, these pol lutant-generating activities should not occur withi n 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 a reas on the construction sites are essential and mu st not be allowed to be discontinued even if spill kits are available. The topography of a construction site is often sufficie ntly steep that spill kits may not be adequate to contain spills. As for covering the fue ling area, we see the environmental advantages, but the expense may outweigh the advantages.

Response: EPA appreciates the comment, and notes that althoug h 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 addresses the concer ns 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 se condary containment or a cover is required. For example, permanent on-site fueling ta nks containing more than 500 gallons require second ary containment. In all other cases spill prevention kits must be on-site.

2. For most construction sites it is not feasible t o install infrastructure for fueling and maintenance. It woul d 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”

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 proposed would require seconda ry containment for all staging and storage activiti es (or other effective means) "to eliminate discharges of stormwater from these areas " (emphasis added). The purpose of BMPs is to contr ol and minimize th e discharge of pollutants in stormwater, not to eliminate the d ischarge completely.

The CGP requires placement of covers over all const ruction materials to prevent contact with rainfall. Section 2.3.2.3.c. Man y materials used on utility projects (e.g., b ricks, blocks, exposed structural steel, utility po les) are designed to be exposed to stormwater and s hould be specifically exempted from this requirement. Als o, Section 2.3.2.3.c.iii needs to clarify that it d oes not require these t ypes of materialsUnformatted 2012 CGP Comment Response Essays February 16, 2012

512 (e.g., oil) to be located under a roof (i.e., cover ed).

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 COMM ENT]

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 cont ainment must be installed around staging and storage areas and eliminate stormwater discharges from these areas. Having secondary conta inment around materials such as fuel storage tanks or chemicals is reasona ble, but requiring secondary containment around areas that d o not have the poten tial to introduce pollutants to a water of the US, such as storage areas for pipelines or electrical equipment, is imp ractical and unnecessary. On a pipeline project the re may be miles of pipe which is stored "strung" in a linear fashion prior to being installed in the ground. Secondary containment is i mpossible 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) Issue Category: 2.3.2.3 Again, it is neither possible nor necessary to cove r all construction materials. This should only be r equired for those mater ials 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 spil l (but not necessarily around construction materials that have no significant pot ential to interact with stormwater and act as a pol lutant). If you line an d berm a staging area, it will likely have ponding issues. What abou t short duration projects where the staging is with in the right-of- way or projects withUnformatted 2012 CGP Comment Response Essays February 16, 2012

513 no design staging area? What type of secondary cont ainment would be required? If liquid materials stor ed in staging areas have secondary containment, why would the entire staging area need secondary containment.

We recommend secondary containment around liquid ch emicals 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 material s that have the potential to adversely impact storm water quality should be covered or have secondary containment.

Response: EPA appreciates the comment, and found it instructi ve in finalizing the permit. To address this issue , EPA has included the following note in Part 2.3.3.3: These requirem ents do not apply to those products, materials, or wastes that are not a source of stormwater contamination or that are designed to be exposed to stormwater.



# Comment ID 0040-A1.001.013

Author Name: Reynolds Paul Organization: Sunflower Electric Power Corporation Issue Category: 2.3.2.3 The CGP requires placement of covers over all construction materials to prevent contact with rain fall. Section 2.3.2.3.c. Many materials used on utility projects (e.g., bricks, blocks, exp osed structural steel, utility poles) are designed to be exposed to stormw ater 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 i t 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 permit tee to choose between cover or a similarly effectiv e 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 QuinnUnformatted 2012 CGP Comment Response Essays February 16, 2012

514 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 stag ed in a storage yard, why do they need to be covere d? 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 secondary containment, but not all construction materials sho uld be subject to this requirement.

Response: See 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 n ot occur on- site at LCPs. This is because of the limited size o f the jobsite and the value

of the materials involved. The EHSCP would like for the permit to be as clear as possible that the pol lution preve ntion requirements of this Part apply only to on- site staging and storage and do not implicate wareh ouse or offsite areas at which there is no land dis turbance related to the project. Stormwater discharged from such off-site activities does not constitute "construction stormwater" as defined at 40 CFR 122.26(b)(14)(x). Thus, we propose the followin g alternative language:

2.3.2.3 Staging and Storage Areas.

a. Location Restrictions. When located at the const ruction site. you must locate areas to be used for staging and storage of building materials, equipment, or vehicles outside any buffe rs established consistent with Part 2.1.2.(no chang es subsequent)

b. Design requirements of stormwater controls. For all areas at the construction site which are design ated for staging and storage activities, you must install secondary containment or similarly effective means to eliminate discharge s to stormwater from these areas.(no changes subsequent)

Response: For the location restrictions, see response to comm ent 0066-A1.001.028. For the design requirements, EPA notes that it has adopted language very similar to that recommend ed 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, othe r petroleum products, chemicals, and other material s that could contaminat e stormwater in covered, water-tight containers, or provide seconda ry containment. • Label all containers that could be susceptibl e to spillage or leakage to encourage proper handli ng and facilitate rapid response if spills

or leaks occur.

Brevard County Comment: All containers are capable of spillage. Not practical. More labels. Which safe ty warning should be co vered?Unformatted 2012 CGP Comment Response Essays February 16, 2012

515 Opens up huge contractor liability when other label s 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 ar ea be provided.

4. Target requests that the EPA provide a definitio n of "spill" in the permit instead of several citat ions 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”, whic h the Agency believes is clearer. EPA includes the following definition o f “spill” in Appendix A: “for the purpose of this permit, th e release of a hazardous or toxic substance from it s container or containment.”



# 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 ex posed construction materials with plastic sheeting or temporary roofs to prevent contact with rainwater, or provide secondary contai nment structures designed to eliminate the potentia l discharge of runoff from these areas." Section 2.3.2.3.c. However, some constructi on materials will become an integral part of the po st-construction design, and will remain exposed to rainwater both during and after c onstruction (e.g., bricks, blocks, exposed structur al steel, utility poles). It m akes no sense to cover these materials during construction because they are designed to be exposed to stormwat er. Instead, EPA should specifically exempt such materials from the cover r equirement.

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 larg er construction projects that have designated staging and storage areas, however it is not feasible for smaller linear construction proje cts and maintenance projects. Typically smaller construction activities along a u tility ROW do not have a constant staging and stora ge area. In these inst ances, staging and storage areas are relocated as crews move from one structure/activity to the next, within a discre et part of the ROW. The refore, the requirement to flag a designated area is not feasib le for most utility projects, as the location is co nstantly changing. National Grid recommends that this language be amended to include recognition that it may not be feasible or appropr iate for small utility projects.

Response: See response to comment 0030-A2.001.021.Unformatted 2012 CGP Comment Response Essays February 16, 2012

516 

# 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 el iminate stormwater discharges from storage and stag ing 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 Requ irements are adequa te minimize the discharge of pollutants from the site. 2) Eliminati ng 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 discharg e of pollutants from spills and leaks and minimizing exposure of building materials to pr ecipitation and stormwater. 3) The NPDES permit and authorization to discharge allow the discharge of stormwater from a constructi on site. 4) The cost to capture, cont ain, and treat or dispose of stormwater discharges from storage and staging areas where on-site dispos al and/or treatment (e.g., land application, ATS) i s infeasible would be cost prohibitive. For example costs can run approximatel y $30 per 1000 gallons fo r offsite haul and treat. 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 are a of a si te might cost more than $7500 per year. The cost of the requirements set forth in Part 2.3.2.3 (b) would outweigh the environmenta l benefits.

LBA suggests that the wording of Part 2.3.2.3 (b) b e revised to remove the requirement to eliminate di scharges of stormwater from storage and staging areas and to more clearly defin e the term secondary containment.

Response: See response to comments 0030-A2.001.021. Also wit h respect to the requirement to eliminate discharge s, EPA has modified the language as follows: “You must minimize the exposure to stormw ater of any of the products, materials, or wastes t hat are

not a source of stormwater contamination or that ar e 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 de signated for staging you must install secondary con tainment structures or similarly effective means to eliminate discharges of stormwat er from these areas. Further guidance needs to be p rovided on what materia ls require this. As it is stated now, all stored construction materials require secondary containment. What about wood, steel, and numerous other material types that have no threat of contamination ? Also, materials are often transported daily to va rious areas of the site for active usage. Would these materials that are often times m oved hourly need to have secondary containment? Or would these materials just need secondary containment 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

517 Response: See response to comments 0030.A2.001.021 and 0168-A 1.001.028.



# 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 contai nment or cover for staging and storage areas. Staging and storage areas can be extremely l arge. It is better to require the containment and c over for specific materials (i.e. chemicals, fuels) that require it. The requirement for the entire area to be covered or contained is d efmitely not feasible, overly burdensome, and excessively costly.

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 containmen t structures to eliminate discharges of stormwater from staging and storag e sites at all construction sites. Secondary containment is practical for the storage five gallon or larger con tainers of petroleum products, chemicals,

and other materials that could contaminate stormwat er. Although enclosed storage structures (typically construction trailers) are often used on construction sites, they are not always pra ctical for the storage of larger construction mater ials that are temporarily on construction sites, e.g. metal or nonmetal pipe, wi re, 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 mat erials on a small construction project such as residential construction and small linear project is impractical because of the amount of space required to do so. Activ ities within the project area are constantly changing at a small construction site so it is impossible to pe rmanently dedicate an area just to a staging area. Furthermore, pipe materials for linea r 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 su ch materials with tarps or other water resistance sheeting would be more practical than secondary containment.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 an d materials in areas that will eventually be impact ed by the project. These are protected by the same BMPs as the rest of the proje ct. It is not practical to cover these areas.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.Unformatted 2012 CGP Comment Response Essays February 16, 2012

518 

# 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 containment around construction staging/storage areas with mate rials that have no significant potential to interac t with stormwater.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 a reas. b. Design requirements for stormwater control s. Secondary containment of the entire staging/storage area is not necessary if Par ts 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 sta ging areas, since these generally occur at project perimeters. Additional requirements beyond 40 CFR 112 are not necessary un der this permit.

Response: See response to comment 0168-A1.001.028.



# Comment ID 0062-A1.001.035

Author 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 ar e examples where cover and containment are unnecessary.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# Comment ID 0065-A1.001.020

Author Name: Jaeger Lisa Organization: Council for Clean Water Construction (CCWC)Unformatted 2012 CGP Comment Response Essays February 16, 2012

519 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 an d storage activities. However, CCWC does not support the requirement to install se condary containment structures or use similar metho ds to eliminate discharges of stormwater from these areas. The size and type mate rial at issue make it infeasible to comply with thi s requirement. For exam ple, power plants and major industrial facilities have storage yards with permanent materials pre-fabricated by v endors that are piled multiple stories high and wide. In such situations, the use of plastic sheeting and temporary roofs is not poss ible.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 containmen t structures for staging and storage areas is unrea sonable. For example, often a staging area may be more than 5 acres in size It is not possible to "eliminate discharges of stormwate r from these areas", only to minimize through the use of on-site BMPs. Plastic s heeting or temporary roofs are not practicable in m any instances. This should be addressed in the project's SPCC plan.

Suggestion: Add language requiring that proper BMPs , as determined by the project's SPCC plan, be impl emented as specified. R equire 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 t o eliminate discharges, EPA has modified the language as follows: “You must minimize the exposu re to stormwater of any of the products, mater ials, or wastes that are not a source of stormwater 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 con struction materials to prevent contact with rainfal l, not just those construction materials that could contribute to pollutant loadin g of stormwater. Also, secondary containment requir ements in staging areas are directed at the area, not the container. This mplie s that the entire staging/fueling area must be prov ided with secondary contain ment, not just those materials that could pose a risk of stor mwater pollution. Entergy requests that the provisi ons be rewritten to avoid the problems

stated.

Response: See response 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: 2.3.2.3Q 7. Part 2.3.2.3.b. of the draft EPA CGP specifies p ollution prevention standards for staging and stora ge areas and the need f or secondaryUnformatted 2012 CGP Comment Response Essays February 16, 2012

520 containment or cover for staging and storage areas on the site. Other than oil storage containers, exp osed construction materials do not pose a significant pollution risk that would necess itate temporary roofs or secondary containment. Oil and other chemical sto rage should be addressed separately from exposed construction m aterials which are typically inert in nature. Aga in, this requirement would be very burdensome to small projects that don't have the sp ace or resources for a dedicated storage area.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 "eliminate discharges

of stormwater from these areas". CDOT does not feel like this is an attainable requirement for an enti re staging or storage a rea. On large sites the staging are as can be very large. This requirement could mean b erming the entire area and pumping out any water th at collects and removing it from site. This would not be attain able. Instead, CDOT would be agreeable to providing containment that allows

treatment and r elease of stormwater for the staging and storage ar eas and then providing secondary containment that d oes not allow the release of stormwater for specific items, such as p etroleum products.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 sto rage areas is more practical on most sites i n use over one week than providing cover for these areas. Typical secondary containment meas ures should be used on these sites.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 hydro carbon storage and disbursing. Many are just tempor ary building material s taging

locations. A better list of construction materials that need plastic sheeting n eeds to be created. Not all construction materials need to be

covered.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021. Additionally, EPA has attempted to more clearly articulate the types of products, materials, and wa stes that are affected by the Part 2.3.3.3 requirem ents, which the Agency believes addresses the commenter’s point.Unformatted 2012 CGP Comment Response Essays February 16, 2012

521 

# Comment ID 0076-A1.001.013

Author 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 enti re staging area. Target would like further explanat ion on this proposal as we are concerned that the requirement is duplica tive of existing tank requirements for chemical con tainers. If there is a specific concern with a material or activity we would sugges t that these be identified instead of entire areas of the facility.

2. Target believes current secondary containment la nguage is not conducive with large commercial devel opments 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-A 2.001.021.



# 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 prac tical at active constru ction sites. Secondary containment for "permanent" storage conta iners is permissible. Staging and storage areas sho uld 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-A 2.001.021.



# 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 car e of fuel and other hydrocarbons is a frequent cause of accidental disc harges and Rockville supports efforts to reduce the frequency of these discharges. EPA should not only consider r equiring spill kits be kept on site, but also requiring that the operator provide traini ng to their employees on spill response.]

Response: EPA agrees with the commenter, but prefers to leave the choice as to what controls will be implemented to “minimize the exposure to stormwater” of these types of pollution sources to the operator. The permit requires also that the SWPPP specify the spi ll 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 procedures (Part 6).



# Comment ID 0086-A1.001.014

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 2.3.2.3QUnformatted 2012 CGP Comment Response Essays February 16, 2012

522 The CGP requires placement of covers over all const ruction materi als to prevent contact with rainfall . Section 2.3.2.3.c. Ma ny materials used on utility projects (e.g., bricks, blocks, exp osed structural steel, utility pol es) are des igne d to be exposed to precipitation and eventual storm water. The CGP should specifically e xempt these materials from the requirement to be co vered. Also, Section 2.3.2.3 .c.iii needs to clarify that it does not require th ese types of materials (e.g., oil) to be located un der a roof (i. e., covered).

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 eq uipped with "secondary containment structures or si milarly effective means to eliminate discharges of stormwater from these areas ." Section 2.3.2.3.b. We agree with EPA that stagin g and storage areas should be managed and controlled with BMPs to avoid or minimi ze stormwater impacts. However, we do not believe t hat elimination of stormwater discharges from these areas is necessary , feasible, or appropriate. In order to completely contain such discharges, the operator would need to install some kind of detenti on or retention facility, even if the stormwater is otherwise clean. This makes no sense, is infeasible, and would be a logistical nig htmare to try to accomplish. For example, on a pipe line or transmission project, there may be many miles of pipe or poles and cable that a re stored in a linear fashion or at multiple points along a right-of-way 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:

-- The pollution prevention section as proposed wou ld require secondary containment for all staging an d storage activities "to e liminate discharges of stormwater from these areas." The pur pose 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 wit h respect to the requirement to eliminate discharge s, EPA has modified the language as follows: “You must minim ize the exposure to stormwater of any of the produc ts, materials, or wastes that are

not a source of stormwater contamination or that ar e 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 vehi cles outside of establi shed buffers is not practical for linear utility projects working w ithin road right-of- way or utility easements. For example, multiple sec tions of pipe mayUnformatted 2012 CGP Comment Response Essays February 16, 2012

523 be welded or fused together before being installed into the excavated trench-it would be impracticable , cost-prohibitive, and cause substantial delays if the construction team were re quired to move the amalgam of this process, includi ng the pipe, stone, and related equipment out of the buffer area at the end of each work day. A sufficient alternative for pollution p revention is the availa bility of spill kits along with the requirement to refuel and store equipment 100 feet from a wetland or water body. E PA should recognize that its concern for buffer integrity is not relevant for pi peline linear construction processes. Thus, EPA sho uld either modify the storage provisions or exempt all major above-ground install ation activities taking place within the buffer are a 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 con tains potential fuel or other contaminants (i.e. new pipe), requiring them to "pr otect exposed construction materials with plastic s heeting or temporary roofs to prevent contact with rainwater, or provide secondar y containment structures designed to eliminate the potential discharge of runoff from these areas Under these standards, linear construct ion projects' excavation methods create stockpiles (See Exhibits) for which plastic sheeting is an adequate and effective protection- t emporary roofs are not feasible for these projects.

AGA requests that EPA exempt equipment that does no t 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: 2.3.2.3Q

9. Fact Sheet Item 11. Part 2.3.2.3.b and 2.3.2.3.c : Providing secondary containment for all construct ion material is not practical or required. A number of inert material such as precas t concrete pipe or vaults, fiberglass or HDPE pipes , clean aggregate, or clay roofing tiles have very limited potential to contaminate st orm water. In many cases, these materials will be s taged near the final installation location. The term "exposed" should be defined. Pla stic wrapping of the construction materials describ ed above would not be practical for many items. 2.3.2.3.c.i Containers should be la beled in accordance with OSHA requirements. 2.3.2.3 .c.v Spill clean-up procedures will vary based on the spilled material and locatio n. Dry clean-up measures may not be approp riate 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 Name: 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 stagin g and storage areas on the site. These parts state: "You must also clearly flag off and designate areas to be used for staging and stor age of building mat erials, equipment, or vehicles... and conduct such activities only in th ese areas" and "you must install secondary containm ent structures or similarly effective means to eliminate discharges of stormwat er from these areas."Unformatted 2012 CGP Comment Response Essays February 16, 2012

524 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 thei r heavy equipment to one area because some large ma chines are not mobile and must remain in place on the project to perform their int ended function.

In addition, it is not practical to provide cover f or all construction equipment and materials. Coveri ng staging areas is not necessary and is impractical for large projects w hich tend to have multiple large staging areas. Als o, the vast majority of material stored within stag ing areas is inert material such as lumber, iron, etc t hat do not represent a storm water pollution threat . Elsewhere, the Draft would address the stock piling of any materials that could repres ent a stormwater pollution threat, such as soil sto ck 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 Sect ion 311 of the CWA and avoid creating a duplicate program.

Response: See response to comments 0066-A1.001.028 and 0115-A 2.001.017.



# 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 sho uld be in the control area. Hazardous or high polluting materials should have a n initial system controlling that storage area ahea d of the site controls.

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 provi des pollution prevention standards for staging and storage areas. Storm wa ter controls for staging and storage areas are required to have secondary containment structures or other similar e ffective means of preventing the discharge of spilled or leaked chemicals from the a rea.

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 mater ials or equipment that do not pose a threat of disc harge of chemicals or otherUnformatted 2012 CGP Comment Response Essays February 16, 2012

525 contaminants should not be required.

Response: See response to comments 0168-A1.001.028 and 0030-A 2.001.021.



# 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 mos t cases. Secondary containment for storage containe rs is achievable. Staging and storage areas should be required to have spill kits and spi ll 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: 2.3.2.3Q b. Design requirements for stormwater controls. For all areas designated for staging and storage activ ities, you must install secondary containment structures or similarly effective means to eliminate discharges of stormwater from these a reas.

The term "secondary containment structures" as it i s used in this paragraph is neither clear nor defin ed. It is unclear wheth er 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 c ontainment structure be built for the entire area p otentially consisting of a non-permeable surface and berm made of concrete cov ering the entire staging and storage area's surface

.

It is not practical, reasonable, feasible, or cost effective to provide cover or secondary containment for an entire construc tion site staging

or storage area.

The components for "Pollution Prevention Standards" in Part 2.3.2.3 (c) are well written to minimize t he exposure of potential po llutants to stormwater. They are effective measures that wil l prevent the materials from coming in contact with stormwater and woul d be just as effective as building some type of containment stru cture 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, l inear transportation projects. Also, right-of-way c onstraints can make location of the staging areas outside of buffer areas infeasible. A s such, MDT requests greater flexibility be provide d to account for linear constraints.

Response: See response to comments 0115-A2.001.017 and 0066-A 1.001.028.Unformatted 2012 CGP Comment Response Essays February 16, 2012

526 

# Comment ID 0153-A1.001.019

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 2.3.2.3Q 1. This requirement is not practicable and too seve re for staging and storage areas for building mater ials, equipment, or veh icles. Most of the construction materials that actually require st orage 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 disch arges of stormwater from these areas. "

Response: See response to comment 0168-A1.001.028. EPA notes that it has adopted language that is compatible wi th the commenter’s recommended language. See Part 2.3.3.3

.



# 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 const ruction 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 expo sed 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 CONTAINERS

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 requirem ents for stormwater controls. You must: Direct all washwater into a leak proof container or pit:

For clarification we would recommend: Direct all wa shwater into a leak-proof container or leak-proof p it.

This added verbiage will reinforce and clarify the requirements to ensure structural integrity for was hout pit s. The original draft does not specifically call for a leak- proof pit. Too many construction sites have cut com ers by digging a pit for washwater, but fail to pro perly line the pit to prevent leakage into the groundwater. Th is change would also address the issue of leaking l iners, which is a commonUnformatted 2012 CGP Comment Response Essays February 16, 2012

527 occurrence.

Response: EPA has incorporated the commenter’s recommended mo dification 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 Standa rds.

Items i. and ii. address liquid wastes, and item ii i. addresses hardened concrete waste, but there is no mention of the manag ement of the toxic washwater generated by the washing ofthe read y-mix trucks and pump trucks. Although items ii. an d iii. Refer to Part 2.3.2.5 for guidance, 2.3.2.5 does not address this issue. As w astewater from washout of concrete is highly toxic, and is specifically id entified as a Prohibited Discharge, in Part 2.3.1.1, it should be managed properly. Therefore, we recommend the foll owing language be added as 2.3.2.5, iv;

All concrete washout water must be disposed of in a n approved treatment facility.

This would insure that the toxic concrete washwater is properly managed and not allowed to contaminate local groundwater or surf ace streams. This would also allow state or local agenc ies to determine what is "approved". Lacking proper washwater disposal reg ulations, 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 necessa ry. The final permit requires that the container o r pit used for this purpose be “leak-proof” and that it be designed so that “no overflows can occur due to inadequate sizi ng or precipitation.” Therefore

, from a pollutant discharge, EPA believes that these requirements are stringent and and guard against t he 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 hal f fu ll (for example, bridge pours or roadway pours in a n arid climate, where the wash out can be filled up and picked up in one day).

Response: The proposed requirement was removed from the permi t.



# Comment ID 0037-A1.001.028

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 2.3.2.4Unformatted 2012 CGP Comment Response Essays February 16, 2012

528 Part 2.3.2.4.b requires that all washwater is direc ted "into a leak

‐ proof container or pit." Do the pits used to collec t 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 grea t enough that the potential for groundwater contami nation is negligible. The permit could specify that best management practices must b e implemented to protect groundwater, such as requi ring that soils have adequate buffering capacity, washout sites should be used fo r 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 dr ainages, springs, or wetlands.

Response: EPA appreciates the commenter’s points about the im portance of focusing on risk to groundwater contami nation. However, EPA believes it is important to manage the se wastes at the source so that discharges are from these areas are eliminated consistent 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 co ntainer or pit; and ii. Design washwater containers or pits so that no overflows c an occur during rainfall or after snowmelt.

Brevard County Comment: How big a storm...1000 yr sto rm is too broad, even 25 year- 24 hour event may be excessive. Not possible on many sites, small site penalty.

Response: EPA does not define the size storm that the contain er or pit needs to be designed around, nor does it beli eve it is necessary to do so. The operator will need to use their best professional judgment to determine how best to des ign 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 28 - "Design wash water containers or pits so that no ov erflows can occur during rainfall or after snowmelt ."

•Is this requirement feasible? What size storm even t do wash water containers need to be designed to h andle?

Response: EPA does not define the size storm that the contain er 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 pi ts so that

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 f or keeping our nation's waterways and their tributa ries clean and healthy. InUnformatted 2012 CGP Comment Response Essays February 16, 2012

529 reference to the provisions "Prohibited Dischargers : The following dischargers from regulated construc tion istes are prohibited: 1. Wastewater from washout of concrete, unless managed by an appropriate control..." contained in the Env ironmental Protection A gency's (EPA) proposed Draft National Pollution Elimination System (NPDES) General Permit for Stormwater Disch argers from Con struction Activities, NRMCA has current recommended best prac tices in place for helping to meet the rule's crite ria.

Prior to the draft rule's publication, NRMCA worked in cooperation with the National Association of Ho me Builders (NAHB) to d raft a set of recommended best practices and guidelines fo r managing wasterwater from washout of concrete chu tes on residential constructio n sites. This fact sheet which details the appropriat e handling of concrete washout is title "Environmen tal Best Practice Guide for Ready

Mix Concrete Chute-Rinse- Off at Residential Building Sites" and can be found as part of these comments under Appendix A. [Pleas e see Appendix A in the orgional comment letter. Docket I D EPA-HQ-2010-0782-A1-0073-A1.].

As for recommended best pract ices 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 co mmercial construction, are contained in chapter 6 of the NRMCA publication tit led "Environmental Management in the Ready Mixed Co ncrete Industry." The guidelines can also be found as part of these comme nts 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 0091-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. Par t 2.3.2.4b.ii. No specific criterion was included. We recommend this, like other design criteria, is a 2- year, 24 hour design.

Response: EPA does not define the size storm that the contain er 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 des ign these containers or pits so that

overflows will not occur.



# 2.3.2.5 STORAGE, HANDLING, AND DISPOSAL OF CONSTRUC TION WASTEUnformatted 2012 CGP Comment Response Essays February 16, 2012

530 

# 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 co ntainers need to have lids or covers. On most proje cts and all LEED Certif ied projects there are recyclable content dumpsters used to disp ose of woods, plastics, metals, etc. that have no t hreat of contamination. Additional verbiage needs to be included here to exclude these types of dumpsters from this requirement. This wil l make this requirement easier to

enforce.

Response: The requirement to provide lids for these container s has been removed. The permit provides flexibilit y 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 Consider revising the language to read: "You must s tabilize portable toilets to prevent being tipped o r knocked over."

The term "will not be" indicates zero potential and is unachievable.

Response: EPA has retained the proposed language. EPA believ es that 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 con stitute a violation, as long 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 st ates: "On a daily basis, ..." Consider revising the l anguage to read: "On a daily basis, when working or during operational days ..."

Many calendar days (i.e. weekends, holidays) will n ot have any personnel on site and will not be able to clean up and dispos e of waste, existent or not. Therefore, non-compliance with the Permit has occurred.

Response: The final permit language has been modif ied in a way that addresses the commenter’s concern s. 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 di sposal of construction waste. c. Pollution preventi on standards.ii.1 The Permit againUnformatted 2012 CGP Comment Response Essays February 16, 2012

531 states: "On a daily basis, ..." See language from com ment 17 above.

Response: The final permit language has been modif ied in a way that addresses the commenter’s concern s. 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 containe rs or other devices used for the collection, storage, detention, and/or disposal of wastes for leaks or overflows."

This language indicates a site inspe ction every 7 days and is in conflict with the 14 d ay inspection indicated in Section 5, Part 5.1.2 of the Permit (page 45).

Consider revising this language to correlate to Ins pection frequency required by the Permittee in Part 5.1.2 and Part 5.1.4.3 of the Permit.

Response: See response to comment 0064-A1.001.022.

Comment ID 0062-A1.001.038

Author Name: McClure Bach Organization: Brevard County, Natural Resources Man agement Office Issue Category: 2.3.2.5 (3) Store wastes that cannot be disposed of in a co ntainer under cover or indoors.

Brevard County Comment: Not practical for large sca le demolition and land clearing. "Put those bushes and roots in the dumpster"?

Response: EPA removed the proposed requirement for lids on waste containers.

Comment ID 0064-A1.001.024

Author Name: Dees Richard Organization: City of Meridian Issue Category: 2.3.2.5 Section 2.3.2.5.d, page 29 - Full "Maintenance requ irements" section

•This weekly requirement seems to undermine the 14- day inspection option as presented later in the pro posed permit.

Response: EPA has removed this requirement. See r esponse to comment 0064-A1.001.022.

Comment ID 0093-A2.001.064

Author Name: Pilconis Leah Organization: Associated General Contractors of Ame rica (AGC)Unformatted 2012 CGP Comment Response Essays February 16, 2012

532 Issue Category: 2.3.2.5 EPA should remove all of the "On a daily basis ..." r eferences in this Part. AGC recommends that EPA rev ise the language to say "During work days ... ."

Response: The final permit language has been modif ied in a way that addresses the commenter’s concern s. See Part 2.3.3.3.e.i.

Comment ID 0093-A2.001.065

Author Name: Pilconis Leah Organization: Associated General Contractors of Ame rica (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 t he collection, storage, detention, and/or disposal of wastes for leaks or overflows." This language indicates a site inspection every sev en (7) days and is in conflict with the 14-day inspection indicated in Part 5.1.2 of the Dr aft (at page 45). Consider revising this language t o correlate to the inspection frequency required by the permittee in Part 5.1.2 a nd Part 5.1.4.3 of the Draft.

Response: EPA has removed this requirement. See r esponse 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 appropria tely included in the list of materials requiring sp ecial handling and disposal under this Part. It is our understanding that roofing tar is a solid at room temperature and should not require special handling.

On the other hand, there may be other liquid coatings used in modern roofing systems that are im mediately mobilizable by stormwater

and that should be included in this list.

Also, we are unclear whether debris from roofing de molition is included under this section. Those mate rials typically are stable by the time they are removed, so it would be our position that they should not be regulated under this Part.

Response: EPA has removed “roofing tar” from the list of exam ples included in Part 2.3.3.3.d. Roofing demolitio n debris should be

treated as construction waste under Part 2.3.3.3.e.

Comment ID 0161-A2.001.001

Author Name: Hitchcock Reed Organization: Asphalt Roofing Manufacturers Associa tion (ARMA) Issue Category: 2.3.2.5

ARMA would like to address a concern we have with t he Proposed Construction General Permit. Roofing ta r, which ARMA is assumi ng EPA is referring to asphalt, should not be included in the list of materials requiring special handlin g 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 co ntain coal tar which is very different than asphalt.Unformatted 2012 CGP Comment Response Essays February 16, 2012

533 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 hazardous

material unless stored or heated and is not water s oluble. Asphalt is a petroleum materials product bu t has nothing in common with paints, solvents, acids, pesticides, or other mater ials referenced in the permit. Therefore, no specia l handling should be required and it certainly should not be regulated as a hazardous ma terial and/or referred to as a hazardous or toxic w aste.

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 Environmen tal Services Issue Category: 2.3.4 2.3.4.3 "Heavy rain" is too vague. Should list a nu mber that refers to the weather conditions listed o n the product. Some horticultural chemicals need multiple days of dry weather to func tion properly.

Response: EPA does not believe it is necessary to define “heavy rain” further. This type of detail i s difficult to define with any precision, and is best left to what is considered b est industry practice in applying fertilizer. EPA’ s interest is in not having fertilizers applied during situations that are guaranteed to re sult in a discharge.

Comment ID 0062-A1.001.039

Author Name: McClure Bach Organization: Brevard County, Natural Resources Man agement 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 propos ed language has been retained. EPA notes that some discretion on the applicator’s part is given to be able to decide wha t is the best practice if there are conflicts.

Comment ID 0062-A1.001.040

Author Name: McClure Bach Organization: Brevard County, Natural Resources Man agement Office Issue Category: 2.3.4 2.3.4.3 Avoid applying before heavy rains;Unformatted 2012 CGP Comment Response Essays February 16, 2012

534 Brevard County Comment: define "heavy rains", contr adiction 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 consider ed best industry practice in applying fertilizer. EPA’s interest is in no t having fertilizers applied during situations that are guaranteed to re sult in a discharge.

Comment ID 0062-A1.001.041

Author Name: McClure Bach Organization: Brevard County, Natural Resources Man agement Office Issue Category: 2.3.4 2.3.4.6 Never apply to stormwater conveyance channe ls; and

Brevard County Comment: How will you vegetate conve yance 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 wat er” in the conveyance channel, which the 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 fe rtilizer on steep slopes (e.g., as defined by EPA a s 6:1's (H:V) and steep er) which would eliminate nutrient amendment on most highway fore-slopes and back-slopes? These are very disturb ed areas most likely to be nutrient deficient and limiting to vegetative cover regrowth. Similarly, why prohibit fertilizing stor m water channels where rapid plant rooting is necessary to develop critical shear stre ss resistance? Fertilizer amendment is sitespecific per soil types and should not be

treated as a "one-size-fits-all" fertilizer recomme ndation.

Response: EPA is providing best practice requireme nts as part of this permit so that the risk of disc harge during storm events of these fertilizers is minimized. This language has been c larified so that the restriction applies when there is “flowing water” in th e conveyance channel, which the Agency believes addresses the co mmenter’s concern.

Comment 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. Whi le care should be taken in such applications it is diffic ult to understand how such channels can be vegetate d as the Agency and industry intend if fertilizer cannot be used to facilitate early growt h. We suggest that this section be revised to allow fertilizer use as necessary for the

establishment and maintenan ce of vegetation to sustain adequate cover of under lying soils. If added controls are deemed necessary the permit could include a qualification that care shou ld be taken to avoid mobilization of fertilizer in stormwater flows.Unformatted 2012 CGP Comment Response Essays February 16, 2012

535 Response: This language has been clarified so that the restriction applies when there is “flowing wat er” in the conveyance channel, which the Agency believes addresses the commenter’s concern.

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 applica tion of fertilizer to stormwater conveyance channel s. The stormwater conveyance 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 sw ales and ditches when seeding to help establish veg etation. This restriction should be eliminated as it would not allow MDT to effectively stabilize projects sites, thereby adversely affect ing water quality.

Response: This language has been clarified so that the restriction applies when there is “flowing wat er” in the conveyance channel, which the Agency believes addresses the commenter’s concern.Unformatted 2012 CGP Comment Response Essays February 16, 2012

536 

# Construction General Permit

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537 

# 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 turbid ity limit and the associated sampling requirements will lead to a significant, additional resource expenditure for transportation projects, which in many cases may be beyond what wo uld be considered reaso nable. Increased project cost inevitably means less projec ts being constructed to address the transportation needs of our customers, and in turn, less employment opportunity for workers within 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 exc eption in Part 3.1.3.2. There is no such part in th e 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 timetabl e and acreage limits within which designated construction activities are to be brough t under numeric limits. The sequential rule propose s that construction acti vities on less than 10 acres would not trigger turbidity limits. W hile this is generally acceptable, in highly urban settings where this regulation will apply (e.g. the District of Columbia) that acreage limitation is too large. In these places most const r uction activity occurs on considerably smaller sites; nevertheless, there can be a relativ ely significant addition of sediment and other poll utants to stressed urba n streams. We therefore recommend that in highly urban settings, the acreage cutoffs/applicability by timeframe be s et at ten acres and five acres, respectively (versus 20 acres and 10 acres). ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

538 Refer to Response 3.1.



# 3.1.1 TYPES OF CONSTRUCTION ACTIVITIES WHOSE DISCHA RGES 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 a re upstream or tributary to a discharge that would be susceptible to a numerical turbidity limit. If a particular discharge on a sit e would meet the criteria for having to meet a nume rical turbidity limit then there shou ld 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 instal led even though the final discharge to the receivin g stream has met all numerical turbidity limits. A permittee should only be held t o 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 disturb ances" paragraph

•Does this include a gravel source being used for j ust 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: 3.1.1 TxDOT disagrees with the overall methodology used t o calculate typical disturbed acreages for transpor tation projects. If this permitUnformatted 2012 CGP Comment Response Essays February 16, 2012

539 takes effect with the recommended changes, a projec t site in acres must ultimately be limited to 10 ac res or less disturbed at any given time, in order to be exempt from implementing and c omplying with the proposed numeric Effluent Limitat ion Guidelines (ELG) that will become part of this permit (20 acres in the in terim). At this time, the updated nephelometric tur bidity 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 d isturbance to 10 acres or less. It is our determina tion that requiring such a low acreage limit will cause unknown and difficult to a nticipate changes in how transportation projects ar e built.

We believe that a transportation project's acreage limit should be based on an individual state's numb ers and not averaged across all states. For example, Texas is a physically larger s tate, 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 construc tion projects Comparing our averages to another state, which may have many fewer miles o f roadway 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 this graph taken from the EPA publication, Economic Analysis of the Final Construction & Development ELGs(2009) http://water.epa.gov/scitech/wastetech/guide/constr uction/upload/2009_12_8_guide_construction_files_ec onomic.pdf

Figure 7-2: Projection of Aggregate Construction Va lue, 2009 - 2014. [Please see page 3 of the origina l letter (Docket ID 0066-A1.001)].

Another assumption stated in how this acreage limit was determined, "EPA assumed that the combined wid th of the road surface, median, and buffers is 4 lanes and 88 feet, and the refore, one mile of new highway would represent 10. 67 acres in disturbed area." TxDOT ROWs are more typically about 100 feet, which alone would indicate that this acreage assumption is potenti ally 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 where everything

will be disturbed from ROW line to ROW line. In thi s case, one has relatively minor environmental i mpacts, while the other has greater impacts, yet both would be required to follow the s ame ELGs and meet the soon to be proposed NTU.

Therefore, we believe that the trigger limit for re quiring ELG sampling requirements should be based n ot on the methods p rescribed in the original document used (referenced above) to se t the proposed acreage limit. The acreage limit sho uld be based on a more common sense approach, which should potentially include lo oking at the variance between states for potentiall y setting this limit based on individual states, as well as the type of work bein g performed.

Response Refer to Response 3.1.



# Comment ID 0066-A1.001.030

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.1.1 Discussion: On pg. 31, the explanation of how the N TU limit applies to projects does not seem equitabl e to large linear transportation projects. "... and will disturb 20 (or 10 later on) acres of land at one time, including non-contiguou s land disturbance s that take place at the same time and are part of a larger common plan of development." This will essentially force many s tate DOTs to completely change how projects are planned and constructed, which wil l add an extraordinary burden and cost to many, if not all, linear type transportation projects This requirement does not appear to take i nto consideration linear transportation projects an d the unique challenges they face.Unformatted 2012 CGP Comment Response Essays February 16, 2012

540 Suggestion: Consider providing an exemption for sta te linear transportation projec ts. 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 document.)

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 t hresholds for complying with the turbidity limit, f rom 20 acres on August 1, 20 11 , down to 10 acres on February 2, 2014. MoDOT believe s 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 contiguou s and/or must all drain to one common outfall location or receiving stream. This w ould capture larger grading projects, but allow exc eption for some of the smaller jobs which may disturb a total of 10 or more acres, but in several smaller areas of disturba nce scattered throughout a corridor. The way this Part currently reads, many, ifnot most linear transportation projects would be subject to the num eric turbidity limit requirements, which equates to more time and money being spent ea ch 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 l and disturbance area be computed for each single pr oject based "common plan" then compared to the 20 acre or 10 acre threshold to det ermine sampling requirements?

EPA FAQ GUIDANCE (2008 Construction gene ral Permit): "What if the "Common Plan of Developme nt or Sale" Actually Consists of

Non -Contiguous Separate Projects?

There are several situations where discrete project s that could conceivably be considered part of a la rger "common plan" can actually be treated as separate projects for the purposes of pe rmitting:

A. A public body (e.g., a municipality, State, Trib e, or Federal Agency) need not consider all their c onstruction projects within their entire jurisdiction to be part of an overall "commo n plan." For example, construction of roads or buil dings in different parts of a state, city, military base, university campus, etc. can be considered as separate "common plans." Only the in terconnected parts of s ingle project

would be considered to be a "commo n plan" (e.g., a building and its associated parkin g lot and driveways, airport runway and associated taxiways, a building complex, etc.)"

Application of the area threshold to each separate project "common plan" is recommended. This approach is recommend ed for the newUnformatted 2012 CGP Comment Response Essays February 16, 2012

541 permit. If the surface area threshold is calculated for the entire installation, significant costs wou ld be added to all cons truction projects. Construction costs would be based on including the sampling requirement in every project. At the start of a construction project, there is no way for a contractor to know if activities on a nearby project will exceed the surface area thresho ld. On a large installation, geographically separate projects may discharge to s ignificantly different receiving waters through dif ferent drainage 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 P art 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 dis turbed area threshold? Is reporting required?

Response Refer to Response 3.1.



# Comment ID 0025-A1.001.027

Author Name: 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 da maged or stolen, there may not be another data point within 5 miles. Suggest requirin g the use of the closest reasonably attainable data

.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

542 

# 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 p rojects, similar to the one provided for the constr uction of interstate natural 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 dra in inlets in the immedi ate vicinity. It should also include sites that are engineered to re tain and infiltrate all of their stormwater onsite. On such sites, the stormwater either evaporates or is absorbed into the ground, and no d ischarge of stormwater into waters of the U.S. occu rs.

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 usi ng all low impact development (LID) stormwater cont rols 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 o nly LID devices for stormwater management, unless i t can be shown that such devices cannot be utilized at a particular building site.

Response Refer to Response 3.1.



# 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 exempt ion for transportation projects

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

543 Refer to Response 3.1.



# 3.1.2.1 STORMS LARGER THAN THE LOCAL 2-YEAR, 24-HOU R 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 turbidit y limits in this section hinges on the definition o f a 2 year, 24

‐ hour storm event occurring "in that day", or within a period of midn ight to midnight. This is in direct conflict with t he definition of a "24

‐ hour" event. This section should be rewritten to exempt 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 appl ies on the day that design storm is exceeded. The fact sheet (page 78) clarifies that t he turbidity limit applies on subsequent days if th e rainfall depth is les s than the design

storm.

Discussion: When the local 2-year 24-hour storm is exceeded, the turbidity limit does not apply becaus e the BMPs are not designed to handle that storm. Since these larger storms can da mage control measures, it is unreasonable to requir e that the turbidity li mit be met on subsequent days that the design storm is exceeded. The tur bidity limit should only apply after the operator h as had a reasonable amount of time to inspect and implement corrective actions that may be necessitated by storms larger than wha t the control measures are designed for.

Recommendation: Recommend that EPA clarify in the f act sheet and in the permit that the exception to t he turbidity limit would continue to apply until two days after the conclusi on of a storm event that exceeds the design storm.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

544 

# Comment ID 0038-A1.001.014

Author Name: Minervini W. Organization: Issue Category: 3.1.2.1 Allowing permittees to use rainfall data from offsi te rain gauges (or similar devices) up to five mile s distant from the permittee's site seems questionable. USEPA's Proposed Construction G eneral Permit (CGP) - Fact Sheet did not provide an y justification for the five mile limit. Five miles seems too long a distance, e specially for local thunderstorms.

USEPA should evaluate technical literature on rain gauge density and consider reducing the five mile v alue, 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), Mun icipal Storm Water Managem ent, Second Edition, Boca Raton, Florida: Lewis Publishe rs.)

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 should require installation of one or more strategically located r ainfall 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: 3.1.2.1 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 yo u to Hydro- 35 which was published in 1977. NOAA Atlas 14 is no t applicable for

Texas.

Suggestion: USGS has a new rainfall atlas (Scientif ic Investigations Report 2004-5041) specifically fo r Texas which includes more recent rainfall data. This atlas provides more accu rate 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 us e of a 2-year 24-hour rainfall standard.

Response Refer to Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

545 

# 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 mi nimum 24-hour rainfall amount below which no sampli ng 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 dischar ge 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 und erstanding that only actual outfall discharges require samplin g 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 a nd also that temporary or pemlanent stabilization can bring acreage back unde r 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 Transportation Issue Category: 3.1.2.1 Since it is unknown how large a storm will be until after it is over, the inspector will need to measu re 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 h our requirement and base all monitoring requirement s on measurable surface discharges at the site. The requirement will result in the Permittee having to monitor all events rega rdless if they meet the event. Only

after the event will it be determined whether the P ermittee will report the monitoring event. We are c oncerned that this requ irement addsUnformatted 2012 CGP Comment Response Essays February 16, 2012

546 a level of complexity to the permit without necessa rily improving outcomes.

3.1.2.1. This requirement appears to be in direct c ontradiction to 3.3.9. in which all samples are req uired to be reported. T herefore, every event that we sample which exceeded the 2-year 24-h our, 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 turb idity 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 quali fied for this exception followi ng a particular storm event, the construction site opera tor would have to "record the amount of rainfall (i n inches) that occurred at his site using a rain gauge, or similar device, or using dat a from other sources that are no more than five mil es 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 another data point within five miles. AGC requests that EPA edit this provision to require the use of the clos est reasonably attainable 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: 3.1.2.1 While the Draft does provide an exception for compl ying with the turbidity limit for storms exceeding the 2-year, 24- hour rain event, this provision, as currently written, is unworkable. The Draft provides "If you determine that your stormwa ter 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." There are te chnical 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 c onfined 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 per iod, rain occurs that exceeds the 2-year, 24-hour rain event total, then the 2-year, 24- hour rain has been exceeded by meteorological defin ition, whether it all occurred on the same calendar day or not. The site must qualify for the turbidity exemption based on the meteorolo gical rain event.

2. The CGP as written does not exempt the runoff fr om any 2-year, 24-hour rain event; it only provides an exemption for the same calendar day. AGC maintains it would make more sens e for the turbidity exemption to apply for some per iod 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

547 AGC also recommends that EPA craft provisions for c ontingencies other than a single rain event that mi ght exceed the 2-year, 24- hour threshold. Extended rain for many days or a heavy r ain while the ground is still saturated from previo us rains can produce flooding or disruptive conditions often much worse than a singl e large and isolated rain event, even if no individ ual 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 n ews), then a turbidity limit exemption should be granted until the flooding or disruptive conditions subside. All of the streams i n the area would be turbid anyway, and the impact of construction ru noff would be negligible under these circumstances.

In addition, an exemption is also needed for high i ntensity rainfall events, such a s one (1) inch per hour or more. These events could be less than the volume of a 2-year, 24-hour storm eve nt, however cause significant damage to even stabil ized 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 de finition of "storm event" (see Appendix A and Part 3.1.2.1). The Draft app ears to require sampling during every storm and also every snow mel t event which results in any amount of runoff. It u nclear to AGC how long permitees would be required to sample when the stor m starts out heavy in the first 24 hours and then c ontinues to drizzle for the next few days. The Draft also would require sampling even if no land changes have occurred since the last compl iant sample was collected/analyzed. AGC members also question if th ey would need to sample in the middle of winter whe n there is a slight snow me lt and then the ground freezes back up again.

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 limi t 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 limits 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 t he “same day” language in the CGP, as

follows:

First, the meteorological definition of a 2 year, 2 4 hour rain event is just that: 24 hours. It is not confined to a calendar day as written 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, rainUnformatted 2012 CGP Comment Response Essays February 16, 2012

548 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 a ll 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 ru noff from any 2 year, 24 hour rain event, it only provides an exemption for the same c alendar day of the 2 year, 24 hour storm exceedence. It is likely that this much rain could create flood or near flood conditions at the

construction site. Passive controls and BMPs for tu rbidity will likely be overwhelmed and disrupted. They may be inaccessible, or dangerous t o access. The only sensible solution is that the turbidity 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 hour event is complete; or 2) t hat the turbidity exemption extend until flooding or disruptive conditions have abated at th e site, and the passive treatment and site BMPs can be accessed and repaired. Both of these options meet the intent of the rule while recognizing and providing practical solutions to on-site condit ions.

Third, there also needs to be provisions for contin gencies other than a single rain event that might exceed the 2 year, 24 hour threshold. Ex tended rain for many days or a heavy rain while the ground is still saturated from previous r ains can produce 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 (maybe as reported on th e local news), EPA should grant a turbidity limit exemption until the flooding or disruptive co nditions subside. All of the streams in the area would be naturally muddy, turbid, and swollen anywa y, thus the impact of construction runoff would be negligible under these circumstances.

Finally, an exemption is also needed for high inten sity rainfall events, such as 1 inch per

hour or more. These events could be less than the v olume of a 2 year – 24 hour storm event, but due to its intensity can cause significant damage t o 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 permit is valid. These areas regularly experience periods of significant rainfall that can occur on subsequent days, and operators need to know how these situations will be

addressed.

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 conse rvativeUnformatted 2012 CGP Comment Response Essays February 16, 2012

549 for design purposes and if the permittees are not r esponsible for conditions greater than this, that t he receiving waters will be severely polluted with sediment when the larger events do oc cur. Many cities and counties across the country u se design storms that are much greater, such as the 10, 25 or even the 100 yr even ts.

Response Refer to Response 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 indica tion 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 rain fall) over a much shorter duration will exceed the capabilities of on-site BMPs. An exception that includes the 2-yr, 24- hr rainfall depth or a maximum intensity would be p referred 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 PIPE LINES

Comment ID 0017-A1.001.019

Author Name: Metcalf Mark Organization: Integrys Business Support, LLC Issue Category: 3.1.2.3 17) 3.1.2.3 - This section indicates interstate pip elines subject to FERC regulation are exempt from t he numerical turbidity limit. The activities that occur as part of an interstate pipe line 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 JeraldUnformatted 2012 CGP Comment Response Essays February 16, 2012

550 Organization: HydroDynamics Incorporated Issue Category: 3.1.2.3 Natural gas pipelines should not be exempt from com plying 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 ref erenced as the units of measure, but the measuremen t method is not specified (e.g. EPA 180.1 or ISO 7027). Because results can vary de pending on the method used, we suggest that the measurement method be spe cified

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 an upper numeric effluent limit on discharg e waters from a construction site. Unfortunately, s uch a value will be restrictive and may not represent local con ditions. It is our understanding that this is a rea son why EPA is requirin g each state to decide appropriate NTU values.

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 eff luent limit value based upon achieving Performance Goals for reducing sediment discharges from a construction site to, or be a per centage of, historic values. Since sediment yields and turbidity values are related, achieving Performance Goals for sediment yields is applicable to determining upper numeric effluent li mits.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

551 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 cal culate a percent reduction (i.e., Performance Goal) of potential sediment yields from bare ground conditions when compared to histor ic sediment yield conditions can occur. This concep t can be applied to calculating upper effluent limits. Please contact me if you wis h 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," pa ge 32

•How will the NEL be balanced with State Water Qual ity Standards that are typically more stringent tha n 280 NTU? For example, the Idaho state water quality standard for turbidity is lower than 280 NTU but also considers background c onditions. Will the more stringent requirement apply?

Response Refer to Response 3.1.



# 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 stormwater discharges from sites of ten acres or more of distu rbance at one time after August 2014 (twenty acres prior to that deadline). This limit will apparently not be flow-weighted to be dependen t up on 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 NateUnformatted 2012 CGP Comment Response Essays February 16, 2012

552 Organization: Missouri Department of Transportation Issue Category: 3.2

MoDOT also has concern with the set numeric effluen t limit for all project sites regardless of soil ty pe in a region and the pre-existing turbidity of receiving streams. In regions with fin er grain soils, such as clays or fine silts, where total settable solids (TSS) ma y be low, and turbidity may be high, it is highly likely that chemical treatment would be required to achieve th e turbidity limit. Chem ical treatment systems (e.g. chitosan, polyacrylamide (PAM)) add c onsiderable project cost, not only with the cost of the product itself, but also with maintenance and inspection of the system. Also, wit h regard to receiving streams, Missouri is an agrIc ultural state with many tilled acres, and many of the streams in these agricultural regio ns were channelized in the past and are still in th e infancy of phasing through the channel evolution process. During any rain event, w ith agricultural runoff and stream degradation, man y of these streams beco me highly turbid, and there is concern with spending a considerable amount of reso urces on a chemical flocculant to keep potential tu rbidity from our projects below the permitted limit when the rec eiving stream may be exceeding that threshold alrea dy. As an example, acco rding to turbidity data collected by USGS, the Missouri Rive r, during normal flow, has turbidity around 100 NTU , and during river rise, these readings range between 100 and 700 NTU, with the ca pability 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 systems, or that we don't make every practical attempt to limit sediment loss from our c onstruction sites,just that it seems impractical in instances such as these to add additional cost beyond traditional erosion and sedi ment control devices.

Response Refer to Response 3.1.



# Comment ID 0077-A1.001.004

Author 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 a cres or more beginning August 1st, 2011 and 10 acre s or more beginning February 2nd, 2014. This limit ma y not be exceeded on any given day or time regardle ss 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 stabi lization of an existing area occurs. In other words you may be in violation prior to your development occurring or at the onset of propo sed development and approval of a CGP. Development will require stabilizat ion of an existing area that has turbid runoff before dist urbing the area for development and then maintainin g 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 str uggle to successfully implement the intent of the C GP. The agencies tasked with enforcing the CGP will be unable to inspect all sit es after rainfall events. Therefore, the self-repor ted numeric limit assumes a special role in making the CGP enforceable and providing ad equate incentives for operators to comply with all aspects of their permit.Unformatted 2012 CGP Comment Response Essays February 16, 2012

553 The Clean Water Act requires numeric limits be incl uded in NPDES permits where feasible. 40 C.F.R § 12 2.44(k). When properly maintained, sediment control BMPs can control the a mount of sediment leaving construction sites. Combi ned with simple turbidity monitoring technology, it is feasible to monitor wh ether sediment controls are adequately designed, co nstructed and maintained. Therefore, we recommend that EPA either adopt a new numeric limit prior to the finalization of the CGP or that EPA include specific language in the permit allowing EPA to reopen the C GP 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: 3.2 a. How are commenters expected to provide comments on a rule with numeric limits when we don't know wh at those limits are? We would suggest the comment period to be extended until the numeric effluent limit is defined in order to commenters t o 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 limitati on for turbidity does not allow recognize the varyi ng soil conditions foun d throughout the country and situations where sediment-laden run off entering the site is highly turbid. An alternat ive provision that allows for a maximum increase in turbidity compared to influent levels would allow more flexibility for both natura l background turbidity as well as off-site impacts that increase turbidity levels.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

554 

# 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 sup ports incorporation of technology- based numeric li mits on stormwater pollution

into the CGP. Such limits are the cornerstone of ef fective Clean Water Act implementation. EPA's long- delayed adoption of a turbidity limit in the C&D Rule and now the CGP Permit, albei t further dela yed by the calculation error in the rulemaking, is a modest but crucial step toward a modern, scientifically sound permitti ng regime for stormwater discharges. The numeric li mit on turbidity should be inserted into the final CGP, as the Draft CGP propo ses, following speedy completion of EPA's parallel rulemaking to recalculate the limit. Although EPA deserves considerable credit fo r proposing to impose a numeric limit on turbidity in construction stormwater discharges, the requirement should apply at more si tes 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 shoul d apply at more sites and more quickly than EPA's proposal provides.

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 var y significantly depending upon the local geology an d topography. The numeric limits

should be established in a manner that is addresses basic geomorphological differences across th e 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 l ess than the carrying capacity, the water will scou r out the channel until it reaches equilibrium and the carrying capacity is met).

Response Refer to Response 3.1.



# 3.3 SAMPLING REQUIREMENTSUnformatted 2012 CGP Comment Response Essays February 16, 2012

555 

# 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 sh ould be removed. This proposal would require such a n enormous work effort that proposing it is irresponsible. It is impossible to determine how much precipitatio n 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 fo r a discharge. For a mu ltiple mile linear project, that would require a small army of inspectors. With such an enormous effort to comply, this rule would have to be life saving, which it clearly isn't since inspections ar en'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 32

When a construction project is dealing with multipl e operators (both primary and secondary), who is re sponsible for sampling if the site exceeds the disturbance threshold. For example, Xce l 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 t urbidity 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 wit h 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 pollu tion into nearby waters. MRWC supports the provided sampling protocols and encour ages EPA to require a sampling frequency of every t wo hours following the first sample. This 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 du ring each day. It will provide representative sampl es, less influenced by human

factors.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

556 

# 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 pr ojects. 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] More over, the presence of tens and perhaps hundreds of discharge (and, thus, sampling) locations along a miles-long linear project render s the sampling protocols established by the Draft Permit [FN 7] logistically impracticable, cost-prohibitive, and inconsistent with the much smaller sampling burden that would be imposed on the vast majority o f traditional construction projects.

[FN 6] A broad application of sampling requirements to LCPs not only would be imp racticable, but also would not leave the Agency on legally solid ground. In particular, sampling disch arge points at LCPs to determine compliance with a technology-based numeric limitation would be legally problematic, for a numb er of reasons. Assuming, as the Draft Permit does, that a numeric turbidity lim itation will shortly be incorporated into the Construction and Development Effluent Limitations Guidelines, it is likely that such a limitation will have been developed based solely on the abilit y of one or more model technologies to reduce pollu tant loads in stormwater runoff

from construction activities. Unless the record und erlying any such numeric limitation specifically ch aracterizes and then accounts for the model technology's treatment efficacy for combi ned construction and non-construction stormwater ru noff (that is, accounts for the unknown but foreseeable run-on that is unavoidably experienced at LCPs and assesses the cost of treati ng such additional flows), the resulting effluent limitation would not be applicable to mixed discharges. Moreover, fr om the permitting perspective, compliance with that standard could not reasonably be assessed by s ampling where sampling methods capable of segregati ng 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 s amples per day of discharge or samples every 2 hour s); 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 an d 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 influen ce how contractors phase work on linear projects. I f these draft rules are approved as written, the trend will be to limit earth disturbin g activities to less than 10 acres, since it will n ot likely be possible to comply with the numeric turbidity limit in all cases. This could ex ponentially increase construction costs and the tim e necessary to complete projects.

Suggestion: Exempt linear transportation constructi on projects from this requirement.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

557 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, l ocation and reporting a re not reasonable for linear transportation products. High way construction projects can have up to 50 or more outfall/discharge locations for a single job. Even if a DOT were able to pare down so me of the required sampling locations by calling th em "substantially identical discharge points", there would still be enough samp ling locations remaining that the resourc e commitment would be considerable. Then, when you multiply the number of sampling locations by the required 3 samples per day per sampling loca tion (during discharge events) the requirement becomes impractical. The additional resource commitment associated with conducting the required sampling and sampling data management for every discharge event for the multitude of job sites across the entire st ate would be substantial. In addition, MoDOT believes there would also have to b e a significant resource commitment from the regula tory permitting agency in order to manage and review the mass amount of sampl ing 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 samplin g for "substantially identical discharge points"; however, even with this flexibil ity to alleviate some of the workload, the sampling requirements are still believed to be unreasonable and impractical for linear transpor tation projects for the reasons outlined above.

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 A gency (EPA) clarify whether qualified personnel wil l 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 havin g to purchase, calibrate and maintain several nephe lometers, train City staff on the proper use of the nephelometers, and comply with th ese sampling and reporting requirements on City pro jects. Also, if the baseline sampling is not an effective compliance tool in the arid west, the City objects to any possible future third-party sampling compliance mandates which may be included under its existing M S4 Municipal Stormwater Permit Construction Sites P rogram.

The Partner's contend that visual observation and i nspection, as now required by the 2008 CGP, is the best indicator of sedim ent leaving a permitted construction site. Visual inspection re mains the most appropriate form of CGP compliance e valuation for sites in the aridUnformatted 2012 CGP Comment Response Essays February 16, 2012

558 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 hou r 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 t he cost of the project. The sampling requirements and monthly reports to the EP A require more manpower and funding. The supplement al requirements for "impaired waters" would further add cost. Moreover, it is difficult to monitor rainfalls that occur in frequently, haphazardly, and on ly last a few minutes, which is characteristic of most rain falls in New Mexico.

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 cons truction 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 during s ome parts of the year, this may necessitate daily sampling. Requiring sampling of e ach and every discharge is per se unreasonable, esp ecially as there should 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 t hat mat ter, typical municipal or industrial NPDES wastewater permits. Moreover, the burden on permittees will far outweigh any value de rived from the sampling results. It would be far better, more efficient, an d more environmentally protective to require permit tees to monitor representative stormwater discharges quarterly or at some other re asonable frequency, and then require them to focus their efforts during non- sampling storm events on the proper operation and implementa tion of their various site BMPs. Also, s ampling should be limited to rain events that are predicted at least 48 hours in advance by the N ational Weather Service to have a >50% chance of oc curring 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: 3.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

559 EPA requested comments on the various sampling requ irements in the Draft Permit. As to Part 3.3.1.1. o n proposed discharge sample, AGA observes that the current (2008) NPDES general permit already requires construction sites to provi de, maintain, and monitor erosion control. This is documented on the inspecti ons logs completed every 7 days and within 24-hrs o f a precipitation event greater

than 0.5-inches. If sediment is seen exiting the site, action is req uired to be taken and documented. Adding discharge sampling to these detailed requirements is both duplicative and very costly. The requirement could also potentially resu lt in a construction site being h eld responsible for up-gradient pollutant sources or po llution levels that are flowing through the constru ction site.

Response Refer to Response 3.1.



# Comment ID 0093-A2.001.066

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3 The Draft fails to identify the recording and repor ting that its monitoring provisions contemplate. An d to that significant degree, the Draft is inconsistent with EPA's NPDES regulations, which state that "all permits s hall specify requirements concerning the proper use

, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biologi cal 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 Category: 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, an d chitosan are mentione d as concerns. For purposes of the proposed permit, does USEPA propose to only sample for TSS, or will samp ling be required for other parameters?

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

560 

# 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 information and are therefore u nwarranted. Stormwater quality and quantity vary widely over short time periods; t herefore, grab samples provide little information o n the overall quality of storm water discharges. Instead of monitoring, more emphasis on inspection of erosion and sediment control measure s after sizeable storms is sufficient to ensure their proper operation. This w ould serve as a more direct means to an end for ensuring that BMPs are installed and operated correctly.

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 therefo re sampling becomes a waste of time and effort yielding very li ttle good data that most likely would not stand up in a court of law.

1 The simplified sampling method proposed in the CG P is not defensible and possibly easily manipulated . 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 condit ions sampling would occur during the entire drawdown time. The fi rst samples would be the most turbid, after 3- 5 days the later part of the discharge would be the cleanest, those samples should be aver aged to determine effectiveness of the practice. Th e pr otocol as outlined in the CGP does not reflect how practices are designed to work . To complicate matters storms do not always occur 3 to 5 days apart, duri ng back to back storms your beginning and ending points for ea ch event become unclear.

2 Only requi ring 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 m ay 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 differentia te between large and small construction activities with regards to the turbidity sampling requirements, but imposes the same require ments for a large operator as that for a small oper ator. We believe this places an undue burden on the small operators, and doesn't co nsider the difference in available resources.Unformatted 2012 CGP Comment Response Essays February 16, 2012

561 Response Refer to Response 3.1.



# Comment ID 0150-A1.001.001

Author Name: Borysenko Jim Organization: REI Engineering Inc. Issue Category: 3.3 I. It is our understanding that EPA is still trying to define it`s Turbidity Limit for larger construc tion sites. In general, we do not agree with the idea of the sampling requirements as outli ned. If this was expected to work at all, there wou ld likely have to be a means of a 3rd party (certified) agency responsible for setting up a remote collecting station so that the samples ca n be collected and analyzed for compliance based upon the rainfall. Although a unit like this would likely be expensive to own and mai ntain, we would see this as the only way to make this idea remotely possible and wo rthwhile. The expectation of having the collecting done in person (realtime) is

unrealistic and will be too difficult to monitor. T he EPA should develop a proprietary (automated) sys tem that accomplishes this. The approved system can then be rented out (either dire ct by the permit applicant or through the state wat er quality organization (eg WDNR). A person with a recognized cert ification (Professi onal Engineer or similar background with trainin g in using the apparatus) could then be contracted to collect the samples. This way, the turbidity testing and monitoring can be done with confidence and more ful ly 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 gau ge within 1 mile of the site with subsequent docume ntation of precipitation w ithin

the SWPPP is recommended. Consistent with the terms of the MSGP, this reflects experience with variabl e rainfall intensities and durations, and operators indicating that no rain oc curred 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 i ncluding a minimum rainfall amount associated with the turbidity limit belowUnformatted 2012 CGP Comment Response Essays February 16, 2012

562 which no sampling is required would be difficult to implement in the field prior to the operator knowi ng how much precipitation w ill end up falling. However, the operator is already in a s imilar position of not knowing during a rain event whether the event wil l 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 greate r

than a 2

‐ year 24

‐ hour event.

There could be the situation where a rainfall or sn ow melt event did not result in a discharge that is of sufficient volume to allow collection of a representative sample. The proposed CGP does not address this situation. EPA should pr ovide 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 t he owner to collect samples at 2- hour intervals or some similar set duration of time

. There are plenty of sampling devices that are desig ned to be triggered when a flow is detected. With t he use of automat ic samplers there is no need to confine sampling to "work hours". By not limiting the sampling to just work hours, an ow ner would have the ability to monitor the efficiency of the erosion and sediment controls at all times. Turbidity has a 48 hr holdin g ti me, 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 think de fining it by a rainfall amount is appropriate. Given a set amount of rainfall, say 0. 25" for example, a construction site that is predom inantly sand will handle that am ount differently than a site that is predominantly clay soils. The 0.25" of rain may 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 a bove, a typical transmission line spans numerous dr ainage basins. Sampling all or even a representative number of outfalls on a major line construction project would be very difficult to pe rform within one hour of the discharge occurring, particularly when factoring in terrain of many transmission line ROWs. Results of sampling must be repor ted on at 30-day intervals. If the turbidity field reading exceeds the discharg e limit, corrective actions to reduce the readings to within acceptable limits. Entergy requests that EPA remove these moni toring requirements and, instead, state that compli ance with the best mana gement practices required by the CGP will constitute compl iance with the Clean Water Act for purposes of stor mwater pollution control.Unformatted 2012 CGP Comment Response Essays February 16, 2012

563 Response Refer to Response 3.1.



# 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 taki ng samples during working hours and not requiring s ampling 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 mo re 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 an y storm event or snowmelt condition that results in a discharge of storm water from your construction site ... " Ensuring that samples are c ollected during any runoff event will be very diffi cult in many circumstan ces and likely impracticable. Small unexpected precipitation event s may lead to very minor intermittent runoff. Ensur ing that this runoff is sampled would be very challenging and would require substan tial resources. Even more challenging would be coll ecting runoff from all

snowmelt events. Snowmel t can occur slowly over days or weeks. During this time there may be very low and intermittent flows f rom a construction site. Ensuring that samples are collec ted from all runoff events is impracticable. Instea d the permit should req uire sampling following a set amount of precipitation, for exampl e following a 0.5 inch of rain. This would provide a clear standard for when samplin g should be required.

Response Refer to Response 3.1.



# Comment ID 0131-A1.001.033

Author Name: Gear KenUnformatted 2012 CGP Comment Response Essays February 16, 2012

564 Organization: Leading Builders of America, Inc. (LBA) Issue Category: 3.3.1 Part 3.3.1 defines when to sample and includes samp ling of authorized non-stormwater discharges. Allow able non-stormwater discharges are defined under part 1.4.1.4 and are " allowable" as long as they do not impact water qual ity 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 t o prevent impact to water quality standards. What benefit will be ad ded by sampling allowable non-stormwater discharges ? Sampling for allowable non-stormwater discharges will add significant burd en and cost to the project including additional man power needed to take the sa mple and cost of submitting to laboratories for analysis

.

LBA suggests removing allowable non-stormwater samp ling requirement from the permit. If EPA does not r emove non-stormwater sampling requirements from the Proposed CGP, then t he EPA should add non- stormwater sampling as a separate requirement apart from general sampling requirements and more clearly defi ne more limited sampling and analytical requirement s for this allowable 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 r unoff hydrographs do no t follow nice patterns. In the absence of continuous monitor ing, it is difficult to develop a method that will document all exceedences of water quality standards. Finding a time schedule that wil l achieve that is difficult. The interval used shou ld sample the entire st orm, however, it is hard to predict the expected duration at begi nning of a storm. It is important to have a rainfal l 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 eve nts that exceed the initial abstractions. I have no clue as to what should be done for sampling intervals.

3. "When to Sample" - The requirement to sample whe n discharge occurs is sufficient. If a 2-year, 24-h our event or greater occurs, sampling should be conducted up to the point rainfa ll 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: 3.3.1 -- We suggest requiring sampling after precipitatio n occurs in excess of 0.1 inch, or sufficient to ca use runoff from the site; this is consistent with the monitoring threshold for indust rial sites covered under the Multi-Sector General P ermit (MSGP).Unformatted 2012 CGP Comment Response Essays February 16, 2012

565 

# 3.3.1.1 TYPES OF DISCHARGE CONDITIONS REQUIRING SAM PLING

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 r equirements if a site is discharging via sheet flow s 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 collecte d of "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 event that results in a discharge." During the monsoon season in the southwe st, there can be one or more thunderstorm during a work day and one or more of them may result in separate distinct dis charges 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, wi ll the operator have to collect three samples during each discharge if the thunderstorm i s less than or equal to the local 2

‐ year 24

‐ hour storm? EPA should revise this Part to

address 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.



# Comment ID 0076-A1.001.018

Author Name: Steadman Marc Organization: Target CorporationUnformatted 2012 CGP Comment Response Essays February 16, 2012

566 Issue Category: 3.3.1.1 Target recommends that snowmelts not be considered monitorable events as it is neither practical nor r epresentative of site c onditions.

Snowmelts are difficult to monitor. When snowmelt e vents are normally occurring, the soil is frozen and therefore sediment mobility is

limited.

Target also believes that to capture an event withi n an hour of when discharge has begun is very diffi cult to do. Alternative ly, if the EPA intends to keep monitoring requirements for snowmel t events, they should consider removing the one hou r timeframe. The one hour requirements is also not necessary because of the a ccumulation of sediments over the winter, the snowm elt would be homogenous and therefore not capture a flash flush, which is presu med what the one hour requirement was intended to c apture.

Lastly, often during winter conditions the site may be temporarily inactive. Target is uncertain if th e EPA intends to requir e monitoring at these times and questions whether snowmelt matte rs when the si te is still covered with snow. Target suggests that instead the emphasis be placed on stabilization Best Management Practice s (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 s uggesting the requireme nt to take samples of stormwater discharges during any storm event or snowmelt condition that results in a discharge of s tormwater from the construction site, or when there is an authorized n on-stormwater discharge from the site. This is not practical nor is it feasible. US EPA should define is required to sample. Who is the res ponsible party? Is this a self-monitoring effort? P lease explain how you expect responsible parties to sample sheet flow. USEPA sho uld also explain how it is expected to sample snow melt and when is th e 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 3.3.1.1

Proposed Language

You are required to take samples of your stormwater discharges during a ny storm event or snowmelt condition that results i n a discharge of stormwater from your construction site, or when there is an authorized non

‐ stormwater discharge from your site.Unformatted 2012 CGP Comment Response Essays February 16, 2012

567 Concern

Compliance will be difficult to achieve during inac tive construction periods when construction staff i s no longer onsite while final stabilization (grass growing) is occurring.

Suggested Correction

Add language that states the samples are only requi red 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 sn owmelt condition that r esults in a discharge of stormwater from your construction si te." 3.3.2: "You must collect your first sample wit hin the first hour that the discharge begins. After you take your first sample you must t ake a minimum of 2 additional samples during the re maining hours of the wo rk day that the discharge continues. The 3 samples must be distributed in such a way that the beginning middl e, 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." 3.3.3: "You must take samples of all di scharge points where stormwater is discharged."

The projects that we work on vary from a Burger Kin g on a half- acre lot to subdivisions or plants with several hun dred acres. In the State of Tennessee, no more than 50 acres can be disturbe d at any one time under a general permit, and our c lients adhere to this regulation. However, that does not mean that all 49 exposed acr es are contiguous and drain to a single outfall. It is typical in subdivision development to have vertical construction (home bui lding) underway on vacant, exposed lots at the same time that a new phase of the subdivision is under land development construction. Multiple outfalls are typical to accommodate our r olling terrain and elim inate one single, large wet or dry pond which can be unsightl y or a hazard to children. Just making it around to all of the outfalls on some of our sites would take an hour, never mind sampling or in telligent observations of any conditions.

Tennessee enjoys an average rainfall of 48" per yea r, and it is dispersed throughout the year. Pop-up sto rms and showers are frequent in the summer, and their development and trajectory ar e unpredictable. The draft permit sampling requirem ents would necessitate having a designated person present at all times the site is active to conduct inspections and take stormwater samples under the permit criteria. This person could not leave the site unless a replacemen t was designated: not for meetings, not for trainin g, not for lunch. The use of automatic sampling equipment in a heavy constructio n environment is not practical because of dirty sit e conditions, the dynamic and unstable working environment, and the high potentia l for damage to these expensive instruments that wo uld have to be placed a t every outfall. At the end of my comments, I will discuss what I believe would be a workable combination of inspections, req uired observations, and water sampling.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

568 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 ru noff sufficient to collect any type of sample.· Dep endent upon construction sequencing, some post construction BMPs may facilit ate infiltration, further reducing available runoff from disturbed ar eas that have not reached final vegetative stabilization. Regardless of these challenges, the resources/logistics associ ated with sampling makes it impractical to capture samples for all events. Weat her forecasts and radar will have to be used to ant icipate the collection of an appropriately sized event, > 0.25 inches. EPA shoul d 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 re asonable. The 2-year, 24 hour storm event could be used to create a volume based standard - i.e. "1⁄2" of rainfall. Then operators cou ld 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 i s a must. It is very difficult to predict when runo ff will occur and it is almost impossible to monitor. Having a clear and measurabl e trigger to require the Contractor to act is inval uable. The Department believes sampling should begin after 0.5" of liquid precipit ation has fallen during working hours is prudent in New Hampshire. Measuring precipitation works very well and can be automated so the Contractor, third party monitors, Department Pe rsonnel and Regulators all get an e-mail or text message at the same time.



# Comment ID 0055-A1.001.009Unformatted 2012 CGP Comment Response Essays February 16, 2012

569 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 definitio ns of continuous rainfa ll events. Continuous outflow from the site may result when re latively quick back to back events occur. Smaller r ainfalls with frequent occurrences should be addressed in the permit to av oid 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 condi tions that require sampling. EPA requested comment on whether a permit should

include a minimum rainfall amount below which no sa mpling is required. CCWC believes that it would be possible to implement such a minimum rainfall requirement in the field. For exam ple, if a rain gauge is installed at the site, the site contractor could b e required to take a sample only if the rain gauge indicates more than 0.25" or other established amount of rain has fall en

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 igno red. The problem is not only asking if there should be a min imum rainfall event that would trigger sampling, bu t whether or not there is a maximum that is unsafe. Texas historically has larg e and highly pr oductive storm events that can produce 2 to 5 inche s at a time. You do not know how much is produced before the rainfall o ccurs, only afterwards.

Suggestion: Setting a minimum rainfall standard is questionable at best.

Response Refer to Response 3.1.



# 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 even ts can occur several times per day or on consecutiv e days for a week o r longer. WouldUnformatted 2012 CGP Comment Response Essays February 16, 2012

570 sampling each of these individual events provide me aningful information on compliance? Also, if a des ign storm event is chos en, how will the time period be determined for compliance p urposes if rainfall occurs sporadically over severa l 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 d ifficult to determine because there are so many factors that ca n affect stormwater discharges during any storm event or snowmelt. It i s often not possible to take a sample during storm events that result in a discharge of stormwater. EPA should consider requiring samp ling 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/op erators to obtain samples at the same time that ins pections 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 langu age about minimum rain events. As stated in previou s comments, Target believes that all monitoring should hinge on whether there a re measurable surface discharges which can be sampl ed. Because of variabili ty of soil and site conditions, a minimum storm event would no t help in determining whether a Permittee would nee d to sample. By including language which makes monitoring based on measurable events the EPA would be simplifying the permit and making languag e which is easily understood by regulated parties. Target unde rstands the intent of the proposal, but supports es tablishment of a standa rd that can be applied in practice.

Response Refer to Response 3.1.



# 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 require ments 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 sufficien t runoff for the required sampling as prescribed under the proposed ruling

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

571 

# 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 aft er all sizes of rain events because this data will help design and construction professionals assess the efficacy and function of s ediment control BMPs.

Response Refer to Response 3.1.



# Comment ID 0087-A1.001.045

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 3.3.1.1Q UWAG supports the implementation of a minimum rainf all amount below which no sampling is required. Req ui ring sampling for every rain event, even very small ones, is too burdensome and would result in significant expenditures for c ompanies 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 industrial facility with impervious surfaces is not a good fit situation. Impervious surfaces act in a similar ma nner with respect to water flow regardless of their location. Varying geographical, climatic, soil, and geomorphological setting dictate water bo rne sediment transport. In much of our operating region, taking into accoun t our typical substation project, we typically woul dn't have appreciable sediment transport with a 0/. inch rainfall event (in a 24 hour period). In addition, the majority of strea ms and rivers would have a background TSS level exceeding what it would receive with up to a 0/. inch event due to their setting within fine sil t\clay areas. We would suggest that

minimum rainfall amounts would best be established on a project-specific basis, and that should be wit h respect to larger projects of a non-linear type.

Response Refer to Response 3.1.



# Comment ID 0091-A2.001.010Unformatted 2012 CGP Comment Response Essays February 16, 2012

572 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 rai nfall and snowmelt event (or rate) should be establ ished below which no sa mpling is required. A recommendation is 20% of the 24-hour 2 year design storm. In western Washingto n, 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 erosi on, 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 turbi dity might artificially appear to be much higher th an 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 inches. If a site sta rts having discharge, and the operator takes a sample within the first hour of di scharge, the results need not be reported if the ra in event does not exceed 0.5 inches. EPA might specify that to qualify for this exemptio n, 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 permit tee could know how much precipitation would end up falling. AGC, however, r ecommends that EPA define a minimal rainfall for wh ich reporting would not be required, instead of exempting sampling for a pre-d etermined minimal rainfall event. This approach wou ld achieve EPAs goals while eliminating operator speculation as to how much pre cipitation will fall.

Response Refer to Response 3.1.



# 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 sho uld include a minimum rainfall amount below which no sampling is required. As draf ted, the permit only requires sampling when there is discharge. For many construction site s that can have stormwater detention ponds, discharge is unlikely to occur for small rain event s less than 0.5 inches unless there is significant impervious area at the site. However, at other cons truction sites, including but not limited to linear projects such as road construction, ponds ar e not feasible, 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, w ould be small and short-lived. Any lowUnformatted 2012 CGP Comment Response Essays February 16, 2012

573 amount of runoff from these events can be very diff icult to sample cleanly if no outfall is present (such as a roadside ditch), and the measured turbid ity might artificially appear to be much higher than the actual runoff. For example, the recently a dopted California CGP65 (effective July, 2010) only requires sampling from rain events that exceed 0.5 inches. For all of the above reasons, NAHB recommends that turbidity sampling no t be required for rain events of less than 0.5 inches. If a site starts having discharge and t he operator takes a sample within the first hour of discharge, the results need not be reported if t he 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. F or sites with on-site storage, which results in the point discharge conditions, the testing would not start until well into the event a nd 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-produc ing rainfall event - this should be the minimum rainfall depth required to trigger moni toring efforts.

Response Refer to Response 3.1.



# 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 a ppropriate documentation stating

that this is what occurred should be filed.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

574 

# 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 i nclude a minimum rainfall amount associated with th is requirement below which no sampling is required. The Agency has some concer ns about this approach, for instance, how it would be implemented in the f ield prior to the permittee knowing how much precipitation wil l end up falling, but is interested in feedback on this issue. Samples could be taken as prescribed by the requirements of the regulation s and if the rainfall amount is under the threshold then the samples are simply disregarded. There may be times when the rainfall a mount does not produce sufficient runoff for the re quired sampling 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 threshol d may not account for high intensity, short duration stor ms 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 th e minimum rainfall sampling requirement. It is diff icult to predict the amount of rainfall that will occur and the resulting runoff.

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 you r construction site" is impractical and overly burdensome. The practical aspects of pot entially monitoring flow, which may or may not occu r or that is intermittent, will dramatically and unreasonably increase field effort and sampling costs. This is particularly the case at construction sites ( as opposed toUnformatted 2012 CGP Comment Response Essays February 16, 2012

575 general urban storm water sampling) as during const ruction many sites have little imperviousness for e xtended periods during mass grading. It would be a dramatic improvement to allo w the design engineer to define storm conditions as part of the SWPPP deve lopment that should be sampled based on runoff instead of r ainfall. LBA recommends this approach.

If a single threshold were to be selected nationwid e for construction sites it would be reasonable to focus on events greater than 0.25 inches in magnitude. At many construction sites a m inimum 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 e xample Virginia defines "Storm event" in code for the VPDES program (9VAC25-151-70 -A.2.b) as an "event that is greater than 0.1 inch in magnitude (defined as a "measurable" event), providing the interval from th e preceding measurable storm is at least 72 hours." Various similar defini tions apply across the country. As almost every storm water mon itoring Quality Assurance Project Plan reviewed and approv ed by EPA indicates, establishing a minimum storm size or minimum mobili zation criteria for runoff sampling is technically sound and practical.

In addition, it is widely accepted in storm water m onitoring guidance that readily available tools suc h as NOAA Quantitative Precipitation Forecasts (QPFs) and Probability of P recipitation (POP) forecasts can be used to establi sh quantitative sampling mobilization criteria. At all sites, the utilizatio n of forecast information is a practical approach; however, at remote sites or those requiring significant mobilization time, using fore cast information is the only practical means for co nducting a thoughtful and not wasteful sampling program. QPFs and POPs are easily accessible to the public via the NOAA web site: (http://www.hpc.ncep.noaa.gov/pqpf_6hr/conus_hpc_pq pf_6hr.php ) and are auditable as sampling mobiliza tion criteria.

Response Refer to Response 3.1.



# Comment ID 0137-A2.001.014

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 3.3.1.1Q The permit should not include a minimum rainfall am ount

‐ it should be measured anytime there is a discharge of stormwater. Not only would it be hard to implement in the field, it woul d be hard to enforce.

Response Refer to Response 3.1.



# 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 al low stormwater infiltration and exacerbates stormwa ter runoff.Unformatted 2012 CGP Comment Response Essays February 16, 2012

576 

# 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 very short period of time during the first hour, and then ther e 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 am ount- it should be measured anytime there is a discharge of stormwater. Not only would it be hard to implement in the field, it woul d 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. Travelin g to remote or unstaffed sites to determine if a discharge is occurring is an inef ficient use of resources and will result in unneede d trips when no dischar ge is occurring. A logical, common sense approach would be to utilize the 0.25 inch rainfall inspecti on minimum in Part 5.1.2 as the rainfall minimum above which sampling requirements would be triggere d.

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 discharge may leaveUnformatted 2012 CGP Comment Response Essays February 16, 2012

577 as sheet flow. For example, along a pipeline where there may be a silt fence or sediment control log a long the downgradient p erimeter, what if a relatively small portion of stormwater se eps through the BMP? is this considered to be a non -discernible flow? This type of grab sample will be almost impossible to sample wit hout building a trench along the perimeter and purp osely concentrating the flow, which would be counter productive in terms of prote cting 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 use d here, it is used elsewhere? Also workers should n ot be able to leave in the middle of required sampling. The current text encourages o perators to wait till end of work shift to sample a nd 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 hour s are considered to be Monday through Friday, betwe en the hours of 8:00 a.m. and 6:00 p.m...."

•Typical working hours are 8:00 a.m. to 5:00 p.m. S uggest 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 workin g hours are considered to be Monday th rough Friday, between the hours of 8:00 am and 6:00 pm, unless your working hours are differen t at your site." This appears to arbitrarily dictat e the working day, and also potentially would require overtime, since this is l onger than 8 hours. EPA is not i n a position to judge what normal hours work best f or aUnformatted 2012 CGP Comment Response Essays February 16, 2012

578 construction site. For example, 6:00 pm during the winter is dark in most locations, and many construc tion activities might not be practical. Most construction sites likely have a se t period of time e ach day where the permanent work crews and their di rect supervisors are expected to be at the site working, however, th ese hours may vary seasonally or for other reasons. EPA should delete any reference to a specific time of day and indicate that the compa ny's general hours of business (when sampling could occur) should be specified in the SWPPP, with flexibility to cover seasonal or job re lated 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 arbitrarily 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 exampl e, 6:00 PM during the winter is dark in most locations, and many construction activities might n ot be pr actical. Most construction sites likely have a set period of time each day where the permanent work crews and their direct superviso rs are expected to be at the site working, however, th ese hours may vary seasonally or for other reasons. The general hours of business (when sampli ng could occur) could be specified in the SWPPP (if different from 8 AM to 6 PM), with flexib ility to cover seasonal or job related adjustments.

Response Refer to Response 3.1.



# Comment ID 0098-A1.001.015

Author Name: Davis Richard Organization: Beveridge & 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 t he Agency's recognition that sampling crews should not be required to respond outside of a site's normal working hours but sugges t that this Part be revised to eliminate the refere nce to "8:00 AM to 6:00 PM." Instead,

we recommend that this Part be revised to state tha t 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 MatthewUnformatted 2012 CGP Comment Response Essays February 16, 2012

579 Organization: City Utillities, City of Fort Wayne, Indiana Issue Category: 3.3.1.3 It is not practical to deploy staff to sample withi n the first hour that discharge begins. This would require additional staf f and funding to support sampling of this frequency. USEPA should st ate what the purpose of the sampling effort of snowmelt and rain fall within the first hour. Why is this data being collected? This not pr actical in the least.

Response Refer to Response 3.1.



# 3.3.1.4 UNSAFE STORM CONDITIONS UNDER WHICH SAMPLIN G 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. A rmy Corps of Engineers does NTU sampling and monitoring still need to occur?

Response Refer to Response 3.1.



# 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 po tential 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 p laced in an exposed, open location.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

580 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 i t is not safe to conduct sampling and during which sampling is not required. Be cause many linear projects are located in areas where the re is limited access on paved roads, EPA should als o consider that situati ons will arise when access to discharge locations is unsafe and sa mpling (and inspections) cannot be conducted. EPA s hould add "unsafe access" to their list of examples of when it is not safe to sa mple.

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: 3.3.2 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 a nd cause discharge to occur during the normal work hours seems to be low. Also, for a typical construction site, the travel time to the s ite for someone who is charged with the responsibility to sample could very well be in excess of the minimum requiremen t cited. Unless the site if very 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 overseei ng several sites. More flexibility is needed in this paragraph.

Response Refer to Response 3.1.



# Comment ID 0032.001.002

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.2 In section 3.3.2, it is suggested that three separa te samples be measured, and the results averaged. T o reduce variability in the measurement, we suggest that the three samples be c ombined into a single composite sample. The composi te sample should be mea sured in triplicate, with the results averaged.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

581 

# 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 dis tributed in such a way that the beginning, middle, and end of the discharge for tha t day is represented. EPA also asks for comment reg arding taking samples at twohour frequencies following the first sample.

Comment: For high rainfall areas such as Bremerton, WA which receives 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 mode rate rainfall amounts, this requirement would be burdensome. Since it is not po ssible to know how long a storm event will last, it is not possible to pla n sampling times to represent the middle and end of the discha rge. Discharges could already be occurring at the b eginning of the workday, extend past the workday, or start/stop within the workday

Discussion: It is unclear whether EPA is saying tha t it is their expectation that sampling only during working hours. Recogni zing that it is difficult to predict how long discharges will oc cur, what size storm is causing the discharge, and the manpower nee ded for this effort, some flexibility in sampling frequency should be pr ovided.

Recommendation: Samples should be taken at the begi nning of the day or the beginning of the discharge (whichever occurs later) and then two more samples should be collected at set ti me 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 fi rst sample during the first hour after a discharge begins and take a minimum of two additional samples during the remaining hours of th e work day (for normal working hours) that the disc harge continues. Section 3.3.4. The three samples must be distributed in such a way that the beginning, middle, and end of the dischar ge for that day are represented. Rain events are too unpredictable to be able to com ply 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: 3.3.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

582 Measuring every 2 hours for 8 hours (4 rounds maxim um) after 0.5" of precipitation has fallen is appro priate. 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 Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 3.3.2 Requiring 3 samples per day as described in the per mit seems excessive and unnecessary. Performance of a particular BMP shoul d not vary from day to day if maintained correctly. A rep resentative sample taken less frequently should suf fice 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 en d" of the discharge period is a good way to define when to take the samples. How will the owner know when the storm/dis charge will end? If they don't know when it is goin g to end, how do they determine the middle? Additionally, once the discha rge condition "ends," there will be no flowing wate r to collect for the sample. We recommend that EPA require the owner to collect sam ples at 2-hour intervals or some similar set durati on of time. Also , caution should

be taken with the caveat that allows the owner to t ake more than the required 3 samples. How do we pre vent them from collecti ng more samples after the peak of flow that will "dilute" d own their turbidity average?

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

583 

# 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 fir st 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 only requiring three samples every 24 hours during a rain event or, at a minimum, increasing timeframe for initial sample t o within 3 hours aft er 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: 3.3.2 This section of the CGP establishes a minimum sampl e collection and analysi s for turbidity of three times daily from each outf all when discharge is occurring. Discharges during a two-yea r, 24-hour storm event (4"- 6" of rain for Entergy's service area) are exempted from the limit during the storm event; however, as writt en, the numeric limit would apply afterwards even i f 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 f requency is impractical. Target recommends that fle xibility be allowed on monitoring frequency and when actual samples are co llected.

Target prefers that one sample be collected at the highest intensity of the event, or beginning of the event. This monit oring scheme would allow for samples to be collected during first flus h and while runoff events are the most intense. Tar get believes this is th e basis for the

limit and demonstrates BMPs maximum effectiveness.

Target also is concerned about the ambiguity of per mit 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 e xact in the t iming of collection? There are currently no definitions explaining phasi ng of a storm event and this could become up to the interpretation of the Permittee or

enforcement official.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

584 Refer to Response 3.1.



# Comment ID 0086-A1.001.015

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 3.3.2 The proposed CGP requi res the permittee to collect the first sample during the fi rst hour after a di scharge begins, and tak e a minimum of two additional samples during the remain ing hou rs ofthe work day (for normal working hours) that t he discharge continues. Secti on 3.3.4. The three samples must be di stributed in su ch a way that the beginni ng, middle, and end of th e discharge for that day are represented. Tri- State beli eves that rainfall events are too sporad ic and unpredictable over the course ofa day, and m ake compliance with these requirements impractical in the arid west. Tr i-State believes that EPA should provide an alterna tive sampling methodo logy for

these situations.

Response Refer to Response 3.1.



# 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 firs t hour that the discharge begins. After you take your first sample (as required in Pa rt 3.3.1), you must take a minimum of 2 additional samples (a total of 3 sampl es) during the remaining hours of the work day (for normal working hours) th at the discharge continues. The 3 samples must be distributed in such a way tha t the beginning, middle, and end of t he discharge for that day are represented. If the discharge continues on the subsequent day(s), you must take a minimum of 3 sam ples per day that there is a discharge.”Unformatted 2012 CGP Comment Response Essays February 16, 2012

585 We cannot meaningfully comment because our comment will depend on the turbidity limit. And only the EPA knows what that limit is go ing to be. Requiring multiple samples over a specified period of time would create manpower issu es 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 s hows 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 o nsite to witness the beginning of a discharge, especially if it occurs outside working hours. Ther efore, there will be cases where it will be impossible to capture discharge within the first ho ur. NAHB suggests that EPA modify the permit to say, “to the extent practical that the fi rst sample be taken during the first hour of discharge if it occurs during normal daily operatin g hours.”

Likewise, discharge may not commence until the last hour of business. In such situations, a single sample taken before the end 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 n ot commence until within one hour of closing for the day, EPA deem a single sample sufficient for th at day. If discharge does not commence until within three hours of closing, then two samples wou ld 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.



# 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 beginn ing, middle, and end of a discharge for that day. Absent a controlled release of stormwater from an engineered structure, an ins pector/sampler cannot p redict the beginning, middle, and end of a discharge for any g iven day if a discharge is based on a storm event. A site may have multiple discharge points. Not every discharge point will have flow ce ase at the same time. This provision may be workabl e for developments, such as a 1- 2 acre square which drains to one basin and can disch arge under controlled conditions. It does not work well for remote, linear, multiple discharge point projects that often characterize tr ansportation projects.

Response Refer to Response 3.1.



# Comment ID 0133-A2.001.026

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT)Unformatted 2012 CGP Comment Response Essays February 16, 2012

586 Issue Category: 3.3.2 The requirement that 3 grab samples be collected wh en a discharge occurs, with the first sample collec ted within the first hour that the discharge begins is impracticable. First, it is dif ficult to predict when a discharge will occur. Every rain eve nt will not necessarily result in a discharge. Additionally, the discharge does no t 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 dischar ge will occur, making infeasible the requirement to distribute the 3 samples in such a way that the beginning, middle, and end of the di scharge are re presented. While MDT un derstands the need to demonstrate compliance with the propose d turbidity limit by collecting representative samp les, the nature of the discharge

needs to be considered. Unlike traditional wastewat er treatment systems that experience a controlled d ischarge, storm water d ischarges 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 permi t compliance. The proposed sampling frequency canno t be reasonably implemented. Instead, MDT suggests that only one representative grab sample be required, with no specification as t o the time that the sample be collected (i.e. first hour the discharge begins; be ginning, 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 req uired can remove variability of sampling and actual ly make imple mentation easier, but may not fall within normal work hours.

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 fi rst sample during the first hour after a discharge begins and take a minimum of two additional samples during the remaining hours of th e work day (for normal working hours) that the disc harge continues. Section 3.3.4. The three samples must be distributed in such a way that the beginning, middle, and end of the dischar ge for that day are represented. Rain events are too unpredictable to be able to com ply 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: 3.3.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

587 -- The proposed sampling frequency exceeds the requ irements 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 t he pond and allowing discharge of the pond to recei ving waters when the measured turbidity meets the numeric effluent limit s, with documentation of compliance sampling.

> Obtaining the first sample with in 1 hour and then 2 additional times during the di scharge period may be challenging due to site acces s and storm duration. Sampling every two (2) hours wo uld have similar anticipated issues. In areas with high intensity, short d uration rain events, the storm event may not last long enough to capture the follow-on measurements. In longer dura tion events, it may not be possible to physically access the sample location t o obtain a sample. These requirements may require f ull- time site personnel dedicated to sampling during inclement weather; since many si tes shut down during these conditions, this WQuid e ntail additional project

expenses.

> The NOAA National Weather Service provides e-list notifications of predicted severe weather and anti cipated heavy rain ( typically for amounts greater than the 2-year, 24 hour event); ho wever, there is very little pre- notification for smaller rainfall events that would trigger sampling. This means that Operators may need to sam ple every time it starts to rain.

Response Refer to Response 3.1.



# 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 s ampling is too stringent. Sampling three times a da y 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 discha rge begins. This new sa mpling will require a specially training person and nephelomete r. Arriving to a site within one hour is oft en times not feasible or practical 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 cos t substantially.Unformatted 2012 CGP Comment Response Essays February 16, 2012

588 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 d efmite1y clearer in terms of implementation. As an example: a contractor that usually works until 5pm and a rainfall producing di scharge 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 t he contractor attempt to take 3 samples in the rema ining 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 Fund Issue Category: 3.3.2Q The proposed permit requires three samples per day distributed to capture the beginning, middle, and e nd of the discharge. Sa mpling the middle and end of the discharge will be easier to s chedule for storm events that are the result of a s low moving front m oving into the area, particularly if the event lasted all day. But for o ther types of storms, it will be difficult for the operator to determine w hen the middle of the discharge is occurring. The alternative option of requiring samples to be taken once eve ry 2 hours following the first sample would be

easier to schedule but could be more labor intensiv e and costly for the operator if the storm event la sted all day.

During the monsoon season in the southwest, some th understorms can be high intensity but of short duration. It will be difficult to know how long the discharge will last and thus how to sc hedule sample collection to capture the beginning, middle and end of the discharge. In addition, there may be only one thunderstorm or several separate thunde rstorms over the course of a work day. It will be h ard to know how to schedule the sampling because there is no wa y to know in advance if there will be another thund erstorm. Furthermore, w hen the thunderstorm is very short in duration, it will be difficult to notify and activate the sampling crew. Utilizing automatic samplers is not always feasible due to remoteness of the constructi on site and vulnerability to vandalism. The alterna tive option of requirin g samples to be taken once every 2 hours could result in only on e sample being collected during some monsoonal stor m 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 33Unformatted 2012 CGP Comment Response Essays February 16, 2012

589 Since it is unknown how long a rainfall event will occur, it will be very difficult to determine how t o 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 t he first place. If it rains for two or three days i n a row and there is discharge each day then three samp les 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 ev ent if personnel are on site.

Response Refer to Response 3.1.



# 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 exten sive 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 sa mples must be represent ative of the beginning, middle, and the end of the day. EPA requested comments on the alternative of taking sam ples every two hours after theUnformatted 2012 CGP Comment Response Essays February 16, 2012

590 initial sample. While EPA's alternative option woul d generate more samples, it would not be practical to implement. As an ini tial matter, it would be difficult for field personnel to take s amples every two hours. Also, it is unclear what pe rsonn el should do if the storm stops and then resumes later. It is impractical for perso nnel at a construction site to assess whether the t wo hour clock should be restarted every time it stops raining. Instead, allowing the contra ctor to determine when the heav iest rainfall is occurring in the middle of the day would be more practical and yield more accurate data. Fin ally, there would be no discernable additional envi ronmental benefit from the impractical sampling methodology.

Additionally, the sampling frequency required under Section 3.3.2 is the same as the frequency require d 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 th is same frequency.

Response Refer to Response 3.1.



# Comment ID 0066-A1.001.035

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 3.3.2Q Discussion: Based on information gained from the Te xas Transportation Institute (TTI) through their sa mpling of research projects on TxDOT construction locations, utilizing the three s ample timing method is adequate to achieve accurate sampling. One at least one hour

after runoff has occurred and at least two addition al samples throughout the duration of the storm.

Suggestion: Sampling every two hours after a rainfa ll event is expensive and not scientifically necess ary to receive credible findings. Modify this requirement to meet an achievable and r ecognized 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 t his type of sampling frequency be? The sampling frequency m ay depend on the type of control measure utilized, as there could be a di fference 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 Department of Transportation (CDOT)Unformatted 2012 CGP Comment Response Essays February 16, 2012

591 Issue Category: 3.3.2Q •Part 3.3.2 Sampling Frequency: The sampling requir ements will be difficult in Colorado and Western st ates regardless of whic h method is chosen, because our storms are usually very shor t in duration. The three sample method will be diff icult because it wil l be challenging to predict the duration of the event. The two hour method will not be practical because many storms wi ll be less than two hou rs, which means only a first flush sample will be obtained. F or this reason, an alternate version that allows th e site to obtain the data for the average duration storm for any specific area would be pract ical. The number of samples and time frame could be derived for that speci fic area.

Response Refer to Response 3.1.



# Comment ID 0074-A2.001.016

Author Name: Thompson Steven Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 3.3.2Q There is no evidence which option would be better a s representative samples. The sampling frequency sp ecified 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 ev ery 2 hours after a stormwater discharge event woul d not make sense since the heaviest suspended solid loading is during the firs t few hours of discharge (ie. first flush). It migh t make sense to continu e samples up to the first 3 samples then use the average of the 3 f or the discharge limit. This would allow time for m ost systems to activate and yield representative discharge values. For discharges tha t continue after the 3 samples time frame, the stor m 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 sampl ing is both burdensome and costly and in arid areas results in arguably statistically unreliable data. The proposed CGP language will req uire that one or more fully trained samplers either reside at the construction site during "business hours" or be readily available to arrive at the site within an hour of the precipitat ion event with one or more nephelometers in hand. In the arid west, despite th is significant effort, it is unlikely the sampler w ill be able to obtain a sample.Unformatted 2012 CGP Comment Response Essays February 16, 2012

592 Response Refer to Response 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 t hree samples from the "beginning, middle, and end" of a stormwater discharge event because the duration of events will be highly varia ble and unpredictable. Therefore, the requirement f or sampling at regular intervals throughout a discharge event seems more practical. If EPA is concerned that a regular sampling schedule will not provide enough data to assess discharges, then EPA should consider more fr equent testing or tailoring the CGP to geographic r egions (ie. more frequent sampling only required in areas prone to frequent s hort thunderstorms).

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 th e specific sampling requirements proposed by EPA. T he CGP would require permittees to collect a minimum of three samples ov er the course of each and every storm event, "distr ibuted 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 dis charge. This assumes a level of predictive ability over the nature and duration of a storm that simply does not exist in practice. A per mittee will have no way of knowing the mid- point or end of a storm until after the event is over. And then, of course, it will be too late t o collect the samples prescribed by EPA. The pr actical result will be to force permittees to sample continuously (or nearly continuously) thr ough the storm event, so that they can ensure at le ast three of their samples meet EPA's expectations. Multiplied by each and every ou tfall, and each and every storm event, this will ma ke sampling the dominant exercise for site operators. As another commenter p ut it, "[f]or a multiple mile linear project, [EPA' s sampling requirements] would require a small army of inspectors." Comments of In tegrys Business Support, LLC, dated June 14, 2011. As proposed, EPA's sampli ng requirements are just plain infeasible. We urge EPA to substantially revise its sampling requirements so that they are both r easonable and valuable without undue cost or operational burden. Ideally, EP A should require only a single sample per day durin g a storm event, if the storm is of sufficient duration to enable such samp ling. [FN 8]

[FN 8] We note that a passing thunderstorm of very short duration may not allow such sampling, both be cause of the short duration of the event and safety concerns.

Response Refer to Response 3.1.



# Comment ID 0087-A1.001.046

Author Name: Smith BrooksUnformatted 2012 CGP Comment Response Essays February 16, 2012

593 Organization: Utility Water Act Group (UWAG) Issue Category: 3.3.2Q Section 3.3.2 (sampling frequency) – Please see abo ve [See Comment ID 0087-A1.001.046]. Also, EPA’s su ggested alternative, samples taken every 2 hours following 1st sample, w ould be burdensome and is unrealistic on linear pro jects where multiple ou tfalls for different disturbed areas may be spread out over a long distance.

Response Refer to Response 3.1.



# 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 f ew larger discharge poi nts at the site as opposed to many smaller discharges. A minimum sa mpling frequency of 2 hours is recommended. The sam pling frequen cy should be adjusted if there is a procedure to meter stormwate r out of a storage structure. There should be no pe nalty (EPA notification ) if sampling is not possible due to lack of flow offsite. Contra ctors should be encouraged to employ onsite stormwa te r 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 sp ecified, and on the alternative option of requiring samples to be taken on ce every two (2) hours following the first sample.

The Draft statesYou must collect your first sample within the first hour that the discharge begins. After you take you r first sample (as required in Part 3.3.1), you must take a minimum of 2 additional sam ples (a total of 3 samples) during the remaining ho urs of the w ork 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 disc harge 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 samp le to be collected within the first hour that disch arge begins. In some cases, a person qualified to perform sampling may not be ons ite to witness the beginning of a discharge. Theref ore 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 norma l operating hours, the first sample should be taken during the first hour of discharge." 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 theUnformatted 2012 CGP Comment Response Essays February 16, 2012

594 site operator to colle ct three samples in one hour. Similarly, a discharg e may not occur until the last two or three hours o f the workday. To facilitate permit compliance, AGC recommends tha t EPA require site operators to collect only a sing le stormwater sample on each day when a discharge of more than 0.5 inches leaves the site during normal working hours. Requiring multiple sa mples over a specified period of time would create manpower issues and sig nificantly raise the cost of stormwater compliance. A construction site operator could choose to take additional samples on any give n day as circumstances may warrant.

The purpose of sampling should be targeted toward c orrective action. There is no purpose in sampling a gain and again if the s ite 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 t urbidity limit, AGC believes that the site operator should be finished sam pling for the day. If, however, the first sample collected from t he site shows any exceedance of the turbidity limit , the Draft would require correcti ve action. After taken action, the construction site o perator would 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 compliance limit. (Note that AGC continues to prefer a daily average compliance limit.) If the overall daily average of all the sam ples collect ed is below the turbidity limit, then the site would be in compliance with th e CGP. According to the required reporting schedule (preferable quarterly), the site operator would submit on his discharge monitoring r eport 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 multiple discharge points. Depending on the number and dista nce between discharge points and condition of acces s 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 th rought the work day, then only 2 samples should be required. If the event spans multiple days, 2 sa mples 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 moni tor for turbidity. EPA proposes that the first sample should be collected with the first hour of discharge and then two additional sam ples should be collected in such a way that the beginning, middle, and the end of the discharge for that day are represented. EPA conside rs altering the languag e to require that the first sample should be collected during th e first hour of discharge and the additional sample s should be collected every two hours following the first sample.Unformatted 2012 CGP Comment Response Essays February 16, 2012

595 TCEQ requests that the EPA adjust the sampling freq uency to allow for additional more practical option s in terms of timing of the sampling events. TCEQ is of the opinion that attemp ting to collect samples during the middle and the e nd 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 clarif ication that samples are only required to be collec ted during normal working hours.

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 obtai n three samples per day is burdensome. Flow pattern s, unique site geographical considerations, variable safety conditions and unpr edictable weather all contribute to sampling uncert ainty. Another burden is the intensive resources required to obtain and then com plete analytical field tests within holding times, if applicable. Alternatively, Dow believes that a more reasonable requirement would b e to obtain one (or more) daily representative samp les 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 ev ery 2 hours after a stormwater discharge event woul d not make sense since the heaviest suspended solid loading is during the firs t few hours of discharge (ie. first flush). It migh t make sense to continu e samples up to the first 3 samples then use the average of the 3 f or the discharge limit. This would allow time for m ost systems to activate and yield representative discharge values. For discharges tha t continue after the 3 samples time frame, the stor m 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 res ult 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) should be

considered.Unformatted 2012 CGP Comment Response Essays February 16, 2012

596 Response Refer to Response 3.1.



# Comment ID 0126-A2.001.014

Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 3.3.2Q The CSC believes that the sampling frequency is too prescriptive and not implementable leaving the Ope rator in a position to provide inaccurate data and therefore not very useful. Stor ms in our semi-arid climate can be very sporadic wi th short durations and variable precipitation. Snowmelt events on the other hand ar e somewhat continual and fluctuate with the tempera ture. 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 you r first sample (as required in Part 3.3.1), y ou must take a minimum of 2 additional samples (a t otal of 3 samples) during the remaining hours of th e 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 disc harge 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, yo u must notify EPA of this fact when you submit your monthly report an d indicate the reason why the 3 samples were not ta ken. You may take more than 3 samples in a given day provided the samples, taken as a whole, are representative of your discharge fo r th at day. You must use all valid sample results in calculating compliance with the n umeric limit.

Concern

Compliance with the requirement will be difficult b ecause of people and equipment. Collecting a minimu m of 3 samples a day from multiple locations requires a significant amount of time, trained construction staff, and proper equip ment. During storm events, construction may be halted, and no staff may be ava ilable 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 t o perform the sampling at theUnformatted 2012 CGP Comment Response Essays February 16, 2012

597 required frequency.

Suggested Correction

Revise the requirement to a single sample at any ti me during any one storm resulting in runoff. The sa mpling 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 considered one storm and would only require one sample from each d ischarge location onsite.

Response Refer to Response 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 cont ained in the Proposed CGP. The requirement is probl ematic because it prese nts a significant logistical and financial burden and is unlikely to be an effective tool for initiating cor rective action. Sampling and analysis requirements are intended to determine if BMPs impl emented on a construction site are effective for pr eventing sediment/silt or other pollutants from impacting wa ter quality objectives. Most projects, by design, a re not expected to cause or contribute to impacting water quality standards or objectives if the non-numeric effluent standards are implemented at the construct ion site.

LBA is concerned about the financial burden for tur bidity monitoring placed on the construction site o wner or operator for th e prescribed sampling frequency regulation contained in the Prop osed CGP. The regimen of sampling throughout the da y is excessive and an operational and cost burden that should be revisite d.

Members from areas where sampling is required state that it costs $600.00 to $1,000 per day for a cons ultant to sample stormwater discharges and prepare a report and these are not t ypically cases where samples must be collected ever y 2 hours.

An operator will also experience significant cost i f the sampling is conducted by the operator's emplo yees. The operator will be paying for a full day of labor plus overhead as well as tr aining costs and cost for sampling equipment and su pplies. If the first samples of discharges indicate that the site is in compliance it may not be necessary during many storms to conti nue to sample throughou t the day.

The goal of sampling is to determine if the erosion and sediment controls are working effectively. Dep ending on storm dynamics, the first sample taken during the day will provide a go od indication whether the erosion and sediment cont rols are working effect ively. It is recommended that the sampling frequency be reduced to one sample per discharge point per da y 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 further samp ling or action should be required until the next day, assuming the re is a continuing discharge. If the first sample i s not in compliance with effluent limits or benchmarks based on natural background le vels, the up gradient BMPs and area should be inspe cted and corrective actions taken as needed. Monitoring and additional stormwat er samples should be taken following the corrective actions to determine if the BMPs are working effectively. If the average of the samples taken after the corrective action is withi n appropriate limits, the site sho uld be considered in compliance and no more sampling sh ould be required for the rest of the day. Prescribe d sampling throughout t he day is not necessary where the storm does not increase in intensity, and the requirement should be revised to be more cost effective.Unformatted 2012 CGP Comment Response Essays February 16, 2012

598 Response Refer to Response 3.1.



# 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 result than the method described her e. Allowing the permittee to subjectively decide when to sample will result in s ampling that minimizes the apparent loss of sedimen t 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 channel ized flow. Include guidance on sampling from sedime ntation manholes or the ba ck end of pond or trap facilities - assume at the poin t 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 reserve d for avoidance areas. If we cover our construction sites with flags, they lose their impact. I suggest that the monitored discharge poin ts be clearly labeled on a site plan within the SWP PP.

Response Refer to Response 3.1.



# Comment ID 0030-A2.001.024

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE)Unformatted 2012 CGP Comment Response Essays February 16, 2012

599 Issue Category: 3.3.3 Section 3.3.3.2, page 34 What about common detention ponds for a large devel opment with several developers? If this shared BMP contains all of the per mittee' s (i.e., developer's) discharges, how do you determ ine 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 fo r a variance to use single representative samples f or projects that might have a significant number of discharge points. For example , under the federal requirements, oil and gas sites are not required to o btain coverage under the CGP. However, many states do require oil and gas to obtain state stormwater discharge covera ge for construction. Th is would include natural gas fields with hundreds of well pa ds, access roads, and pipelines. Many well pads are designed to have sheet flow; however, there will be some that will have concentr ated flows, and collecting samples at every one of these pads would be imp ractical.

Another example, is based on large land development s (e.g., subdivisions) where during land developmen t there are limited discharge 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 portio ns of the country regional detention is utilized. S ampling each storm sewer inlet would be impractical. We recommend variances be abl e to be apply for from EPA when single representati ve sampling would likel y 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 dra in inlets should be sam pled

where storm water enters the inlet.

Comment: Samples should not be collected where stor m water enters storm drain inlets.

Discussion: The requirement to collect samples wher e flow enters storm drain inlets is not consistent with the requirement to sample

downstream of control measures since most if not al l inlet protection measures (filter covers, guards, etc) will preclude s ampling where flow enters the inlet. Samples should be collected at the outfall or the property line rather than the storm drain inlets.Unformatted 2012 CGP Comment Response Essays February 16, 2012

600 Recommendation: Recommend that the requirement to s ample where storm water enters storm drain inlets b e 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 sa mpling for subdivisions/developments. In a large su bdivision/development, there are innumerable discharge points (i.e., storm sewer inlets) into the storm sewer. For example, at one of our large developmen ts, there are

more than 19 storm sewer inlets within a 10 acre tr act that would need to be sam pled if representative sampling was not allowed in the permit. It is more than likely that two or more of the storm sewer inlets will have comparable stormwa ter discharges due to 1 ) multiple inlets receiving stormwater discharges from the sam e drainage area and 2) the similarities between dra inage areas for the inlet (i.e., similarities in the type of exposed soils, the slop e and the type of stormwater controls used). In add ition, it might not be possible to sample all of the storm sewer inlets within the f irst hour of discharge and at the middle and end of the discharge during the short duration high intensity storms that occur during the monsoon s in the southwest. The Southern Ute Growth Fund re commends that the permit is revised to allow representative sampling for subdiv isions/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 disturbance a reas (70' x 70' areas are typical for foundation wo rk) 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 an inspection of all the

disturbed areas. It is therefore not reasonable to require sampling of all outfalls within the first h our of a rain event and three times a day for this type of linear construction. Use of repres entative monitoring as described in Section 3.3.3.4 would still be essenti al 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: 3.3.3 Sampling runoff waters at each inlet is not practic al and will be cost prohibitive! • If a storm sewer system discharges into the properlyUnformatted 2012 CGP Comment Response Essays February 16, 2012

601 designed SCS, then at the SCS is the only place whe re 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 eac h 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" Co nsider 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 update d 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 constructio n. This is an appropria te recognition of one of the unique characteristics of LCPs.

We also believe, however, that the final permit sho uld clarify that, to the extent sampling is require d for LCPs, sampling should beUnformatted 2012 CGP Comment Response Essays February 16, 2012

602 required only in the area where trenching activitie s are occurring. This interpreta tion of the ELG is expressly and cogently supported by the following excerpt from Section XIX.A of the pre amble to the final rule.

Monitoring from Linear Construction Activities: EPA believes that the permitting authority should exer cise discretion when d etermining the monitoring locations and monitoring frequency f or linear construction projects. For instance, the permitting authority mi ght choose, for example, to utilize representative sampling at certain discharge locations that are representative of the discharge characteristics of other locations. EPA views the use of representativ e sampling points as being acceptable for linear pr ojects due to the poten tial unique nature of these projects. Because of the size of li near projects, there may be dozens or more discharg e points spaced over a large geographic area. In addition, accessing certain are as of the project during a storm event (such as are as that have recently b een 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 ar eas of linear projects that are actively being construc ted and not concentrate on areas that have been completed and stabilized. An example , for a project such as a pipeline or underground u tilities, 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 dur ation of your construction activity..."

•What is the purpose of marking discharge points if they are clearly identified on the detailed site m aps 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: 3.3.3 Target also requests that the EPA further define di scharge point. Is it the intent of the EPA to have the Permittee monitor b efore it leaves the operational control and enters waters of the Un ited States or before entering treatment devices su ch as retention or detention basins?

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

603 

# Comment ID 0086-A1.001.018

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 3.3.3 The proposed COP sampling requirements are particul arly unworkable for linear utility projects. Overhe ad utility construction projects have small discrete land disturbance areas (70' x 7 0' 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 complet e an inspection of all the disturbed areas. It is unreasonable to require sampling of th e outfalls of such small areas within the fir st hour ofa rain event, and three times a day for this type of linear construction project. Use o f representative monitoring, as described in Sectio n 3.3.3.4, should still be provided for to be able to collect samples as required by the pr oposed 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 b e required for all points where storm water could leave the site. This is obviously based on the assumption that in a "box" project, there ar e a limited number of known, identifiable points wh ere effluent would leaves a development site, all located within a short distan ce of one another - typically a few city blocks. In contrast, a linear natural ga s project affecting ten acres or more would involve a long na rrow area only a few feet wide but extending for ov er 10 miles, crossing varied

terrain. There could be an absurd number of dischar ge 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 pr actices (BMPs) that have been proven to reduce the impact of stormwater from such temporary, 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 t o exempt linear projects from such "box" project re quirements or allow the use alternative BMPs for linear projects. Without such changes, the Draft Permit creates disproportionate and costly impacts on g as utilities without providing a commensurate water quality bene fit.

Response Refer to Response 3.1.



# 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 discharg e sampling being required at multiple points where stormwater may discharge. For example, the current requirement proposal could be interpre ted to impose an onerous requirement that sampling be done at any bore pit w ith 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 al ong the route, would clearly present an unfair, dis proportionate burden on pipelineUnformatted 2012 CGP Comment Response Essays February 16, 2012

604 projects, particularly cost-prohibitive for small-s cale linear operations. AGA thus urges EPA to recog nize that discharge sampling is both unnecessary and impractical for non-point sour ce discharges as is the case in linear pipeline pro jects, exempting linear projects from such requirements and reconsidering discharge sampling as a feasible means for non-point source q uantitative controls.

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 i s used as

the last stormwater control? In some cases access m ay av ailable at a downstream (next man hole) but in many cases the construction site discharge will mix with other storm water from outs ide the construction site when it dumps into the ca tch basin. Sampling jus t 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 points on your site with flags, stakes, tape, or other visible mar kers that will last for the duration of your constr uction activity." AGC r ecommends that

such markers be u sed only to mark area of the site that should be av oided; overuse of flags will cause them to lose the ir impact. (This is a problem in other parts of the Draft as well; ther e are numerous instances where EPA would require th e use of flags.) AGC suggests th at the site operator clearly label on the site plan wi thin the SWPPP all of the discharge points that wil l be monitored.

Response Refer to Response 3.1.



# 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 c learly mark all discharge points on your site with flags, stakes, tape, or other visibl e markers that will last for the duration of your construction activity.” NAHB recommends that such m arkers 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 operator clearly label on th e site plan within the SWPPP all of the discharge points that will be monitored.Unformatted 2012 CGP Comment Response Essays February 16, 2012

605 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 discharg e enters a storm drain inlet, you should take samples at the point where stormwater flow ent ers the inlet. This simply is not practical and is not consistent with the requirement to sample do wnstream of control measures since most, if not all, inlet protection measures will not allow f or sampling where flow enters the inlet. Samples should only be collected at discrete discha rge 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 fro m a single location that is representative of other outfalls. This condition is critical for many highway projects that have numer ous discharge points, all of which are likely to have storm water discharges of simila r quality. Without this allowance, significant reso urces 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: 3.3.3

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 project s as defined in Appendix B, which are authorized to take representative samples in accordance with Part 3.3 .3.4.

ConcernUnformatted 2012 CGP Comment Response Essays February 16, 2012

606 Samples from all discharge points is unnecessary wh en there is either a small portion of the site (les s than 0.5 acres) or a

non

‐ concentrated overland flow.

Suggested Correction

Revise to require sampling for all concentrated flo w discharge points that represent at least 0.5 acre s 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 Issue Category: 3.3.3 The only way to do this would be to equip my inspec tors 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 r emove 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 sites, this w ould take a full day to sample just once. Most stormwate r that enters an inlet is sheetflow and shouldn't b e subject to sampling. If the stormwater then drains to a stormwater pond that sh ould have a protected outlet, then this requirement is particularly redundant. 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 dow nstream of outfalls at least once per month within 24 hours of rainfall. The sampling locations and protocol should be identifie d on the SWPPP. There should be at least two sampli ng locations per receiving water.

Response Refer to Response 3.1.



# Comment ID 0158-A1.001.016

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: 3.3.3 The proposed CGP sampling requirements are particul arly unworkable for linear utility projects. Overhe ad utility construction projects, for example, have small discrete land disturbance a reas (70' x 70' areas are typical for foundation wo rk) with long area s 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 an inspection of all theUnformatted 2012 CGP Comment Response Essays February 16, 2012

607 disturbed areas. It is therefore not reasonable to require sampling of all outfalls within the firs t hour of a rain event and three times a day for this type of linear construction. Use of repres entative monitoring as described in Section 3.3.3.4 would still be essenti al to be able to collect 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 co nsider allowing use of representative sample areas for sites over 10 acres or having over 20 discharge points, whether they are l inear 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 sampl ed.

Comment: Operators should be allowed to sample repr esentative outfalls for all sites, not just linear projects.

Discussion: The requirement to collect samples from all discharge points is overly burdensome since si tes above the threshold (10 or 20 acres) would have many discharge points. These site s should be allowed to sa mple representative outfalls as linear projects are afforded this option as well as storm water discharges assoc iated with industrial activity in the EPA MSGP. Out falls with the same sediment controls could be grouped together to reduce the sa mpling burden.

Recommendation: Recommend EPA extend the option to sample representative outfalls to all projects.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

608 

# 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 represent ative 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 b e allowed. Too much testing could begin to dictate BMP selection and result in a reduction of water quality. We recommend maintainin g flexibility in testing procedures for linear proj ects 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 linear. If a contractor selects a representative sample location, it will b e the cleanest. Perhaps select the discharge point with the highest amount or rate of discharge.

Response Refer to Response 3.1.



# 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 mo nitoring (using a single representative sample loca tion for more than one discharge point) for linear-type projects. The use of represe ntative monitoring should not be limited to linear sites. In many case s, requiring more than just one representative sample point on a non- linear project is redundant. For example, if the co ntractor 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 existingUnformatted 2012 CGP Comment Response Essays February 16, 2012

609 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 permi t should allow for sampling one outfall to cover mu ltiple discharge points, if the results would be representative of those multiple d ischarge 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 represe ntative sample locations for non-linear and linear- type projects. If the use of representative sample locations for projects is n ot allowed, the sampling, testing, and reporting bu rden for these owners/operators 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: 3.3.3Q 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 uni formity to site conditions (i.e. slope, BMPs, activ ities) that this certification should be afforded because discharges are similar and not mon itoring all discharges does not provide additional environmental harm.

Large sites in acreage will be conducting the monit oring per the C & D rule, and by allowing for representative monitori ng it makes the monitoring requirements more feasible.

Response Refer to Response 3.1.



# Comment ID 0080-A2.001.024Unformatted 2012 CGP Comment Response Essays February 16, 2012

610 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 remai ns as to how to conduct sampling if a construction site is discharging by sheet flow. The difficulty of obtaining any sample from an arid region construction site would suggest that repres entative monitory is applicable here. Any baseline sample obtained should be consid ered a representative sample for the entire constru ction site for all arid sites not just limited to linear-type project sites.

The Partners also recommend that the EPA develop sp ecific guidance and document parameters for allowan ces to ensure that the concept of representative monitoring is thoroughly understood and implemented by the regulated communi ty under the proposed C GP.

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 operator s may use representative sampling vague and subject to potential abuse. EPA should provide concrete guidance about what constit utes adequate "similarities of the exposed soils, s lope, and type of stormwater controls used" sufficient to justify representative sampling.

As noted in previous comments, the sampling require ment will help ensure that operators have adequate incentive to maintain all 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 poin t.

Response Refer to Response 3.1.



# Comment ID 0093-A2.001.077

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 3.3.3Q EPA has indicated that it would prefer to limit the use of representative monitoring (allowing a singl e representative sample location for more than one discharge point) to linear type proje cts. AGC feels very strongly that EPA also should a llow representa tive sampling for large non-linear projects if the operator can docum ent sufficiently within its SWPPP that representati ve sampling is warranted.

For example, the Washington state Department of Eco logy handbook "How to do Stormwater Monitoring: A g uide for construction sites" states that permitees are "require[d] to col lect samples that are representative of the dischar ge from the construction site. A representative sample means the sample is similar i n flow and characteristics (such as color, suspende d soil, etc.) to the stormwater running off the site." The state CGP allows permite es to choose how to take the representative sample: 1) a single grab, 2) a time-proportional or 3) a flow-proportional sample.Unformatted 2012 CGP Comment Response Essays February 16, 2012

611 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 certain pe rcentage 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 compliance with the moni toring provisions will incur significant manpower. Therefore, EPA should allow representativ e sampling for large projects if the developer can document sufficiently within its SWPP P 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 di stance of sampling points on linear projects before they can be combined into representative sampling.

Response Refer to Response 3.1.



# 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 re quire that samples be collected at all discharge po ints except for linear projects, where representative monitoring may be used. EPA's preference is to limit the use of representative mo nitoring, but belie ves the use of representative sampling points are acceptable for l inear projects due to the potential unique nature of these projects. EPA also believes that it might not be feasible to monitor all outfal ls on linear projects.

TCEQ prefers that the EPA provide the flexibility o f sampling one or more outfalls that are considered substantially identical to other outfalls at the site, provided that the operator ca n demonstrate that the discharges are substantially similar.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

612 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 C GP's exemption from full turbidity sampling of disc harges linear construction projects, especially in light of the proposed chang e in the Draft CGP that eliminates a related exempt ion that exists in the current permit. Contrast Draft CGP at Part 3.3.3.4 (permitting repr esentative sampling rather than sampling of all dis charge points) with Draft CGP at Part 5.1.4. Industry concern that such sampling is impractical is not a legitimate basis to avoid coll ection of the basic data 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 limite d 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) Issue Category: 3.3.3Q The Proposed CGP should allow representative sampli ng for other types of construction projects as it a llows for linear projec ts. Larger traditional construction projects can have similar size and distance characteristics as linear project s. 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 m ultiple discharge points from a

multitude of small catchments.

There are situations where the operator is not able to sample at a discernable discharge point downstr eam of the inlets. In one case, a member stated that its site discharged into a close d MS4 system (no access manhole was available) and he was not able to samp le at the point where the discharge actually leaves the site . The member was required to sample up to 14 draina ge 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 case s such as this. LBA supports the ability of representative sampling to represent mul tiple discharge points and suggests that the permit include such a provision. This provision could be implemented by permitting the SW PPP to allow for careful consideration of the vario us discharge points and allow representative sampling where appropriate.Unformatted 2012 CGP Comment Response Essays February 16, 2012

613 Response Refer to Response 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 l imited and direct monitoring should be assumed to b e the appropriate way t o monitor discharges. The variability of soils, their distrib ution, topographical differences, differences in co nstruction/development activities at specific locations, and differences in choice and m aintenance of stormwater control efforts are probab ly too large to appropriately assume representative monitoring will provide a rea sonable estimate of the impacts of stormwater disch arges.

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.

Target requests that there be waivers from monitori ng obligation or adjusted monitoring values when ru n-on is already exceeding the numeric limits. Target understands the obligation t o divert or treat run-on to maximum extent feasible , but does not want to exceed an effluent limit for discharges originating from off- site. Target would like clarification on what the P ermittee obligations are for run-on discharges which are largely contributing to numeri c 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 bu rden utilities with the responsibility to measure and report pollutant even ts caused by others.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

614 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 stormwat er originating outside of your construction site. N ational Grid is in support of this part. Because of the linear nature of utility line ROWs, there are frequent circumstances where stormw ater and streamflow cross the ROW. Clarification of the sampling requirements in instances like 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 dow nstream of the project site, and monitoring for an exceedence of the determined benchmark value, the numeric limit value, or prefer ably, a difference of about 50 units between the up and downstream boundar ies of the site. Section 3.3.4 of the permit specifically excl udes sampling of onsite run-on from other sources. In areas with multiple projects or other watershed disturbances, run-on may be the pri mary source of off-site pollutant transport onto th e site. Experience with water quality sampling in areas of the southwestern Unite d States with sediment TMDLs indicates that samplin g run- on and comparing results with samples from the site runoff often provides a better measure of specific site impacts, than disch arge monitoring alone. This is particularly true where the geomorphology of the re ceiving 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 a uto sampling? Could in-situ measurement replace man ual sampling and measurement?

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

615 

# 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 nee d 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 ce nter of a storm water channel, again would place an inspector in hazardous location during Spring runoff in mountain streams due to rap ids and poor footing on rock. "Shoreline reach" alt ernative suggested for personal safety.

Response Refer to Response 3.1.



# 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 w ith examples of the typical conditions that will oc cur needs to be written in here, otherwise the results will vary to much. Has a study been performed with this descri bed protocol with vario us sample personnel and locations to see how much variability there is? If so, this should be presented. If no t, this will be a big problem. Is anybody allowed to collect the samples or does it n eed to be a trained person? I would suggest requir ing a trained person that has field knowledge of the protocol.

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 provi sions specified in Se ction 3.3.5.2(c) doUnformatted 2012 CGP Comment Response Essays February 16, 2012

616 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 shou ld encourage the collection of in

situ measurements within the flow stream with turbi dimeters 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 re suspending 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: 3.3.5 -- Section 3.3.5 contains very prescriptive languag e for sampling site discharges to an adjacent unlin ed channel. Physical logis tics may form challenges to meeting this requirement for lar ge ponds and large outfall channels. Sampling from the horizontal and vertical midpoint of the outlet may not be consistent with S ection 2.1.4.4a that requires the outlet structure to draw from the surfac e of the pond. Please coordinate and clarify these sections for co nsistency. Please streamline these measures to be more generally applicable to multiple drainage system configurations and to address disch arges 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 inhe rent interferences from color and particle absorban ce. Measurement technol ogies that

account for these interferences should be used. The se are ratio techn ologies, which would provide more accurate results for these types of samples versus single detector systems, e.g. nep helometers.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

617 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 a lgorithms and prescriptive measurement protocols can reduce this effect and pr oduce more accurate results. Modern portable turbid imeters include settling algorithms in the software.

Response Refer to Response 3.1.



# Comment ID 0032.001.006

Author Name: Sadar Mike Organization: Hach Company Issue Category: 3.3.6 Most portable turbidimeters on the market have an u pper measuring limit of 1000 NTU, which constructio n effluent samples may exceed. How does the agency recommend addressing th ese samples that are above the measuring limit of t he 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 fo r low level turbidity measurement. There is one con sensus-approved turbidity method that focuses on high level measurement. ASTM D7315 provides protocol that will lead to more acc urate sampling and measurement performance. We suggest that the agency reviews this sampling 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 turbi dity meter is required. Current technologies that i ncorporate ratiotechniq ues compensateUnformatted 2012 CGP Comment Response Essays February 16, 2012

618 for potential optical system instability, therefore daily calibration is not required. Regula tions, suchas EPA 180.1, state that calibration is only necessary on a quarterly basis. Requiring dail y calibration could imposeunnecessary additional bu rden on permittees. We suggest that instead of requiring daily calibration, the ma nufacturer's recommendation for calibration frequen cy befollowed, and daily verification be performed. If the verification fail s within a specified acceptance range, recalibratio nshould 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 nee d to be mandating procedures.

Response Refer to Response 3.1.



# 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 analysi s time must not exceed 48 hours from the time of co llection. This section should be updated to include a general requirement that all s ample analysis be done by 40 CFR 136 approved metho ds and all associated Q uality

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 language about using ca libration solutions that meet the meter manufacture r'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 CorporationUnformatted 2012 CGP Comment Response Essays February 16, 2012

619 Issue Category: 3.3.6 Sample Analysis; Calibration Target believes the re quirement to recalibrate turbidimeter before each e vent is inappropriate for permit language. Instead, Target requests that this langua ge be included in permit guidance. Manufacturer spe cifications are detaile d to assure that the monitoring meter is operating properly and therefore following USGS requirements may be dupli cative.

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 b eing implemented, otherwise the results will be mea ningless and not comparable.

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 t echnologies that do not require daily calibration. For example, the Hach 2100P Turbidimet er does not require standardization before every me asurement as some turbidimeters do. Periodically, the instrument cali bration is checked using the appropriate Gelex Seco ndary Standard. If the reading is not within 5% of the previously established value, then recalibration is recommended. Requiring calibr ation before daily use is time consuming and costly.

LBA suggests that the turbidimeter used for field a nalysis be required to be calibrated per manufactur er'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 compl ex for the small business operator. The sampling pr ocess, manufacturers' recommendations, equipment calibration, formulation of calibration standards, employee training, and l aboratory certifications make the requirements for sampling analysis overly burdensom e to the typical contractor, and will likely result in a competitive advan tage for the larger businesses with more resources available.Unformatted 2012 CGP Comment Response Essays February 16, 2012

620 A turbidimeter will cost a minimum of approximately $1000, and there are additional costs associated w ith operating and maintaining the equipment. Affected entities must become certif ied on the use of the equipment, and keeping the eq uipment in good working order may be difficult, particularly for those not accust omed to working with sensitive scientific monitorin g equipment.

Response Refer to Response 3.1.



# Comment ID 0153-A1.001.026

Author Name: Wortkoetter Judith Organization: Greenville County, South Carolina Issue Category: 3.3.6

The calibration of a nephelometer or turbidimeter daily discourages the use of extended deployment of such instrumentation. Extended deployment would allow the permittee to obtain a mu ch clearer picture of the quality of discharges fro m a construction site f or the entire dewatering period after a storm event. Large storm events often take days to drain and extended" deplo yment would decrease the num ber of needed field visits. Various quality control pro cedures could be put into place to ensure that the field data is highly reli able at the onset and conclusion of the collection period.

I don't think you can comply with 40 CFR 136 and us e a nephelometer or turbidimeter as stated under 3. 3.6 as "musts". 40 CFR 136 is for the traditional grab sampling and laboratory analys is.

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 type s of discharge (stormwater runoff or non- stormwater discharge) and a notation of the size or amount of area draining through the dischar ge 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 happe ns when discharge ceases right after a short durati on event? If the monito r looksUnformatted 2012 CGP Comment Response Essays February 16, 2012

621 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 measu rements to be taken and recorded per 40 CFR 136 app roved methods including all associated QA/QC. The details of the daily instrume nt calibration should also be recorded in the field log.

Response Refer to Response 3.1.



# 3.3.8 ACTIONS REQUIRED IF YOU VIOLATE NUMERIC TURBI DITY 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 repor ting system for permitees who are required to meet the numeric effluent limit. The Draft permit requires that permittee report exceeda nces to EPA of the Numeric Effluent Limit within 24 hours. There is concern that such a reporting scheme does not result in any addi tional protection to the environment or the public and should be omitted. It is more appropriate to require corrective action within a c ertain period of time and quarterly reporting of th e 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 excee dances (Section 3.3.8) should be conducted per exis ting Notice of Non-compliance mechanisms. A release of turbidity from a construct ion site likely would not be categorized as endange ring 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 normal requirements of reporting on the r egular monthly report and not a 24-hour notificatio n requirement as would be required for those incidents endangering health.Unformatted 2012 CGP Comment Response Essays February 16, 2012

622 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 up set should trigger the direct notification of EPA w ithin 24 hours, we recommend th at if either (a) the limit is exceeded by twice the turbi dity, or (b) the limit is exceeded more than two ti mes within a 24- hour period, EPA be directly notified.

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 viola tion of the ELG within 24 hours. In order to limit the amount of information com ing into EPA, EPA may want to have any sampling that was wit hin 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 main tain BMP's for compliance with the permit limits. R eporting individual occurrences to the EPA could involve additional reg ulatory input in corrective actions and result in s lower response 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 b ackground conditions in the receiving water body. S uggest that backgroundUnformatted 2012 CGP Comment Response Essays February 16, 2012

623 conditions be accounted for as they can have signif icant impacts on seasonal water quality.

Response Refer to Response 3.1.



# Comment 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 syste m nor does it account for impacts of storm duration and potential impacts of time on wat er quality. Suggest this section be reworded to con sider 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 "ext remely high" is in relation to the final turbidity limit. Arbitrarily sele cting two times greater is not an effective way to determine this. Research has shown that common NTU discharges f rom construction activities are well above 1,000 NTU.

2. There should not be a threshold for immediate no tification to EPA. Highly intense events will creat e frequent exceedances depending on on-site soils. The permittee should record exeed ances 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 report ing requirements are not practical. Allowing seven days to discover, desig n, review, approve and install additional practices is unreaso nable. The permit is not clear about what informati on EPA will be immediately notified or what purpose it will serve to notify EP A. Moreover, the permit requires 30 day reports and time is better spent o n corrective actions rather than reporting. The permit requires monitoring from discharge points instead of from th e regulated waters. Turbidity violations are only violations if the receiving wat ers are in excess of standards and measurements sho uld be done only at these entry points to the waters. Readings at BMP discharge poi nts are not necessary valid in this regard. Further , this provision must account for receiving waters that are already in excess of stan dards prior to the permitee activity which is not u nusually if prior or offsite uses areUnformatted 2012 CGP Comment Response Essays February 16, 2012

624 already developed without controls. How are these s ituations to be addressed? Projects employing Envir onmental Site Design will not have discharge points and we believe the relevant t urbidity measurement is in the regulated waters. Th is monitoring protocol seems inconsistent with the discharge into a storm sewer which assumes discharge is at the point where regul ated waters are reached prior to discharge into impaired waters.

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, se ems 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 notif y EPA immediately when the turbidity limit is violated. Immediate notification should be required regardless of the level of exce edance. Repeated violations due to only slightly elevated turbidity levels can be just as detrimental to water quality as single violatio ns that are extremely h igh. Accordingly, we disagree with an approach that would establish a numeric limit below which the immediate notificati on of a violation 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 ex ception outlined in 3.1.2.1 (storm in excess of a 2 year, 24-hour) apply as anUnformatted 2012 CGP Comment Response Essays February 16, 2012

625 exception for notification? In order to be consiste nt and thereby prevent confu sion, the time line for this notification should be the same as required in 6.6.

Response Refer to Response 3.1.



# 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 op erator 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 samples indicate that a discharge exceeds the numeric turbidity limi t. Therefore, EPA's request to solicit comments on whether the permit shou ld require an immediate notification of EPA (e.g. within 24 ho urs) for extremely high turbidity levels (and for w hat threshold value) is moot because the permit already specifies when and at wh at threshold the notification is required. Part 6.6 would need to be modif ied if Part 3.3.8 was modified to specify a reporting deadline and turbidity level different from what is curren tly proposed in Part 6.6. The Southern Ute Growth Fund supports retaining the existing req uirement in Part 6.6 to report by the end of the ne xt 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 mont hly reporting should be allowed.

Response 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 ena ble EPA to respond to the site in a meaningfully ti mely manner. In addition, over reporting and potentially waste of Agency resources may result when monitoring results are initially r eported as violations b ut are laterUnformatted 2012 CGP Comment Response Essays February 16, 2012

626 found not to be subject to the turbidity limit beca use the even sampled was larger than the 2 year/24h our cutoff. Finally, it is a far better investment of the energies of site personnel to res pond to any apparent exceedance than to repair to t heir construction base to issue a notification. On balance, while more information of ten is better, the EHSCP believes that immediate no tification in this case is not appropriate.

Response Refer 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 distan ce 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 regardi ng 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 doe s not support this proposal because situations where there is high turbidity ar e not emergencies or spills that require immediate notification to EPA. Rather, CCWC would support benchmark monitoring. The sampling fr equency for benchmark monitoring under 4.2.2.1(b)(i i) 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 fr om Alcoa's concerns with the numeric turbidity limi t itself, Alcoa does not believe

there is a need to include additional notification requirements for exceeding any limit other than tho se that are currently a part of the NPDES permitting program found at 40 CFR 122.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

627 

# 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 Numeri c Turbidity Limit. Immediate notification of extrem ely high turbidity leve ls will not give an overall representatio n of the site conditions. Requiring notification to EPA would add another administrative step that cou ld be missed due to other responsibility constraints. The information collected can be required to be docume nted on site with the o ther permit information and be accessible during regulatory ins pections. If reporting to EPA is a requirement it c ould be accomplished 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 notific ation for extremely high turbidity levels. Addition al notifications would present an unnecessary burden on the permitting agencies and r egulated communities. The DEQ would support some al ternatives that allow permittees to submit written notifications along wi th the site's normal reporting documents (i.e. as a cover letter to accomp any 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 response of the contractor has taken place and additional correcti ve measures have been implemented and the discharge continues to exceed a n acceptable value by more than 3 times the given N TU

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: 3.3.8Q Partner Response: 48 or 72 hours is a more reasonab le notification period if the turbidity limit is ex ceeded. The Partners suggest that a

measured numeric value of two or 2.5 times the C&D ELG num eric turbidity limit would be indicative of an "ext remely high turbidityUnformatted 2012 CGP Comment Response Essays February 16, 2012

628 level." The statistical unreliability in taking the ses required samples suggests a higher threshold fo r reporting. The questi on remains as to what the final C&D numeric turbidity valu e will be. That value will certainly influence the City's recommendation to EPA on reporting time frames and criteria. The City is also interest ed in knowing what the EPA's intended use of this i nformation 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 t ypes 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, In c. Issue Category: 3.3.8Q !fEPA retains the turbidity limit, reporting exceed ances (Section 3.3.8) should be conducted per exist ing Notice of Non-compliance mechanisms. A release of turbid ity from a construc tion s ite likely would not be categori zed as enda ngering health or the e nvironment, 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 r egular monthly report, and not a 24-hour notificati on requirement as would be 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 immedi ate notification (e.g., 24 hours) of EPA for extrem ely high turbidity leve ls for the reasons explained below and in Section V of AGC's c omments above.

An exceedance of a turbidity limit is not an emerge n cy condition that poses an immediate threat to life or safety and does not warrant an immediate response to, or by, EPA. Collecting and r esponding to this type of data would divert EPA res ources and dilute its ability to effectively manage the program, which should be foc used on reviewing regularly reported data to identi fy compliance trends and centering attention on projects exhibiting a histor y of compliance difficulties.Unformatted 2012 CGP Comment Response Essays February 16, 2012

629 Under the Administrative Procedure Act (APA), agenc ies must provide interested pe rsons with a meaningful opportunity to comment on proposed rules. E.g. American Radio Relay League, I nc. v. Federal Communications Commission, 524 F.3d 227, 237 (D.C. Cir. 200 8). "It is not consistent with the purpose of a rulemak ing proceeding to promulga te rules on the basis of inadequate data, or on dat a that [to a] critical degree, is known only to the agency." P ortland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 379 (D.C. Cir. 1973). C urrently, 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 wha t constitutes an "extremely high" limit. For example, EPA's previous turbidity limit was 280 NTU.

Furthermore, AGC questions whether Congress provide d the agency with the authority to "immediately" co llect information on "extremely high" turbidity discharges. In certain c ircumstances, CWA section 308 allows EPA to require discharg ers to collect data and provide that data to the agency. See 33 U.S.C. § 13 18(a). However, Congress only required "immediate" notification to the gov ernment when the discharge consists of oil or hazardous sub stances. See 33 U.S.C. § 1321 (b)(5). Therefore, un less the agency is creating the immediate notification requirement pursuant to CWA section 311(b)(5), it is acting outside its authori ty.

Finally, many of AGC's members operate their busine sses as sole proprietorships. Thus, the Fifth Amend ment protects them from self-incrimination. United States v. Doe, 465 U.S. 605 (1984). The proposed obligation to immediately notify the EPA is in actuali ty a notification that the permittee is in violation of the CWA. Therefore, sole proprietors should be "fre e to refuse to create" and provide such incriminating "records on fifth amendment grou nds." Alito, Documents and the Privilege Against Se lf Incrimination, 48 Un iv. Pitt. Law Review 27, 65-78 (Fall 1986).

Thus, EPA's proposed requirement to immediately not ify the agency of extremely high turbidity measurem ents implicates the Fifth Amendment rights of certain small businesses, is ou tside of EPA's authority under the CWA, and current ly does not contain enough detail to allow the regulated community to provide meaningful comments. Consequently, AGC strongly urg es 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 req uirement. Und er the Administrative Procedure Act (APA), agencies must provide interest ed persons with a meaningful opportunity to comment on proposed rules.[FN 66] “It is not con sonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inad equate data, or on data that [to a] critical degree, is known only to the agency.” [FN 67] Curre ntly, the EPA has not published a numeric turbidity limit for stormwater discharges from cons truction sites and therefore the limit that the Age ncy is contempla ting “is known only to the [EPA].” [FN 68] Therefore, NAHB has no basis toUnformatted 2012 CGP Comment Response Essays February 16, 2012

630 determine what constitutes an “extremely high” limi t. For example, EPA’s previous turbidity

limit was 280 NTU. NAHB submits that it would be un necessary 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 provid ed the Agency with the authority to “immediately” collect information on “extremely high” turbidity discharges. In certain circumstances, CWA section 308 allows EPA to requir e dischargers to collect data and provide that data to the Agency.[FN 69] However, Congress o nly required “immediate” notification to the government when the discharge consists of oil or ha zardous substances.70 Therefore, unless the Agency is creating the immediate notification requi rement pursuant to CWA section 311(b)(5), it is acting outside its authority.

Finally, many of NAHB’s members operate their busin esses as sole proprietorships. Thus, the Fifth Amendment protects them from self-i ncrimination.71 The CGP, as proposed, requires the permittee to collect and record stormw ater samples in accordance with Part 3—a protocol most developers currently do not follow. A dditionally, the proposed obligation to immediately notify the EPA is in actuality a notifi cation 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 requirement to immediately not ify the Agency of extremely high turbidly measurements implicates the Fifth Amendmen t rights of certain small businesses, is outside of EPA’s authority under the CWA, and curre ntly does not contain enough detail to allow the regulated community to provide meaningful comments . Consequently, NAHB suggests that the Agency not include the requiremen t in the final CGP.

[FN 66] E.g. American Radio Relay League, Inc. v. F ederal 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 Again st 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 CorporationUnformatted 2012 CGP Comment Response Essays February 16, 2012

631 Issue Category: 3.3.8Q

15. I cannot comment on the notification threshold until the turbidity limits are set.

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 site personnel can focus on remediating any pr oblem and to allow them ti me to gather facts (including rainfall intensity) to conf irm or deny that a violation has occurred. For exam ple, if the numeric standard is exceeded but the storm event exceeds the 2 yr./24 h our threshold there would be no violation to report . Such information is t ypically not

available within the 24-hour window for immediate n otification suggested in the Draft Permit. In addit ion to burdening permit holders, an immediate reporting obligation would be expected to result over reporting that could result in the wasteful dispatch of EP A 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 shoul d 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. Thi s is not a point source issue nor should it be treated as such. This type of exceedan ce should not be compared to a sanitary sewer overflow nor is it a public health issue. An alternative approach would be given on weekly or monthly reports. How does USEPA intend to use this information they sugge st be reported in 24-hours. Who is responsible for report ing 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 le vels is not appropriate. Dow believes that the permittee should be given ample t ime to perform a confirmation of laboratory quality assurance/quality control of the data; assess the current situation and verify that the BMP, stormwater controls are functioning as int ended prior to alerting EPA of extremely high turbidity values. These steps are ne cessary to verify the extremely high turbidity resu lt(s), and may take more than 24 hours to complete.Unformatted 2012 CGP Comment Response Essays February 16, 2012

632 In the case of extremely high turbidi ty results, Dow does believe that immediate steps s hould 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 premature and ina ccurate disclosure. Dow does support a more reasonable time period of 72 hours after the permittee receives tu rbidity sampling for agency reporting of an extremely high turbidity result. Th is 72 hour proposed timeframe should also ensure an accurate agency notifi cation and provide the permittee the necessary time to complet ely 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 corr ective measures have been implemented and the discharge continues to exceed a n acceptable value by more than 3 times the given N TU.

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 exce edance of the turbidity limit are vague and are unlikely to result in impro ved water quality protection. EPA should provide clear guidan ce on steps required upon discovery of excessively turbid discharges, and the enforcement steps that will be taken if action is n ot made to bring the site discharge into compliance

.

Response Refer to Response 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 w ithin 48 hours of learning about the exceedance and not 24 hours. This would allow time for the sampler to gather the facts, convey th e information to the operator, and allow time for t he operator to remedy the situation prior to reporting. The reporting could then be muc h more complete for EPA review.

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

633 

# 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 t urbidity levels. The standard pennit conditions listed in Appendix L already contain 24-hour report ing requirements for any noncompliance that may end anger health or the environment. Also, the proposed pennit requires the implementation of corrective actions if the numeri c turbidity limit is violated, as well as monthly reporting. As such, MDT questions t he usefulness of additional reporting. Immediate no tification of every hig h turbidity level would be overly burdensome to the regulated c ommunity, 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 Prope rties (MAIOP) Issue Category: 3.3.8Q As presented, the monitoring, inspection and report ing requirements are not practical. Allowing seven days to discover, desig n, review, approve and install additional practices is unreaso nable. The permit is not clear about what informati on EPA will be immediately notified or what purpose it will serve to notify EP A. Until we know what the NTU limit will be or the threshold discharge for immediate notification we cannot comment. Moreover, the permi t requires 30 day reports and time is b etter spent on corrective actions rather than reporting. The permit requires monitoring from disc harge points instead of from the regulated waters. Projects employing Environmental Site Design will not have discharge p oints and we believe the relevant turb idity measurement is in the regulated waters. This monitoring protocol seems inconsistent with th e discharge into a storm sewer which assumes discha rge 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 w ould facilitate compliance. Such a requirement will heighten the permittees sen se that adequate control of stormwater discharge wa ter quality is important and that they are accountable for the level of success or fa ilure to meet that obligation.

As for what exceedance level should trigger immedia te 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

634 

# 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 excee dances (Section 3.3.8) should be conducted per exis ting Notice of Non-compliance mechanisms. A release of turbidity from a construct ion site likely would not be categorized as endange ring 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 normal requirements of reporting on the r egular monthly report and not a 24-hour notificatio n requirement as would be required for those incidents endangering health. 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.



# 3.3.9 OTHER IPM MEASURES - FOREST CANOPY PEST CONTR OL

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 num erous discharge points that may exist on a linear c onstruction 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 da ta within 5miles if the on- site gauge is damaged or stolen. Suggest requiring the use

of the closest available data.

Response Refer to Response 3.1.



# Comment ID 0030-A2.001.026

Author Name: Keyes Jennifer Organization: Wright Water Engineers, Inc. (WWE) Issue Category: 3.3.9Unformatted 2012 CGP Comment Response Essays February 16, 2012

635 Section 3.3.9.3.d, page 37 There is still a need to report turbidity from site s with greater than the 2-year, 24- hour storm. Therefore, if an event is clearly large r than a 2-year, 24-hour storm, there is stil l a need to have someone to perform sampling. Sampl ing every two hours at a large site with multiple discharge points also seems impractical. We recomme nd the EPA approach of collecting three or more sam ples over the day, as o pposed 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-A2.001.022

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 multi ple discharge points seems impractical especially i n arid to semi-arid states where storm events could be frequent but not long in dura tion.

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 s ites to report quarterly for reports of "No Exceeda nce" and for "No Discharge"

reports.

Response Refer to Response 3.1.



# 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 backgrou nd turbidity, TMDL's seasons of concern, storm dura tion, and first flush that may deliver high NTU levels not representative of stead y-state conditions. Suggest this section be reworde d to consider these impacts.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

636 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, (base line) given high desert arid

climates?

Response Refer to Response 3.1.



# Comment ID 0076-A1.001.026

Author Name: Steadman Marc Organization: Target Corporation Issue Category: 3.3.9 Additionally, Target requests clarification on pers ons qualified to submit sampling results. Target su ggests allowing qualifi ed personnel to submit on behalf of the Owner or Operator. Targe t may not be able to meet signatory timeline requir ements if owner signature is required. The requirement could delay the submissio n 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 si gnificantly more difficult for a natural gas utilit y to comply with the Draft Permit's "Reporting Turbidity" requirement in Part 3.3.9. EP A should consider how this provision (e.g. during routine inspections or as the result of a permit violation) would ensure that a permit h older is not being burdened with the requirement of reporting turbidity vi olations that are caused by others. AGA requests clarification on accountability in reporting, and urges EPA to cons ider linear construction sharing right-of-way with non- permit projects in establishing its notification re quirements 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: 3.3.9Unformatted 2012 CGP Comment Response Essays February 16, 2012

637 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 onc e a month and report to EPA within 24 hours any exceedance of the numeric turbidity limit. This reporting sche me is too onerous and aggressive. It is more appropriate to require quarterly reporting of the numeric turbidity values and corrective acti on within a reasonable time of any

exceedances.

According to EPA regulations, requirements to repor t monitoring results for stormwater discharges asso ciated with industrial activity (which includes construction) that are subject to a n effluent limitation guideline shall be establishe d 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 one rous.

Moreover, the 24-hour reporting of any exceedance i s misplaced. According to EPA regulations, 24-hour reporting is needed only for "toxic pollutant or hazardous substance, or any pol lutant specifically identified as the method to con trol a toxic pollutant or hazardous substance." See 40 CFR § 122.44(g). The sediment fo und in stormwater runoff from construction sites fa lls into neither category.

In addition, EPA's proposed requirement to immediat ely notify the agency of any exceedance of the nume ric turbidity limit implicates the Fifth Amendment rights of certain small busines ses. 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 an d simplified reporting system for permittees who ar e required to meet the numeric effluent limit. The Draft requires permittees to su bmit 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. As allowed by EPA's regul ations, it is more appropriate to require quarterly reporting of the numeric turbidity values and corrective action within a certain period of time i f any exceedances occur. See 40 C.F.R. § 122.44(i)(3) and 40 C.F.R. § 122.44(g).

AGC also suggests that EPA relax the reporting requ irements for those sites demonstrating compliance. It will aid in improving EPA's effectiveness by reducing the amount of data EPA st aff 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: 3.3.9Unformatted 2012 CGP Comment Response Essays February 16, 2012

638 The draft permit requires permittees to submit turb idity sampling data to EPA once a month and report to EPA within 24 hours any exceeda nce 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 unkn own. 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 excee dances occur.[FN 73] EPA should set up a structured and simplified reporting system for permitees who a re required to meet the numeric effluent

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 sampl ing data, benchmark mo nitoring results should be reported to EPA on a monthly basi s through the eNOI system . See Parts 3.3.9 (monthly reporting of turbidity s ampling data through eNOI system) and 4.2.2.1.e (benchmark monitoring data to be reported on quarterly basis t o "EPA Regional Office" ). This frequency of reporting will alert EPA and the publi c to patterns of benchmark exceedances on a reasona bly frequent basis and will permit prompt oversight of required corrective acti on 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: 3.3.9 Reporting is based on a daily limit, as pointed out above sediment control practices are designed to w ork over several days, reporting should be tied to an event not a day.

For those communiti es that have taken on the role of regulator under t he NPDES Phase II permits, verifying the results th at are submitted by private developers within their communities woul d be next to impossible. The sampling needs to be c onducted by someone who has a professional license using the best available met hodology and technology.

Response Refer to Response 3.1.



# Comment ID 0146-A1.001.006Unformatted 2012 CGP Comment Response Essays February 16, 2012

639 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, sam pling records should be kept with the SWPPP and pro duced upon request by a regulator. This would avoid the burden to stat es of having to create a system for reporting, reco rding, and keeping stormwater

effluent results from dozens of outfalls on thousan ds of construction sites.

Response Refer to Response 3.1.



# 3.3.9Q ALLOWANCES FOR QUARTERLY REPORTING (RATHER T HAN 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 pro posal.

Response Refer to Response 3.1.



# Comment ID 0024-A2.001.018

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 3.3.9Q EPA should also revise Part 3.3.9 to require permit tees to report their turbidity sample results to EP A on a monthly basis, a s opposed to a quarterly basis. Increasing the frequency of repo rting will improve the accountability of permittees and enhance EPA's ability to respond to problems in a timely manner. These monit oring reports, like the benchmark monitoring report s 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 re porting would defmitely be preferable.Unformatted 2012 CGP Comment Response Essays February 16, 2012

640 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 all owances for quarterly reporting for those sites whe re no exceedances of the 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, a n allowance should be made for quarterly reporting for no discharge condit ions 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) 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 exceeda nces occur. CCWC supports quarterly reporting at si tes where no exceedances occu r unless the duration of the project is less than thr ee 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 m ore frequent sample result submittal for those site s that are in compliance with the turbidity limit.Unformatted 2012 CGP Comment Response Essays February 16, 2012

641 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 exceed ances 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.



# 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 submi tted if effluent limits are being met. Permittees w ould report all sampling results at the end of the project on annual report form (or eq uivalent). Target supports the approach tak en by the State of California on their permit requirements. This would also aid in submitting qua lity monitoring 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 re porting for individual construction site operators under their CGP. For municipalities, annual reporting is deemed appropri ate. Municipal construction projects could more easily report the baseline sampling information as part of their MS4 Municipal Stormwat er Annual Report submittal.Unformatted 2012 CGP Comment Response Essays February 16, 2012

642 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, In c. Issue Category: 3.3.9Q In an effort to reduce paperwork for all parties, a n allowance should be made for quarterly reporting for no discharge condi tions and no exceedance conditions, as noted in Section 3.3.9.

Response Refer 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, e specially 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 repor ting should only be required if turbidity sampling is required. In the exa mple in the text it is not clear when the turbidity requirement bega n. If the turbidity sampling threshold is reached within the first month after 4 July, the example is correct. Quarterly reporting should be a llowed for sites where no exceedances occur.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

643 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 t o EPA, the EPA requires permittees to submit a repo rt of sample results once per month and requests comments on whether allowances s hould be made in the permit for quarterly reporting for sites where no

exceedances occur.

TCEQ supports providing as much flexibility as poss ible for sites that demonstrate compliance 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 a ll sites regardless of the exceedance frequency. Si te and weather conditions change rapidly and could cause identification of turbid di scharges to go unreported or unmonitored.

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 o ut with time (i.e. if the site is moving to stabili zation) and lack of exceedances.Unformatted 2012 CGP Comment Response Essays February 16, 2012

644 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 t o quarterly would significantly reduce the burden o n permit holders. It is unclear why there is disparity between turbidity sampling repor ting frequency and benchmark sampling reporting fre quency (quarterly). Monthly reporting for most projects is far too frequent and it is unclear how such increased frequency benefit s the environment.

Response Refer to Response 3.1.



# Comment ID 0133-A2.001.029

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: 3.3.9Q MDT strongly supports the allowance for quarterly r eporting. MDT feels that quarterly reporting is app ropriate for all sites, and thaI annual reporting is justified for sites where no ex ceedances 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 repo rting for sites where no exceedances have occurred. If the only thing the report is going 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 d ischarge limit

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

645 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 should set up a structured and simplified r eporting system for permitees who are required to m eet the numeric effluent limit. The draft permit requires permittees to submit turb idity sampling data to EPA once a month and report to EPA within 24 hours any exceedance of the numeric turbidity limit. This rep orting scheme is too onerous and aggressive. As all owed 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 CFR § 122.44(i)(3) and 40 CFR § 122.44(g).

Response Refer to Response 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

646 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 4, 4.1, 4.2, 4.2Q, 4.2.1, 4.2.2, 4. 2.2Q, 4.2.2.1, 4.2.2.1Q, 4.2.2.1a, 4.2.2.1b, 4.2.2.1c, 4.2.2.1d, 4.2.2.1e, 4.2.2.2, 4. 2.2.3, 4.2.2.3Q, 4.2.3, 4.3, 4.3.1, 4.3.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

647 

# 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 Sectio n 3.

Response Refer to Response 4.1.



# Comment ID 0092-A2.001.002

Author Name: Killam Gayle Organization: Merrimack River Watershed Council, Inc. Issue Category: 4

As noted in the Merrimack River Watershed Council's separately submitted comm ent on this permit, the Merrimack River is classifi ed as impaired for nutrients, priority organics, metals a nd pathogens along various stretches of the river i n 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 sensitive or impaired waters, with or without a TMDL, are protec ted 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 unne cessary. In fact, the existing terms in the 2008 CG P are sufficient to ens ure that impaired waters are adequately protected. Therefore, EPA should remove the additional requirements, and instead follow the workable path set forth in the 2008 CGP. The TMDL program an d the 2008 CGP establish a well- developed process for states to follow to address

the waters within their borders that fail to meet t heir water quality standards. This approach represe nts a logical and effective approa ch to addressing water quality requirements through a gen eral permitting scheme, and EPA has not provided an y evidence that the existing program is not working. It is an approach that has been deemed sufficient to protect the water quality of receiving waterbodies in previous CGPs and will continue to do so under the new CGP. Thus, NAHB urges EPA to abandon this overl y burdensome and costly fix to a problem that doesn't exist.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

648 

# 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 mo re likely to create confusion and significant cost with no demonstration that any additional benefits will be derived in comparison t o the more simplified and streamlined approach of t he 2008 CGP. Therefore, NAHB urges EPA to remove the costly measures, such as WQBEL requirements, prior to finalizing the CGP. At a minimum, before finalizing the CGP, EPA must develop a cost benefit analysis t hat fully assesses the cost impacts of the draft CG P on the industry and small businesses, in particular, and then use that inform ation 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 sta ndards are met. We call on EPA to include additiona l water-quality based requirements to protect all sensitive or impaired w aters, including the proposed requirements for benc hmark monitoring and co rrective

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 requirement would inc rease testing costs unnecessarily. The permit does not include any language that limits the required testing if a particular nutrien t (listed as impairment) doesn't originate from con struction activities.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

649 

# 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 cont rolled as necessary to meet applicable water qualit y standards. You must also comply with any additional requirements that your s tate 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-A1.001.009

Author Name: Spillyards Jeff Organization: Entergy Services, Inc. Issue Category: 4.1 A. The CGP requires that any discharge from the pro ject not degrade water quality in the receiving str eam. On a linear project , monitoring each point of storm water discharge in o rder 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 method by which the permitting auth ority and the applicant should develo p a reasonable monitoring plan or a plan that allows compliance with the best management practice s of the CGP to create at least a presumption that the project's runoff is not causing or contributing to a violation of water quality sta ndards.

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 exclus ively to Section 401 water quality certifications we request that the language be modi fied to make that clear. Such certifications do ind eed become a part of an NPDES permit and are enforceable as such. It would be ina ppropriate and unlawful, however, to seek to incorp orate any other state or tribal requirements not otherwise supported by the CWA int o an NPDES permit. Thus, this clarification would r esolve an important and potentially divisive issue.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

650 

# 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 standar ds," but provides, in a similar approach as the anti degradation provision discusse d above, that in the absence of contrary informatio n, EPA expects that compliance

with the Draft Permit "will result in stormwater di scharges being controlled as necessary to meet appl icable water quality standards.,,[FN 2] As with Section 1.3.4 above, we support that determination, which is appropriate ba sed on the control requirements 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 t he discharge is not bei ng controlled "as necessary to meet applicable water quality stan da rds," the next step is for the discharger to take c orrective action under Section 6.3.2. There is no indication in Section 4.1 that a permit violation occurs at that point. This is the same a pproach that was contained in the previous CGP, and in the settlement agreement betwe en the FWQC, Utility Water Act Group and EPA over t he 2005 MSGP, and we continue to endorse that approach. There is languag e in Section 6.5 of the Draft Permit that appears t o be inconsistent with that approach. Section 6.5 cites examples of permit violations; on e of the examples is "exceedance of an applicable w ater quality standard." That example should be deleted, since it does not accura tely reflect the structure of the water quality con ditions in the Permit.

[FN 3] As with Section 1.3.4, we believe that not a ll of the Draft Permit's conditions are necessary t o make this determination, and we encourage EPA to streamline the CGP and make its co nditions more reasonable and workable, as recommend ed 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 compl y with the permit condition in section 4.1 stating "Your disch arge must be controlled as necessary to meet applicable water quality standard s." It is not clear what controls are necessary, wh at water quality standards are applicable, or what it means to meet them. W ithout clarification on what steps and measures are necessary, permittees will be vulnerable to third party lawsuits, enforcement actions, and p otentially required to conduct costly studies of di scharges and impacts on water quality. Therefore this sentence ofthe permit shoul d be removed.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

651 

# 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 th e permit should be sufficient to ensure that discha rges subject to this permit meet water quality standards while not exposing permitee s to third party lawsuits.

"In the absence of information demonstrating otherw ise, EPA expects that compliance with the condition s in this permit will result in stormwater discharges 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 co ntrolled as necessary to meet applicable water qual ity standards, you must take corrective action as required in Part 6.3.2, docume nt the corrective actions as required in Part 6.4, and report the corrective actions to EPA as required in Part 6.6."

This language allows EPA to determine that addition al measures are necessary in specific instances whi le providing permitees with assurance that the measures outlined in the permit will be sufficient unless informed otherwise by EPA . This is a more appropriate way of ensuring water quality is maintained, because as stated in the permit fact sheet, EPA is frequently in a better position t o judge whether a particular discharge has the potential to contrib ute to water quality concerns.

Response Refer to Response 4.1.



# Comment ID 0128-A2.001.015

Author Name: Robertson Mike Organization: Minnesota Chamber of Commerce Issue Category: 4.1 EPA requires that discharges must be controlled "as necessary to meet applicable water quality standar ds," 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 di scharges being controlled as necessary to mee t applicable water quality standards." As with Section 1.3.4 [See Comment ID 0128- A2.001.005} above, the Chamber supports that determ ination, which is appropriate based on the control requirements that apply elsewhere in th e Draft Permit.

Response Refer to Response 4.1.



# Comment ID 0135-A2.001.005

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissio ns (MACC) Issue Category: 4.1 The Permit must ensure that state water quality sta ndards are met and that construction site runoff complies with any TMDL limits that may apply.Unformatted 2012 CGP Comment Response Essays February 16, 2012

652 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 b e applicable to TMDL water bodies for turbidity, se diment, and TSS. What is the basis of this requirement? This was not part of the EGLs! BIO should not be added because it is an ind icator of a wide variet y of possible stressors in a watershed that are well beyond sedim ent.

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 tha t would have subjected permittees to the threat of lost permit coverage and enforcement (without any opportunity for cure) base d on a determination that the permittee was causing or contributing to an excu rsion of applicable water quality standards, even if the permittee 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 reasonab le potential to cause, or contribute to an excursion above any a pplicable water quality standard. If such a determi nation 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 ade quately the identified water quality concerns;

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the receiving 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 is largely reflected in EPA's most recent MSGP-2008, which limits the risk of lost cov erage and enforcement andUnformatted 2012 CGP Comment Response Essays February 16, 2012

653 provides permittees with a more step-wise and itera tive approach to revising/enhancing its BMPs to mee t 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 action s 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 t hen follows that "If th e condition identified in this Part constitutes a permit violat ion (e.g., a[n] ... exceedance of an applicable w ater quality standard), correcting it does not remove the original violation" (emphasis added) . These proposed CGP provisions would have the effe ct of exposing permittees to immediate enforcement for excursions of WQS, withou t 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 th e effect of exposing permittees to immediate enforc ement for exceeding water quality standards, even if they are otherwise compl iant with the CGP.

Response Refer to Response 4.1.



# 4.2 DISCHARGE LIMITATIONS FOR IMPAIRED WATERS [REQU EST 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 beco mes 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.



# Comment ID 0024-A2.001.002

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC)Unformatted 2012 CGP Comment Response Essays February 16, 2012

654 Issue Category: 4.2 We applaud EPA for recognizing that past iterations of the CGP have not provided sufficient protection s for impaired and high- quality waterways, and for proposing to enhance protections for those wate rs in the draft 2011 CGP. However, we urge EPA to i nstead require that discharges from priority construction sites be subject to individual NPDES permits. Reliance on c overage under a "genera l" permit for storm water discharges to waters that are alrea dy either impaired for sediment or siltation, or ar e subject to a Total Maximu m Daily Load ("TMDL") for these pollutants, will almost cer tainly result in greater degradation of these water s. Whether a TMDL is in place, impaired streams are those which, by definition, ha ve not been adequately protected by the NPDES permi tting process in the past. In addition to discharges to streams already experienc ing excessive sediment pollution, individual NPDES permits sho uld be required for discharges to high-quality waters and to streams li sted as critical habitat for threatened and endange red 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 disc harges to impaired waters. If, however, EPA neverth eless allows coverage under the CGP, we fully support EPA 's decision to include new stabilization, inspectio n, and monitoring requi rements in the CGP for sites discharging to nutrient- and s ediment- impaired waters, and for providing specific tools t o help operators, as well as the public, determine whether a proposed constructi on site will discharge to such waters. 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 w aters for which there is an EPA-approved or established total maximum daily loa d within the draft CGP's definition of "impaired wa ters." The EPA ought to cite some authority for this definition or remove it fro m the CGP.

Response Refer to Response 4.1.



# Comment ID 0026-A1.001.016Unformatted 2012 CGP Comment Response Essays February 16, 2012

655 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 i ndicate that you do not discharge to an impaired wa ter, 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 stan dards that the Agency will use to exercise its supp osed authority. The Congress has not delegated the EPA such discretion. Therefore, the A gency ought to specify the "additional information" it will deem relevant, 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 o f the first water as the waterbody for the construc tion operator to examine for determining whether an impaired water discharge exi sts is an initial, threshold determination but EPA can later determine consistent with its regulatory authority that, despite the dis charger's initial assessment there is no discharge to an impaired water using the permit's standard, such a discharge exists if there is hydra ulic connection between the site and a downstream w ater segment that 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 W aters" 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 shoul d 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 responsib le for accurate coordinates and "Impaired Water" discharge potential determination.

Response Refer to Response 4.1.



# Comment ID 0065-A1.001.026

Author Name: Jaeger LisaUnformatted 2012 CGP Comment Response Essays February 16, 2012

656 Organization: Council for Clean Water Construction (CCWC) Issue Category: 4.2 Section 4.2 of the CGP proposes that a site is cons idered to discharge to an impaired water if the fir st 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 elem ent irrationally imposes responsibilities on construction operators that go well beyond the scope of regulated construction act ivities. 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 tak e measures to limit stormwater discharges to an impaired water; it is not rational to impose the burden of the "impaired" determinati on on the operator, particularly where it is well known that regulatory entities wit h authority over any given waterbody may not agree on such a determination.

Because there is a potential for conflict among reg ulatory bodies, the CGP should defer to the state d eterminations of whether a water body is impaired. CCWC does not support making this assessment the responsibility of the contractor, r egardless of whether on-line tools are available to help make this assessment. U ltimately the determination of whether or not a bod y of water is impaired should be left up to the state, eliminating any potential vio lations.

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 attem pt 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 approac h to requiring NPDES stormwater permittees to comply with appropriate TM DLs if they discharge pollutants to impaired waters that are impaired for those pollutants represents a logical and effective appro ach to addressing water quality requirements throug h 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) Issue Category: 4.2 After closely reviewing of the Draft, AGC is partic ularly concerned that EPA seeks to establish a wate r quality- based effluent limitation (WQBEL) even for stormwater discharged into sewer s ystems if those systems eventually drain into impai red waterbodies subject to TMDLs. Part 4.2 of the Draft provides: "For dischar ges that enter a stormwater sewer system prior to d ischarge, the first water of the U.S. to which you discharge is the waterbody that r eceives the stormwater discharge from the storm sew er system." By redefining the point of discharge to mean the end of a sewer rathe r than the end of a property line, EPA is expanding controls across the bo ard without any evidence that the regulated discharges cause or contribute to harm or impairment. Indeed, it remai ns impossible for EPA even toUnformatted 2012 CGP Comment Response Essays February 16, 2012

657 determine the separate or distinct impact of any on e discharge into such a system.

AGC also finds Part 4.2 of the Draft to be very tro ubling. That part 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 im paired water." The Draft neglects to specify the source of such authority, o r the nature of the "additional information" that c ould lead EPA to make such a determination, or the standards that EPA would appl y, or the process that EPA would follow. AGC questi ons whether Congress has granted such authority to EPA, and if it has, AGC s till calls on the agency to specify the "additional information" it would consider relevant, how it would evaluate that information an d how it would ensure that its decision-making proc ess is fair to permittees.

Response Refer to Response 4.1.



# Comment ID 0093-A2.001.081

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: 4.2 To the extent that Parts 4.2, 4.2.1 (Identify If Yo u Discharge To An Impaired Water) and 4.2.3 (Requir ements for Discharges t o Waters Impaired for Other Pollutants) attempt to enhance a nd further explain the water quality-based limitati ons contained in the 2008 CGP, AGC could support such an approach. EPA's past, str aight-forward, and uncomplicated approach to requir ing NPDES stormwater permittees to comply with appropriate TMDLs if they discharge pollutants to impaired waters that are i mpaired for those pollutants represents a logical and effective approach to addr essing water quality requirements through a general permitting scheme.

However, adding benchmark monitoring (Part 4.2.2) f or waters impaired by sediments or nutrients is an unproven and unnecessary obligation that will do more to fuel citizen suit l iability than protect the environment. That has bee n the experience with E PA's industrial general permit and recent attempts (including by th e recently proposed California Industrial General P ermit) to inappropriately convert benchmark monitoring into numeric effluent limitati ons. EPA has not provided any justification or scie ntific rationale for it s benchmark levels nor has it identified any reason why the cur rent approach mandating compliance with locally-der ived (and EPA approved) TMDLs is insufficient to demonstrate compliance wit h water quality standards.

See also AGC comments at Section IV above.

Response Refer to Response 4.1.



# 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 t hat 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 Quali ty StandardsUnformatted 2012 CGP Comment Response Essays February 16, 2012

658 (IDAPA 58.01.02 et seq.) and because they fail to p rovide for their beneficial uses as a result of pol lutants, habitat degrad ation or other issues. The addition of pollutants to 303(d)-listed streams is contrary to the CWA and language emphas i zing this prohibition should be included as standard language in the CGP and associ ated direction. In some cases, Total Maximum Daily Loads (TMDLs) have been developed to address water quality concerns and to establish specific allocations, criteria and target s to restore beneficial uses. Where TMDLs have established specific wasteload allocatio ns, any activity authorized by the CGP should under go site-specific review to determine whether increased discharges are consiste nt with TMDL allocations. If no poll utant load allocations are specified in a TMDL and the CGP applicant has the potential to increase pollutants, then no degradation or addition of pol lutants can occur. This includes both point sources and non-point sources and includes, b ut is not limited to, the following: flow and habit at alteration, sediment, nutrients, temperature, bacteria, nutrients and any other poll utants, as defined by the CWA. These pollutants cou ld increase as a result of activities permitted by the application of CGPs issued by the EPA. As a result, we feel that Individual Stand ard Permits should be considered for any water bodies that do not comply with Idaho Wate r Quality Standards, regardless of whether a TMDL h as 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 co nstruction activities that discharge into impaired waters for which an EPA-approved or d eveloped Total Maximum Daily Load (TMDL) has not ye t been established. These additional requirements i nclude 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- a nd nutrient- impaired waters and to require costly monitoring of such discharges to ens ure compliance with some arbitrary limit. As a resu lt, NAHB is concerned t hat these additional terms are overly burdensome, unnecessary , and likely to produce unintended consequences.

Both CWA Section 302 and the legislative history ar e clear that water quality based limits are to be a dded to NPDES permits o nly when national technology-based standards fail to produce the desired level of water quality in a given wate rshed. Therefore, EPA should continue to rely on the TMDL program that provides a well- established process for states to address waters wi thin their borders that fail to meet water quality standards. Water quality base d effluent limits (and TMDLs) should be written at the state level and rely on the use of proper monitoring programs to develop appropriat e benchmarks or other conditions.

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] A s far as NAHB is aware, EPA has not made the required determinati ons nor provided any justification or scientific ra tionale for these additional conditions, particularly for the benchmark levels, which are not tied to any specific water quality st andard.

[FN 74] 33 U.S.C. § 1303; 40 C.F.R. § 122.44(d)(1)( i)-(iii), (vii).

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

659 

# 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 si tes to avoid water quality-based requirements, even if the sites' discharges are contributing to impairment of downstream waters. Pa rt 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 o r 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 applie s.

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 ("U D") techniques are widely available and effective a t controlling stormwater

runoff from construction sites. The Permit should r equire the use of these methods - particularly at s ites 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: 4.2 In heavily polluted waters, where a Total Maximum D aily Load for a pollutant has been issued, we suppo rt the requirement that

construction site runoff meet these limits.

Response Refer to Response 4.1.



# Comment ID 0111-A2.001.013

Author Name: Yee PhilipUnformatted 2012 CGP Comment Response Essays February 16, 2012

660 Organization: The Dow Chemical Company Issue Category: 4.2 Dow supports the requirement for benchmark monitori ng for stormwater discharges into an impaired strea m from construction sit es 10

acres or greater.

However, Dow believes that EPA should consider a dy namic model to establish each pollutant benchmark. Specifically, Dow encourages EPA to consider additional factors when determining pollutant benchmark levels, including: rainfall variability, t he unique geographical characteristics which would impact sto rmwater flow and applicable pollutant background le vels, including flow-in and flow-on considerations for naturally occurring turb idity.

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. Discharg es in the CSO will go to the wastewater treatment plant unless there is an exces sive rain event or a storm of increased intensity. The DC mapping tool that EPA is preparing for the District should include the CSO b oundary and associated features to provide construc tion site operators with all pertinent information. The discharges from the CSO may have to comply with additional testing or monit oring 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) Issue Category: 4.2 4. Discharge Limits for Impaired Waters (Section 4. 2): EPA imposes significant additional restrictions on discharges to "impaired" waters. As to how dischargers are supposed to deter mine that they discharge to an impaired water, EPA states that it is developing an on-line tool that will assist dischargers in determ ining what their receiving water is, whether that w ater is impaired, and if so, for what pollutant. That tool is not available yet, but acco rding to the Agency, it will be available before th e 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 alw ays easy for someone 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 functi on. EPA should, before the issuance of the final Permit, make the on-line tool availabl e for public review and comment.Unformatted 2012 CGP Comment Response Essays February 16, 2012

661 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 c larified. It is not clear what is meant by the phra se " .. .included in an EPA-approved or established total maximum daily loa d (TMDL)." TMDL documents frequently include discus sion of waters not subject to the TMDL. For example, in some cases TMD Ls apply waste load allocations to waters that are not the subject ofthe TMDL and may not be impaired. As drafted, these water bo dies could be considered "included" in a TMDL. The phrase should be clarif ied 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: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 4.2 The application of additional requirements in urban storm sewer locations has the potential to co ntradict growth management goals with little or no water quality benefit. EPA's imperviou s 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 Judith 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 t hat 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 p ermittee to determine this. 2. The Federal Registe r does not support including impaired waterbodies.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

662 

# 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 sources that discharge to the syste m and whether the system is subject to an MS4 permi t. The application of additional requirements in urban storm sewer locations has the potential to contradict growth management goals wi th little or no water quality benefit. EPA's impervious surface data should be ma de more accurate before additional urban TMDL requi rements are imposed throu gh 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 impairmen t status of their receiving waters along linear pro jects that may cross or discharge into multiple different watersheds is burdensome an d has the potential for error due to various interp retations of impairments and

stressors.

Response Refer to Response 4.1.



# 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

663 

# 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 co ntrary to law and that it should be withdrawn and r eworked. To begin with, § 4.2 states: "If you indicate that you do not discharge to an impaired water, EPA may determine, based on a dditional information, that you are considered to be discharging to an impaired water." However, the Agency fails to disclose either the n ature of this "additional information" or the standards that the Agency will use to exercise its supposed authority. The Congres s has not delegated the EPA such arbitrary discretion and the Agency's attempt to re serve such broad and unchecked power should not sta nd.

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 definiti on of "impaired waters." The EPA ought to cite appropriate authority for this de termination 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 discharg e, the first water of the U.S. to which you discharge is the waterbody that receives the stormwater discharge from the storm sewer syste m." The EPA, however, o ffers no statutory support, scientific rationale or logic al 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 segment, pond, lake or to a water segment that is addressed by an approved or established TMDL, then EPA considers th at site to be discharging to an impaired water. Lik ewise, if the point of discharge

is located within a catchment that does not include such a water segment, then your site is not consid ered to discharge to an impaired water. See Appendix J at p. 1, http://www.epa.gov/n pdes/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 an d control over even the smallest of building plots without any evidence that the discharges in question cause or contribute to harm or impairment.

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-t o-date 303 (d) listed water bodies. If benchmark sampling is r equired for TMDL and 303(d) listed water bodies, we recommend it onl y be required when there is a direct discharge to t hese receiving waters. In arid to semi-arid regions, we list receiving waters on SWPP Ps and stormwater discharge applications that are s ometimes miles from the proposed construction site. Potential pollution is highly unlikely to reach this receiving water. Howe ver, since it is in that watershed basin, these streams are listed as the receiving wa ters or at a minimum as the ultimate receiving wate rs.Unformatted 2012 CGP Comment Response Essays February 16, 2012

664 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 permittin g agencies and the regulated communities. EPA shoul d 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 affec t those within a mile and that are direct discharge rs to the impair ed water. Otherwise, a facility's first receiving water may be miles awa y and not a direct discharge and therefore no possi ble impacts on that rec eiving water, yet be obligated by additional permit requirements.

Target finds this problematic since the C & D rule is a Technology Based Effluent Limits (TBE Ls) and based on site's discharges, while the WQBEL requirements are receiving water based.

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 availab ility and accuracy of the new tool. Will the tool b e readily available, easily understood and used by members of the construction industry, permitted municipalities and states with NPDES delegated authority? Waters of the U.S. located in urban areas, such as the Rio Grande in Albuquerque have multiple water quality parameters list ed on the 303(d) list and are considered "Impaire d Waters." The entire metropolitan area is located in the Rio Grande watershed and, therefore, all

CGPs issued would be burdened with the additional r equirements under this section.Unformatted 2012 CGP Comment Response Essays February 16, 2012

665 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 t his section to sites located within the watershed o f major impaired waterways subject to TMDLS for sediment and nutrients, such a s the Chesapeake Bay.

Response Refer to Response 4.1.



# Comment ID 0086-A1.001.005

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 4.2Q The proposed CGP is only made worse when considered in conjunction with the proposed EP NCorps Guidance on Identifying "Waters of the United States". Not only does the proposed C GP add onerous requirements, the requirements would need to be met at many new locations due to the extremely broad scope of the n ew Waters of the United Sates guidance.

Response Refer to Response 4.1.



# 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 Un ited States". Not only does the new CGP add onerous requirements, the requirements would ha ve to be met at many new locations because of the e xtremely 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 PamelaUnformatted 2012 CGP Comment Response Essays February 16, 2012

666 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 waterways would be helpful, but an adequate testing period should b e set aside for any such tool that is made availabl e 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 per mit 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 disch arge into an impaired stream. 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 al so discharges to an impaired stream. This second pa rt is confusing and unwarranted. Once the site discharge goes into a municipal storm water system, it also would be comingled with other stormwater runoff, an d would

not be indicative of the actual contribution of the construction site to the TMDL limits. EPA should o nly consider the first water that receives the discharge and should not complicate pe rmits by also requiring permittees to trace the dis charge to municipal stormwater systems. EPA stated it is developing an online mapp ing tool that permitees will use to determine wheth er the construction sit e discharges 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.



# 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 dis charge to impaired wate rs. SeeUnformatted 2012 CGP Comment Response Essays February 16, 2012

667 attached letter to USEPA as submitted by the City o f 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 impaire d water is important so that permitees can clearly identify which requirem ents apply at a given location. The description of what consti tutes a discharge to an impaired water below fr om section 4.2 ofthe permit is helpful in this regard.

Your construction site will be considered to discha rge 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 Se ction 303( d) of the CWA as not meeting an applicab le water quality standard, or is included in an EPAapproved or established total max imum daily load (TMDL). For discharges that enter a storm sewer system pri or to discharge, the first water of the U.S. to which you discharge is the waterbody that receives the storm water discharge from the storm sewer system. For further instructions regarding wh ether your site discharges to an impaired water, re fer to Appendix J.

However, the definition of "discharge to an impaire d wate r" in Appendix D indicates that such a discharge oc curs " ... if the first named water of the U. S to which you discharge is identif ied ... as not meeting an applicable water quality standard ... " (emphasis added).

The additional specification that the standard appl ies to the first named water is unnecessary, arbitr ary, and will lead to runoff being considered discharge to an impaired water in cases where there is very little connection between the p roject runoff and the impaired water. It is not clear why EPA differentiates betwe en named and unnamed waters in this definition. The naming of waters is not dependent on objective criteria related to water qu ality, but rather local history and practice. There fore, this di stinction is unsupported.

The distinction between named and unnamed waters ma y also lead to inappropriate conclusions about whet her a discharge has the potential to impact an impaired water. Unnamed wate r bodies are frequently listed as impaired waters. As a result, there could be

locations where a construction site drains to an im paired unnamed water that is upstream of a named wa ter that is not impaire d. Based on a strict reading of this definition, discharge to t he unnamed impaired water would not be c onsidered a discharge to an impaired water for the purposes of the permit. This is clearly problem atic and likely not what EPA has intended. Furtherm ore, 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 t o that named water, but instead should be considered discharges to the first water that receives the discharge.

Response Refer to Response 4.1.



# Comment ID 0126-A2.001.016Unformatted 2012 CGP Comment Response Essays February 16, 2012

668 Author Name: Burke John Organization: Colorado Stormwater Council Issue Category: 4.2Q The CSC would request exemptions for stream rehabil itation 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 d eveloping an on- line tool that will assist dischargers in determining what their receiv ing water is, whether that water is impaired, and i f so, for what pollutan t. The Chamber recommends that prior to issuance of the final Perm it, 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, Idaho Issue Category: 4.2Q 1. Discharge Limits for Impaired Waters (Section 4.2): EPA proposes significant additional restricti ons on construction site discharges to "impaired" waters. Knowing that determining if a construction site discharges to an impaired receiv ing water can be a difficult task, EPA has stated that it is developing an on- line tool that will assist dischargers in determini ng their receiving waters, whether that water is impaired, and if so, for what pollutant. While t he 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 tool will ade quately provide the required information. The City respectf ully requests that EPA make the on-line tool availa ble 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 WATE R

Comment ID 0062-A1.001.049Unformatted 2012 CGP Comment Response Essays February 16, 2012

669 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 1 0 miles upstream of impaired waters. Shouldn't samp les 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 de termine Sec. 303(d) listed waters as the initial di scharge point, given the multipl e databases in Wyoming?

[See comment ID 0075-A2.001.001]

Response Refer to Response 4.1.



# 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) prov ision currently proposed in the draft CGP will requ ire 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 unnecessa ry obligation that will do more to fuel citizen sui t liability than protect the environment. EPA has not provided any justificat ion or scientific rationale for its benclnnark leve ls nor has it identified any reason why the current approach mandating compliance with loca lly- derived (and EPA approved) TMDLs is insufficient to demonstrate compliance with water quality standards. Additionally, water q uality standards and all TMDLs should be handled at the state level through proper monitoring programs to develop appropriate benchmar ks. For the reason stated above, OHBA urges EPA to remove this provision f rom the COP until further research and analysis.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

670 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 a reas of greater than 10 acres that discharge into impaired waters should be required regardless of whether the impaired water has an est ablished TMDL (Part 4.2.2). In such cases, discharg e from large areas can have a significant impact 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 corr espond to a specific TMDL-based target, the require d monitoring will ensure environmental accountability on the part of the ope rator. Monitoring results will also provide informa tion to environmental organizations and state agencies about the state of impaired waters, potentially informing a future ef fort to develop a TMDL. This issue is of particular importance to MRWC because the Mer rimack River is classified as impaired water withou t a TMDL for nutrients, priority organics, a few metals, and pathogens alon g various stretches within New Hampshire and Massac husetts.

Response Refer to Response 4.1.



# Comment ID 0055-A1.001.014

Author Name: Gucker Hans Organization: Ohio Department of Transportation (ODOT) Issue Category: 4.2.2 Testing for individual nutrients should not be requ ired under this permit. Levels of most nutrients ar e directly related to t urbidity effluent amounts. We believe that this requirement would inc rease testing costs unnecessarily. The permit does not include any language that limits the required testing if a particular nutrien t (listed as impairment) doesn't originate from con struction activities. Language addressing this concern should be included in the p ermit.

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 rep orts, then the source of pollutants should list con struction sites as the source. For example, no testing should be requi red for phosphorus from a construction site if agri culture is listed as the major s ource of pollutant.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

671 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 provis ion 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 cri terion or designated us e criteria due to pollutant loading. Other than a weekly sampl ing frequency requirement, the sample protocol is e ssentially 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 rig ht to expand the list of analytical parameters to o ther pollutants of concern in the impaired water body. This requirement, along wi th the field sampling for turbidity and increased i nspection requirements, will likely require that each transmission line p roject be assigned an environmental technician for the duration of the project. Entergy requests that EPA remove these monitoring requirements and, inste ad, state that compliance with the best management practices required by t he 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 John 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 ofte n ill-defined obligation to determine the impairment status of the receiving wa ter 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 an d reporting, immediate corrective action for benchmark exceedances, and da ily visual inspections (Part 4.2.2). CLF strongly s upports the Draft CGP's proposal for more stringent discharge sampling, stabilizatio n, and inspection requirements at sites discharging to impaired waters. Benchmark monitoring, in particular, is a powerful tool to ga ther needed data on pollutants in construction stor mwater and the role they play inUnformatted 2012 CGP Comment Response Essays February 16, 2012

672 specific instances of impairment. Benchmark monitor ing provides data necessary to the determinations w hether discharges are consistent with instream water quality standards an d TMDL allocations. Without numeric monitoring data , EPA cannot provide the required assurances under Part 1.3 of the CGP and u nder 40 C.F.R. § 122.4(i). These requir ements should apply more broadly than EPA proposes in the Draft CGP, to all covered sites dis charging to impaired or sensitive waters; as water quality-based limitations, these requirements should be triggered solely by receivin g water body impairment or s pecial characteristics, not by the size of the cove red site. In addition to the requirements in the Draft CGP, C LF also urges EPA to consider requiring Low Impact Development and green infrastructure stormwater management practices at a ll sites discharging to impaired waters. These practices are discussed i n 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 determination outlined in this section of whether the permittee is dischargin g to an impaired water that is outlined in this section seems appropriate. Benchmark monitoring, at a minimum, is essential for protecting water quali ty and ensuring 303d wa ters are not further degraded. To fully protect water qualit y and ensure that 303d waters are protected and cle aned up, permit limits, not just benchmark monitoring, should be established for dis charges into 303d waters. In addition, benchmark mo nitoring for impaired parameters should be required for discharges to all 303d waters, not just sediment related impaired 30 3d waters. At the very least, benchmark monitoring in E. coli or fecal coliform i mpaired streams should be required. Benchmark monit oring should be required for impaired waters regardless of whether or not a TMDL has been issued. Impaired waters are just as impai red and just as in need of protection regardless of whether or not a TMDL has been prepared. Since benchmark monitoring is merely benchmark monitoring a nd not permit limits (which would be more influenced b y a TMDL) there is no reason to only require monito ring 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 run off will not degrade waterways that are currently h ealthy. We support t he inclusion of additional, "anti-degradation" requirements for new or current ly unpermitted discharges to high quali ty or Outstanding Resource waters.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

673 

# 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 numer ic effluent limitations since these limits do not c onsider highly variable confounding factors including wet weather condition s, flows, and the individual site geographical char acteristics. Alternatively, site specific Best Management Practices (BMPs) will enab le the permittee to include and consider these high ly variable in addition to site specific factors. This approach should result in mo re efficient control of any potential pollutant loa dings to the water body.

Response Refer to Response 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 require ment of daily visual examinations for dischargers i nto impaired waters is overly burdensome and does not provide valuable informatio n, especially during no stormwater flow conditions.

Dow believes that a more appropriate requirement wo uld be to examine critical stormwater controls spec ifically associated with an impaired pollutant within 24 hours after significan t rainfall events during safe conditions.

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 Nutr ient-Impaired Waters (Section 4.2.2.2): EPA require s that where the discharge is t o a water that is impaired for sediment or nutrients, the discharger must immediately initiate stabiliza tion in exposed areas if earth-disturbing activities are temporarily or perm anently suspended, and then complete certain stabil ization activities (including activities related to vegetative cover) within thre e work days of initiating stabilization. This requi rement raises several c oncerns. First, it addresses possible impacts after construction has b een discontinued, and therefore falls into the real m of "post- construction" discharges. We do not believe that post- construction discharges are properly regulated unde r 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 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 stabil ization activities, and within three days, would have had to have completed soil conditi oning, seeding, watering and mulching. But five day s later, the operator would resume construction in that area, and all of those activities would have been a waste of time, resourc es, and seeds. Any stabilizationUnformatted 2012 CGP Comment Response Essays February 16, 2012

674 requirements that are imposed should not apply in t hat situation.

Response Refer to Response 4.1. Refer also to response on st abilization related-comments in section 2 of this d ocument.



# 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 b enchmark monitoring requirement, the Chamber has sp ecific concerns about several aspects of these provisions. One of those issues is scope: the benchmark requirements apply to all imp aired waters, including those that are covered by a Total Maximum Daily Load (TMDL). I n a TMDL, EPA or the State would have already consi dered the contributions provided by construction stormwater sources and det ermined the reductions, if any, that are needed fro m those sources. Any mo nitoring requirements for those sources should be keyed spec ifically to how the sources were addressed in the T MDL. As an example, if a TMDL specifies no reductions in loadings are needed from those sources, extensive benchmark monitoring woul d not be appropriate. T herefore, any benchmark requirements that are specified in th e final Permit should not apply to waters covered b y TMDLs.

Response Refer to Response 4.1.



# 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 fi nal CGP. If, despite these comments, benchmark monitoring is required in the f inal Permit, then EPA does need to address the spec ific issues set forth in the proposal as to how this requirement will be impleme nted. One of those issues raised by EPA is that fer tilizers that are applied in establishing vegetative cover could result in nutri ent levels in discharges that exceed benchmarks and therefore require corr ective action. EPA should adopt an exception from the benchmark re quirement 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 stand ards than dischargers t o waters that are not impaired. Streams are resilient if given th e opportunity to recover. Lowering pollutant loadin g rates can help facilitate streamUnformatted 2012 CGP Comment Response Essays February 16, 2012

675 recovery. Moreover, it is unreasonable to continue pollutant loading to streams that are already impai red by that pollutant. Responsible individuals and corporations see the value of prote cting the values supported by healthy streams an d should not object to more stringent discharge standards for impaired streams or critica l habitat.

The goal of the Clean Water Act clearly states that protection of the physical, chemical, and biologic al qualities of our wat ers is intended. Using NPDES permits to achieve that protection is w ell established. Therefore, it is appropriate to ex pand the focus of this construction general permit to address biological impairments th at are clearly attributable to either sediment or n utrients.

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 Ta bles in Appendix] show that

there is minimal benchmark data available for Nitro gen, Phosphorus, and TSS for 303( d) water bodies. Therefore, the majority of the sampling under this section will not be applicable, and will be a waste of time and money. Benchmark s ampling only makes sense for approved TMDLs for sediment, TSS, or Turbidity for construction projects. Nitrogen and Phosphorus shou ld not be required because

there are not benchmark levels set for most water b odies and the number of phosphorus and nitrogen TMD Ls is low.

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 ferti lization since compost alternatives likely have low er nutrient runoff loads. Consider monthly averaging o f flows to determine benchmark compliance. Fisherie s could be protected with different monitoring parameters as surrogates such as TSS.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

676 Refer to Response 4.1.



# Comment 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 impa irment were to be considered, but this language is much br oader. EPA needs to reassess how biologic impairmen t would be evaluated since many times the impairment comes from instream sedim ent creation, sediment transportation and carrying capacity volumes 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 D raft 2011 COP to include waters suffering from biological impairments that are attr ibutable to sediment and nutrien ts. Although sediment and nutrients (and their rela ted parameters) are the most commonly-recognized impair ments associated with construction stormwater, biol ogical impairments attributable to these pollutants are also common. A ccordingly, EPA should make clear that these biolog ically- impaired waters are within the scope of waters subject to the protections of P art 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, w e support the proposal to expand the focus on impai rments for sediment and nutrient data to cover biological impairments that are attri butable to either sediments or nutrients. Biologica l impairments can be significant impediments to the designated uses and the ecologic al integrity of the waters. Thus they should be sim ilarly accounted for if the discharge of nutrients or sediment from constructio n activities in large areas has the potential to fu rther the negative impact of the impairment. However, we request clarification on ho w EPA would define these biological impairments. We also request informati on on how EPA would determine the correlation between the biological impairment and the sediment and nutrien t loads, and subsequently establish an appropriate numeric limit for the benc hmark monitoring procedures. This addition to the p ermit is important to MRWC because the Merrimack River and its estuary are hab itat 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 wa ters would occur.Unformatted 2012 CGP Comment Response Essays February 16, 2012

677 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 st abilization and site inspection in this draft permi t. EPA should give more focus on additional BMP requirements and ensure appropriate corrective actions are taken after site inspections . Additional monitoring requirements do not provide useful information but, instead, puts an unnecessary financial burden on p ermittees (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: 4.2.2Q Partner Response: The Partners suggest that there i s insufficient data available to directly correlate c onstruction site TSS loading and any resultant biological impairment to a receiving wate r. A time intensive and resource consuming "fate an d transport study" for each permitted site would have to be prepared. Preparing a "fate and transport study" for individual constr uction 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 TimothyUnformatted 2012 CGP Comment Response Essays February 16, 2012

678 Organization: National Grid Issue Category: 4.2.2Q Samples for Total Nitrogen and Total Phosphorus mus t be submitted to a laboratory, which takes 5 to 7 days for normal reporting turnaround of analytical results.

The requirement to address exceedances within 7 day s 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 conditi on" coincides with the time analytical results are available.

While it is possible to put a rush on laboratory te sting, the costs to do so are significantly higher than normal results rep orting. On a linear utility project, the costs, multiplied by several p otential discharge points, can be significant if a rush is required on each sample to mee t the 7 day timeframe.

National Grid recommends that there be an Appendix that provides references to Best Management Practic es d esigned to attenuate nitrogen and phosphorus that may be in solution, as opposed to adsorbed or absorbed to particulates th at are managed through best management practices that are designed to control s edimentation. Manufacturers are beginning to test t heir best management practices (e.g., compost filter socks, etc.) for nutrient rem oval 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 thei r effectiveness drops over time. We suggest that EPA provide guidance for selecting and maintaining BMPs, regardless of manufacturer te sting results, in a man ner that supports the requirements of this part.

Response Refer to Response 4.1.



# 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 benchmar k provisions should be expanded to apply to waters that are habitat for listed endangered or threatened species. We believe that a pplication of benchmarks in those situations would be completely inappropriate. If benchmarks 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 po llutant levels and the problem 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: 4.2.2QUnformatted 2012 CGP Comment Response Essays February 16, 2012

679 EPA asks for comment on whether the requirement for sediment or nutrient impairments should be expande d to cover biological impairments that are "attributable to either sedime nt or nutrients." We do not think that this expans ion of the nutrient/sediment provisions would be appropriate. If EPA or the Sta te believe that an impairment is "attributable" to sediment or nutrients, and wat to impose controals on those pollutants, then they sho uld girst ament the State's list of impaired waters to make it clear t hat the waterbody is listed for sediment or nutrient impairments. A s ubjective judgement that a listed biological impair ment is "attributable" to sediment or nutrients is not an acceptable substitute for a cle ar listing decision as to a particular pollutant.

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 benchmarki ng on impaired waters if a TMDL has not been approv ed.

If benchmark is required CSC supports limiting it t o over 10 acre disturbances.

CSC supports exempting the use of nitrogen and phos phorous to establish vegetative cover.

Response Refer to Response 4.1.



# 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 benchm ark monitoring provisions for discharges to waters that are impaired for sediment or nutrients. EPA is seeking comment on several aspect s of these provisions, apparently recognizing that these new requirements pose substantial concerns. T he Chamber believes in general, benchmark monitorin g is not an appropriate tool to use in assessing the effectiveness of construction stormwater controls. The Chamber believes sporadic sampling of effluents during storm events will not provide an accurate picture o f water quality impacts, and are not a true indicat or of how well existing controls are performing. It is far more useful to focus on speci fic best management practices (BMPs) that are being implemented, utilize available information as to the effectiveness of these practi ces in reducing pollutant loadings, and ensure that the practices are applied effectively on an ongoing basis.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

680 

# 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 benchmar k provisions should be expanded to apply to waters that are habitat for listed endangered or threatened species. The Chamber belie ves that application of benchmarks in those situati ons would be completely inappropriate. If benchmarks pose major problems, a s described above, in situations where there are id entified pollutant-related impairments, then use of benchmarks would be even l ess suitable in species- related situations, where the connection between po llutant levels and the problem is even more tenuous. Benchm arks should not be applied to address species issue s.

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 effe ctive, why would it be required? Set the threshold higher.

Response Refer to Response 4.1.



# Comment ID 0137-A2.001.022

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (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 direct ly regulate fish and micro invertebrates or other biological impairments. Wate r quality improvements resulting from the TMDL limi tation on sediment and nutrients will provide biological improvements.

Response Refer to Response 4.1.



# Comment ID 0145-A2.001.018Unformatted 2012 CGP Comment Response Essays February 16, 2012

681 Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: 4.2.2Q The U.S. Fish and Wildlife Service designates criti cal 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 com patible with maintainin g habitats critical for the survival of imperiled species. We hope that EPA will recognize that in some cases, any additional pollut ant loading may not be compatible with protecting critical habitats and these imperiled species. In those cases, devel opers should meet a hig her standard of water quality protection for those projects that might impact designated critical habitat. Develope rs need to include estimates for meeting higher construction stormwater costs in the ir budgets if they plan projects that may potential ly impact streams with critical

habitat. We cannot continue to have d evelopment as it is typically done in these areas t hat are among the very last habitats available for these species. While economic development is very i mportant, it should not happen at the expense of im periled species.

Response Refer to Response 4.1.



# 4.2.2.1 WATER QUALITY BENCHMARK MONITORING

Comment ID 0025-A1.001.034

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) Issue Category: 4.2.2.1 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 pr ovide the stakeholders with any analysis they have conducted on the effectiveness o f benchmark monitoring required by EPA's Multi

‐ Sector General Permit for stormwater discharges associated with industrial ac tivities or the location where this data is availab le.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

682 

# 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 w ithout an approved or e stablished TMDL. Benchmark monitoring should be required only for those impaired waters without an approved or es tablished TMDL.

Response Refer to 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 th ose construction sites that discharge to an impaired wa ter without an approved or

established TMDL and that have ten or more acres di sturbed. The comments on Part 3.3.2 Sampling freque ncy are also applicable to this

Part.

Response Refer to Response 4.1.



# 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 Bench mark Sampling requirement in this section may not b e aligned with identifiable sources in the TMDL and actions of the TMDL Impleme ntation Plan, resulting in additivle regulatory req uirements above and beyond what the State has required. This may be further ex asperated 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 De velopment sectors should not be burdened with the sampling?

4.2.2.1. Water Quality benchmark sampling

New Hampshire DOT has experience measuring construc tion 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 betwe en "discharge" and "in-stream" water quality, one n eeds to add background sampling. In order to avoid instantaneous State Water Quality Violations at the point of discharge, the Departme nt needed to introduce the conceptUnformatted 2012 CGP Comment Response Essays February 16, 2012

683 of a "Mixing Zone". However, in almost every case t he discharge overwhelms the background dilution and exceeds the State Water Quality Standard. Highway projects are not always s ituated next to big rivers or the ocean like sewage treatment plants for w hich most State Water Quality Standards were originally draft ed to regulate. Appling State Water Quality Standar ds, which are 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 reg ulators to craft a regulatory solution that marries "discharge" limits with "in-stream" water quality standards to regulated construction s tormwater discharges.

Nitrogen and Phosphorus

New Hampshire DOT has experience measuring Total Ni trate and Total Phosphorous in our construction stormwater discharges. Our State regulators required the DOT and its Contracto rs to test our discharges from our flocculated wate r for Nitrogen and Phos phorous to a nutrient impaired lake. The Department found that the concentration of nitrat e was unchanged, and the phosphorous concentration was approximately one-half after passing through our BM Ps. We also noted both were in much lower concentra tion than found in undisturbed landscape runoff. These findings make s ense considering the following:

1) Construction sites are usually devoid of topsoil , which contain the bulk of the nutrients. Most of the organic nitrogen an d phosphorous was removed at the onset of earthmoving activities and is returned, seeded and stabilized the end of t he project.

2) Construction Best Management Practices are desig ned to remove particulates and let the water, with it dissolved phased nut rient pass through. Phosphorous in the soil is generally 50% p recipitatible (solids) and 50% dissolved phase (aqu eous). Therefore, approximately one-half, the solid form of phosphorous, is capture d by the BMPs and the other half flows though the B MP. Almost all the nitrogen originates from nitric acid in the rain (aqueous) a nd is unaffected by the construction BMPs, which ar e designed to collect particles.

3) We also found that the turbidity and nitrogen co ncentrations limits imposed by our regulators count eracted each other violating pre-determine benchmarks for discharge. Early in a storm event, we were not able to discharge storm water because the turbidity was too high even though nitrate level was sufficient. Late r 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 tig hten up the regulations to the point where all disc harges 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 nitr ogen is removed from sewage with anoxic activated sludge treatment. Howe ver, the concentrations are usually hundreds of tim es greater than are found in stormwater, and require a carbon source in an anaer obic environment to work. Permanent Stormwater trea tment ponds are somewhat effective, but usually need time to establish flora and fauna that make them work. They are also highl y sensitive to sediment.

Fertilizer is necessary to establish vegetative gro wn in New Hampshi re. The ultimate goal of erosion control is to esta blish a long lasting vegetative cover. In areas where our State Regulato rs have restricted the use of fertilizer, growth ha s been sporadic and pat chy requiring multiple applications of seed and mulch leading to increased sedimentation of surrounding waterbodies.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

684 

# 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 Pe rmit condition adds confusion to monitoring of turb idity in Part 3 of the Permit. There is little benefit of having permittees determ ine if their discharge(s) fall below benchmark para meters of very few list ed waterbody reaches in Appendix J. Furthermore, many of the "Be nchmark" parameters in Appendix J have not been est ablished and state: "No benchmark/monitor for information purposes only". I s EPA requesting that permittees unqualified in lab oratory sampling techniques

build unreliable information for future benchmark d evelopment? Part 3 of the Permit already requires p ermittees to take corrective action(s) in Part 6.3.1/Part 6.3.2 based on exceeda nces.

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: T he Permit contains no established means of reportin g monitoring of benchmark results to the applicable EPA Regional Office.

Has EPA developed an official Benchmark Monitoring Report form similar to a Discharge Monitoring Repor t (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 sam pling requirements. See comments 11 and 12 above [See com ment ID 0060-A1.001.011 and 0060-A1.001.012.]

Response Refer to Response 4.1.



# Comment ID 0060-A1.001.018

Author Name: Gasper DavidUnformatted 2012 CGP Comment Response Essays February 16, 2012

685 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 no t agree with the text in Section 4.2.2.1.d.. Table 4-1 requires a monitoring frequen cy of once per week while Section 4.2.2.1.d. indica tes "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 Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 4.2.2.1

1. EPA Should Confirm When Disturbed Land Reverts t o "Undisturbed" Status We believe, however, that owing to the fact that LC Ps are in constant motion and leave relatively litt le disturbed land exposed to stormwater behind their moving front, it may be unn ecessary to resolve these difficult questions. That is, we believe that it will be rar e that an LCP will ever trigger requirements for dist urbed acreage associated with either the applicatio n of the yet-to-be established turbidity standard or the benchmark sampling requir ement for discharges to sediment- or nutrient-impai red waters. The key issue here is the point at which land reverts from "disturbed" to "undisturbed" 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 "disturbed" for purposes of 40 C.F.R. 450.22(a) and draft Permit Se ction 4.2.2.1.

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 th e date] acres of land at one time, . . .." 40 C.F.R . 450.22(a) (emphasis added). Similarly, the requirement to per form 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, . . .." Dr aft Permit at 4.2.2.1 (emphasis added).

It is our understanding that, for the purposes of t he ELG, land is considered to be "disturbed" from t he time it is subject ed to construction activity until the time it has met the stabilizatio n requirements stated in the ELG at 40 C.F.R. 450.2 1(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 activities hav e 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. Stabil ization must be completed within a period of time d etermined by the permitting authority. In arid, semiarid, and drought- stricken areas where initiating vegetative stabiliz ation measures immediately is infeasible, alternative stabilization measures m ust be employed as specified by the permitting auth ority.

40 C.F.R. 450.21(b) (emphasis added).

The ELG provision quoted above thus imposes two req uirements: (1) when stabilization must be commenced (which is, when

construction has ceased and will not resume f or a period exceeding 14 days); and (2) when such s tabilization must be completed (which the ELG leaves to the permit writer to decide). To fill in the second element, the Draft Permit provid es for completion as follows:Unformatted 2012 CGP Comment Response Essays February 16, 2012

686 2.2.1.2 Deadline to complete stabilization activiti es. Within 7 calendar days of initiating stabilizat ion on exposed portions of your site consistent with Part 2.2.1.1, you are required to h ave completed:

a. For vegetative cover, all soil conditioning, see ding, watering, mulching, and any other required ac tivities related to the planting and establishment of vegetation; and/or

b. For non-vegetative cover, the installation or ap plication 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) stabilizat ion must commence within the specified time (as modified for steep slopes or other special circ umstances) and (2) the permittee must have complete d the stabilization activities

enumerated in Draft Permit P art 2.2.1.2 within 7 days of their initiation as re quired by that section. Once these conditions are s atisfied it is our understanding that land, previously disturbe d, is considered to have met the stabilization requ irements of 40 C.F.R. 4 50.21(b) and, thus, to no longer be "disturbed" for purposes of c omputing the total acreage requirements under 40 C. F.R. 450.22(a) and Draft P ermit Part 4.2.2.1. We ask that EPA review this interpret ation of the requirements of the ELG and its applic ation under the Draft Permit and

confirm them as correct.

2. Sampling Discharges from LCPs Generally Is Impra cticable If EPA is unable to provide the confirmation reques ted above, for construction projects generally or f or LCPs in particular, it should nevertheless exempt LCPs from discharge sampling re quirements, for the following very practical reason s.

First, there typically is no good way for the LCP o perator to prevent run-on onto his long, narrow pro ject. 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 easement, would create a new storm water channel and block designed flow into the drai nage swale.

Even if there was no such easement limit or flood r isk, the very act of installing a silt fence or oth er perimeter control to prevent run- on would require at least digging a trench six to twel ve inches deep in which to tie in the base of a sil t fence. One would be f aced with the prospect of digging that trench and later removing it, each time disturbing the soil surface, in order to preclude stormwater run- on onto 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 o nto an LCP) would seem to be negative.

If an LCP operator thus cannot practically speaking prevent run-on, the operator cannot separate out a nd sample the stormwater discharge originating only from the LCP. As noted a bove (at footnote 7[FN 7]), we believe the Agency c annot legally require such mixed discharges to meet a technology- based numeric limitation, unless the Agency's under lying record and calculations account for the

contribution from the non-construction stormwater r unoff.

The relatively small flows and discharges specifica lly from the typical LCP segments between streams w ould be so small, that the environmental impact of the sampling activity would be a significant counterweight. The sample c ollector wading across a small stream to collect swale discharge samples from both sides may have more adverse impact through disturbing nat ural sediments than the impactUnformatted 2012 CGP Comment Response Essays February 16, 2012

687 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: 4.2.2.1 However, adding Benchmark Monitoring (Part 4.2.2) f or waters impaired by sediments or nutrients is an unproven and unnecessary obligation that will do more to fuel citizen suit l iability than protect the environment. That has bee n the experience with E PA's industrial general permit and recent attempts (i ncluding by the recently proposed California Indust rial General Permit) to inappropriately convert benchmark monitoring into numeric effluent limitati ons. EPA has not provided any justification or scie ntific rationale for it s benchmark levels nor has it identified any reason why the cur rent approach mandating compliance with locally-der ived (and EPA approved) TMDLs is insufficient to demonstrate compliance wit h 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 b enchmark sampling as now required under the propose d CGP. In arid areas it wi ll be very difficult to obtain any sample in the first ho ur when precipitation is immediately absorbed and i nfiltrates into the uns aturated soils at the permitted construction site. Depending upon the rainfall event obtaining two additional samples wi ll be equally as challenging. In other non-arid areas of the country a statistically -based, area-specific lower precipitation threshold limit may be appropriate but in the arid west a one-size-fits-all sampling approach tha t works well in wetter climates is not useful.Unformatted 2012 CGP Comment Response Essays February 16, 2012

688 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 w ater impaired for sediment and/or nutrients, and 10 or more acres of land are disturb ed at any one time, "then you must conduct water quali ty benchmark monitoring for the sediment and/or nut rient parameter(s) for which the receiving water is impaired." Section 4.2.2.1. Whil e UWAG does not oppose the general concept of addit ional, targeted monitoring in impaired waters (particularly when tailored to an a pproved TMDL), UWAG is concerned that EPA's proposa l is unworkable in prac tice. First, many states lack numeric sediment and/or nut rient cri teria, so their listing decisions often rely on the underlying uses as opposed to any specific criteria. Second, absent numeric crite ria, proper benchmarks cannot be derived without a waterbody-specific analysis that compares causes and effects in the context of the s pecific use(s) to be protected. The benchmarks prop osed by EPA are arbitrary, unreasonable and likely unattainable in practice, e specially given ambient background conditions. Thir d, linear utility projects may involve multiple small and disconnected disturbance s within different watersheds. As a result, EPA nee ds to clarify that its special monitoring provision is triggered by the disturbanc e of "10 or more acres of land at any one time that drain to the same impaired waterbody." Otherwise, a linear utility project ope rator may be forced to conduct additional monitorin g based on small, isolated disturbances that do not even drain to an impaired waterbody. Fourth, EPA's proposed benchmarks are ab surdly low (e.g., as lo w as 1.0 NTU turbidity), whi ch cannot conceivably serve as a measure of perform ance or compliance (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 mi nimal impacts that natural gas linear projects have on water quality: the trenches are relatively narrow, are constructed over a short dur ation at any one location, utilize construction bes t management practices (BMPs) to minimize sedimentation and erosion, and typically d o not involve the installation of new impervious su rface materials. AGA's comments above on the "acreage" threshold, for example, demo nstrate that the earth distur bed in constructing or renovating a housing develop ment or suburban shopping mall is rectangular in nature whereas gas pipe installation work is linear. A lin ear 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 w ing- span approach taken in Part 4.2.2.1 to measuring earth disturbance activities for water quality control.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

689 

# 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 Se ction 302 of the Clean Water Act make it clear that NPDES stormwater permi ts should include water quality limits only when national tec hnology- based standards fail to produce the desired level o f 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 pro cess, it is quite clearly impossible for EPA to know whether that standard will or will not be sufficient to meet the water quality standar ds for any one waterbody. EPA cannot possibly justify the addi tional water- quality based effluent limits (WQBEL) found in the Draft (i.e., the new stabilization, inspection and monitoring requiremen ts for construction discharges to sediment- or nutr ient- impaired waters). According to 33 U.S.C. § 1303 (40 CFR § 122.44(d)(1)(i)-(iii) , (vii)), EPA may impose additional NPDES permit co nditions 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. As far as AGC is aware, EPA has not made the required determinations nor provi ded any justification or

scientific rationale for these additional condition s, particularly for the benchmark levels, which are not tied to any specif ic water quality

standard.

AGC believes that EPA should continue to rely on it s Total Maximum Daily Load (TMDL) program to protec t impaired waterbodies. That program provides a well-established process fo r 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 appropr iate TMDLs - which may include numeric benchmarks, in addition to stringent contro ls - 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 require ments. It is an approach that that EPA has long considered effective, and EPA has yet to produce any information that would justify the p roposed 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 prac tices. Urban and suburban runoff, stormwater discharge from indu strial sites, and also especially agricultural runo ff all contribute to th e impairment of the watershed, and these, along with constructio n sites, are required to provide additional BMPs as prescribed by the TMDL. N one of these other types of runoff have been singled out f or sampling. Construction sites, which by definitio n are temporary, are b eing 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

690 

# 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 discharg es 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 stan dards, and doing so may be beyond EPA's authority under th e CWA. The purpose of the TMDL is to analyze the fu ll suite of issues, contributors, and reduction strategies available to meet the necessary reductions, then to set allocat ions. Without this comprehensive study, EPA should not inappropriately use the CGP t o mandate additional requirements that may or may n ot b e needed and may or may not help the waterbodies meet their pollutant reduc tion goals.

Response Refer to Response 4.1.



# Comment ID 0096-A1.001.067

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: 4.2.2.1 The CGP also requires sampling for nutrients, namel y total nitrogen and total phosphorus, with samples taken up to three time s during a day, presumably upstream and downstream at least on ce per week when there is discharge. NAHB is oppose d to this monitoring. The proposed CGP already provides extensive additional protection to waters of the US, including a 50 foot vegetative buffer (or equivalent), monitoring requirements, and additional BMPs. Furth er, the proposed sampling schedule and protocol is far too frequent, costly, and potentially hazardous to the site personnel.

Unlike turbidity monitoring, EPA is proposing compl ex lab tests which are much more expensive and sens itive than turbidity monitoring. Total nitrogen is the sum of the total Kjehldahl nitrogen (TKN) and the nitrate-nitrite ni trogen, which are at least two separate tests, or maybe more, depending how they a re analyzed by the lab. The phosphate test is suppo sed to be Total phospha te, which is not the appropriate test for this type of nutrie nt monitoring. Presumably these tests for nutrients are supposed to find out if a construction site is overusing fertilizers to enhan ce 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 concentra tions phosphorus minerals that also show up in this test. For example, in some areas of the country, topsoil contains more than 20% phospha te as P and has been mined for years for its phosph ate 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 ove rgrown with algae. Given that the total phosphorus content in these soils is so high, even relatively low turbidity water containing thes e soils will contain very high concentrations of "t otal" phosphate. A more appropriate test to assess the presence of excess fertilizer wo uld be either dissolved phosphate or some form of a cid leachable "availabl e" phosphate.

The issue of nutrient testing is far more complex a nd far more expensive than a few simple additional tests. Because of the nutrient content of many existing soils and the limited addi tional nutrient sources associated with constructio n activities, NAHB oppo ses havingUnformatted 2012 CGP Comment Response Essays February 16, 2012

691 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 (develope d residences, parks, agricultural, etc.) that likel y 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 Organization: Federal Water Quality Coalition (FWQC) Issue Category: 4.2.2.1 5. Benchmark Monitoring for Sediment and Nutrient-I mpaired Waters (Section 4.2.2.1): The primary new w ater quality-based requirement in the Draft Permit is the extensive se t of benchmark monitoring provisions for discharges to waters that are impaired for

sediment or nutrients. EPA asks for comment on seve ral aspects of these provisions, apparently recogni zing that these new requirements pose substantial concerns. The FWQC believes that b enchmark monitoring is not an appropriate tool to u se in assessing the eff ectiveness of construction stormwater controls. As we have exp ressed before in commenting on previous EPA permits , sporadic sampling of stormwater discharges during wet-weather events wil l not provide an accurate picture of water quality impacts, and will not tell very much about how well existing controls are performin g.[FN 4] It is far more useful to focus on specific best management practices (BMPs) that are being implemented, utilize availabl e information as to the effectiveness of these prac tices in reducing pollu tant loadings, and ensure that the practices are applied effective ly on an ongoing basis.

[FN 4] In addition, stormwater runoff quality, part icularly in arid or semi-arid areas, is often influenced strongly by the type and intensity of th e storm event; as a result, a simple comparison of discharge levels to benchmark concent rations will not give a reliable

indication of BMP effectiveness

Response Refer to Response 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 fi nal CGP. If, despite these comments, benchmark monitoring is required in the f inal Permit, then EPA does need to address the spec ific issues raised in these comments, as well as the issues set f orth in the Draft CGP, as to how this requirement w ill be implemented. One of those issues raised by EPA is that fertilizers that are applied in establi shing vegetative cover could result in nutrient lev els in discharges that exceed benchmarks and therefore require corrective action. EPA should adopt an exception from the benchmark r equirement for situations where fertilizers are applied to vegetative cover.Unformatted 2012 CGP Comment Response Essays February 16, 2012

692 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 imp ortant - had this site been required to conduct ben chmark monitoring under representative conditions, as is proposed in the CG P, the site operator would have faced a greater deg ree of awareness of, and 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: 4.2.2.1 Numerous aspects of the benchmark monitoring are im practical. Monitoring from discharge points but not from the regulate d waters provides a data set that is not useful in measuring impact on the resource. Projects employing Environ mental Site Design will not have the discharge points referenced in the permit. We b elieve any measurement should account for pre-const ruction ba ckground levels and

offsite influences but does not favor a default bac kground level that is based on modeling or averages . Monitoring at 10 acres is not practical. The minimum threshold should be a projec t size that triggers an individual permit. We do no t see what EPA will do with the volume of monitoring data generated by this require ment.

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 ha s been incorporated into this draft permit:

-- The proposed approach for water quality benchmar k sampling for impaired waters actually makes more sense than the approach for water quality monitoring for effluent limit guideli nes. Providing two different required monitoring ap proaches within the sam e permit is

redundant and confusin g. Given that many of the listed streams do not hav e identified benchmark values, we suggest using ben chmarkUnformatted 2012 CGP Comment Response Essays February 16, 2012

693 type sampling for water bodies that require monitor ing, 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. Requirin g monitoring for these par ameters only if the site discharges to waters impaired by n utrients, or if these materials are used onsite may be as effective, and would be less costly than simply requiring benchmark monitoring f or phosphorous and nitrogen.

Response Refer to Response 4.1.



# 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 w ould be attributed to sediment or nutrients associa ted with construction sites, so expanding the sampling requirements to consider bio logical impairments within the CGP should not be ne cessary.

Response Refer to Response 4.1.



# 4.2.2.1Q BENCHMARK MONITORING; 10-ACRE THRESHOLD; L ISTED 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 appro ved or established. The State of California, Los An geles Regional Board, h as set aside re-issuance of the Los Angeles County MS4 Per mit, placing pollutant mitigation in limbo.

Benchmark monitoring would need to be based on seas onal conditions clearly stated with reporting based on the applicable benc hmark.Unformatted 2012 CGP Comment Response Essays February 16, 2012

694 In areas like Los Angeles, oil fields, the rise of oil to the surface and methane seepage is an ongoin g 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 monit oring 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 ur ge EPA to require such monitoring regardless of whether a TMDL has been established for the impa ired water at issue. Monitoring should be coextensi ve with the activities covered by the COP. However, we believe EPA should withdraw th e 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 cou ld result in significant cumulative pollution of waterways with no associated monitoring of the e xtent and source of that pollution.

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 prac tices so

that construction activities do not contribute to e xisting impairments, regardless of whether the impa ired water has a TMDL w ritten for

it or not. Since we are most concerned with our own , Chesapeake Bay watershed, this General Permit's e ffect is limited for the most pa rt to the District of Columbia. As noted previously, g iven its highly urban setting, a 10 acre disturbanc e threshold for the applic ation of any part of this Permit is not particularly helpful to the water quality issues at hand; we re:commend tha t for the District, a f ive 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 i nability of the permittee to achieve benchmark leve ls due to the use of ni trogen andUnformatted 2012 CGP Comment Response Essays February 16, 2012

695 phosphorus fertilizer on vegetative covers created for stabilization. Operators should be expected to consider their impact on impaired waters when proceeding with stabilization measures, specifically taking care not to over apply nitroge n and phosphorus which can have significant and long-lasting impacts on water quali ty 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 (TM DL) program to control construction site runoff to impaired waters and avoid setting unsubstantiated and costly benchmark limits . The EPA currently has the TMDL program which prov ides a well-established an d straight forward approach for the states to address waters that fail to meet water quality standards. Further, EPA has not provided any justification or scientific rationale for its bench mark levels. This is an unproven and unnecessary re quirement that w ill do more to fuel citizen suit liability than protect the environment

.

-- Recommendation - Remove Part 4 of the CGP propos al in its entirety and rely on the current TMDL pro gram 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 require ments. Spelling "sockeye

salmon".

Response Refer to Response 4.1.



# Comment ID 0071-A3.001.034

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 4.2.2.1Q •Part 4.2.2.1 Benchmark Monitoring. Benchmark monit oring seems like something the State Environmental Department should be doing.Unformatted 2012 CGP Comment Response Essays February 16, 2012

696 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 rega rd ing "whether the use of nitrogen or phosphorus f ertilizer on vegetative cover for stabilization would impact the permittee's abil ity to achieve benchmark levels". When establishing permanent vegetation to control erosion and alleviate sediment pollution, it is typ ically necessary to apply nitrogen or phosphorousco ntaining fertilizer to the soil. Inevitably, a portion of these nutrients will be pi cked up by site runoff. Therefore, if a project were subject t o benchmark monitoring for these nutrients, MoDOT believes the addition of the needed fertilizers would indeed have a direct impa ct on a project's abili ty to achieve benchmark levels during runoff events. Exception sh ould be granted for these instances when fertilizer s need to be applied in order to stimulate plant growth and provide nutrients for pe rmanent vegetative stabilization, especially when t he overall goal ofadding the nutrients is to ultimately control sediment polluti on.

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 stormwa ter controls. Benchmark monitoring would duplicate the efforts of the well-established TMDL program. Therefore, it should not be required for impaired waters with or withou t 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 b e a good tool for prevention of causing or contribu ting to an impairment, but thinks more context is needed with additional guidance. Ta rget favors having additional requirements for only waters without formal Total Maximum Daily Loads (TMOLs). The TMOL will establis h contributing sources and requirements and therefo re additional permit requirements would be duplicative.Unformatted 2012 CGP Comment Response Essays February 16, 2012

697 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 benchmar k monitoring or compliance monitoring it remains a very cumbersome and expensive activity for nea rly all construction site operators who frequently operate on a very slim financial margin. In his eco nomy it is oftentimes difficult to obtain financing to justify construction of any given development or redevelop ment 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 s tated in our earlier co mments the Partners question the utility of benchmark moni toring for CPG compliance and suggests visual obser vation is the best form of compliance monitoring for sites in the arid west.

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 t o a one acre threshold. This smaller threshold will be important for urban watersheds trying to meet TMDL reduction requirements. In urba n areas, development predominantly occurs in small infill projects that would evade the 10 acre threshold. Urban MS4's, which fre quently bear the lion's share of reductions require d to implement TMDLs wi ll need to concentrate on cleaning up small but dense devel opment sites to prevent sediment from entering impa ired 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 disc harges to impaired waters is unwarranted and unlikely to produce probative infor mation. Such monitoring is not required by EPA’s C& D Rule and would be duplicative of proposed numeric turbidity sampling. Lastly, such monitoring would result in significan t, unwarranted expenditures for permittees.Unformatted 2012 CGP Comment Response Essays February 16, 2012

698 Section 4.2.2.3 (impaired waters) – Please see abov e. Also, all inspection requirements should be expl icitly limited to include only those areas upon which earth disturbing activities are ta king 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 impairmen ts 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: 4.2.2.1Q However, EPA's proposal under Part 4.2.2.1 for wate r 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 di sturbance, 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 mon itoring 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 con sider incorporating slope, soil type, presence of listed species, and/or other fact ors in determining the disturbance area threshold, i.e. where slopes exceed 20% or where listed species are present the threshold shou ld 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 a ffects for this to be meaningfulUnformatted 2012 CGP Comment Response Essays February 16, 2012

699 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 monito ring of stormwater discharges from construction sit es that disturb ten acres or more to sediment or nutrient impaired waters are un warranted and do not provide meaningful information for discharges to waters without benchmark levels against which to assess th em. In the case of numeric turbidity limits, consid eration 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 bod ies listed in Appendix J do not have a benchmark fo r nutrients or turbidity. For example, none of the waters in Massachusetts have a benchmark. The Appendix indicates that the monitor ing is conducted for information purposes only. The goals of any monitor ing requirements need to be clearly defined in orde r to ensure that the re quirements are designed appropriately to achieve those goals. Monitoring for "informational 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 informatio nal purposes for waterbodys impaired for nutrients. We strongly reco mmend this requirement be deleted. TMDL ‟ s should already recognize construction stormwater as a potential source of pollutants. Wha t benefit does EPA see in the sample collection and analysis for information purposes? The operator can be held liable for failu re to perform, analyze, and report samples, 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, givenUnformatted 2012 CGP Comment Response Essays February 16, 2012

700 the inherent variability in concentrations of both solids and nutrients from construction sites over s hort time periods, grab samples collected in any cost effective and practical manne r provide at best a statistically invalid assessmen t of discharge quality and could be quite misleading as to the effectiveness of control s.

Grab sample monitoring may be able to document sign ificant and ongoing major failures of BMPs, however these types of failure s are easily identified readily from a visual inspection during an event. The peculiarities of the sampling frequency and event dynamics will result in both false positive (Type 1 Error) and fa lse negative (Type 2 error) classification of the e ffectiveness of control measures due to uncertainty. The number of samples required to redu ce 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, Qualit y Assurance Project Pla n: Effects, Sources, and Treatability of Stormwater Toxicants. Contract No. CR819573. US EPA, Storm and Combined S ewer Program, Risk Reduction Laboratory. Cincinnati, OH. February, 199 5.) In storm water runoff studies the high variabil ity in runoff concentrations (coefficient of variation of pollutant concentratio ns is often much greater than 1) means that using t he arithmetic average of three grab samples (or any other easily executed sampling appr oach) 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 l ikely to be a artifact of the process instead of a valid assessment of a meaningful perfo rmance metric.

A more appropriate approach would be to conduct flo w-weig hted composite monitoring of runoff over multiple s torm events. However, this approach is well beyond what should be require d or is practically appropriate. One potential alte rnative is to require s ites to collect grab samples, but more as a screening program to de termine if there is a "huge" problem vs. whether a site is contributing to an impairment or not.

Discharge of pollutants resulting from erosion proc esses is well correlated to intensity of rainfall. As EPA acknowledges in the proposed sampling methods, it is impractical to collect samp les that accurately address rainfall intensity by a llowing a minimum of weekly benchmark sampling. As a result it is unlikely that samples collected in any remotely practical manner including that propose d 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 getting sampling results from the laboratory vs. the dynamic, consta ntly changing nature of a construction site), it is often impractical to use a benchmark sampling strategy as an effective means for initiat ing corrective action. The practical experience and expertise of field personnel in identifying deficiencies is a much more effective m eans of initiating corrective action. Again, any sa mpling could be used to assess whether there is a huge problem. However visual obs ervations are likely to reveal such a problem much more quickly by visually assessing turbidity, etc.

The selection of 10 acres as the threshold for requ irement of sites to conduct benchmark monitoring is highly subjective. Some size

classification of the areas of the construction sit es 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 a cres 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 a re likely greater than that from more well run larger projects. However, another fac tor is the value of the project. For example, sites in downtown, highly urban situations may be smaller than 10 acres, but also w ell managed. Another potential metric for setting p roject sizing for any requirements would be the value of the constructed project. Rega rdless of the above, the targeting of the larger si tes may in fact not add ress many orUnformatted 2012 CGP Comment Response Essays February 16, 2012

701 most of the potentially problematic sites. If 10 ac res was based upon an economic c onsideration, what was the basis for that selection ?

It is also the case that the proposed benchmark sam pling is a poor tool for assessing impacts on water s that are habitat for listed fish specifies. The critical impacts on listed species a re much better assessed through direct in- stream receiving water sampling (recognizing that in many cases there would be other potential s ources of pollution, including existing development , forestry activities, etc.). Without the use of broad and oversimplifying assum ptions about the relationships between the benchmar k sampling and receiving water quality, the data would not be useful in assessing potential 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.



# 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 mee t the intended purpose of informing the initiation of corrective action. Direct inspection of controls during or following events is a far mor e useful tool in assessing the

effectiveness of BMPs.

• 10-acre Disturbance Threshold - The proposed thre shold is arbitrary and does not appear to be well l inked to impairments, the effectiveness of technology controls utilized, or n atural background conditions. Project size varies w idely across geographic regions.

LBA is not aware of information that indicates that the area- specific discharge of pollutants is greater at thes e sites than at smaller sites. Large sites are typically managed by professional c onstruction personnel with experience in effectivel y 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 values are exceeded, it is unlikely that these actions would b e realized when rainfall is sporadic. Especially 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 be nchmark monitoring should be eliminatedfrom the per mit. Ifbenchmark monito ring must be included, MDT believes the disturbance thre shold should be set higher and consideration should be given for the likelihood of another storm event occurring.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

702 Refer to Response 4.1.



# Comment ID 0137-A2.001.017

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 4.2.2.1Q Numerous aspects of the benchmark monitoring are im practical. 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 n ot have the discharge points referenced in the permit. We b elieve any measurement should account for pre

‐ construction background levels and

offsite influences but does not favor a default ba ckground level that is based on modeling or average s. Monitoring at 10 acres is not practical. The minimum threshold should be a projec t size that triggers an individual permit. We do no t see what EPA will do with the volume of monitoring data generated by this require ment.

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-I mpaired Waters (Section 4.2.2.1): With all due resp ect the City believes that benchmark monitoring is not an appropriate tool to use in assessing the effectiveness of construction stormwater controls. Sporadic sampling of effluents during storm events may not p rovide an accurate picture of water quality impacts and can provide a limited pictu re about how well existing controls are functioning. F ocusing on specific best management practices (BMP' s) that are being impleme nted, utilizing available information on the effectivenes s of these BMPs to reduce pollutant loadings, and e nsuring that appropriat e BMPs are effectively being applied on an ongoing basis appea rs to work effectively 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 nu trients would provide v aluable information to any environmental enforcement agency with responsibilities for protecting the waters of the U.S., even for t hose waters that have had a TMDL completed. Funding for water q uality 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 tha t are creating the potential impacts being monitore d.Unformatted 2012 CGP Comment Response Essays February 16, 2012

703 We support inclusion of benchmark monitoring requir ements as outlined in this draft construction gener al permit. As for whether such monitoring will be helpful in assessing the effecti veness of construction stormwater controls in not c ontributing to existing impairments, it may only be said that such monitoring will be he lpful, but not that it will certainly be sufficient

.

We support benchmark monitoring for all constructio n sites including those that are less than 10 acres . Our experience has be en that even small construction sites, if poorly managed, can ca use large discharges of sediment or other pollutant s.

Response Refer to Response 4.1.



# 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 conne cted to the receiving stream. If you are implying that sampling should be conducted at the discharging of the site during storm events. Th is is hard to do where overland flow occurs from un developed 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 unsubstantiated and costly benchmark monitoring requirements that would merely duplicate the efforts of the well-established Total Maximum Daily Load (TMDL) pr ogram

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 direct ly regulate fish and micro invertebrates or other biological impairments. Wate r quality improvements resulting from the TMDL limi tation on sediment and nutrients will provide biological improvements.Unformatted 2012 CGP Comment Response Essays February 16, 2012

704 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 Loa d (TMDL) program to control construction site runof f 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 mak e clear that water quality limits are to be added to NPDES permits only when national technology-based s tandards fail to produce the desired level of water quality in a given watershed . In that case, EPA should continue to rely on its TMDL program that provides a well-established process for states to address wate rs within their borders that fail to meet their wat er quality standard. Water quality based effluent limits (and TMDLs) should be written at the state level through the use of proper monit oring 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 requirements in the draft CGP amount to an unproven and unnecessary requireme nt that will do more to fuel citizen suit liability than protect the environment . They would introduce a potentially insurmountable array of complicated and costly analytical methods and test procedures for analyzin g 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 ex isting permit site thresholds relative to effluent limit guidelines monitoring, and on- site sedimentation ponds.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

705 

# 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 outfa lls 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 essenti al to be able to collect samples as required by the proposed CGP.

Response Refer to Response 4.1.



# 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 w as the approach used in the previous General Permit ; this is, in fact, the best way to establish a reali stic benchmark based in part on the natural backgro und 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 ap parently arbitrary values included in Appendix J. The turbidity value of 50 N TU observe d frequently in appendix J is overly stringent and impractical. Permitees should be given the opportunity to establish altern ate benchmark values for their location.

Response Refer to Response 4.1.



# Comment ID 0075-A2.001.029Unformatted 2012 CGP Comment Response Essays February 16, 2012

706 Author Name: McOmie Delbert Organization: Wyoming Department of Transportation Issue Category: 4.2.2.1a Benchmarks need to be taken, but additional tests s hould be taken upstream of the event to get a new b enchmark. The turbidity above the event culminating with the event could be what take s it over the top. To truly tell how much above the natural turbidity that you are putting into the water, you need a baseline above t he event.

Response Refer to Response 4.1.



# 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 do es not intend to use turbidity as a surrogate for b enchmark monitoring; al l of these parameters directly correlate with sediment mobiliz ation 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 t his section is not clear. Will sampling be required for all parameters listed in 4- 1 or just for the parameters causing the receiving waters to be impaired? The proposed benchmark limits do not a ddress background levels. S ome

benchmark limits are at or near the detection limit for approved analytical methods. Adjustment of ben chmark limits should be a llowed based on limitation of the approved analytical meth ods and/or natural background levels for constituen ts 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 unnatu rally clear water could have an adverse impact on e cosystems in such waters; fauna and flora have developed that are dep endent on high sediment loads and dark waters and i ndigenous species have becomeUnformatted 2012 CGP Comment Response Essays February 16, 2012

707 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: 4.2.2.1a Additionally, EPA's failure to account for natural background pollutant levels has resulted in overly stringent and likely unachievable benchmarks in most instances. This is problematic b ecause any exceedance of a benchmark value would tr igger prompt corrective action, requiring home builders to continually enha nce and upgrade stormwater controls, ultimately lea ding to over-engineered sites. Failure to take prompt corrective action is a permi t violation and subject to enforcement action. Mult iple exceedances of thi s randomly selected benchmark could result in requiring a home builder to unnecessarily install additional contro ls, purchase water quality credits from an approved seller, 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 an d other naturally "sediment- laden" water bodies. We oppose any numeric limitati ons that would require contractors to control sediment levels in stormwater runoff from their sites to the se water bodies to levels below naturally occurring levels.

In conclusion, my company appreciates the opportuni ty 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 devastati ng requirements on construction site operators. We str ongly urge EPA to focus on a BMP-based and flexible approach to ensure the CG P is economically achievable, effective in reducing poll ution from stormwater discharges, and workable on a national basis. EPA should focus on implementation of erosion and sediment con trol BMPs that are practical and consistent with ex isting state and local permit requirements, and proven effective in protecting wa ter 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 it s work on a final

ELG and new CGP.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

708 

# 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 b enchmark monitoring requirement, the FWQC has speci fic concerns about several aspects of these provisions. One of those issues is scope: the benchmark requirements apply to all imp aired 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 by construction stormwater sources and det ermined the reductions, if any, that are needed fro m those sources. Any mo nitoring requirements for those sources s hould be keyed specifically to how the sources were addressed in the TMDL. It could be, for example, that the TMDL specifies that no reductions in loadi ngs are needed from those sources. In that situatio n, extensive benchmark monitoring would not be appropriate. 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.



# 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 provis ions relates to how the specific benchmark levels a re determined. EPA is u sing as benchmarks the specific numeric water quality crite ria that have been adopted by the States. These cri teria were adopted to address water quality impacts in low-flow situations, so are not appropriate for use during wet-weather events. Impa cts of wet- weather discharges on aquatic life over short-term periods are entirely d ifferent from the impacts of routine discharges ove r lo ng periods of time, and "regular" numeric criteria do not and cannot provide an accur ate picture of the real impacts of stormwater sourc es. [FN 5]

In addition, as EPA recognizes in the Draft Permit, some State criteria are based on incremental value s abo ve natural background levels. Application of this concept in a general permit con text is not really possible. EPA proposes to simply assign a background va lue of zero. This practice would make dischargers responsible fo r any levels of the pollutants found in the water n aturally. That would not only be unfair; it would be contrary to the Clean Water Act , which regulates only pollutants that one "adds" t o the waters. EPA could, instead, assign a default natural background level, or requi re a preconstruction discharge sample to determine background, but those solutions have their own problems; a single sample, for insta nce, is not appropriate to use in establishing a na tural background level for all future monitoring and compliance.[FN 6] The larger problem is that these "dry weather" criteria should simply not be used to assess wet-weather discharges.

[FN 5] In addition, EPA needs to consider the fact that these criteria are meant to be used in assessi ng in-stream concentrations. In contrast, stormwater runoff levels are not going to represent fully-mixed concentrations in a receivin g water, so requiring corrective action based on a storm water discharge exceeding t his benchmark level is simply inappropriate.

[FN 6] This is especially so in the stormwater c ontext; a "natural background" sample for purposes of stormwater permitting would need to be taken during a wet-weather event, in order to reflect the higher background levels that are natu rally present when storm waterUnformatted 2012 CGP Comment Response Essays February 16, 2012

709 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: 4.2.2.1a For those waters with defined benchmarks, local con ditions are not adequately accounted for. The benchmark levels are set based on the numeric water quality standards ofthe receiving wat er. As a result, if the discharge from a constructi on site does not meet the water quality standard at the point of discharge (AKA en d of pipe), the permittee would be required to take corrective action. The application of the water quality standard at the end of the pip e is inappropriate and fails to take into account t he site specific factors including

dilution that are critical w~en considering what discharge is acceptable. Furthermo re, meeting water quality at the end of the pipe wo uld 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 provis ions relates to how the specific benchmark levels a re determined. EPA is u sing as benchmarks the specific numeric water quality crite ria that hav e been adopted by the States. These criteria were a dopted to address water quality impacts in low-flow situations, so are not appropriate for use during wet-weather events. Impa cts of wet- weather discharges on aquatic life over short-term periods are entir ely different from the impacts of routine discharge s over long periods of time, and "regular" numeric criteria do not and cannot provide an accur ate picture of the real impacts of stormwater sourc es.

In addition, as EPA recognizes in the Draft Permit, some State criteria are based on incremental value s above natural backgro und levels. Application of this concept in a general permit con text is not really possible. EPA proposes to simply assign a backgro und value of zero. This practice would make dischargers responsible fo r any levels of the pollutants found in the water n aturally. 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

Author Name: Gear KenUnformatted 2012 CGP Comment Response Essays February 16, 2012

710 Organization: Leading Builders of America, Inc. (LBA) Issue Category: 4.2.2.1a

One would assume that EPA intended to set benchmark s to allow the incorporation of natural background and that a site that was discharging at natural background levels would not be exceeding the benchmark.

However it appears the language that EPA included i s unclear in this regard:

"If the water quality criterion is expressed as a v alue above "natural background" levels of the pollu tant in the receiving w ater (e.g., 10 NTUs above background levels of turbidity), the app licable benchmark corresponds to t he value that is specified in the criterion (e.g., in the example, the benchmark would be 10 NTU)."

If EPA is proposing that the background be ignored in setting the benchmark, this approach is not scie ntifically appropriate.

The intent of using background concentrations is pr esumably intended to acknowledge the "natural" turb idity present in a receiving water. A discharge benchmark that only allows for a turbidity value equal to the allowable quantity ab ove 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 inherent ly high even under undisturbed conditions. Furtherm ore, if clear waters are introduced from a construction site, well below nat ural turbidity (and assuming solids have the same p attern), the effect of clear water may actually increase channel degradation. Much of the arid west could have this issue.

The intent of setting turbidity benchmarks is u ndermined by this approach as corrective actions ma y not be necessary to protect 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 provis ions relates to how the specific benchmark levels a re determined. EPA prop oses to assign a background value of zero. This practice wo uld make discharges responsible for any levels of t he pollutant found in the water naturally.

Response Refer to Response 4.1.



# Comment ID 0166-A1.001.004

Author Name: Unknown Unknown Organization: Mass Comment CampaignUnformatted 2012 CGP Comment Response Essays February 16, 2012

711 Issue Category: 4.2.2.1a

We also have serious concerns with the method EPA h as used to set the pollutant concentration levels ( i.e., benchmark values) that, if exceeded, represent a water quality concern. EPA ha s not provided any justification or scientific rati onale for its benchmark levels. To this end, EPA`s failure to account for natural back ground pollutant levels has resulted in overly stri ngent and likely unachievable benchmarks in most instances. This is particularly troubling because any exceedance of a benchmark val ue would trigger prompt

corrective action - w herein contractors will be forced into a perpetual cycle of action to enhance and upgrade their stormw ater controls, ultimately leading to over-engineered sites. What i s more, failure to take prompt corrective action is a permit violation and subject to enforcement action. In addition, multiple exceedanc es of a benchmark could result in a State requiring that the facility apply for an individual stormwater discharge permit.

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 y our first sample within the first hour that the dis charge begins."

•This could be very difficult to meet especially if only certain personnel are trained to take samples . Consider just requiring three samples every 24 hours during a rain event or, at a minimum, increasing timeframe for initial sample t o within 3 hours aft er 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 proje cts with greater than 10 acres of disturbed area th at discharge into an im paired water body to sample and analyze the stormwater discharge for turbidity, total nitrogen and total phosphorou s at least once each week if a discharge occurs during that week. The results of t he analysis are to be compared to permit specified benchmark levels. We ha ve several concerns regarding the burdensome nature of this re quirement:

Results from samples sent for laboratory analysis would not be available for several days or weeks. At that time, the site conditions thatUnformatted 2012 CGP Comment Response Essays February 16, 2012

712 led to an exceedance probably would no longer exist ;

Additional monitoring for turbidity seems redundant to the Section 3 requirements;

Sampling is requir ed within the first hour that the discharge begins. For remote construction sites this would be diffic ult 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 da ylight hours is a serious safety concern;

The requirement of 2 additional samples each day wo uld further increase the expense and hazard;

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 be nchmark 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 quality of the receiving streams, and constraints associated with adhering t o the sampling requirements. Please refer to Commen t 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 nutr ient bench marking since fertilization of replaced topsoil occurs much later in construction phasing. Would contractors now be held responsible for naturally occurring nitrogen and p hosphorus in native soil being stripped?

Response Refer to Response 4.1.



# Comment ID 0076-A1.001.030

Author Name: Steadman MarcUnformatted 2012 CGP Comment Response Essays February 16, 2012

713 Organization: Target Corporation Issue Category: 4.2.2.1b Target would also request that the EPA consider rev ising benchmark monitoring requirements to fit more uniformly with other monitoring requirements of the permit. While benchm ark monitoring and effluent limit monitoring meet d ifferent goals, the inconsistency makes permit requirements very convol uted. Permittees must monitor every event that has a discharge for effluent limit monitoring, while benchmark monitoring requires wee kly. Benchmark monitoring requires the first sample be collected within a half hour of discharge while effluent monitoring sample must be completed within an hour of discharge. The inconsistencies will make it difficult for inspectors and monitoring personnel to fulfill permit requirements. Target su ggests making benchmark monitoring protocol similar to effluent limit monitoring protocol to in crease permit simplicity of the permit while still being environmentally protective.

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 analyzing stormwater runoff . Under the Draft, it is likely that many contracto rs would be subject to separate monitoring programs and protocols for turbidity (i. e., both a benchmark requirem ent and numeric compliance limit), which would caus e confusion and impose excessive recordkeeping and pa perwork obligations. EPA predicts that turbidity wo uld be measured in the field. Some contractors would, however, find that they als o need to send samples to a laboratory to monitor f or phosphorus or nitrogen and perhaps even for turbidity. This is clearly excessi ve in light of EPA's decision to regulate turbidity using numeric standard s based on the fact that turbidity merely is an "indicator polluta nt" the control of which helps to reduce the discharge of other pollutants, such 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 sens e if in stream sampling was required. The CGP direc ts 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 dischar ge(s), if that is what was intended, is a much more complex issue. Samples taken upstrea m must be representative of the stream during the r ain event (which could be dangerous to the sampling personnel), or else it is not meaningful. In order to trace downstream turbi dity back to discharge from an individual site, the downstream sample must be take n at a point prior to any other discharge entering the water of the US. Th is is often not practical to accomplish when the discharge from a construction site enters an MS4 stormwater colle ction system.Unformatted 2012 CGP Comment Response Essays February 16, 2012

714 Response Refer to Response 4.1.



# Comment ID 0098-A1.001.018

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: 4.2.2.1b 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 Agency should evaluate the stat us of stream flows that empty into the same detenti on basin that also manages

construction runoff from the site. Such combined fl ows would cause any discharge sampling from a basin to be unrepresentative of the

construction stormwater 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 exempt ion for those who use f ertilizer in accordance with this permit and have impaired wa ters with nitrogen or phosphorous concerns, or the use of fertilizers should be completely eliminated.

Response Refer to 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 carrie s 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 fo r erosion control. EPA should add benchmark monitor ing requirements for ad ditional pollutants, such as toxic metals, polycyclic aromat ic hydrocarbons, petroleum products and pavement se alants. Sealants, in particular, have been demonstrated to pose risks for receiving waters from construction projects and should be mor e thoroughly addressed in the final CGP.[FN 4] The final CGP should emphasize nat ural erosion control and pollutant removal practice s, and discourage use of

chemicals for stabilization.Unformatted 2012 CGP Comment Response Essays February 16, 2012

715 [FN 3] See National Research Council, URBAN STORMWA TER MANAGEMENT IN THE UNITED STATES, at 26, 180 (20 08), available at http://www.epa.gov/npdes/pubs/nrc_stor mwaterreport.pdf.

[FN 4] See, e.g. University of New Hampshire Stormw ater Center, Allison Watts, Robert Roseen et. al., POLYCYCLIC AROMATIC

HYDROCARBONS IN STORMWATER RUNOFF FROM SEALCOATED P AVEMENTS (2008) (presentation to StormCon), available at http://www.unh.edu/unhsc/sites/unh.edu .unhsc/ files/presentations/watts/watts_stormcon_08 _sealant.pdf

Response Refer to Response 4.1.



# 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 avera ge of the three samples exceeds the benchmark level , the discharger must take

corrective action. Since corrective action must be taken for an exceedance, the benchmark levels const itute effluent limits - the fact that there is no penalty for exceeding the benchmark doe s not change that fact. And these effluent limits h ave n o legal basis. There is simply no reason to believe that a once-per-week test, wit h three samples, will accurately capture what is re ally happening during a wet- weather event.[FN 7] Moreover, to require corrective action (often expensive and time-consuming) to be taken b ased on the average of those three samples is arbitrary and has no scientific ba sis..

[FN 7] In addition, this sampling requirement will impose a significant burden on site operators, sinc e 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 weekl y 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 avera ge 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 const itute effluent limits - the fact that there is no penalty for exceeding the benchmark does not change that fa ct. These effluent limits have no legal basis. Ther e is simply no reason to believe that a once-per-week test, with t hree samples, will accurately capture what is reall y happening during a wet-weather event. Moreover, to require corrective action (ofte n expensive and time-consuming) to be taken based o n the average of those three samples is arbitrary and has no scientific basis.Unformatted 2012 CGP Comment Response Essays February 16, 2012

716 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: 4.2.2.1b

In addition to the above listed concern about the n ew benchmark monitoring requirements, the sampling requirements for the be nchmark

levels are also of concern. EPA requires that dischargers sample at le ast one day per week, and three times during that d ay. 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 mon itoring results" section

•Again, there is no accounting for background condi tions in receiving water body. If discharging durin g spring melt conditions, background turbidity will likely exceed limit by si gnificant amount. Recommend this requirement consid er background water qualit y of the receiving water 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: 4.2.2.1dUnformatted 2012 CGP Comment Response Essays February 16, 2012

717 EPA has not provided any justification or scientifi c 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 act ion to enhance and upgrade its stormwater controls, ultimately leading to over- engineered sites. See Draft CGP Part 6. What is mor e, failure to take prompt corrective action would be a permit violation and subject to e nforcement action. In addition, multiple exceedance s o f a benchmark could result in EPA requiring the permittee to apply for a rarely u sed, costly and time-consuming individual stormwate r discharge permit.

Response Refer to Response 4.1.



# 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 Nitrogen and Total Phosphorus must be submitted to a laboratory, which takes 5 to 7 days for normal reporting turna round 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 need to clarify that "the time of discovery of this condition" coin cides with the time analytical results are availabl e.

While it is possible to put a rush on laboratory te sting, 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 mana gement practices (e.g., compost filter socks, etc.) for nutrient removal capabilities; however, temporal effectiveness for such BMPs is no t readily available. While compost and mulch BMPs c an be effective at nutrient removal, their effectiveness drops over time. EPA s hould provide guidance for selecting and maintainin g BMPs, regardless of manufacturer testing results, in a manner that supp orts the requirements of this part. It is recommend ed that there be an Appendix that provides references to Best Management Practices de signed to attenuate nitrogen and phosphorus that ma y be in solution, as op posed to adsorbed or absorbed to particulates that are manag ed through best management practices that are desig ned to control sedimentation.

Response Refer to Response 4.1.



# 4.2.2.1E REPORTING BENCHMARK MONITORING RESULTS

Comment ID 0024-A2.001.015

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 4.2.2.1eUnformatted 2012 CGP Comment Response Essays February 16, 2012

718 Finally, we urge EPA to increase the frequency of t he 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 e nsure that discharges are not contributing to the i mpaired condition of receiving waters. Given the move towar ds electronic recordkeeping and submission, complyi ng with a more frequent reporting requirement should not be a burden for pe rmittees. These benchmark monitoring reports should also be publicly accessible pursuant to §308(a)- (b) of the CWA, which authorizes EPA to require own ers of point sources to keep records and make such reports 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 b e available to the public." 33 U.S.C. §1318(b).

Response Refer to Response 4.1.



# 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 requi rements, which will limit the amount oftime that ex posed soil is left unstabi lized, is a prudent and effective way to limit sediment and nut rient 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 sufficie nt 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 discharge to aUnformatted 2012 CGP Comment Response Essays February 16, 2012

719 sediment or nutrient impaired water where earth

‐ disturbing activities have permanently ceased or te mporarily 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 frozen during th is period precluding any further activities. If any of these events were to occur, E PA could require that stabilization activities shou ld be initiated as soon as practicable.

Response Refer to Response 4.1.



# 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 initia ting stabilization in the event that 1) a storm eve nt occurred during the 3

‐ day deadline period which prevented stabilization activities fro m taking place, 2) soil conditions due to an earlie r storm event are too wet for stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) th e 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 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, indee d, 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 i nspections.

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 requ irements should be set, for sites adjacent to or dr aining to impaired wate rs or waters with TMDLs. First, there should be an upper limit i mposed for the amount of land that may be "opened" and worked at an y given time.Unformatted 2012 CGP Comment Response Essays February 16, 2012

720 In highly urban settings, that upper limit might be five acres, while in more rural settings, the limi t might be set at 10- 20 acres. Second, Federal Clean Water Act regulations prohibit new di scharges into impaired waters for which a TMDL has been established unless there is a Waste Load Allocation ("WLA") available to acc ommodate those discharges.[FN 6] This General Permi t should similarly make this clear, disallowing its application at all into TMDL -designated streams 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.

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 ha s been reached." Final grade is not necessarily an indicator, condition, o r definition that construction activities have been completed, tempor arily, 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 f rame 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 permane nt cessation of construction activities, in lieu of me eting the deadlines in Parts 2.2.2.1 and 2.2.2.2.", yet has no completion timetable

associated in the text.

If a project is in an arid or semi-arid location an d discharges to an impaired water; is the permittee intended to only initiate stabilization as soon as practicable following the temporary or p ermanent cessation of construction activities, in l ieu of meeting the dead lines in Parts

2.2.2.1 and 2.2.2.2. with 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 st ipulated in Part 4.2.2.2.b?

Response Refer to Response 4.1.



# Comment ID 0053-A2.001.030Unformatted 2012 CGP Comment Response Essays February 16, 2012

721 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 v egetative stabilization effort completion including establishment of vegetation. Established vegetation/plants are typically defined as independently vi able specimen, not requiring irrigation. This is no t an achievable condition within 3 days.

Consider altering the term "established" in the cla use.

Response Refer to Response 4.1.



# Comment ID 0060-A1.001.019

Author 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 stabili zation activities within 3 work days of initiating stabilization on exposed portions of the site, with no exceptions. W hile the 3 days may be sufficient on some sites, it may not be practical for every construction site. The time frame to complete stabi lization can vary based on site conditions (i.e. si ze 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 construc tion 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 ti me to complete stabilization activities if certain 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 ve getative cover in the CGP requires that "all soil c onditioning, 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. Enter gy requests clarification that a program of "soil c onditioning, seeding, w atering. . . " and similar activities not necessarily be designed to be completed within three days, when best manage ment practices indicated

otherwise.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

722 

# Comment ID 0069-A1.001.012

Author Name: Cramer M. Organization: Issue Category: 4.2.2.2 10. Part 4.2.2.2 of the draft EPA CGP imposes more stringent stabilization requirements on projects wi th greater than 10 acres of disturbed area that discharge into an impaired wate r body. Requiring all stabilization to be implement ed if work is to be sto pped for only 7 days is not practical. For linear pr ojects where the construction sequence is always in flux due to weather, soil condition, unexpected rock, and a host of other factors, a 7-day stabiliz ation requirement would be overly burdensome and of ten completely impractical. Consideration of specifyin g more stringent requirements for certain potential ly sensitive areas is more appropriate for the SWPP P design level where site conditions can be directly assesse d 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 areas that dischar ged to impaired waters, but allow flexibility of this period to be based on considera tion of site and project conditions that would be a ddressed 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 condi tions outlined in section 2.2.1.3(ii) should also a pply if the permittee discharges to a water that is impaired (for any parameter) and the discharge is likely to include the impaired paramet er. To determine if the discharge is likely to include an impaired parameter a reasonabl e potential analysis should be condu cted. Or alternatively and perhaps more simply these more protective timelines should apply to all dischargers to an impaired stream unless a reasona ble potential analysis shows that there is not likely to be a discharge of the impair ed 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 rela ted to vegetative cover) within three work days of initiating stabilization. This requirement raises a couple of concerns.

First, it addresses possible impacts after construc tion has been discontinued, and therefore falls int o the realm of "post-construction" discharges. The Chamber does not believe that post- construction discharges are properly regulated unde r the CGP. The intent of theUnformatted 2012 CGP Comment Response Essays February 16, 2012

723 CGP is to address discharges that occur during cons truction activities.

Second, the Chamber does not believe it makes sense to apply these requirements to temporary suspensio ns. In the Draft Permit, a temporary suspension can be for as few as eight day s. So a construction operator could have an eight- day "break" in activities that would trigger this requirement, meaning that it would hav e to immediately start stabilization activities, an d within three days, would have to have completed soil conditioning, seeding, watering and mulching. But five days later, the operator wo uld resume construction in that area, and all of those activities would have been a waste of time, resources, and materials. Any stabi lization 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 dischar ge to an impaired water body. This requirement is too restrictive and will also limit the size of a project that can effectively be devel oped at one time. This requirement will have a significant and adverse effect on an owner o r operator's ability to economically develop proper ty. Potential extensions of construction periods in some cases with limited con struction windows to address endangered species iss ues will be especially problematic.

Rather than setting a time limit for the completion of stabilization without knowing the design of a p roject or how much area an operator will be stabilizing at one time, LBA recommends tha t EPA allow each project to set a project specific time frame that considers the sensitivity of the receiving waters, the seasonal p eriods where there would be unstabilized condition s, the area(s) of unstabilized ground, slopes, and local weather patterns as part of the development of the SWPPP to implement stabilization activity and r equire the work be completed expeditiously, during normal busi ness hours, and in a timely manner. One avenue for the setting of deadlines for stabilization would be through the TMDL process whe re 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 encourag e 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 stabil ization is best addressed by the engineer during th e design process and should allow for factors such as season, climate, soils, site er osion risk, discharge flow paths and proximity and connectivity to resource areas toUnformatted 2012 CGP Comment Response Essays February 16, 2012

724 dictate the timing of stabilization. There are many cases where longer periods are appropriate and oth ers where stabilization should be initiated and completed over shorter time frames.

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 st abilization of earth-disturbing activities is reaso nable. Similarly, the time frame for completion of specific stabilization tasks is reasonable. The pre scribed work is very important in avoiding stormwat er 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 permi t should be consistent at 14 days. Shortening the time period only makes the stabilization process more confusion and less stand ard. Shortening the time period to 7 days will pro vide 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 p hase of the project, and/or the weather (is it the dry season , is the ground froze n, or does snow cover all of the stormwater control s), stormwater controls often do not require any maintenance or do not need to be replac ed or repaired even on a weekly basis. Weekly inspe ctions would be sufficient.Unformatted 2012 CGP Comment Response Essays February 16, 2012

725 Response Refer to Response 4.1.



# 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 de termine if they are being conducted. If the daily visual examinations must be recorded, this will add to the time it takes to co m ply with this requirement as well as to the cost of permit compliance. With all of the o ther permit requirements, i.e., inspections (site i nspections every 7 cale ndar days and

within 24 hours of a storm event of 0.25 inches or greater), benchmark monitoring, potentially turbidi ty sampling, etc., the administrative costs of the permit will be very hig h.

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 m inimum, consider changing this phrase to "working a s intended to minimize sediment discharge," s o that the phrase includes control measures, such a s site stabilization and avoiding sensitive areas, that minimize sediment discharge at least in part by minimizing erosion ra ther than by "removing" sediment. (If, however, the purpose of every element of Part 4.2.2.3.b.1 is to minimize pollutant discharge, the n 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 (incl uding 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 install ed, appear to be operational, and are working as intended. Determine if any such stormwater contr ols need to be replaced, repaired, or maintained. A s necessary, initiate corrective action under Part 6.2.1; andUnformatted 2012 CGP Comment Response Essays February 16, 2012

726 Response Refer to Response 4.1.



# 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 var iation, its approach to conditions in the arid west may not be adequate to protect permittees operating under arid conditions. For exa mple, Section 5.1.3.2, which allows for reduction i n frequency of inspecti ons in arid and semi-arid areas, appears to contradict the Sect ion 4.2.2.3 requirement of daily inspections of BMP s.

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 y our site". Please define 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 reason s 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 monito ring requirement should be simi larly focused. We request that this Part be amended to re flect that intent.

(See comment 0061.004)

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

727 

# Comment ID 0066-A1.001.036

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 4.2.2.3

Discussion: It takes at least 0.5 inches of rainfal l to cause enough damage to stabilization devices t o necessitate a corrective action. Inspections following minor rain events (0.25 inche s) would be time consuming and unnecessary.

Suggestion: The minimum amount of rainfall from a s torm event should be 0.5 inches rather than the pro posed 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 inspect ions that requires daily visual inspections of silt ation/erosion controls and weekly inspection of laydown areas. These are in addition to the formal biweekly inspection requirements. The re is language in this section of the CGP that removes flexibility for linear project s to be inspected on representative sections rather than the entire project. If promulgated as written, the entire length of a line ar project must be inspected on the proposed schedu le. 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 required documented inspections be included in the scope of the formal biweekly insp ections and that allowance for inspection of repres entative 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 ag rees that daily exams are achievable and are import ant near TMDLs.

Response Refer to Response 4.1.



# Comment ID 0072-A2.001.016

Author Name: Muenks NateUnformatted 2012 CGP Comment Response Essays February 16, 2012

728 Organization: Missouri Department of Transportation Issue Category: 4.2.2.3 MoDOT believes the requirement for post-discharge i nspections (storm event or snowmelt) should be leng thened from 24 hours to 48 hours to afford the inspection team a broader windo w to complete the required inspection. MoDOT erosio n and sediment control inspections are done by trained construction inspec tors who are charged with inspecting all aspects of a job, which include not only erosion and sediment control, but also, soil gradin g and compaction, construction materials, concrete and/or asphalt paving, and many others. With so much to inspect per job, it would b e difficult to assure inspection of the erosion and sediment control devic es within 24 hours of the discharge event, but more reasonable t o 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 w ithin 24 hours of the end of a storm event of 0.25 inches or greater and within 24 hours of a dis charge generated by snowmelt." Section 5.1.2. More frequent inspections ar e required for sites discharging to sediment- and/or nutrient- impaired waters. Section 4.2.2.3. First, the 0.25 i nch rainfall threshold for site inspections is too low and should either be increas ed to 0.75 inches or left to the various EPA region s for identification based on the rainfall patterns within their respective jurisdict ions. 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 immediately following a storm event. It would be infeasible to inspect th e entire length of a linear utility project at any frequency, let alone on ce every 14 days. Moreover, it could take days to complete such an in spection over tens or hundreds of miles of steep, n atural terrain. For this reason, it is imperative 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 insp ections 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 controls 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.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

729 Refer to Response 4.1.



# Comment ID 0096-A1.001.068

Author Name: Asmus Susan 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 dur ing dry seasons, it is not necessary to conduct a daily visual examination. It would be impractical and too costly and time consu ming to condu ct 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 ar e already conducted. There is no real difference be tween the specified scope of the daily and weekly inspections. They both require ins pection to ensure all BMPs are installed, maintaine d and in operational co ndition and require documentation of maintenance and other prob lems requiring corrective action. The requirements placed on visual inspections obligate an operator to what is essentially full ti me inspection/reporting/maintenance which adds undu e complexity to the per mit and is unreasonable. The only time such an inspection is w arranted 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 sho uld clarify who is responsible for doing these daily vi sual 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 Nu trient- Impaired Waters (Section 4.2.2.3): EPA requires tha t for discharges to waters that are impaired for sediment or nutrients, site i nspections must be conducted at least weekly, and w ithin 24 hours of a storm event (if 0.25 inches or greater) or a discharge caused by sn owmelt. Also, daily visual examinations must be con ducted to ensure that s tormwater controls are working and to check for the presence of deposited sediment. While we generally believe t hat site/visual inspections are a very effective means to assess effectiveness of con trols, we do have some concerns about this proposed set of requirements. First, a "snowmelt" trigger has not been included in previou s permits, and it is not clear how it w ould 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 p articular requirement, so it wouldUnformatted 2012 CGP Comment Response Essays February 16, 2012

730 seem to apply if there is even a tiny amount of dis charge that one believ es 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 d ays that are not right after a storm, it is

not clear how one would assess whether stormwater c ontrols are "working as intended." It makes more se nse for each discharger to determine, and specify in their Storm Water Polluti on Prevention Plan (SWPPP), the specific frequency and location of visual inspections that is appropriate for their particula r 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 cale ndar days at a minimum, and within 24 hours of a st orm event of 0.25 inches or greater or within 24 hours of a discharge caused by snowmelt, instead of the frequency specified in Pa rt 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 cale ndar days at a minimum with no additional requireme nts 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 inspectio ns must be conducted at least weekly, and within 24 hours of a storm event (if 0.25 inche s or greater) or a discharge caused by snowmelt. Al so, daily visu al 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 ve ry effective means to assess effectiveness of contr ol s, we do have some concerns about this proposed set of requirements. First, a "snowme lt" trigger has not been included in previous permi ts. The Chamber believes aUnformatted 2012 CGP Comment Response Essays February 16, 2012

731 magnitude threshold should be identified. A trickle of runoff due to snowmelt should not trigger a nee d for a daily inspection. Second, the Chamber does not believe visual inspections are needed on a daily basis. Wet- weather events do not occur every day, and on dry d ays following a storm event. It is not clear how one wo uld assess whether stormwater controls are "working as intended." It makes more sense for each discharger to determine, and specify in their Storm Water Pollution Prevention Plan (SW PPP), the specific freq uency and location of visual inspections that is appropriate for their particular operations.

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 exam inations are an undue burden at many remote sites, particularly during pe riods 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 burd ensome and not practicable, especially in instances where active construction is complete. MDT recommends reducing these proposed in spection frequencies, with provisions for greater r eductions 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 Name: Jenkins Cheryl Organization: Stormwater Division, City of Nampa, Idaho Issue Category: 4.2.2.3 3. Site Inspection Requirements for Sediment and Nu trient- Impaired Water (Section 4.2.2.3): EPA requires that for dischargers to waters that are impaired for sediment or nutrients, site i nspections must be conducted at least weekly, and w ithin 24 hours of a storm event of 0.25 inches or greater or a discharge caused by sno wmelt. Daily visual site inspections are also requi red. While the City gen erally agrees that site/visual inspections are a very appropriate means to assess effectiveness of BMPs, we do hav e some concerns about this proposedUnformatted 2012 CGP Comment Response Essays February 16, 2012

732 set of requirements. A "snowmelt" trigger had not b een included in previous permits, and it is not cle ar how it would work. How is it determined that there is a discharge caused by snow melt? Second we do not think that visual inspection s should be required on a daily

basis since wet- weather events usually do not occur every day. It w ould seem appropriate to provide specific informati on pertaining to inspection frequency and location of visual inspect ions in site specific Storm Water Pollution Prevent ion Plans (SWPPP).

Response Refer to Response 4.1.



# 4.2.2.3Q DAILY VISUAL EXAMINATIONS

Comment ID 0007-A1.001.006

Author Name: Morris Stacey Organization: ETI Corporation Issue Category: 4.2.2.3Q

Comment: It would be far better to provide for inspections something lik e twice per week, at least 72 hours apart. Inspecti ng a site within 24 hours of a storm even of 0.25 inches or greater does not work well. What usually happens is that th e event happens on say a Thursday or Friday, the inspection is done on a Friday or Sa turday, then no repairs are undertaken until someti me the next week. It is much more practical to have regularly scheduled times when in spections are performed so that arrangements can be made to have appropriate personnel and equipment on site and available to ma ke any repairs noted. Also, the inspector can consu lt with the personnel o n site to be sure the site personnel understand exactly what nee ds 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 frame s 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: 4.2.2.3QUnformatted 2012 CGP Comment Response Essays February 16, 2012

733 Response to EPA's request for comment: During the A rizona dry season, it truly is not necessary to con duct a daily visual examination. Furthermore, it would be impractical on a very larg e construction project. As an alternative, the EPA could require a visual examination prior to predicted storm events.

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 feasi ble 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 visua l 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 probability of precipitation of greater than 50%. Also, we recommend keeping an allowance for spot c hecking representative locations within 24 hours of a storm event for all linear pro jects

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 calendar days and daily v isual inspections. The only difference between Weekly site inspections and Daily visual ex aminations are record keeping. Please elaborate on the term "daily". Is the term "daily" defined as a "working day" as in Part 4.2.2 .2.b., or construction days i.e. Monday through Fri day, or every day of the week regardless of activity on the project. Daily visual examination would involve a person attending the s ite, or being stationed at the site 7 days a week. If so, what is the purpose of the Week ly site inspection?

Some sites are not active weekends, holidays, or in a stabilization/shutdown phase for extended period s of time, and may be in remote locations adding onerous conditions and exorbitant cost for no conditional site change/inspection find ings.

Consider revising this language, or at least defini ng the intent of the term "daily".

Response Refer to Response 4.1.



# Comment ID 0062-A1.001.052Unformatted 2012 CGP Comment Response Essays February 16, 2012

734 Author Name: McClure Bach Organization: Brevard County, Natural Resources Management Office Issue Category: 4.2.2.3Q Such as what macrobenthics? Very impractical. Nutri ent sampling is time consuming and requires special ized personnel.

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 exa mination" section

•Likely overly burdensome to Contractor. Consider t ying this specific requirement to projects that mee t 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 o n 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 drai nage during storm events. This gets done on what mi ght end up bein g a daily 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. T he EPA CGP requires wee kly site inspections and daily visual inspections. The daily requirement should be for working days only, not w eekends or when the constructionUnformatted 2012 CGP Comment Response Essays February 16, 2012

735 crew is not working due to weather. During the EPA CGP's May 23, 2011 webcast, EPA officials stated th at this would be the case; however, the rule must be made more specific to add ress this issue.

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 ju stifiable use of resources and believes the weekly and/or post-discharge inspectio ns are sufficient to adequately address potential s ite 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 a re too stringent. Weekly site inspections are appro priate as proposed in the 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

736 

# Comment ID 0077-A1.001.011

Author Name: DeStefano Anthony Organization: Village of Solvay Issue Category: 4.2.2.3Q It should be the contractor's responsibility to con duct 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 inspectio n frequencies are reasonable for active constructio n sites.

For sites wher e active construction has ceased and the owner or s ite operator is awaiting final stabilization and te rmination of the CGP, a monthly or quarterly inspection frequency is more appropriate.

The Partners have previously presented their commen ts and concern s in response to stabilization timeframes and the i nherent difficulties of stabilization in arid areas such as the Albuquer que 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 a nd should be required on all sites, regardless of s ite size or the condition of the receiving water body. Daily visual inspection by op erators 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, In c.Unformatted 2012 CGP Comment Response Essays February 16, 2012

737 Issue Category: 4.2.2.3Q Linear projects of 10 or more acres within an impai red watershed, will take more than one day to compl ete for just a visual i nspection of the area. EPA should replace the seven day and 24-h our triggering events with a trigger based on preci pitation events where the National Weather Service has forecast a probability of preci pitation of greater than 50%. TriState also support s retaining an allowance for spot checking representative locati ons within 24 hours of a stonn event for all linear projects.

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 o f 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 co ntinue to provide adequate monitoring, and that linear projects should be exem pted 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 tha t all stormwater controls be installed at the begin ning of the project and requiring daily inspections of all the controls will create a signi ficant 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 Co mment ID 0097-A1.001.006] for comment on time frame

.

Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

738 

# Comment ID 0103-A3.001.016

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: 4.2.2.3Q In Part 4.2.2.3 Site Inspection Requirements, EPA s uggests daily visual inspection for portions of the sites discharging to w ater bodies that are impaired for sediment or nutrients.

TCEQ recommends a less frequent inspection frequenc y such as is required in the existing permit (once per week or once every two weeks plus after every rainfall event). Daily visua l inspections may not be practical or feasible in m any 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 con duct 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 too ls available to construction management personnel f or evaluating the effectiveness of field controls and in general. LBA is highly suppor tive of the requirement to conduct visual inspectio ns. However, ther e are a number of practical construction-related issues that make req uired daily inspections impractical and costly with out clear benefits to the environment including:

• At many sites there are extended periods of time where activities at the site do no t require field personnel on a daily basis and weat her conditions (e.g. arid west summer period) present l ittle or no risk of discharge.

• Daily inspections are particularly challenging at remote sites where travel times are significant.

• Utilization of controls which are well suited for extended deployment and that require decreased mai ntenance are more likely to be used at remote sites or those that are not typicall y visited daily. Required daily inspections and on- site personnel visits could be aUnformatted 2012 CGP Comment Response Essays February 16, 2012

739 potential disincentive to utilizing these more robu st methods.

LBA recommends that the frequency of inspections sh ould be variable to account for the above as well a s differences in geographic weather patterns. For example, in much of the arid west there is little to no precipitation for months. Requiring daily inspections in these

areas would not make sense. The SWPPP should be to tool for setting the appropriate frequency of visua l inspections that must be documented based upon the local conditions and fact ors.

Response Refer to Response 4.1.



# Comment ID 0137-A2.001.018

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (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 indicates that those successful projects consistently had sta ff dedicated specifically to that effort. Daily ins pections were routine and the stormwater management efforts benefitted from that level of attention. Since all development projects do not necessarily unde rtake such a daily visual inspection, and since the benefits o f doing so are significant, we encourage EPA to req uire 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 inspect ions based on time and rainfall

events.Unformatted 2012 CGP Comment Response Essays February 16, 2012

740 Response Refer to Response 4.1.



# 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 sit es 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 stor mwater inspections. As a practical matter, these types of projects would need to have a stormwater "qualified person" on site full time i n orde r 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 operator. 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 inspe ctions in a region that receives eight inches of rain per year is an excessive requi rement that will yield no additional environmental benefit beyond the requ irements in

Part 5.1.

Response Refer to Response 4.1.



# 4.2.3 REQUIREMENTS FOR DISCHARGES TO WATERS IMPAIRE D FOR OTHER POLLUTANTS.

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 inspecti on requirements, Part 4.2.3, as a means of improvin g the permittee's ability to findUnformatted 2012 CGP Comment Response Essays February 16, 2012

741 and correct problems before a discharge occurs.

Response Refer to Response 4.1.



# 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 Pollu tants (Section 4.2.3): For discharges to waters tha t are impaired for poll utants other than sediment or nutrients, EPA provides that the A gency 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 FWQC generally supports that appr oach, which ensures tha t the discharger has adequate notice of new requirements, which will be developed on a discharge-specific ba si s.[FN 8] EPA should clarify, though, that it will not simply "inform" the discha rge 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 comme nt on whether the requirement for sediment or nutri ent impairments should be expanded to cover biologi cal impairments that are "attributable to either sedime nt or nutrients." We do not think that this expansi on of the nutrient/sediment provisions would be appropriate. If EPA or the Stat e believe that an impairment is "attributable" to s ediment or nutrients, and want to impose controls on those pollutants, then they shou ld first amend the State's list of impaired waters to make it clear that the waterbody is listed for sediment or nutrient impairments. A subj ective judgment that a listed biological impairment is "attributable" to sediment or nutrients is not an acceptable substitute for a cle ar listing decision as to a particular pollutant.

Response Refer to Response 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 poll utants other than sediment or nutrients, EPA provid es that the Agency will inform the discharger of any additional required limits or con trols that are needed to meet water quality standar ds or to comply with a TMDL. The Chamber supports that approach, which ensures that the discharger has adequate notice of new requ irements, which will be developed on a discharge-specific basis.

Response Refer to Response 4.1.



# Comment ID 0130-A2.001.023Unformatted 2012 CGP Comment Response Essays February 16, 2012

742 Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 4.2.3 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 requ ires inspections only required during normal busine ss hours.

b. Daily visual examinations are unnecessary and in effective when there has been no precipitation. An inspector is unable to accurately or effectively determine if the project controls ar e functioning during dry weather.

c. Due to the often remote locations of our project sites, daily visual examinations would add a consi derable resource burden to projects with what appears to be minimal risk reduction to w ater quality impacts.

d. The required weekly inspections and post rain ev ent inspections are sufficient to ensure proper fun ctioning 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 requi res the State of Idaho to protect existing uses of all state waters and to protect high quality waters from degr adation and to develop an Antidegradation Implement ation Plan. Similar to the concerns listed above with regard s to water quality impaired stream segments, we are concerned that CGPs may be approved that could degrade high quality waters without necessary level s of public disclosure and comment, review and cons ideration. We do not fe el that it is appropriate or feasible to conduct Antidegradati on review at the scale of a Nationwide CGP. Antideg radation 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 c onsidering an Antidegradation Implementation Plan, and until the time that the US Environmental Protection Agency (E PA) 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 considerati on and approval of CGPs has the real potential to cause or contribute to water quality s tandard exceedances in Idaho without appropriate le vels of review, disclosure, public

comment and administr ative appeal opportunities. Indeed, in June 2008 th e Idaho Department of Environmental Quality (DEQ), whichUnformatted 2012 CGP Comment Response Essays February 16, 2012

743 has authority to review NPDES permits and issue wat er quality certification decisions, issued a blanke t certification for CGPs. This certification was subject to state administrative a ppeal proceedings for 35 days after its issuance, w hereas 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 a vailable to provide for administrative relief. Whil e we appreciate that site- specific NPDES certification can still be conducted by the D EQ in certain circumstances, DEQ has not expressly reserved the right to develop site-specific NPDES certification in circumstances where conditions warrant such review. Indeed, permi tees must only notify the Regional DEQ office where activities are proposed o n impaired waters, and the DEQ 2008 certification s tates that if "per mittees comply

with the terms and conditions...then there is reasona ble assurance the discharges will comply with...the C lean Water Act." The bl anket certification does not even advise permittees to co ntact the appropriate regional DEQ office to determ ine if t he project is in compliance with an existing TMDL, as it does with some other N ationwide Permits. As a result, there is no mechani sm 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 th e stabilization and inspection requirements that appl y to sources on sediment or nutrient- impaired waters, and may be notified by EPA that additional requirements will be needed. We generall y agree with the last part of that provision - that additional controls will be imposed if EPA determines that they are necessary (subject, again, to the condition that before making a deter mination, EPA will provide an opportunity to comment on the proposed new requirem ent). But we have several concerns and questions ab out 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 qual ity 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 entir ely a State issue.[FN 9]

[FN 9] To the extent that Tier 2.5 is referenced, E PA should clarify that Tier 2.5 waters are subject to the same requirements as Tier 2 waters under EPA regulations.Unformatted 2012 CGP Comment Response Essays February 16, 2012

744 Response Refer to Response 4.1.



# 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 imposi ng these extra requirements in situations where the waters are not impaired. As noted above, the anti degradation requirements for Tier 2 waters do not prohibit all increases, and do not impose blanket control 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 ad opted in the prior CGP and the MSGP: a general prov ision requiring that the discharger must comply with applicable antidegradat ion requirements.

The Tier 212.5/3 requirements proposed here by EPA are of particular concern because they could apply to virtually every disch arge. In most States, antidegradation tiers are determined o n a pollutant-by-pollutant basis. Since no waterbo dy violates standards for every single pollutant, every waterbody is "high quality" (Tier 2) for some pollutants. And the proposed Sec tion 4.3 is not limited to waters that are high quality for sediment or nutrients; it seem s to apply if the water is high quality for any par ameter. That would, then, apply the inspection and stabilization requirements everywher e. There is simply no basis for that broad impositi on of these new control 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, TIE R 2.5, OR TIER 3 WATER.

Comment ID 0128-A2.001.027

Author Name: Robertson MikeUnformatted 2012 CGP Comment Response Essays February 16, 2012

745 Organization: Minnesota Chamber of Commerce Issue Category: 4.3.1 First, EPA states that "Tiers 2, 2.5 and 3 refer to waters either identified by the state as high qual ity waters or Outstanding National Resource Waters..." Technically, Tier 2.5 waters ar e those identified by the state as needing mo re 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 entir ely a State

issue.

Response Refer to Response 4.1.



# 4.3.2 REQUIREMENTS FOR NEW SOURCES DISCHARGING TO T IER 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 dischar ges to Tier 2.5 and Tier 3 (Outstanding National Resource Waters). While ideal ly it would be most helpful to water quality to have comp rehensive benchmark monitoring for a broad range of parameters for dischar ges into these special waters, a less proscriptive step of r equiring individual 401 certification for each prop osed NOI for discharges to Tier 2.5 and 3 streams would at least provide some additiona l protections. If individual 401 certifications wer e required in specially protected waters, state water quality officials who have a good sense of on the ground water quality issues could determine if additional benchmark monitoring is required. Here in New Mexico, where m ost of our streams are small and do not provide muc h dilution, even the sm allest discharge has the potential to degrade water qualit y in the receiving waterbody. Therefore added prote ctions for ONRW streams are

essential to ensure that these streams are not bein g degraded and the Clean Water Act is not being vio lated.

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 w aters must meet the stabilization and inspection re quirements that apply t o sources on

sediment or nutrient- impaired waters, and may be notified by EPA that ad ditional requirements will be needed. We generally agree with the last part of that requirement - that additional controls will be imposed if EPA determines that th ey are necessary. Bu t we have several concerns and questions about application of stabili zation and inspection requirements to these situati ons.Unformatted 2012 CGP Comment Response Essays February 16, 2012

746 Response Refer to Response 4.1.



# 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 si tuations where the wate rs are not impaired. As noted above, the antidegradation r equirements for Tier 2 waters do not prohibit all increases, and do not impose blanket control requirements on those increases. The specif ic antidegradation provisions are determined on a S tate-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 antidegradat ion requirements.

The Tier 2/2.5/3 requirements proposed by EPA are o f particular concern because they could apply to vi rtually every discha rge. In most States, antidegradation tiers are determined on a p ollutant-by-pollutant basis. Since no waterbody vio lates standards for every single pollutant, every waterbody is "high quality" (Tier 2) for some pollutants. And the proposed Section 4. 3 is n ot limited to waters that are high quality for sediment or nutrients; it seems to apply if the water is high quality for any paramet er. Essentially that would apply the inspection and stabilization requirements everywher e. There is simply no basis for that broad imposition of these new 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 permi t states that EPA reserves the right to notify the applicant that additional analyses, stormwater controls, or other permit cond itions are necessary to comply with the applicable antidegradation requiremen ts, or notify that an individual permit application is nec essary. This would be a significant adverse impact to state government business.

The state DOT must remove schedule and cost risks p rior to award of the contract. With few exceptions, we require projects to have permits in place prior to construction. It is cruci al to have any antidegradation review and condition s occur during planning and design. Additional requirements by EPA made during construc tion would leave the state vulnerable to contractor claims for time and money.

Antidegradation policy development and implementati on is generally a state level function. The state a gency (ID EQ) 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 allowe d under antidegradation if there is social and econ omical benefit justifying the degradation. Transportation projects have an inhere nt social and economical benefit. ITD believes that Part 1.3.4 adequately deals with antidegradation and Part 4.3.2 could be removed fro m the permit completely.Unformatted 2012 CGP Comment Response Essays February 16, 2012

747 Response Refer to Response 4.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

748 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 5, 5.1, 5.1.1, 5.1.2, 5.1.3, 5.1.4, 5.1.4.1, 5.1.4.2, 5.1.4.3, 5.1.4.3Q, 5.1.5, 5.2, 5.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

749 

# 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 al lowed similar to the 2008 CGP. Continued flexibilit y should be considered for linear projects; so that valuable resources are focused in critical areas of construction. Daily inspections on all portions of a lo ng 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 proje cts in ROWs. Linear construction pipeline projects operate alongside ot her permitted and non-permitted entities in the sam e ROW. But the proposed inspection requirements do not delineate clear line s of responsibility among the various entities cond ucting improvements on the roadway. Instead, natural gas pipelines and utiliti es 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 operato rs. AGA thus requests that EPA reconsider its visual and post-precipitation in spection requirements to account for these disparat e 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 we ekly inspections for all Pollution Prevention Stand ards. Part 4.2.2.3 indicates weekly inspections, plus daily visual exa minations of some components of a project. Part 5 i ndicate s 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 complicate inspect ion tracking and records management. The inspection requirements need to be streamlined and simplified so that there is more co nsistency across the sp ectrum of scenarios which trigger inspections.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

750 Refer to Response 5.1.



# 5.1 SITE 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 signif icance of 0.25 inches as the trigger for storm even t inspections. Target a lso believes that the requirements specified in 5.1.1. are overly com plicated. Target suggests simplifying permit requir ements by using measurable discharge as the trigger for site inspections durin g 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 dur ing frozen soil conditions. Target suggests that the EPA limit inspections to o nce 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 accountabilit y concerns for event- based inspection requirements proposed in Part 5. F or roadway projects, utilities obtain their own stormwater per mits to relocate onto areas where there is ongoing work by non-permit and permit holders. AGA suggests that EPA should include some language demonstrating the extent of reporting requ ired for pipeline projects on public rights of way and other shared spaces to dis tinguish those events caused by non-permit holders.

Response Refer to Response 5.1.



# Comment ID 0091-A2.001.025

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: 5.1.1Unformatted 2012 CGP Comment Response Essays February 16, 2012

751 25. Part 5.1.1: Some states and municipalities have certifications for construction storm water inspec tors. Could the permitee identify one of these programs as the mechanism to ensure qu alified persons are on staff? Note: adopting any pa rticular state certification requirement would be up to the permitee. There is n o requirement to adopt the certification for the st ate 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 n ot been standardized an d are not readily available in all states. As such, flexibili ty 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 wi thin 12 hours, even if it means reporting on weeken ds. Permittees should be held responsible for discharges from their sites regardl ess 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: 5.1.2 20) 5.1.2 - EPA is proposing a longer duration betw een stormwater inspections during dry periods (14 c alendar days), after a precipitation event of 0.25" or more, and within 24

‐ hours of a snowmelt. The inspection frequency of wi thin 0.25" or within 24

‐ hours of a snow melt is excessive. With regards to snow melt, the proposed rule will require daily ins pections whenever temperatures exceed 32° and you will still not be able to see the melting s now under the large snow banks and drifts that buil d up during winter. Reducing the trigger point to 0.25" of precipitation will more t han double the frequency of inspections from rain e vents. The proposed rule does not provide information to support the logic for the ch anges in inspection frequency (what benefit will in creased inspections provide toUnformatted 2012 CGP Comment Response Essays February 16, 2012

752 waters of the US?). It is preferred that the inspec tion frequency be kept at existing levels of once p er 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 Frequenc y 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 frequen cies and the new requirements are proposing inspections are to be performed every 14 days and within 24 hours any storm event greater th an 0.25 inches. The cha nge from 0.5" to 0.25" is not a major issue in my mind. But where the EPA states that having a choice between t he 2 inspection frequencies from the 2008 CGP is both confusing and challenging to e nforce is incorrect in my mind. Having a choice pro vides us more flexibility that provides us an option for what would best serve a s ite during different stages of constructio n. Being able to choose the 7 day option with no requirements for post

‐ storm event inspection is preferred in most cases s ince it is easier for inspectors to schedule their time and plan accordingly. Here in Colorado, the weather forecast s are often unreliable and storms can come out of n owhere. So under the new requirements inspectors would not be able to plan t heir schedule and be forced to break prior commitme nts after a storm event. They would virtually have to be on "stand by" during rai ny periods of the year.

Response Refer to Response 5.1.



# 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 eros ion) in many locations, depending on the characteri stics of the site and t he antecedent moisture conditions. Also, there are many days with snowmelt with relatively no potential for erosion (such as when snow melt s off theUnformatted 2012 CGP Comment Response Essays February 16, 2012

753 snow pack, but there are still several feet of snow remaining). As an alternative example, the State o f Col orado triggers inspection when there is a potential for erosion due to a precipita tion event (including snowmelt). We recommend using this type of language 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 you r site on multiple days, you are required to conduc t 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 occurring?

Response Refer to Response 5.1.



# Comment ID 0038-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 per mittee'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 rai nfall data from nearby offsite rain gauges (or simi lar 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 th e permittee's site, and make it simple for permitte es nationwide to obtain such estimates

at no cost where available.

Response Refer to Response 5.1.



# 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 woul d be more appropriate to trigger inspections.

Response Refer to Response 5.1.



# Comment ID 0047-A2.001.023Unformatted 2012 CGP Comment Response Essays February 16, 2012

754 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 rout ine 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 pre cipitation event (including snowmelt). 0.25 inches of precipitation will n ot likely result in runoff depending 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 inspect ions" section

•This section is very confusing. Please state more succinctly. The requirement seems to suggest an ins pection is required wit hin 24 hours of a rain event of 0.25 inch or greater. Suggest re moving different inspection requirements for when a site is dischar ging as this will be observed during a normal inspection by permit requi rement.

Response Refer to Response 5.1.



# Comment ID 0066-A1.001.038

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: 5.1.2

Discussion: As stated in another one of our comment s, the rainfall amount requiring an inspection shou ld 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 i nspections (storm event or snowmelt) should be leng thened from 24 hours to 48Unformatted 2012 CGP Comment Response Essays February 16, 2012

755 hours to afford the inspection team a broader windo w to complete the required inspection as was descri bed 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 inspecti ons are only required during the project's normal w orking hours and the inspection frequency can be reduced to once per mon th 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 greater 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.



# 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 wa y to ensure all practices are properly maintained a nd functioning. Even when no significant rain events occur, sediment control pra ctices can fail due to destruction by construction activities, poor instal lation, accidents, vandalism and acts of God. Visual inspections are n ot time consuming, require limited personnel and wi ll prevent operators from incurring violations for turbidity limit exceedance s. Inclusion of this requirement will promote clean er sites and cleaner water.

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 b y operators should be performed more frequently the n every 14 calendar day s. EvenUnformatted 2012 CGP Comment Response Essays February 16, 2012

756 when no significant rain events occur, sediment con trol practices can fail d ue to destruction by construction activities, poor installation, accidents, vandalism, acts of god, and settling of soils. Visual inspections are not time consuming, r equire limited personnel and will prevent operators from incurring violations for tur bidity limit exceedances.

Response Refer to Response 5.1.



# Comment ID 0086-A1.001.021

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. 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 pro posed COP contains provisions for daily, weekly, an d biweekly site inspections.

Section 4.2.2.3 and 5.1.3.

Response Refer to Response 5.1.



# Comment ID 0090-A1.001.037

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 5.1.2 Under Part 5.1.2., EPA proposes post-rainfall monit oring requirements that are both draconian for pipe line utility project cost management and redundant with pre-existing best pra ctices for stormwater erosion management. EPA calls for visual assessments during any discharge-generating rain event, followe d by a full inspection within 24 hours of a 0.25 in ch precipitatio n event. On one hand, the 24-hour requirement is impractical because on d ays of expected rainfall events, site operations wo uld 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 cal endar days. This would encourage a best management practice to complete th e inspections on the first working day every two we eks. If there is a holiday on Monday the inspection could be completed on Tuesday and still comply with the recommended frequency.

Response Refer to Response 5.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

757 

# Comment ID 0115-A2.001.024

Author Name: Smith Timothy Organization: National Grid Issue Category: 5.1.2 5.1.2. Frequency of Inspect ions. The requirement to conduct a site inspection every 14 calendar days and within 24 hours of the e nd of a storm event of 0.25 inches or greater is a signific ant increase over the 14 calendar day/0.5 inch stor m event optional inspec tion approach in the current general permit. The existing CGP als o provides the option to conduct site inspections a t least once every 7 calendar days and this frequency has been adequate for all of our recent construction projects. Due to the typical s easonal frequency of 0.2 5 inch storm events during spring and fall seasons in New Englan d, a significant increase in inspections would now be required.

National Grid currently requires contractors and co nsultants to conduct inspections as required by the General Permit and as s pecified in the SWPPP for each project. We believe that the cur rent inspection schedule is adequate, as it has pro ven to provide necessar y guidance to our contractors and allowed for timely response to maintenance needs and corrective actions. The in crease in inspections will result in

increased costs with minimal benefit. National Grid 's internal environmental guidance documents ensure that projects are moni tored and maintained as necessitated by unique site condition s (e.g., slope gradient and exposure, soil type and erodibility, presence of down-gradient wetland and water resources, proximit y to TMDL water bodies, etc.).

The requirement to conduct inspections within 24 ho urs of the beginning of snow melt is difficult in r emote utility corridors on those portions of the ROW where active construction activ ities are not on-going.

Utility line construction activities rarely result in a discrete discharge because they are man aged in accordance with the most appropriate BMPs and, due to the phased nature of activities, w ork does not occur in one location for a significan t period of time. However, EPA typically recommends that even if there are no disc rete discharges, a Notice of Intent (NOI) should be filed and a SWPPP should be prepared in the event that a discharge develops dur ing construction. Therefore, National Grid routinel y files an NOI and prepares a SWPPP for all projects altering over 1 acre and req uires consultants to conduct the inspections and re porting (within 24 hours of inspection) even if there are no discharges to wetl ands or waterways.

The increase in construction monitoring and reporti ng is significant and w ill result in significant cost increases to Nationa l Grid projects. Therefore, in submitting comments to this new requi rement, we request additional information regarding the science or reasoni ng 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 inspectio ns 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 consi der applying the 0.25 i nch stonn event only to those construction sites that are par ticularly prone to erosion (i.e. those with steep s lopes and highly erodible soils).Unformatted 2012 CGP Comment Response Essays February 16, 2012

758 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, w hich does not account for regional variation, an in spection should occur within 24 hours following a storm event that causes runoff.

Response Refer to Response 5.1.



# 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 on ce every 14 calendar days and within 24 hours of th e end of a storm event of 0.25 inches or greater and within 24 hours of a discharg e generated by snowmelt. If the storm event of 0.25 inches or greater, or snowmelt, causes your site to discharge, within 24 hours of t he end of the storm event or the beginning of the s nowmelt discharge, you must conduct a site inspection when the discharge is occurring a nd comply with the requirements of Part 5.1.4.3. If the storm event does not cause your site to discharge or if the site did not discharge within 24 hours of the end of the storm event you m ust 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 day s, you are required to conduct an inspection within 24 hours of the end of the storm. EPA notes that inspections are only required durin g the project's normal working

hours.

Concern

Compliance with the post storm event requirement is difficult when a construction project outsources t he stormwater compliance inspections to an outside consultant that are requi red to visit every site within 24 hours of a discha rge. The small size of the storm event, variable storm activity across a metropo litan area, and variable snowmelt conditions, creat e difficulties in compliance. Inspections on a

consistence basis that are more often would allevia te the issues stated.

Suggested Correction

Revise the inspection schedule to also allow the op tion of inspections once every 7 calendar days at a minimum with no additional requirements for storm events.Unformatted 2012 CGP Comment Response Essays February 16, 2012

759 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 hou rs). Part 3.3.1 r equires sample collection within 1 hour of the beginning of a disc harge 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 en force, especially in a state the size of Idaho. We s trongly recommend the removal of this requirement.

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 unstaf fed and/or inactive.

Consider a scenario of a remote project that is sta bilized for the winter and snow covered. It has bee n reduced to monthly in spections. In February, a slight warming period results in temper atures rising to 35-38 degrees. There may or may no t be sno wmelt discharge from the project depending on elevation, aspect, slope, wate r content of snowpack, etc. Consider also a scenari o where there is consta nt snowmelt discharge for an extended time.

25. DEFINITION OF STORM EVENT. Part 5. The 0.25 inc h rain event as an inspection trigger will signific antly increase inspection requirements for rain events. Since these smaller e vents are significantly more frequent but also less likely to produce discharges, we question the benefit of this increased compliance b urden. We would like to see the threshold remain th e same as the current permit.

Given the remote project locations in Idaho, the re quirement will significantly increase inspections o n sites without a discharge. If the requirement remains, EPA needs to better define or clarify the concept of a "storm event" inspection i n 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 of 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 a nd requires simplification and clarification.

Additionally, EPA needs to more clear ly define what they define as "a storm event of 0.2 5 inches". Is it continuous rain until 0.25 inches or more has fallen to the ground? Is it scattered s howers over a calendar day period that results in a n accumulation up to 0. 25 inches or more? Is it the total precipitation that falls from the minute the first drop of moisture hits the gro und for the next 23 hours 59 minutes? I s it one storm system over a 3 day period that is pre dominantly light and scattered showers, but ultimat ely results in enough scattered showers on and off for 3 days that 0.25 inches of p recipitation ultimately accumulates? What about pre cipitation that comes down as snow, or a rain/snow mix? In the rocky mountain wes t, in both spring and fall storms often start as ra in but end as snow. How does a

snow storm translate into a 0.25 inch storm event? Does EPA want operators to calculate the precipitat ion amount in a snow ev ent based

on the snow ‟ s moisture content? Considering the implications of a "storm event" on an operator, i.e. inspecting, s ampling, reporting, etc., this needs to be extensively clarified and be tter defined in the final permit. When operators ar e subject to penalties for non-compliance, the ambiguous language is concernin g.Unformatted 2012 CGP Comment Response Essays February 16, 2012

760 These are all questions we currently receive from d istrict staff and would be unable to answer based o n the permit language provided.

26. MULTIPLE DAY DISCHARGE. Part 5.1.2 states "if t here is a discharge from your site on multiple days , you are required to conduct an inspection within 24 hours o f the end of the storm." This issue is ambiguous an d requires clarification in the final permit. In particular, it is critical this requirement is waiv ed for stabilized projects. Ambiguities include the following:

a) There is no definition for the end of the storm, making this difficult for compliance and enforceme nt. How does an inspector know when the storm event begins or ends, and/or when th e discharge from the project begins or ends?

b) Without daily inspection, how does an inspector know if the project had a multiple day storm event and therefore a multiple day discharge event?

c) What if the storm event ends but a discharge fro m your project continues for more than 24 hours aft er it ends?

d) How does thi s statement relate to the requirement to inspect wi thin the 24 hours of the end of a storm event of 0. 25 inches or greater, or within 24 hours of a discharge generated by snow melt?

e) In mountain areas projects have significant snow accumulation that takes weeks or months to melt of f. The permit states that this requirement applies within 24 hours of the end of t he storm, but does not mention snowmelt generating a multiple day discharge.

Wouldn ‟ t it be just as likely, if not more likely, that a multiple day discharge would result from a snow mel t event as a storm 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 propos ed inspection frequencies are practicable, especial ly in instances where active construction is complete. inspections within 24 hou rs of a discharge generated by snowmelt would be ov erly burdensome in Montana. Daily inspections would be required for months at a time in order to ensure compliance with this condi tion. 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 p er week for sites that do not drain to impaired wat erways, and twice per w eek, forUnformatted 2012 CGP Comment Response Essays February 16, 2012

761 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/oper ator about what repairs have been done, and what ar e still required.

We have a local municipal requirement to conduct in spections after 0.25" of rain. Our experience is th at a quarter inch of rain h as little or no impact on site conditions. This should revert to the 0.5" requirement if rain inspections are requi red.

Response Refer to Response 5.1.



# 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 i nspection program is to conduct weekly, scheduled preventative inspections of every site, with discharge quality observations of every outfall. Sites that drain to impaired waterways sho uld be inspected twice per week, with 48 to 72 minimum hours between inspections. Th e inspector should be requ ired to sign a certification on each report stating that the results of the inspection report is being submitted within 24 hours to a permittee with authority to d irect operations including ordering repairs and making corrections, at the site. Repair s 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 p er months in these areas. This is not recommended. Reducing an i nspection frequency to once per month due to the cl imate does not take int o effect many other pollution sources that commonly occur on a construction (concrete washouts, POL's, etc.). A lot can happen in a month on a typically construction site and I as an inspector w ould 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: 5.1.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

762 The agency applauds the reduced inspection frequenc y, with the exception of our two rainy months. Cons ider reducing inspections to

one month and within 24 hours of a storm event 0.25 inches or greater.



# Comment ID 0037-A1.001.044

Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 5.1.3

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 inspec tion every 14 calendar days? Are inspections still required within 24 hours of the end of a storm event of 0.25 inches or greater for cons truction 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 inspections to once per month if your site is located in an arid area (i.e., areas with a n average annual rainfall of less than 10 inches) o r semi-arid area (i.e., areas with an average annual rainfall of 10 to 20 inches)."

This clause allows a permittee to also reduced freq uency of the inspection language established in Pag e 43; Part 4.2.2.3 Site Inspection Requirements? See comment number 26 above.

Consider adding a clause clarifying conditions of e ach 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 t o once per month in are as of your site where you have initiated vegetative stabilizat ion to meet the criteria in Part 2.2.2.1, once you have completed the initial seeding or planting, and provided protection with nonvegetativ e cover pursuant to 2.2.2.1.c.iii, or . . .." This change in language woul d make clear that it is the placement of stabilization measures in accordance with Part 2.2.2.1.c.iii -- and not th e achievement of full 70% cover -- that is the triggering event for a reduction in inspecti on frequency. We believe that this change merely cl arifies the Agency's or iginal intent

for Part 5.1.3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

763 Response Refer to Response 5.1.



# 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 inspec tion frequency would st ill require post storm inspections. CDOT thinks they should still be required in arid/semi-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, In c. Issue Category: 5.1.3 Section 5.1.3 .2, which allows for reduction in fre quency 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 sea son after construction is completed in arid areas with average annual precipi tation of less than 10 inches". The average annual precipitation in many major metropolitan areas of Arizona, interior Southern Ca lifornia, Nevada and New Mexico is less than 5.0 in ches. Most of this prec ipitation occurs within a 3-month rainy season. The average monthly precipitation during th e 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 seas on.

Response Refer to Response 5.1.



# Comment ID 0090-A1.001.040

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: 5.1.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

764 Monthly inspection of six years of projects would b e a burdensome task during times when there is litt le or no potential for erosion. AGA urges EPA to consider a less burdensome standard fo r linear projects, given that event-based local per mit inspections are already imposed. For example, Alabama already requires a mo nthly inspection, and for linear projects, an inspe ction commencing within 24 hours after resuming construction and completed wit hin 72 hours, after a .75 inch rainfall occurring i n a 24 hours period. The state's higher precipitation threshold at .75 inches accoun ts for the fact that a .25 inch rainfall is a frequ ent occurrence in Alabama. By contrast, EPA's bright line trigger after a .25 inch event wo uld present a substantially higher burden on some p rojects and not others.

Response Refer to Response 5.1.



# Comment ID 0127-A2.001.011

Author 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 av erage annual rainfall of less than 10 inches) or semi

‐ arid area (i.e., areas with an average annual rainf all 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 f requency of inspections for a project with a steep slope and discharging to an im paired water in an arid location?

Suggested Correction

Revise to clarify when inspection frequency is redu ced 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 incl uded to allow for a reduction in inspection frequen cy during winter months when the ground is frozen and a discharge is unlikely to occur. Consider using temperature thresholds for w inter months.

Response Refer to Response 5.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

765 

# 5.1.4 REQUIREMENTS FOR INSPECTIONS [REQUEST FOR COM MENT]

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 pro jects can generally keep the same inspection standa rds.

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 constru ction often do not meet the definition of land dist urbance. 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 t he 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 e xcluded 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, In c. Issue Category: 5.1.4.1 Areas that are cleared for overhead utility constru ction often do not meet the defi nition of land dis turbance. Clearing a right-of-way easement for overhead utility construction involves cutting the trees and woody sh rubs at their base, leaving and treating t he stumps in place, and windrowing the material at the edge of t he 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 cl eared and grubbed, graded, or excavated need to be inspected.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

766 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 constru ction often do not meet the definition of land dist urbance. 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 t he right-of-way easement or mulching the material. This type of clearing does not disturb the root zone of the right-of-way easement

Response Refer to Response 5.1.



# 5.1.4.2 INSPECTION REQUIREMENTS WHEN NO DISCHARGE I S 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 conten tion.

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 pollutant s prior to discharge" is too narrow. Change this ph rase to "working as int ended to minimize pollutant discharge," so that the phrase i ncludes control measures, such as site stabilization and avoiding sensitive a reas, that minimize pollutant discharge at least in part by mi nimizing pollutant exposure to stormwater rather th an by "removing" pollut ants. See the broad Appendix A definitions of "Stormwater Con trols" and "Control Measure," which are not limited to methods that "remove" pollutants.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

767 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 occurr ed in any portion of the site, at points of dischar ge, 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 pa ragraph 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 l ocations on the site ... if left there, would likely be discharged ... [and] ... initiate corrective action." AGC is concerned that the phras e "sufficient quantities" is too subjective and wil l 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 Fund Issue Category: 5.1.4.3 With respect to the requirement to inspect during d ischarge conditions (Part 5.1.4.3), it may be very challenging to observe and document the visual quality of the discharge at eve ry discharge point depending on the length of the l inear project, the number of discharge points, and the number of access points. This will be very challenging in the southwest duri ng the monsoon season where thunderstorms can be high intensity but of short du ration. It may be difficult to reach all the discha rge points prior to the end of the discharge for some projects. EPA should consider a waiver for linear projects where it is infeasible o r at least allow a single representative sample location for more than one di scharge point similar to the turbidity sampling loc ation requirement for linearUnformatted 2012 CGP Comment Response Essays February 16, 2012

768 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 fr om each outfall must be observed and the visual qua lity documented. It is reques ted that EPA clarify if the discharge of each outfall must b e observed or if representative outfall(s) can be o bserved.

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 turbi dity limit, the operator may need more than one per son to conduct the inspection required during discharging conditions, perform vis ual assessments of the quality of the discharges, a nd collect turbidity samples depending on the number of outfalls and the duratio n of the rain/runoff event. Did the EPA t ake into consideration the costs associated with the increase in inspection and sampling requir ements 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 req uirements during discharge conditions" section

•Suggest combining this into Section 5.1.4.2 rather than having separate inspection requirements for d ischarging events.

Response Refer to Response 5.1.



# Comment ID 0071-A3.001.011

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT)Unformatted 2012 CGP Comment Response Essays February 16, 2012

769 Issue Category: 5.1.4.3 •Part 5.1.4.3 Inspection Requirements during discha rge 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 requirement s during a discharge event, and states that ~yo u a re required, in additio n to Part 5.1.4.1 above to :". However, Part 5.1.4.1 describes areas that need to be inspected and has no content that links it to disch arge conditions. This requires correction and clarification

Response

EPA clarifies that the reference should have referr ed 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 SW PPP and on the inspection report. However, there is no need to describe discharge qua lity if outfall sampling is required after every ra in event.

Response Refer to Response 5.1.



# 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 proj ects to be inspected on representative sections rat her than the entire project. Section 5.1.4.3. If promulgated as written, the entire leng th 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 m ore acres within an impaired watershed, it will take more than one day to comple te a visual inspection of the area. Rather than the seven day and 24-hour triggering events, a better trigger might be precipitation eve nts where the National Weath er Service has a probability of precipitation of gr eater than 50%. Also, we recommend keeping an allowance for sp ot checking representative locations within 24 hour s of a storm event for all linear projects.

Areas that are cleared for overhead utility constru ction often do not meet the definition of land dist urbance. Clearing a right-of-wayUnformatted 2012 CGP Comment Response Essays February 16, 2012

770 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 t he 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 e xcluded from the inspected areas by refining the wording in Section 5.1.4.1.a to state that all area s that have been cleared and grubbed, graded, or ex cavated 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 postpone d following the permanent cessation of

construction activities until climactic conditions are favorable. Therefore, EPA's assumption that lin ear construction projects are completed in phases, and therefore regular inspecti ons of the area of disturbance is both feasible and reasonable, is not appropriate for linear projects in the southw est that have limited access. However, the rational e supporting the allowance for representative inspe ctions for linear projects by the 2008 CGP was faulty. Dep ending on the linear project and the change in topo graphy along its length , the results of the inspection of controls along the linear proj ect for 0.25 mile above and below each access point were not necessarily represent ative

of the condition of controls at other locations. An operator should be aware of locations along their linear project which are or will be more susceptible to erosion and/or sedimentation is sues. It would be more reasonable for EPA to requir e inspection of those locations that have or are likely to have erosion and/or sedi mentation issues.

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 proj ects to be inspected on representative sections rat her than the entire project. Section 5.1.4.3. If promulgated as written, the entire leng th of a linear project must be inspected.

Response Refer to Response 5.1.



# Comment ID 0061-A1.001.004

Author Name: Bond GrifUnformatted 2012 CGP Comment Response Essays February 16, 2012

771 Organization: Environmental, Health & Safety Communications Panel (EHSCP) Issue Category: 5.1.4.3Q Draft Permit Part 5.1.4 specifies the areas general ly required to be inspected on sites. Because there is no disturbance in advanc e of the location of the trenching operation in LCPs and bec ause stormwater controls are not installed signific antly ahead of that operation, we wish to confirm as correct our understanding that t he Draft Permit would not require inspections of ar eas not yet affected by the trenching operation.

We also wish to confirm as correct our understandin g that areas to the rear of active trenching also n eed not be subjected to inspection provided that they have met the stabilization compl etion 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 monitoring or inspection will inevitably disrupt the very stabili zation efforts that the ELG and the permit seek to foster.

We ask that the Agency confirm, then, that inspecti ons of LCPs are to be conducted only in the area wh ere trenching activities are underway and in any area to the rear of that where the stabilization activit ies enumerated in Draft Permit Part 2.2.1.2 have no t 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 Commen t" section

•Adding language that inspections will be conducted on the entire site "where feasible" could help all eviate the sometimes ch allenging nature of inspecting the entire site of a long, lin ear 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 disa grees with the change for linear projects because E PAs assumption that construction projects are phased is not entirely co rrect. Transportation projects are phased when prac ticable, but linear projects face several unique challenges that interfere with the a bility to phase a project. These include complex tr affic and safety issues, restrictive boundaries and ROW issues, geographical constraints , etc.

Response Refer to Response 5.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

772 

# 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 shou ld 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 line ar transportation projects and all other constructi on projects requiring coverage on the CGP should occur at the same frequency.

Response Refer to Response 5.1.



# Comment ID 0086-A1.001.022

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 5.1.4.3Q There is also language in the CGP that removes flex ibili ty for inspecting linear projects at represen tative sections and requires in spection of the entire project. Section 5.104.3. Tr i-State believes that it is inappropriate for the e ntire length of a linear project to be regularly inspected. The 24-hour inspection require ment may not be feasible along a long linear projec t. 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 corridor. W hile 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 constru ction. In overhead cons truction, work is phased so that all 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 acce ss to the properties occur. ThisUnformatted 2012 CGP Comment Response Essays February 16, 2012

773 means that overhead utility construction necessaril y has small discreet disturbance areas separated by long undisturbed are as strung out over the length of the project (30 to 100 miles are typical lengths). It could take days to complete a n inspection of all disturbed areas along the length of the project. While it may be po ssible (though not practical) to complete an inspec tion at 14 day intervals, it is unreasonable to think that an inspection of all dis turbed 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: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: 5.1.4.3Q Section 6.3.2 (deadlines for corrective action) – S ome corrective actions will take longer to implemen t (e.g., design, purchase, install) than the prescriptive deadlines assigned by EPA. UW AG urges EPA to allow relief from these deadlines w here necessary to properly implement the corrective actions. Otherwise, the bu rden of the deadlines may inspire “band aid” fixes as opposed to more holistic ones.

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 exampl e, for a line project with 10 or more acres within an impaired watershed, 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 inspect ions 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 Par t 4.G of the 2008 CGP. After revisiting this requirement, EPA is of the opinion that site inspections at linear sites should be per formed at the same frequency and should include the same requirements as any other c onstruction site.Unformatted 2012 CGP Comment Response Essays February 16, 2012

774 AGC recommends that EPA continue to allow represent ative inspections for linear projects. EPA is incor rect in its assumption that linear project phasing reduces the amount of dist urbed area. Clearing and grubbing of corridors is t ypically conducted in a manner to minimize the number of mobilizations of a clearing contracto r. Most commonly, clearing is conducted for the ent ire project corridor with one mobilization with mass grading to balance cut and f ill project- wide shortly thereafter. Phasing typically occurs l ater in the project in the areas of constructing drainage, structures, etc. Wh ile it is true, large linear projects are segmented and managed as blocks of work during construction; it is most common for work within seg ments to be performed concurrently. Representative inspection/sampling is justi fied for linear projects due to the length of these proj ects and the higher number of discharge points alon g 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: 5.1.4.3Q Section 5.1.4.3 describes USEPA's understanding tha t most linear construction projects are completed i n phases and therefore regular inspections of the area of the disturbance is both feasible and reasonable. It should be made clear th at many linear construc tion projects are NOT completed 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 EP A's Request for Comment relative to representative inspections for linear construction projects, we have the following respon se: National Grid agrees that inspections should be conducted along active or disturbed portions of the ROW, not only at represen tative areas easily accessible from intersecting ro ads. At present National Grid mandates that compliance inspections be conducted f or all active and unstable portions of their projec ts.

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 a llowedfor 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.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

775 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 v ariability of soils, their distribution, topographi cal differences, differences in construction/development activities at specific loc ations, and differences in choice and maintenance o f stormwater control efforts are probably too large to appropriately assume represen tative monitoring will provide a reasonable estimat e of the impacts of stormwater discharges. Moreover, in our state, the regular lac k of successful stormwater controls on most linear projects suggests that representative monitoring should not be continued.

Project phasing is very important in managing storm water runoff. With increased adoption of project ph asing, representative m onitoring and inspections may become less important in facili tating 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 ev ent or flow requirement.

2. Recommend inspections once every 7 calendar days and remove the rainfall requirement or the flow re quirement. This way you c an ensure that the site is being inspected every 7 day s, no matter what and it allows the inspector to se t 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 mainta in records electronically on a central off- site network. There may be periods when the records may not be immedi ately available due to various connectivity issues. Is this storage method acceptable or is onsite sto rage of the records required. Recommend that records over 6 mon ths old could be stored electronically off-site if the records could be accessedUnformatted 2012 CGP Comment Response Essays February 16, 2012

776 within 24 hours of an EPA request.

Response Refer to Response 5.1.



# 5.2 INSPECTION REQUIREMENTS FOR SITES DISCHARGING T O 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 onc e every 7 days where an LCP discharges to impaired waters. Draft Permit at Part s 5.2 and 4.2.2.3. As described above, discharges f rom LCPs serve extremely small "basins" and thus are unlikely to be the source of significant sediment or other pollutant loadings to individual streams, wh en compared with discharge points from traditional construction projects. Moreover, the Agency has already recogni zed that the act of inspecting linear project would disturb the area and add to se diment transport to sensitive streams. [FN 8] There fore, more frequent inspection in sensitive basins would be especially counter-produc tive in the context of LCPs. Added to this is the f act that the ongoing uncertainty about what constitutes a jurisdictional water under the Clean Water Act multiplies the complexity and potential liability ass ociated with cataloguing the first point of contact with waters o f the United States at dozens of stream crossings [ FN 9] and the confusion that will be engendered by toggling between 14-day and 7-day ins pection frequencies as the project moves from strea m to stream. All of these factors militate in favor of a uniform 14-day inspe ction frequency for LCP.

[FN 8] See 74 Fed. Reg. at 63049, col. 1 and 2.

[FN 9] This risk could be alleviated by a definitiv e declaration in the permit that stream characteriz ation using the tools p rovided by EPA under this permit is dispositive of stream's jurisd ictional status. We suspect, however, that the Agen cy would rightfully not be comfortable making such categorical statements abou t what are and what are not jurisdictional waters i n 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

777 

# 5.3 INSPECTIONS BY EPA OR APPLICABLE LOCAL GOVERNME NT 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 local agency, to enter onto your premises, at reasonable times, wher e a regulated construction activity is being conduc ted (or has been temporarily ceased), or where records are kept under the condit ions of this permit; ... "

This effectively grants permission to any number of persons/entities to enter where records are kept. Should records be kept at a private/public office, record review may not be wel comed and/or legally granted.

What constitutes a representative of a "local agenc y"? 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 l ocal agency representatives do not have to be authorized. Consider changing the titles to "with stormwater management responsibilities in the jurisdiction of yo ur 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 o ther unnamed members of 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.



# Comment ID 0115-A2.001.027

Author Name: Smith Timothy Organization: National GridUnformatted 2012 CGP Comment Response Essays February 16, 2012

778 Issue Category: 5.3 National Grid has no comment on any of the language included in this part, however, there must be an u nderstanding that an in spector must contact the appropriate person named in the NO I 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 a ll use the phrase "at reasonable times". We recomme nd the ambiguous language be revised to conform to other related lan guage used in the permit such as "during normal bus iness hours", "during projects normal working hours" or "during the hours of opera tion specified in your SWPPP".

Response Refer to Response 5.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

779 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 6, 6.1, 6.2, 6.2.1, 6.2.2, 6.3, 6.3 .1, 6.3.1Q, 6.3.2, 6.3.2Q, 6.4, 6.5, 6.6, 6.6QUnformatted 2012 CGP Comment Response Essays February 16, 2012

780 

# 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 unneces sary implementation, recordkeeping, and reporting r equirements. However, the 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 correct ive action requirements within the sections on resp onding to spills, performing maintenance, and other similar activities. The corr ective action portion of the Proposed CGP create s unnecessary additional regulatory burdens on permittees to describe and report certai n conditions as triggering corrective actions, when the response to such c onditions 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, In c. Issue Category: 6 In 2000, the Utility Water Act Group (UWAG) appeale d provisions in EPA's MSGP that subjected permittee s to the threat of permit revocation and enforcement action (without any oppo rtunity for cure) based on a determination that the permittee was causing or contributing to an excursion of a water quality sta ndard, even i(the permittee was in compliance with the permit terms and conditions. This appeal was resolved th rough a March 2005 Sett lement Agreement between the Federal Water Quality Coalition, UWAG, an d 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-wi se and iterative approach to revising/enhanci ng th eir Best Management Practices (BMPs) to meet water quality expectations.

The new draft CGP resurrects the issues that were r esolved by the 2008 MSGP, violating the spirit of t he settlement agreement . Section 6.2.2.3 of the CGP requires a permittee to undertak e corrective acti ons upon discovery that the "storm water controls y ou have installed and are maintaining are not effective enough for th e discharge to meet applicable water quality standa rds .... " Section 6.5, then follows that "[fthe condition identified in this Part const itutes a permit violation (e.g., a[nJ ... exceedanc e of an applicable water quality standard), correcting it does not remove the origin al violation" (emphasis added). These proposed CGP provisions create an im mediate enforcement situation for permittees when water qua lity standards are exceeded, even if the permittee is in compliance with the CGP. EPA should follow the process established in the 20 08 MSGP that was agreed to in the 2005 settlement a greement for implementing water quality stand ards to avoid recreating issues that were previously resolved.Unformatted 2012 CGP Comment Response Essays February 16, 2012

781 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 correct ed. If a condition is identified that is considered to constitute a permit violation (an exceedance 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 en forcement for excursions of WQS, without opportunit y for cure, even if they are 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 effectiv e. We support the inclusion of bright- line requirements describing what site operators must do, as well as inspections, monitoring and ver ification by site operators to ensure they carry ou t their stormwater plan s, and that the plans work.

Response Refer to Response 6.1. See also section X of the 20 12 CGP Fact Sheet for a discussion on permit requir ements related to corrective

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 par t was ambiguous, conflicting, redundant and confusi ng. 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 de leted to pre vent 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 req uired, you have 7 days to complete the required correction. If the correction requires modification of the SWPPP, you are require d to modify or update your SWPPP withinUnformatted 2012 CGP Comment Response Essays February 16, 2012

782 7 days of completing the action. Inspection reports and the SWPPP provide adequate record of the corre ctive action. Further record is

unnecessary.

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 ons ite, but also off site if the materials were discha rged 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. Fir st, the proposed defini tion does not

match the site conditions delineated in Part 6.2 as triggering corrective action and, therefore,it cre ates confusion regarding what the language in Part 6.1 actually means in the context of the Proposed CGP, including in the context of th e applicable deadlines and recordkeeping requirements in proposed Parts 6.3 an d 6.4. Second, any actions take to repair, modify, or replace any stormwater con trol

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 r eal relation to potential stormwater discharges dep ending on the location of the spill, release or other deposit at the site. Some portions of construction sites are found in areas that simp ly have no potential to discharge to

U.S. waters.

Response Refer to Response 6.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

783 

# 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 tr iggering condition for Condition B, i.e., Part 6.2. 2.3. is not clear as described 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 swe pt up, perimeter controls knocked down, piles of gr aded or discarded soil left unstabilized or uncontained") in Part 6.3.2 Deadlin e for Correcting Condition. For example, what is th e difference between th e specific condition of sediment or other pollutants that have been tracked out onto roadwa ys or parking lots(see Part 6.2.1.4) which is liste d under Condition A and the easily fixed problem of accumul ated sediment on roads not swept up listed as a Con dition B (see Part 6.3. 2.2)? Or, what is the difference between the specific conditi on regardin g a stormwater control that has not been maintained in effective operating condition listed under Condition A (see Part 6.2.1. 3) and the easily fixed problem of perimeter contro ls knocked down listed under Condition B (see Part 6.3.2.2)? Since the operator is required to specify in the Corrective Action Rec ord what condition, A or B, was triggered, it would be helpful if EPA provided addi tional clarification as to how to differentiate bet ween 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 correct ive action to instances in which "unauthorized disc harge" to U.S. waters has 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 c orrective action should be removed from Part 6.

Response Refer to Response 6.1.



# Comment ID 0068-A1.001.034Unformatted 2012 CGP Comment Response Essays February 16, 2012

784 Author Name: Longsworth Jeffrey 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 speci fic condition actually triggers corrective action r equirements under the 2 008 MSGP

and this has created substantial conf usion. For instance, Part 3.1 of the 2008 MSGP (sim ilar to Part 6.2.1.3 of the Proposed CGP), which requires a permittee to conduct corrective action i n the event that control measures are found to not be properly operated and/or maintained, has been entir ely unworkable. Precisely when such a requirement w ould be "triggered" is unclear and virtually imposs ible to implement. For instance, if one control measure is determined during a routine inspection to need main tenance (yet still be w orking in a diminished, but perhaps still fully protective mann er), would such a finding trigger corrective action (including all the associated reporting obligations) or would the permittee simpl y need to perform the necessary maintenance? EPA mu st more clearly distinguish th e difference between routine maintenance and a more s ignificant 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 mai ntenance or repair, suc h a condition would trigger corrective action. However, Part 2.1 .3.3(a) already provides that the permittee must en sure that all stormwater controls remain in effective operating condition. Consequen tly, these parts are redundant of existing requirem ents to maintain stormwater

controls and should be removed. Otherwise, the permit creates redundant and burdens ome requirements, including increased reporting, recordkeeping, and other burdens, exposing permitte es 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 trigger corrective acti on for certain "track-out" conditions or sediment a ccumulations. Such conditions are already addressed in great detail in Proposed Part 2 of the permit.Unformatted 2012 CGP Comment Response Essays February 16, 2012

785 Response Refer to Response 6.1.



# 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 acti on if stormwater discharges appear excessively mudd y or cloudy. It is unclear h ow this subjective standard can be used to trigger cor rective action. In addition, the appearance of a s tormwater discharge varies according to soil types and, even what appears to be cloudy s tormwater may not have any negative impact on recei ving 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 tha t contains chitosan, residual testing detects chito san in your discharge; or"

AND REPLACE WITH: 116.2.1.6 If you are using a chem ical treatment that acts as a flocculant, residual testing for the pres ence of that

flocculant at level lOx below the NOEC for that flo cculant, or"

Response Refer to Response 6.9 on chitosan. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussio n 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 tr ack out as a permit violation should be removed fro m part 6.5 of the Propo sed CGP. Currently part 6.5 includes "evidence of tracked ou t sediment" as an ex ample of a permit violation. As stated above, LBA d oes not agree that evidence of track out should be a permit viola tion as long as it is minimized in accordance with the requirements in the Proposed CGP. The following parts of the Proposed CGP alread y inc lude adequate measures for managing sediment track out from a construction

site:Unformatted 2012 CGP Comment Response Essays February 16, 2012

786 1. Part 2.1.3.7 (a) as amended above already requir es that sediment from construction entrances/exits be minimized.

2. Part 2.1.3.4 of the Proposed CGP titled "Good ho usek eeping requirements," includes a requirement to swe ep shovel or vacuum track out by the end of the same work day it is discovere d 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 proc edures for the clean up of sediment including sweep ing or removal of sediment tracked or deposited onto streets and other paved s urfaces.

Response Refer to Response 6.1. See Part 2.1.2.3 for the per mit requirements on minimizing sediment track-out a nd section VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of t he 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 r equired to complete the corrective active actions a nd measures in some cas es will require more ti me to complete than the actual corrective action. A lso, excessive documentation requirements introduce the opportunity for accidental errors that have no bearing on the q uality of storm water discharges.

Suggestion: Streamline the documentation requiremen ts 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 occurring. However, as noted above in the comments on Part 2.3, the lis t of prohibited discharges is not consistent with t he C&D ELG proposal and should be further limited by removing any reference to the ov erly broad limitation in Part 2.3.1.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

787 Response

See section VII.3.1 in the 2012 CGP Fact Sheet for a discussion on the prohibited discharges provision s of the permit.



# 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 acti on if the numeric turbidity limit in Part 3.2 has b een exceeded. Again, this requirement should be removed be cause there is no "final" C&D ELG and the Proposed CGP should not attempt to create requirements based on a requirement that has not even been propo sed 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 co rrective actions of numeric limit exceedances shoul d not be referenced in 6.2.2. but

detailed in 3.3.8. It is difficult and burdensome f or Permittees to jump from section to section of th e permit.

Target also requests that language of immediate, 24 hour and 7 day response to corrective actions be r emoved. If sampling of snowmelt it may not be feasible to make structural change s until soil becomes unfrozen. If storm events caus e unsafe site conditions which would prohibit entry into area, corrective actions would not be feasible in the timeframes detailed.

Target believes a better approach would be to incor porate language which claims that responding to cor rective actions as soon as site conditions allow would be more appropriate. Additio nally, that if major structural changes are require d, that time be allotte d but a clear

schedule of these activities be detailed in site SW PPP.

Response Refer to Response 6.6 for the comment on numeric li mits, Response 6.8 on residual testing, and Respons e 6.10 on deadlines for completing corrective action.



# 6.3 REQUIRED CORRECTIVE ACTIONS AND APPLICABLE DEAD LINESUnformatted 2012 CGP Comment Response Essays February 16, 2012

788 

# 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?

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 deadlin es from compliance. See Section 6.3. For example, corrective actions in the summer in an arid environment could take longer than durin g the winter.

Response Refer to Response 6.10.



# Comment ID 0086-A1.001.019

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: 6.3 Corrective action requirements in the proposed COP should recognize seasonal variations in the deadlin es 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 propos ed 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)Unformatted 2012 CGP Comment Response Essays February 16, 2012

789 Issue Category: 6.3 Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlin es for compliance. See Section 6.3. For example, corrective actions in the summer in an arid environment could take longer than in th e winter. Additionally, Section 6.3.2.1 requires the discharger to "Make every effo rt to minimize the prohibited discharge" (emphasis added) which sets an im possible standard. This requirement should be revised to "...e very feasible effort...". In ad dition, as discussed further below, 7 days to compl ete a new stormwater control system is simply unrealist ic.

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 prohib ited discharges. EPA notes that the permit does not incl ude the phrase "make every effort."



# Comment ID 0130-A2.001.029

Author Name: Sullivan Sue Organization: Idaho Transportation Department (ITD) Issue Category: 6.3

This section does not make all owances for completing the correction after 7 days. Exceptions should be allowed for adverse condition s (saturated soils, inclement weather, etc) when corr ecting the deficiencies is infeasible and will crea te more damage to the p roject 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 durin g the winter

Response Refer to Response 6.10.



# 6.3.1 DEADLINES FOR CORRECTING CONDITION A [REQUEST FOR COMMENT]Unformatted 2012 CGP Comment Response Essays February 16, 2012

790 

# 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 r esidual monitoring trigger.

Response Refer to Response 6.8 on residual testing and Respo nse 6,9 and chitosan.



# Comment ID 0025-A1.001.039

Author Name: Terlizzi Wendy Organization: Arizona Department of Transportation (ADOT) 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 i n 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 maintena nce of the stormwater control or pollution preventi on 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 RichardUnformatted 2012 CGP Comment Response Essays February 16, 2012

791 Organization: City of Meridian Issue Category: 6.3.1 Section 6.3.1.1, page 49 - "Initiate work to fix th e 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 perf ormance 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 provi de clear enough guidance on a potentially burdensom e 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 Transportation Issue Category: 6.3.1 It is MoDOT's opinion that an allowance for the 7Md ay corrective action deadline should be granted if inclement weather should occur either before or during the 7Mday window, which wou ld preclude the contractor from completing the work . The contractor would then

have to assure the corrective action is initiated o nce the weather clears and the site dries sufficien tly. The reason for this allowance is because of the potential to create more erosive con ditions from rutting or other equipment damage if t he corrective actions w ere carried out during wet site conditions.

Response Refer to Response 6.10.



# Comment ID 0093-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 stormwat er controls are not designed, installed, and/or mai ntained as required by the permit, you must "[i]nitiate work to fix the problem immediatel y after discovering the problem, and complete such work by the close of th e next full work day," if "repair" or "regular maintenance of t he stormwater control or pollution preve ntion measure" would fix the problem. AGC

maintains that it often would not be feasible to co mplete the work in a single, full work day. Relevan t factors include the size of the stormwater control and its accessibility on the job site.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

792 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 q uick repair or the performance of regular maintenan ce of the stormwater control or pollution prevention measure;

Concern

Compliance will be difficult to achieve if the prop er equipment or staff are unavailable to complete t he work by the close of the next full work day, regardless if it is a quick repair.

Suggested Correction

Revise to initiate work to fix the problem immediat ely 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 va riation in circumstances, and the availability of p ersonnel, equipment, and materials during construction. When weather is consistently w et, an immediate repair can do more harm than good. Please see my comments

below.

Response Refer to Response 6.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

793 

# 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 c onstruction site near sensitive waters will be a mi stake. Better uncontaminated sediment than toxic chemicals. This type of require ment can work well in a setting such as a water tre atment plant where trained 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 a nd 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: 6.3.1Q EPA included a placeholder in Section 6.3.1.3 propo sing that notice be given to EPA within 24 hours if chitosan is detected in a discharge and requiring testing until the discharge ends. EPA requested comment on whether there is a level of chitosan residua l below which the proposed corrective action would not be n ecessary. The table for maximum allowable chitosan levels has not yet been established. When establishing this level below whi ch correction action would not be required, EPA sho uld carefully consider that chitosan is a good tool for filtering sediment and is ecologically friendly. According to the Internat ional Erosion Control Association, one case study carried out by Natural Site Solution s, LLC., in Redmond, Washington, monitored the perf ormance o f one 500 gpm CESF system operating between March 2003 and March 2004 on an 80-acre mixed residential construction projec t 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 red uced turbidity, on average, by 98.4 percent with a standard deviation of 1.29 percen t and a coefficient of variation of 0.013. The averag e 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 deviat ion of 1.04 NTU and coefficient of variation of 0.348). All of the 1050 effluent samples tested met the state discharge st andard of #10 NTU and all whole-effluent aquatic toxicity tests (rainbow trou t and Daphnia magna) passed, demonstrating that the treated effluent was non-toxic and safe to discharge.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

794 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 w ith the frequency of testing required should residu al chitosan be detected. Is it feasible to obtain accurate analytical results in t he proposed timeframes? Is there an accurate test method or procedure for 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 flocc ulants would be necessary to achieve that limit. Mo DOT believes that if residual testing is required, and if a positive test for res iduum is rendered, it is not necessary to contact t he EPA (or state regula tory 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 balan ce the system in order to save product and ultimately save on project cost. Also, a positive residual test does not implicate that to xic or harmful residual levels have

been measured since most residual test kits can det ect these flocculants 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 neces sary regardless of the condition of Chitosan residu al level.

Response Refer to Response 6.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

795 

# Comment ID 0080-A2.001.034

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3 , et al. Issue Category: 6.3.1Q Partner Response: Many states and territories throu ghout the United States do not allow the addition o f chemicals or bio-polymers to water quality ponds or detention ponds for the purp oses of treating stormwater runoff. It is unclear a s to whether the State of New Mexico will prohibit the use of chitosan for this p urpose. The Partners question the appropriateness o f including this prescriptive 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/CGP II) specifically calls out for extra caution in usi ng chitosan without add ressing other real concerns. On page 22890 ofthe April 29, 2011 F ederal Register notice, EPA states:

"22. Residual chitosan testing - Request for commen t on whether there is a level of chitosan residual below which corrective action would not be necessary. Part 6.3.1.3."

As our comments below demonstrate, this extra cauti on with chitosan only is unwarranted and misses the mark in protecting the environment from stormwater discharges from constru ction activities. Residual testing of chemicals sho uld be required equally across

all chemical treatments.

COMMENTS

1. Traditional BMPs without the use of chemistry fa il to solve the pro blem that fine particulate causes in our waterways. The EPA in the Effluent limitation Guidelines, published in 2009, addressed the economic cost of sedimentation. Addit ionally, numerous studies as summarized in Newcombe, 1994 (Reference included as an end note}i, show the toxicity of sediment on various aq uatic species. Thus by keeping the status quo of using traditional BMPs which use mechanical separation and settling 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 we ll-defined. Yet, the tests are always conducted wit h clean, lab- generated water and represent the absolute worst case scenario. In the presence of sediment most flocculant chemistries ar e going to be less toxic. Th e key is to determine proper dosing to obtain the needed res ults without overdosing. Systems need to be designe d with layers of saf ety in place toUnformatted 2012 CGP Comment Response Essays February 16, 2012

796 provide needed feedback to those operating the trea tments, and with enough scope, to deal with field c onditions that are variable. Preoperation dose determination should be standard procedure, followed by measurable outcomes that inc lude tu rbidity, pH and residual flocculant determination by testing. By having a fi eld test for residual flocculant, all parties--- en gineer, contractor, regulator or the general public--- have the tools and information ne cessary to ensure compliance and make inf ormed 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 toxic ities than quaternary amines, and are thus, in gene ral, safer to use based on a toxicity:dose ratio. Similarly, anionic polymers ha ve an eco-toxicity profile of equal concern if the dose rate is greater than the No Observed Effect Concentration (NOEC). Self-regulati on within the construction stormwater market only w orks if the personnel deploying or building BMPs have simple easy-to- use guidelines and models. 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 for the contractors to understand and comply with. In Nichols, 2011 states : " ... other studies examining a polyacrylamidecon taining thickening agent under

artificial environmental conditions reported that polyacrylamide may degrade to the acrylamide monomer." Additionally Nichols p oints out "due to the highly toxic nature of this monomer combined with its high water solubility and lack o f adsorptive properties to sediment, the concern regarding release of acrylamide into su rface water is prudent." The conclusion based on th is and other evidence is inescapable: field residual testing of all chemical types is needed to ensure safety levels for all pa rties.

4. Illustrated in the attached is an account of a s tandard matting and wattle check dam in semi-passiv e 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 bio polymer deployment. A key factor in the implementat ion was that a field residual test was completed (taking no more than ten minutes ) with results showing no residual biopolymer at a detection level more than lOx below the NOEC. This provides a powerful case in po int that residual testing is neither too expensive nor too complicated to be achievable by construction site personnel as a rout ine component of compliance.

5. Here is a proposal that is fair to all companies that seek to offer products for solving the sedime nt problem:

a. Dosing at rates lower than the No Observed Effec ts Concentration (NOEC) should not require residual testing because, by de finition,

the dose is below effect levels.

b. If dosing at rates higher than the NOEC is required to obtain the needed resu lts, then residual testing for flocculant is requir ed on the effluent at the same time turbidity and pH are bein g measured. The residual flocculant test needs to h ave 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 c apability for its products then batch treatment ins tead of flow through is required, and the water must be held on property until a Whole Ef fluent Toxicity (WET) test can be completed showing safe discharge levels.

This tiered approach takes the need for refereeing out ofthe regulatory bodies' hands and properly put s the responsibility fo r safety and compliance on the participating parties

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

797 Refer to Response 6.6 on numeric turbidity limits, Response 6.8 on residual testing, and Response 6.9 on chitosan. See also Part VII.1.3

of the 2012 CGP Fact Sheet for a discussion on the requirements related to the use of treatment chemic als.



# 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 t est to EPA within 24 hours of learning of the results, and immediately take action to reduce residual levels in the discharge. You must continue to conduct residual testing once per hour until res idual levels are below the detection level ofthe re sidual test, at which p oint testing must be conducted once every 2 hours during normal worki ng hours until the discharge ends.]"

AND REPLA CE WITH: "6.3.1.3 If residual flocculant testing de tects the presence 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 reduce residua l levels in the discharge. You must continue to conduct resi dual testing once per hour until residual levels ar e below the NOEC detect ion level, at which point testing must be conducted once every 2 hours during normal working hours until the disc harge ends.

Where your corrective actions result in changes to any of the stormwater controls or procedures docume nted in your SWPPP, you must modify your SWPPP accordingly within 7 days of comp leting 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.



# 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 just ification in the C&D ELG that chitosan is a safe natural product. During the publ ic comment process on the C&D ELG proposal, industry raised several concerns with the use of chemicals, including the toxicity of suc h chemicals. EPA responded to concerns about the po tential toxicity of chitosan by stating that the only documented case of possible t oxicity 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 properl y used, environmental impacts from polymers or flocculants should not occur throu gh the use of passive tre atment systems. Based on the information in the rec ord EPA has determined that when polymers are properly appl ied the risks of toxicity to aquatic life or advers e effects to the receiv ing water are minimal." See 74 Fed. Reg. at 63,008.

AGC is very concern ed that EPA is now considering a requirement to mon itor for chitosan as well as to employ additional m easures even from the mere detection of any chitosan: including 24- hour notification, immediate corrective action, and the measurement of chitosanUnformatted 2012 CGP Comment Response Essays February 16, 2012

798 every two hours until the discharge ends. What is m ore, EPA has not provided any justification for sel ecting 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 chemical s?

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 the 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 disc ussion 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: 6.3.1Q In addition, CLF strongly recommends EPA add a requ irement in the Final CGP that operators demonstrate that non- chemical treatment methods are infeasible prior to using chemical trea tment for stabilization. CLF supports a requirement for testing of chitosan residual (Part 2.1.4.5) and strongly re commends this be included in the Final CGP. CLF urg es EPA to retain in the final CGP the requirement a t Part 8.2.10.1(d) that operators disclose all chemic als used in erosion control. In addition, the porti on of the NOI form requiring

disclosure whether ch emicals will be used for erosion control, and the r equirement to include similar information in the SW PPP, 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 JohnUnformatted 2012 CGP Comment Response Essays February 16, 2012

799 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 chitosa n (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 Fund Issue Category: 6.3.2 There should be an exception to the requirement to install the new or modified control, and make it op erational, by no later than 7 days from the time of the discovery that a new stormwate r control is needed, or an existing pollution preve ntion meas ure requires significant redesign and reconstruction or replacement at your site in the event that 1) a storm event occurred du ring the 7

‐ day deadline period which prevented the installation activities from taking p lace, 2) soil conditions due to an earlier storm ev ent are too wet for completing the installation, or 3) the soil was frozen during this period precluding any further installation activit ies at that time. If any of these events were to occur, EPA could require that installation activities should be initiated as soon as practicable and that immedi ate action is taken to temporarily control stormwater discharges in the area until a permanent control or measure can be i nstalled.

Response Refer to Response 6.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

800 

# Comment 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 con trols without the approval of the SWPPP approving authority (PGSCD). Although PGSCD i s great on turn-around time, 7 days could be too fa st even for a red line revision depending on the repair. It does take time to evaluate the situation, survey if necessary, de sign a solution, submit to the local authority, receive approval and finally construct t he revision. However it does depend on the reason t hat a sediment control needs to be repaired reconstructed or replaced. For example if there is a breach in an earth dike, fixing the eart h 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 dik e, improper design, improper construction of directed area to the earth dike, et c.) goes into evaluating how long it takes to deter mine a remedial action. We would suggest providing some guidance to the local author ity to require actions within in a certain time fra me, based on the nature of the problem.

Response Refer to Response 6.10.



# 6.3.2Q ALLOWANCES FOR QUARTERLY REPORTING (RAT HER 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 repl aced or installed and should not be allowed 7 days for installation. The 7-day time period should be l imited to more structural or excavation oriented co ntrol measures such as dikes, soil berms, traps, basins, wheel washes, etc. BMPs such as silt fence, inlet protection, mulch application, etc should have instal lation 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: TepaUnformatted 2012 CGP Comment Response Essays February 16, 2012

801 Issue Category: 6.3.2Q 10. CGP section 6.3.2 requests comment on the 7 day deadline for corrections of Condition B. This is n ot feasible in many situations

where new BMP material needs to be ordered that has a lead time longer than 7 days. Also, financial ap provals 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 before the next a nticipated storm event. Material procurement is often times out of the operators con trol and we should not be held liable for these sit uations 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 tec hnology available to effectively control turbidity in all cases. Reinstalling ineffe ctive BMPs is extremely wasteful and may cause furt her environmental damage. 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: 6.3.2Q If during construction, a 400 foot long, 20 foot ta ll concrete-block retaining wall catastrophically f ails it will not be fully re-installed a nd operational by 7 days from the time of discovery. L egal ramifications and/or lawsuits may prevent even cleaning up a location until insurance adjusters, lawyers, and government entiti es have surveyed the site. Add to it injury of pers onnel or accidental death.

Consider adding a large-scale failure clause with a required notice to EPA.

Response Refer to Response 6.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

802 

# 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-i nstall a BMP device is not practicable due to perso nnel or materials not being immediately available.

Suggestion: Add in the wording, as in other section s, "unless not practicable" or "as soon as practica ble". Provide some other revised wording that would allow for these issues to be res olved in a timely manner, but not penalize the appl icant for not complying within the seven day timeframe, especially (but not only) if a n outside sourcing agent (sub-contractor) is being utilized for compliance measure upkeep.

Response Refer to Response 6.10.



# 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 Conditio n B. 2. The deadline ou tlined is too restrictive. In many cases it is not possible to mo bilize 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) 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 t he installation of temporary sediment basins and ot her 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 ro om to enlarge it, then in addition to required calc ulations relocation would be necessary. On a site with utility, geographic or RO W restrictions it might be necessary to move a stag ing area, or adjust pha sing. In these situations the suggested alternative would be to up date the SWPPP to reflect why the correction could not occur in 7 days and provide and support an alternate deadline. In addition, doc ument interim benchmarks, such as design completion , could be added to dem onstrate

progress.Unformatted 2012 CGP Comment Response Essays February 16, 2012

803 Response Refer to Response 6.10.



# Comment 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 alterna tive timeframes are suggested. Provisions should be made for circumstances when corrective actions cannot be completed within the d eadline due to site-specific conditions, such as fl ooding, drought, or other extreme

conditions.

Response Refer to Response 6.10.



# Comment ID 0080-A2.001.035

Author Name: Verhage Kathy Organization: New Mexico Department of Transportation, District 3 , et al. Issue Category: 6.3.2Q Partner Response: The Partners suggest that seven d ays is not feasible since often times BMP materials need to be procured an d are not readily available on site. To ensure compliance wit h 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 additional BMP materials may never be used. However, their purchas e would remain a real and unnecessary cost to the p roject.

Response Refer to Response 6.10.



# Comment ID 0085-A2.001.024

Author Name: Charles Mark Organization: City of Rockville, Maryland Issue Category: 6.3.2Q EPA should consider tailoring this requirement to m atch the amount of time it actually takes to implem ent the necessary corrective actions. For example, repairing silt fences and oth er minor corrective actions take very little time a nd can prevent significant d ischarges of sediment from construction sites. Site operators should not be given such a lengthy time to impleme nt corrective actions i f there is an ongoing sediment discharge from the site or signifi cant rainfalls are forecast in the coming days. On the other hand, Rockville can imagine significant issues requiring a redesign of sediment BMPs which may require more than seven day s.Unformatted 2012 CGP Comment Response Essays February 16, 2012

804 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 rep airs of diversion structures should be allowed if s tormwater control equip ment can't be made operational within 7 days (working day or c alendar days?) Specialized trea tment equipment, pumps, or custom machined gates or valves might not be available within 7 days. Sev ere weather conditions could also delay the deliver y of specialty parts.

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 an d make operational corrective action sotrmwater con trols 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 suc h as silt fencing. Second, operators often contract out stormwater compliance to a storm water management sub-contractor. These sub- contractors typically inspect, install, and maintain BMPs for multiple customers and perfor m this service effectively by scheduling inspection s and mai ntenance 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 l imit their customer base to provide for the adde d burden, or more likely for operators to self-perform this work. EPA must consider the fisca l impact to small business when contemplating these requirements.

The seven-day deadline may also be problematic beca use it would not give the construction site operato r sufficient time to seek assurance of compensation from the owner of the pro ject for changed conditions.

Response Refer to Response 6.10.



# Comment ID 0096-A1.001.070

Author Name: Asmus Susan Organization: National Association of HomebuildersUnformatted 2012 CGP Comment Response Essays February 16, 2012

805 Issue Category: 6.3.2Q EPA should provide additional time for corrective a ction. There are cases where it is not reasonable t o make corrective actio n within 7 days. After a singular storm event, there may be ma ny active construction sites in the area that requi re corrective action. Appropriate personnel and equipment may not be available onsite and available to make repairs right away. Often af ter 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 al l systems within 7 days (this includes both personnel who are employed by the owner/operator and third party consultants, as they will likely ha ve several clients). There may also be a need to order new ero sion and sediment control devices, which may not be available within 7 days. EPA should state that corrective action should take pla ce as soon as practicable and allow more time in ca ses that have 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 ele ctronic receipt is provided for electronic reportin g.

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 inspectio n has shown that a new storm water control is neede d or an existing one needs to be modified, the new control must be installed and mad e operational no later than 7 days from the time of discovery.

TCEQ believes that this requirement might not be fe asible to implement within a 7 day period, and reco mmends providing 14 days

instead.

Response Refer to Response 6.10.



# Comment ID 0121-A2.001.020Unformatted 2012 CGP Comment Response Essays February 16, 2012

806 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 correct ive action within 7 days when discharges are not in compliance with the tu rbidity limits or discharge do not meet water quality standards. In some cases, meeting the turbi dity limits or water quality standards may be infea sible. Furthennore, re-constructing and installing new BMP s may be less protective than ensuring existing BMP s are as effective as possible and rapidly completing the construction and restabi lizing the soils. The pennit should provide allowan ces for these situations.

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 Prope rties (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 a pproval of the SWPPP approving authority. 7 days is inadequate for a red line revision depending on the repair. It do es take time to evaluate the situation, survey if necessary, design a solution, 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 repl aced. For example if there is a breach in an earth dike, fixing the earth dike imme diately 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, e tc.) contributes

to the time needed to determine a remedial action. We suggest providing some guidance to the local aut hority to require actions within i n a certain time frame, based on the nature of the pr oblem.

Response Refer to Response 6.10.Unformatted 2012 CGP Comment Response Essays February 16, 2012

807 

# 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 sed iment basins, or may not be feasible for the comple te clean out of an existing sediment basin if site conditions (t oo 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 deadlin es 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 Category: 6.4 Part 6.4.2 - Added the following language: "If you conclude that, based on further analysis of the sit e conditions, the source of the problem or violation is unrelated to your construct ion activity, you must document this fact and the r easons supporting yo ur conclusion."

This is to open for misreporting. Qualified opinion s should only be considered and the permitting agen cy should review and ap prove the exception. Permittee liability issues need to be ad dressed as it crosses into Municipalities responsib ility and liability for CEQA monitoring and mitigation issues.

Response Refer to Response 6.12.Unformatted 2012 CGP Comment Response Essays February 16, 2012

808 

# 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 trigg ering condition and any updates to these records for corrective actions tak en be signed by and certified in accordance with Ap pendix L.

Comment: The requirement to recertify the SWPPP for each triggering condition and corrective action wi ll be overly burdensome.

Discussion: Since the list of triggering conditions is extensive and they all must be addressed by cor rective actions, it wil l be burdensome for the SWPPP to be signed and certified in accorda nce with Appendix L each time a triggering conditio n occurs and a corrective a ction is implemented.

Recommendation: Recommend that the requirement to r ecertify the SWPPP after triggering conditions and corrective actions be narrowed to include only condition 6.2.1.7 or to al low recertification on a periodic basis such as qua rterly

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 fo rm requirement (5.1.4.2) to document corrective act ions. This creates additional paperwork that seems unnecessary and redundant. It would be more efficient to keep all stormwater insp ection results and required action items on one form. From an operator perspect ive, "action items" on an inspection form are synon ymous with "corrective action." Suggest deleting this section or simply equating ac tion items and corrective actions as one in the sam e.

Response Refer to Response 6.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

809 

# 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 a re required to record "the nature of the condition identified". Delete one part. One is saying you have to record the nature of the conditi on of your site within 24 hours of discovery, one i s saying you have to record 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. S ee section X.4.4 of the 2012 CGP Fact Sheet for a d iscussion on the permit recordkeeping requirements.



# 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 tha t would have subjected permittees to the threat of lost permit coverage and enforcement (without any opportunity for cure) base d on a determination that the permittee was causing or contributing to an excu rsion of applicable water quality standards, even if the permittee 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 reasonab le potential to cause, or contribute to an excursion above any a pplicable water quality standard. If such a determi nation 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 ade quately the identified water quality concerns;

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate t hat the receiving water is attaining water quality standards; or

C. Submit an individual permit application...." (Sect ion 3.3 of the March 2005 Settlement Agreement betw een the Federal Water Quality Coalition, UWAG, and EPA resolving the 2000 MSGP appeal).

This settlement is largely reflected in EPA's most recent MSGP-2008, which limits the risk of lost cov erage and enforcement and provides permittees with a more step-wise and itera tive approach to revising/enhancing its BMPs to mee t water quality expectations.Unformatted 2012 CGP Comment Response Essays February 16, 2012

810 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 action s 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 t hen follows that "If th e condition identified in this Part constitutes a permit violat ion (e.g., a[n] ... exceedance of an applicable wa ter quality standard), correcting it does not remove the original violation" (emphasis added) . These proposed CGP provisions would have the effe ct of exposing permittees to immediate enforcement for excursions of WQS, withou t 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 tha t a violation of the non-existent numeric turbidity limit, evidence of tracked out sediment, or an excessively muddy discharge would c onstitute a permit violation should be removed. As noted above, there is no "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. W ith respect to "track-out" of sediment, the standard should simply be that the pe rmittee should minimize off- site vehicle tracking of sediments similar to the l anguage in the 2008 CGP. The simple evidence of tracked out sediment should not be deemed a permit violation. S uch an approach is inconsistent with the 2009 C&D ELG, which does not impose an abs olute no-discharge standard.

Response Refer to Response 6.6 for the comment on numeric tu rbidity limit, Response 6.1 for the comment on trac kout 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 tha t appears to be inconsistent with the water-quality approach set forth in Part 4.1 regarding compliance with the permit providing a pr esumption of compliance with water quality standard s and Proposed Part 6.2 regarding corrective actions if a permittee determi nes possible contributions to water quality concern s. Proposed Part 6.5 ci tes examples of permit violations, including an "exceedance of a n appl icable water quality standard." That example should be deleted, because it does not accurately reflect the structure of the water q uality conditions in the rest of the Proposed CGP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

811 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 se t forth in Section 402(k). However, the CGP is written in a manner that violat es this shield. Specifically, Section 6.5 provides that the exceedance of an applicable water quality standard constitutes a permit violati on, and correcting it does not remove the original violation. In other words, an exceedance is independently and directly enforceabl e as a violation, even if the permittee is otherwis e compliant with the CG P and has implemented all appropriate corrective action to ad dress the exceedance. This approach is fundamentall y inconsistent 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 industri al general permit that would have subjected permitt ees to the threat of lo st permit coverage and enforcement (without any opportunity f or redress) based on a determination that the permi ttee was causing o r contributing to an excursion of applicable water quality standar ds, even if the permittee was otherwise compliant w ith the permit. This appeal was subsequently resolved through a settlement, which p rovided in relevant part:

At any time after authorizat ion, the Director may determine that your storm wat er discharges may cause, have the reasonable potent ial to cause, or contribute to an excursion above any appl icable water quality standard. If such a determinat ion 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 ade quately the identified water quality concerns;

B. Submit valid and verifiable data and information that are representa tive of ambient conditions and indicate that the re ceiving 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 re cent MSGP-2008, which protects permittees from the threat of precipitous enforcement or lost coverage, and provides a step-w ise and iterative approach to meeting water quality expectations. The draft CGP, by contrast, would expose permittees to the threat of precipitous enforcement, even if they do everything required of them under the CGP. UWAG urges EPA to modify its two permits to be cons istent with each other, and with the earlier settle ment. To do so, EPA should strike the reference to "exceedance of an applicabl e water quality standard" in Section 6.5 of the CGP (or that section in it s entirety), and rely on the mechanisms already set forth in Section 4.1, which generally track EPA's approach in MSGP- 2008.Unformatted 2012 CGP Comment Response Essays February 16, 2012

812 Response Refer to Response 6.3.



# 6.6 REPORTING TO EPA

Comment ID 0091-A2.001.028

Author Name: Burris Martin 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 a re listed in section 2.3.3. If a spill was reported per 2.3.3 is an additional notificatio n to EPA per 6.6 required. Is reporting required if the discharge leaves the site, but does not reach a receiving water. Some sites drain to MS 4 systems and may receive treatment prior to discha rge to the receivin g waters. In the

case where flow is routed to an offsile treatment f acility would the compliance location be at the dis charge of the facility? Should the off-site conveyance 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 disc harges?

Response Refer to Response 6.13.



# 6.6Q WHETHER REPORTING DEADLINE IS RESONABLE

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.



# Comment ID 0037-A1.001.053Unformatted 2012 CGP Comment Response Essays February 16, 2012

813 Author Name: Valdez Bruce Organization: Southern Ute Indian Tribe Growth Fund Issue Category: 6.6Q The Southern Ute Growth Fund agrees that the deadli ne of notifying the applicable EPA Regional Office of an occurrence of a C ondition B by the end of the next full work day after discov ering the condition is reasonable. This requirement is similar to the reporting requirements for occurrences of noncompliance for o ther types of National Pollution Discharge Eliminat ion System (NPDES) disc harge permits administered 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 b e notified by the end of the next full work day aft er discovering detection of c hitosan in the discharge or a condition described in Part 6 .2.2. EPA requested comment on whether this propose d deadline is reasonable. This

deadline is not workable. The deadline should be mo re flexible to accommodate scenarios in which a con struction project may be short-staffed, making it difficult to report such c onditions 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 b e 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 permit ting program found at 40 CFR 122.

Response Refer to Response 6.13.



# Comment ID 0074-A2.001.027

Author Name: Thompson StevenUnformatted 2012 CGP Comment Response Essays February 16, 2012

814 Organization: Oklahoma Department of Environmental Quality (DEQ) Issue Category: 6.6Q See Items 15 and 16 (see comment ID 0074.018 and 00 74.019).

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 l east 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 sub mitting these notifications to the EPA does not see m 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 with in these tight time frames is beneficial in justify ing the additional burden.

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 consid er requiring Condition A events be reported in this timeframe as well. The se events should be reported so that site inspectors can asse ss whether an operator has taken appropriate correc tive actions within the required timeframe. Otherwise, these timeframes and required corrective actions will be difficult to enforce.Unformatted 2012 CGP Comment Response Essays February 16, 2012

815 Response Refer to Response 6.10 and Response 6.13.



# 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 requi red if the condition is con sidered hazardous to human health and well being. I f it is not, the reporting deadline should be 7 calendar da ys.

Response Refer to Response 6.13.Unformatted 2012 CGP Comment Response Essays February 16, 2012

816 

# Construction General Permit

Comment/Response - Customized Search

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Issue Category: 7, 7.1, 7.2, 7.3, 7.4Unformatted 2012 CGP Comment Response Essays February 16, 2012

817 

# 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 perform ing training have been established in the permit. C onsider including requirements of such a person i.e. Certified Profes sional in Erosion and Sediment Control (CPESC), Cer tified Erosion, Sediment and Storm Water Inspector (CESSWI), Certified Municip al Separate Storm Sewer System Specialist (CMS4S), or a Certified Professional 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, del iver, and implement training that will be required to achieve compliance with the permit. EPA has given a date when the new permit wo uld become effective; however, there is no date ind icating when the fina lized new permit will be released to allow training programs to develop. Will EPA consider an implementation pha se which will allow sufficient time for operators to prepare for the finalized per mit?

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 onlin e or training that can be obtained to train project site staff to your level of expectation. Until a standard is set, it is very di fficult to require training for all construction si te 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 Homebuilders Issue Category: 7Unformatted 2012 CGP Comment Response Essays February 16, 2012

818 EPA is proposing that permit holders make sure that all members of the stormwater team (SWPPP writers, BMP designers/installers, inspectors, those taking corrective actions, and sa mplers) receive the necessary training to ensure th ey understand the requirements of the permit and their specific responsibilities with respect to their requirements. While NAHB believes that all personnel involved in stormwater control should have knowledge of the pro gram and its requirements, NAHB strongly believes t hat 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 turbidity limit (e.g., those that disturb 20 or mor e or 10 or more acres of land area at one time). EP A should also exempt those holding stormwater-related professional designations or cer tifications from the training requirements and furt her clarify what the training must entail. Finally, in lieu of mandatory training requ irements, NAHB submits that EPA can realize greater benefit by establishing qualifications for SWPPP preparers who are working on large sites.

eLearning activities that can provide training on t he varied subtopics that comprise the NPDES program including (but not limited to) construction inspection techniques, Effluent Guidel ines 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 re quired, but leaves a great deal of room for interpr etation on what is adequate to meet permit training requirements in Part 7. Many s tormwater tools are „reinvented ‟ by each city, county and state. We invest significant funds in training. Per Part 7.3, has th e EPA considered developing a short but interactive web based training tha t individuals could take to satisfy the minimum intended training requirements for the stormwater team? An individua l 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 ours could then invest funds in developing more advanced train ing, 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 n ot 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. Stormwat er control design is often times completed months b efore active constructi on by an individual that will not be part of the Stormwater Team during active construction (Section 7.1.2.). D ocumenting that the offsiteUnformatted 2012 CGP Comment Response Essays February 16, 2012

819 personnel were "qualified" at the time the SWPPP wa s 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 w ho already have targeted experience and expertise i n designing construction projects to minimize and control stormwater dischar ges, utilize green infrastructure, install and main tain 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 t he penalties associated with noncompliance. As such , NAHB strong ly recommends that EPA exempt these professionals from the staff training requirements.

At a minimum, the following individuals must be exe mpt from EPA's training requirements: a. A registered professional civil engineer. b. A registered professional geologist or engineeri ng geologist. c. A registered landscape architect. d. A professional hydrologist registered through th e American Institute of Hydrology.

e. A Certified Professional in Erosion and Sediment Control or Storm Water Quality registered t hrough 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 developers who h ave been usi ng appropriate stormwater controls over time should not be required to be retrained. For example, any individual who can d ocument that he/she has: 1) Obtained appropriate in struction (2-4 hour course) regarding construction site stormwater management p ollution prevention practices and inspection respon sibilities; 2) Obtained a "Certification" from a state agency as a Stormwater Inspector, or a certification such as Certified Er osion, Sediment and Stormwater Inspector (CESSWI), Certified Inspector of Sediment and Erosion Control (CISEC) from a recognized thir d party; or 3) Obtained equivalent training and/or experience in the princi ples of sediment and erosion controls and stormwate r management through on-the- job exposure, should be considered adequately trained.

Response Refer to Response 7.1.



# Comment ID 0168-A1.001.015

Author Name: Jordan Jill Organization: City of Dallas Issue Category: 7.1 -- Quantification of minimum requirements for becom ing a "qualified person" is recommended. The permit training requirements go beyond the typical "tailgate-training" or Outreach classes, and may merit consideration of other quali fications for "qualified persons" such as being a registered Professional Engineer, P rofessional Soil Scientist, or Certified Profession al in Erosion and Sedim ent Control.Unformatted 2012 CGP Comment Response Essays February 16, 2012

820 If personnel with the above qualifications are dele gated with the activities listed under Section 7.1, then ad ditional training may not be required. We suggest providing an option for docume nting prior training, 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 document ed education and experience in soil erosion, sedime nt transport, water treatment processes and site stabilization may require fairly specialized training (eg beyond the typical Constr uction Outreach class). Clarifica tion on how to document thorough understanding of requir ed topics is requested. The qualifications of the p erson(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 st aff as to how to actually construct and maintain various cont rols and practices, nor to understand the range of controls and practices and their purposes and uses on a construction site. Without t his level of training, staff taking charge of const ruction sediment and er osion control at a construction site are ill-equipped to fully un derstand how these practices should function.

Response Refer to Response 7.1.



# Comment ID 0091-A2.001.030

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKSUnformatted 2012 CGP Comment Response Essays February 16, 2012

821 Issue Category: 7.3 The permitee requirement to provide training on reporting violat ions and submitting reports to EPA may not be appro priate. For this new permit the operator/permit holder staff would not h ave individuals familiar in this process. Recommend EPA provide training p rogram for this requirement. Recommend that EPA post train ing 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 buil t into the training by providing few details of wha t exactly the training must entail, we are concerned that the vagueness and openendedne ss 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 differe nt needs than the one preparing the SWPP or conduct ing inspections ), EPA needs to be

clear about what must be covered or included in eac h person's training for it to be acceptable. For ex ample, EPA could reference

materials that are available on its website as bein g acceptable baseline information for inspectors an d perm ittees, such as its webcasts on developing SWPPPs and stormwater management program s, its national menu of best management practices [ FN 83,84]. EPA must als o clarify that the required training can be provided using any medium the operator sees fit (paper materials, electronic media, live training) and can be obtained from various places, including the permittee, third-party trainers, state or local governments, or through self- study. Indeed, NAHB can envision multiple scenarios where the training would tak e place on site while walking the property. As an a lternative, EPA can specify that it will rely on the permittee' s best professional judgment to develop and conduct the necessary training and clearly state that the as long as the content of the traini ng is consistent with the NPDES program, it will be deemed acceptable.

[FN 83] EPA, 2008. National Pollution Discharge Eli mination System (NPDES). Accessed July 6, 2011. Ava ilable at: http://cfpub.epa.gov/npdes/stormwater/swppp.cfm. [FN 84] EPA 2011. Construction and Development: Rel ated Links. Accessed July 6, 2011. Available at: http://water.epa.gov/scitech/wastetech/guide/constr uction/links.cfm.

Response Refer to Response 7.1.



# 7.4 TRAINING DOCUMENTATION

Comment ID 0053-A2.001.038

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc. Issue Category: 7.4 Consider including names and titles of persons prov iding training.Unformatted 2012 CGP Comment Response Essays February 16, 2012

822 Response Refer to Response 7.1.



# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 8, 8.1, 8.1.1, 8.1.2, 8.1.2Q, 8.1.3 , 8.2, 8.2.1, 8.2.2, 8.2.3, 8.2.4, 8.2.5, 8.2.6, 8.2.7, 8.2.8, 8.2.9, 8.2.10, 8.2.11, 8.2.11.1, 8.2.11.2, 8.2.11.3, 8.2.12, 8.2.13, 8.2.14, 8.2.15, 8.2.16, 8.3, 8.3.1, 8.4, 8. 4.1, 8.4.2, 8.4.3, 8.4.4Unformatted 2012 CGP Comment Response Essays February 16, 2012

823 

# 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 t raining, EPA require those preparing SWPPPs for sit es that disturb 10 acre s or more to meet some minimal qualification. Several states already require that a licensed professional engine er or a trained ero sion and sediment control (ESC) professional sign the SWPPP, certifyi ng that it incorporates accepted best management pr actice, and meets local and regional recommended BMPs. NAHB asserts that such a requirement "raises the bar," while allowing suffi cient flexibility to continue to use BMPs that are most appropriate to particular cl imate, soil, and topography conditions at the site. Qualified personnel ha ve targeted experience and expertise in the design, installatio n, and maintenance protocols for BMPs. They also ar e knowledgeable about the NPDES and other permit requirements, reassessment a nd redesign, if necessary, and the penalties associ ated with noncompliance

. NAHB believes that such mandatory involvement will improve environmental protection and incre ase compliance without further complicating the permitting process for small busin esses.

a. All SWPPPs for sites with disturbed areas over 1 0 acres must be reviewed and signed by a licensed P E or qualified Erosion and Sediment Control professional prior t o submission to the regulatory authority. The SWPPP must contain all of the current provisions in the EPA CGP (or any applicable State CGP), includin g 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 p oints, either from required sediment ponds (drainag e 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 thi s permit and their specific responsibilities with respect to those requirements

.

d. The certification verifies that the stormwater p lan will adequately address those conditions expect ed to be encountered at the site, and that the plan meets all of the requirements of the applicable CGP and local requirements. Once certifi ed, the SWPPP becomes p art 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 compar ed to 5.5 pages in the

2008 CGP. This reflects a substantial increase in S WPPP requirements and expectations under the propos ed permit. Will EPA publish a revised SWPPP template similar to the template prov ided for the 2003 and 2008 CGP? A template could pr ovide reporting consist encyUnformatted 2012 CGP Comment Response Essays February 16, 2012

824 and be useful to operators, given increased expecta tions 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 o f Ecological Restoration (DER) Issue Category: 8.1 It is the DER's experience that proactive restorati on and revitalization projects often move forward w ith limited budgets comprised mostly of public funds. Aspects of the planning, pe rmitting and implementation process remain complex and require significant information and effort. Applications under sections 401 and 404 of the CWA results in thorough review by federal and state agencies and approval under these regulations include detailed r equirements and restrictions imposed by the reviewi ng agencies. In Massachusetts there is further review under state law, (MA Wetlan d & River Protection Act). Preparation of a SWPPP o ften proves redundant to the requirements imposed through sections 401, 404 and MA regulations. The DER requests the EPA consider m aking an exception for pro-active restoration projects from the preparatio n of a full SWPPP if other permits, certificates an d/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 cla rify.

Response Refer to Response 8.1.



# Comment ID 0064-A1.001.043

Author Name: Dees RichardUnformatted 2012 CGP Comment Response Essays February 16, 2012

825 Organization: City of Meridian Issue Category: 8.1.1 Section 8.1.1, page 53 - "The SWPPP does not contai n 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 "t he SWPPP does not include narrative or numeric limi ts'. This should be changed and

SWPPP should include narrative or numeric limits. P lease revise.

Response Refer to Response 8.1.



# 8.1.2 PERSON(S) RESPONSIBLE FOR DEVELOPING SWPPP [R EQUEST 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? Th e landowner where the construction takes place is c ertainly one possibility, but there are others: the master developerlbuilder/gene ral contractor, or any similar party with direct co ntrol over day-to-day construction operations and results. Without fixing this respons ibility, or at least identifying appropriate entiti es and requiring that o ne of them be so designated, it is not cllear who will create the Pl an 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

826 Issue Category: 8.1.2 8.1.2. Person(s) Responsible for Developing SWPPP. The Request for Comment in this section of the Perm it states: "During the development of this proposed permit, EPA was asked to consider modifying the SWPPP requirements to req uire that, where there are multiple operators associated with the same constru ction activity, the party who possesses the title o f the land where the construction activity will take place and has operational contro l over construction plans and specifications, typic ally the property owner, be responsible for developing the SWPPP."

Property ownership can be in contention even with t emporary construction easements (TCEs) in place for construction. The abil ity of a contracted entity to determine who possesses the ti tle of the land may not be an obtainable task, nor should EPA insert a contracted company in between sparing land owners.Alternativel y, 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 resp onsibility 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 en ables parties to different kinds of development to determine among themsel ves who is in the best position to develop a SWPPP while st ill requiring all permit holders either to develop or to adopt a SWPPP.

We would oppose any new or different requirement th at would make the property owner responsible for SW PPP preparation. Proper ty owners often are not involved in or knowledgeable a bout the construction process.

Response Refer to Response 8.1.



# Comment ID 0148-A1.001.001

Author Name: Esparza J. Organization: USACE-Sacremento Issue Category: 8.1.2 Body: 1. Part 8.1.2. The 'owner' (titled land owner ) requirement for the federal government can be pro blematic as the agency that holds title may not be the same as the agency operating the construction proje ct. Also, as a federal agency our construction proj ects we operate can often cross many title land owners land (work a long levees).

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

827 

# 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 do es not specify which party is responsible for devel oping the SWPPP in multi-operator situations. The City may or may not have day-today operational control over constructio n. The City has experienced challenges related to multiple operators using the same SWPPP, multiple operators working on the same site with independent S WPPPs, and challenges related to being the Owner, working with a contracted Construction Manager that control s day-io- day activities including the SWPPP and site expenses, but who is not the pro perty 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 G eneral 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 th e phasing and site control methods outlined in the SWPPP can dictate project i mplementation and site operation, the SWPPP can hav e a significant bearing on how the project is implemented and the associated const ruction costs. This is true for both municipal publ ic works, and residential construction. For this reason, we prefer that the G eneral Contractor serve as the primary operator, an d develop the SWPPP, wi th others as co-signers. However, we believe that the Owners should have the flexibility to decide who will deve lop 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 t he SWMP if they are not following owner SWMP direct ions and specifications. For City capital projects we develop the Erosion Contro l Plan and Permit submittal, then allow hired contr actors to modify such plans and permits once the project is awarded.Unformatted 2012 CGP Comment Response Essays February 16, 2012

828 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 sho uld not fall upon the land owner. In the case of construction on public lands; I'm assuming that the appropriate land managing ag ency (Bureau of Land

Mana gement or Forrest Service) would then be responsibl e for developing the SWPPP when they approve any SW PPP requiring activity on public land. With all the energy development tha t currently occurs on public land; it would not be feasible for land management agencies to dedicate sufficient man hours to develo ping appropriate, site specific SWPPPs for all surf ace disturbing activiti es that occur within their jurisdiction. Also, if land management agencies dictated what specific mitigation measure s industry must use on public land and those mitigation measures fail, then the federa l government could be held responsible for reclamat ion of resource impacts caused by industry. It is for these reasons that I do not thi nk that land owners should be responsible for devel oping 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 recom mendation that the owner be responsible for SWPPP development. This may be beneficial in circumstances of multiple operators o n a single site as stated in the Request for Commen t but this would not be effective in many circumstances. The operator of the site, which is commonly the prime contractor, has the best wor king knowledge of its conditions, future construction activities, constru ction sequencing, and how to be proactive with SWPP P maintenance and administration. SWPPP development and administratio n requires direct coordination and communication wi th the subcontractors performing the work, Designer of Records (depending on design build vs. design bid build and other con tract formats), 3rd party designers, consultants, etc. and the owner is not l egally able to perform this coordination. Also, ope rators use numerous different types of tools and software programs for environmental compl iance 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 SWPPPs dev eloped by the owners, in most cases, would fail to be executed effectively in the field and wo uld not be an efficient way to stay in compliance w ith the permit. The ope rator of the site needs to develop the SWPPP that they are going to u tilize for CGP compliance. And this operator is com monly the prime contractor.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

829 

# 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 current ly requires the contractor to prepare the SWPPP. Th e agency has not experienced the issues described in the request. Fo r ADOT (and likely other agencies), the budgets for design and construction may

come from different source s (for example, the design may be paid with state f unds while construction may be paid with federal fu nds). Therefore, it would be preferable to continue to al low the flexibility for the owner to determine whet her the SWPPP will be p repared by them or by 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 P ollution 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, th e party who possesses the title of the land where t he 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 f lexible and effective means of maintaining stormwat er compliance. The contractor is also in position to determine the most cost effective metho ds 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 t he construction contractor. If

erosion and sediment control measures contained in the contractor developed SWPPP prove to be inadequa te the contractor is cu rrently obligated to make needed changes. If the SWPPP were the owner's (DoD) responsibility as proposed by EPA, it would be dev eloped as part of the design and then bid upon by the constru ction contractor. Any changes to the SWPPP would th en amount to contract c hanges, which would require negotiation with the contractor and additional funding. This would be a costly, un wieldy process that would increase response times to address sediment and ero sion control problems.

Recommendation: Recommend that EPA retain the flexi bility in the current permit which allows any opera tor on the site to be responsible for SWPPP development

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

830 

# 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" de veloping the SWPPP. The Contracting community in Ne w Hampshire has clearly articulated that they should be the entities develo ping and implementing the SWPPP. The Department has successfully relied on our General Contractors to construct our public infrast ructure in an environmentally friendly / cost effec tive manner for decades.

The Department will include additional information in the bidding package to assist the Contractors in developing SWPPPs on especially large and more challenging projects as f ollows:

Traffic Control Plans - These plans are essential w hen developing the phasing for any project. They al so dictate what areas and when they will be open during construction and exposed t o precipitation.

Construction Stormwater Analyses - This consists of an analysis of the open construction area, expecte d runoff volumes and sediment capture areas. This analysis also identifies prob1e m areas where storm water cannot be captured, treated to reduce turbidi ty and released.

Erosion Control Plans - These plans present a graph ical representation of traditional BMPs strategies to be employed during the construction phase. The strategies are tiered, empl oying 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 proble matic prior to bidding a project. The Department identifies these areas and lets the Contracting com munity match the equipment, materials and expertise in construction to provide a viable solution. The Department and the state regul ators have been very pleased with the results of th is bid item. It provides cost effective / environmentally sensitive solutions to tricky con struction situations.

The Department believes that moving the responsibil ity 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 throu gh our contracts.Unformatted 2012 CGP Comment Response Essays February 16, 2012

831 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" re sponsible for permit compliance but includes owners hip of the project as a characteristic of being an operator. The fundamenta l criterion currently used to define an operator is operational control of the project. The operator can either be the entity owning the pr oject (and/or land being disturbed) or the entity w ith day-to- day control over the land disturbing activity. While both entities retain ove rall responsibility for permit compliance, typicall y the general contractor retains the majority of the responsibility for implementation o f the permit conditions. It is because of the joint responsibility and the nature of the work that the telecommunications company, as the pr oject owner, typically assumes responsibility for p reparation of the SWPPP in order to ensure consistency and adequacy in impleme ntation by the operator (typically a contractor).

The EHSCP member companies typically design and con tract for the LCP work and therefore are in the bes t position to ensure development of the SWPPP that governs that activity . In no case should land owners, whose involvement often is limited to provid ing an easement and whose knowledge of and control over th e 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" s ection

•If Owner or Contractor are truly co- permittees, both should have input in the developme nt of final SWPPP. Perhaps require the Owner to develop an initial Draft SWPPP for review and co mment by Contractor in between Notice of Award and Notice to Proceed. Many

BMPs will be left to the Contractor based on their ways and means of conducting the work. This method allows Owner to establish expectations and Contractor to execute and modify a s required.

Response Refer to Response 8.1.



# Comment ID 0065-A1.001.029

Author Name: Jaeger LisaUnformatted 2012 CGP Comment Response Essays February 16, 2012

832 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 requeste d comment on who should be responsible for submitting a SWPPP where there are multiple operators associated with the same constru ction activity and whether in

such a situation the owner who has title to the lan d should be responsible for developing the SWPPP. C CWC conditionally supports making the owner of the property responsible for de veloping the SWPPP, as long the CGP makes clear tha t the owner is the resp onsible party and includes guidelines regarding the scope o f the situations where the owner bears this respons ibility. The con tract should clearly reflect that the owner bears this responsibility. I n addition to situations where there are multiple o perators, there are other scenarios where the owner should be responsible for preparing the SWPPP. For example, if the contractor is bidding a project in a very sensitive environmental wetland area where endangered birds a re part of the habitat and the contractor knows ver y little about the area , the owner of the land should be responsible for preparing the SWPPP, which would ensure that all potential sensi tive 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 r equirement that, where there are multiple operators at a single site, the part y "who possesses the title of the land where the construct ion activity will take place and has operational co ntrol 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 no t always the party with operational control over co nstruction plans and specifications. Consider, for example, a situation in which a prope rty owner leases land to a developer.

Second, where multiple operators are jointly and se verally responsible for complying with all aspects of the CGP, including the requirement to develop a compliant SWPPP, it would be overreaching for EPA to specify which of them mu st develop the SWPPP, which is a business decision that should be made by and between the multiple operators. A better appro ach is to allow the multiple operators to work out amongst themselves which is r esponsible for developing the SWPPP on a given proj ect, and then specify in the SWPPP the respective roles and responsibilities of each operator under that SWPPP.

Response Refer to Response 8.1.



# Comment ID 0071-A3.001.037

Author Name: Willard Rick Organization: Colorado Department of Transportation (CDOT) Issue Category: 8.1.2QUnformatted 2012 CGP Comment Response Essays February 16, 2012

833 • Part 8.1.2 Person(s) Responsible for Developing S WPPP. CDOT or a design consultant usually prepares the SWMP (SWPPP equivalent) and we put in the contract that it is t he construction contractor's responsibility to upda te 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/oper ator to be responsible for SWPPP development in mul tiple owners/operators cases. We believe the proposed permit, as well as the 2008 CGP does allow a primary owner/operator to develop a SWPPP to cover the w hole 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 Category: 8.1.2Q

Partner Response: The owner of the property or their design ated agent is ultimately responsible for developing the SWPPP. For EPA to further clarify roles and responsibilities under th e CGP is beneficial. On COA projects, the site oper ator 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 d aily 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: 8.1.2Q Rockville supports the use of the Minnesota CGP as a model for managing multi-operator situations if E PA believes this will encourage the consideration of the SWPPP during the site desi gn process.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

834 

# 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 S WPPPs) – Requiring property owners to prepare the S WPPP for projects with multiple operators would not work for utility compa nies (e.g., gas, electric, communication) that cond uct construction activi ties pursuant to leases, licenses, agreements, franchises, and ot her approvals. In such cases, the company conductin g the construction typically will not own the land, and multiple owners may be involv ed over the entire length of the project.

Response Refer to Response 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 op erators work within the same construction side, working under one SWPPP may crea te greater cohesion and uniformity in on- site erosion control. To this end, AGA asks EPA to modify its proposed requirement for sec ondary operators to be able to work under a primary operator's SWPPP, to i nclude 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 p ermit remain flexible. In many cases it is appropri ate for the site contractor/s to develop the SWPPP. The site contractor will establi sh the construction activities and phases for earth work. If the contractor develops and implements the SWPPP, the document should match the actual construction process to be utilized. Th e SWPPP is a dynamic document and must be changed for changing site cond itions. As the site changes the SWPPP should change . Failing stormwater cont rols must be replaced as required. A flexible approach a llows contractors, designers, or owners to develop the SWPPP.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

835 

# 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 verify whether this would still be allowed? Perhaps it wou ld be better to require a SWPPP review by the Storm water Team prior to any land disturbance, document this review in the training r ecords and provide any updates or changes to the SW PPP 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 o wner should have the responsibility to modify the p lan though out project construction to completion so as to ensure complian ce to turbidity limits and other regulatory require ments.

EPA is correct in it s conclusion that on large transportation and comme rcial construction projects, where the contract is awarded to the lowest bid, and the site design may have been devel oped without sufficient regard for storm water mana gement and CGP complian ce, it is very difficult to then later develop a SWPPP tha t complies with the permit, due to potential confli cts with the site plans. The re sult of these conflicts can be that the owner and the gener al contractor are forced to negotiate changes to th e site plan, which arguably should have been part of the original design.

In addition, by making the owner responsible for pr oviding the initial SWPPP, it would force the owner and architect / engineer to address stormwater compliance during the planning s tage in a holisti c manner. It also insures that all contractors are informed up front as to what will be required of them to properly implem ent the SWPPP. This stipulation would remove all am biguities as to what is required and would insure that project owners take an active role in insuring that contractors are complying wi th the SWPPP.

Response Refer to Response 8.1.



# 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 des ignated Developer, should be responsible fro the SW PPP. This will assure participation by the design team in the development of an appropriate plan. On residential projects, t here is typically a single general contractor responsible for the project and so can b e responsible for the SWPPP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

836 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 f or developing the SWPPP. The City does agree with t he recommendation to require that the owner be responsible for the SWPPP develop ment. While this approach may sufficient in some in stances, 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 SW PPP, EPA requests comments for who should be respon sible for developing a SWPPP in situations with multiple operators. EPA wa s 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 re sponsible.

TCEQ believes that in many situations, a general co ntractor may be better equipped to be the operator responsible for the sit e's SWPPP, and suggests providing flexibility for this to be d etermined on a site by site basis.

Response Refer to Response 8.1.



# 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 res ponsibility of the developer or property owner sinc e it is the developer/property owner who directly or indirectly finances the proje ct. The responsibility of the site operator should be the implementation of the tasks

outlined in the SWPPP in accordance with the develo per/owners instructions.Unformatted 2012 CGP Comment Response Essays February 16, 2012

837 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. T he EPA has requested comments regarding who should be responsible for development of the SWPPP. National Grid always deve lops its own SWPPPs, even if not the "party w ho possesses the title of the land where the construction activity will take place". I n some instances the ROWs are held as a form of eas ement, as opposed to be ing owned in fee. National Grid then takes the responsibility to train all operators that may be working on a pr oject. National Grid has the operational control over construction plans and spe cifications.

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 m ust develop a SWPPP. Note that you have the option of developing a group SWPPP where you are one of several operators who wi ll be engaged in construction activities at your si te. For instance, if the construction site has a "primary operator" and at l east one "secondary operator" (see Part 1.5.3), the primary operator may b e the party responsible for SWPPP development, and the secondar y 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.

Concern

When two operators are co

‐ permittees on a project and one operator is a gover nment 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 pr oject that are necessary to ensure compliance with the permit conditions (e.g. they ar e authorized to direct workers at the site to carry out activities required by the permit).

Suggested Correction

The operator that has day

‐ to

‐ day operational control of those activities at a pr oject that are necessary to ensure compliance with the permit conditions (e.g. they are authorized to dire ct workers at the site to carry out activities requ ired by the permit) should be theUnformatted 2012 CGP Comment Response Essays February 16, 2012

838 operator respo nsible for developing and maintaining the SWPPP. Th e operator that has operational control over constr uction plans and specifications, including the ability to make modif ications should oversee the work, but should not cr eate 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 thro ughout the industry, there should be regulatory fle xibility regard ing who will develop the SWPPP. Determining who develops the SWPPP shoul d be a decision that is made based on decisions bet ween the owners/operato rs on who the most appropriate party to develop the SW PPP (i.e. who is going to conduct the activities on the project) 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 b y an owner of a common plan development and the permit mandates that the SWPPP be used by secondary permittees, what guarantee doe s the secondary permittee have that the SWPPP is co mpliant with the requir ements of the permit or appropriate for the specific acrea ge that the secondary permittee w ill be developing? What recourse will the secondary 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 dev elopment developed a SWPPP for the entire common plan development. The m ember had hoped that the SWPPP would be adequate an d that it could be used for the member's construction site. After review by the member, the SWPPP did not contain all the elem ents required by the permit. Th e member who purchased property in the common plan de velopment had to amend the SWPPP so significantly t hat it might as well ha ve developed its own SWPPP. If the member was required to use the SWPPP developed by the owner of the com mon plan development an d if it was inspected and enforced upon by a regulato ry agency, the member would be subject to severe fi nes and penalties even thou gh it did not develop the SWPPP and had no control over t he content. Additionally, consistent with LBA's com ments in section I, above, regarding the potential implications of the Propose d CGP's joint and several compliance responsibility provisions, this illustrates the significant concerns associated with requiring an o perator's compliance with a SWPPP developed without consideration of the s pecific portion of a larger development.

EPA's request for comment recognizes that there are differences in the w ay homebuilders and other types of construction ent ities operate their businesses in multiple operator situations. T his 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 the SWPPP up to the operator that is actually going to develo p the land.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

839 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 multi ple operator situations.

Response Refer to Response 8.1.



# 8.1.3 REQUIREMENT TO DEVELOP SWPPP PRIOR TO SUBMITT ING 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 Prio r to submitting Your NOI a.It needs to be specified when the SWPPP needs t o be submitted. 30 days before NOI? 90 days before NOI? In the case of construction on public land; it woul d be helpful if the SWPP P were developed in time to include it in the Proposed Act ion section of a NEPA analysis. Currently industry is often resistant to disclosing stormwater BMPs that they plan to use on public lan ds with land management agencies. This makes it dif ficult for land management agencies to do a thorough NEPA analysis.

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: 8.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

840 Accordingly, EPA should revise the 2011 CGP to requ ire that permittees include a comprehensive and enf orceable plan for post-construction management in their stormwater po llution prevention plans ("SWPPPs"). To achieve ade quate 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 exte nt 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 r oles 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 no t have the financial means, or require a "team" of trained individuals. Consider r evising the language to include an individual SWPPP person for smaller projects.

Response Refer to Response 8.1.



# 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 tea m. It is possible that at the time of NOI submittal state DOTs may not know all

members of the team.Unformatted 2012 CGP Comment Response Essays February 16, 2012

841 Suggestion: We suggest that permit holders be allow ed to submit NOI without naming all members of the team. As team members are added then their names and positions should be adde d 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 no t have the financial means, or require a "team" of trained individuals. Consider r evising the language to include an individual SWPPP person for smallerrojects.

Response Refer to Response 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 documenta tion of Stormwater Team qualifications and training are included in the SWP PP.

Response Refer to Response 8.1.



# 8.2.2 NATURE OF CONSTRUCTION ACTIVITIES

Comment ID 0098-A1.001.020

Author Name: Davis Richard 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 pla n of development of a project and, thus, are a part of the project required to be authorized by a permit it sh ould state that position clearly in the permit. In some cases, the operator of the principal construction site has no operational control over a n off-site borrow/fill area that supports the site. EPA should carefully consider the alternative contracting arrangements under which bo rrow/fill capacity is provided in the industry and revise the Draft Permit to ensureUnformatted 2012 CGP Comment Response Essays February 16, 2012

842 that the permitting of off-site facilities is requi red 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 th e permitted construction project that it serves, th e 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 w ith industrial activity" (40 C.F.R. 122.26(b)(14)(x)) a nd, 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 IDENTIFICATION OF OTHER SITE OPERATORS

Comment ID 0137-A2.001.020

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: 8.2.3 It appears that all operators both primary and seco ndary need to be noted on the SWPPP (Erosion and Se diment Control Plan). We believe that this requirement will cause much legal confusion as to who is responsible and the primary operator will be unreasonably liable even if they did no t create the problem. In some circumstances the pri mary operator may not have the legal of physical ab ility 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: 8.2.3 It appears that all operators both primary and seco ndary need to be noted on the SWPPP (Erosion and Se diment Control Plan). T his will require multiple plans in our jurisdiction as they want all parties responsi ble 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 informat ion is on one plan as t hey will point fingers at each other and the primary operator w ill be left resolving the problem even if 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 activit y without involving others.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

843 

# 8.2.4 SEQUENCE AND ESTIMATED DATES OF CONSTRUCTION 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 da tes"

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 d isturbance areas, including all steep slope areas ( see Part 2.1.1.1) and b uffers (see Part 2.1.2), and of setbacks for pollutantgenerating act ivities (see Part 2.3.2);"

Consider revising the language to remove "steep slo pe areas". Typical linear transportation projects s pan great lengths and will have a majority of 3:1 slopes (33%) over the length of the project. This condition is onerous with no real be nefit. (See comment number 2 above).

Response Refer to Response 8.1.



# Comment ID 0131-A1.001.032

Author Name: Gear Ken Organization: Leading Builders of America, Inc. (LBA) Issue Category: 8.2.4 8.2.4.) This Part requires the SWPPP to include the intended sequence, start dates and durations of se veral activities that w ill take place during construction. Providing the sequence of cons truction activity is achievable; however, it will b e difficult if not impossible for the SWPPP writer or operator to estimate dates and dura tions for the following activities:

• 8.2.4.4 If applicable, dates when total disturban ces occurring at one time will require compliance w ith the numeric turbidity limit in Part 3.2;Unformatted 2012 CGP Comment Response Essays February 16, 2012

844 • 8.2.4.5 Cessation, temporarily or permanently, of construction activities on the site, or in designa ted portions of the site;

• 8.2.4.6 Final or temporary stabilization of areas of exposed soil. The dates for stabilization must reflect 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 conveyanc es/channels and other stormwater control measures, removal of construction equipment and vehicles, and cessation of any pollut ant-generating activities.

LBA does not really see a purpose or value in inclu ding such detailed site specific information as sta rt dates and durations for these items. Many of the requested dates will be complete unknowns at the time the SWPPP is devel oped and will only be able to be supplied as a "guestimate" that will need to be amended duri ng the course of construction.

The SWPPP should be a guidance document to guide th e construction team on when to install BMPs that co rrespond to each construction activity. Asking for the anticipated s tart dates, stabilization dates and durations for t he items in 8.2.4, other than 8.2. 4.3, is asking for insignificant information that is diffic ult to determine in advance, and that has little re levance to minimizing the discharge of pollutants from a construction site. These requirem ents 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 that the operator has really planned out what they are going to do to control stormwater and not allowing them to just say "we will control it."

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 sit e, existing vegetative cover (e.g., forest, pasture , pavement, structures) , and drainageUnformatted 2012 CGP Comment Response Essays February 16, 2012

845 pattern(s) of stormwater and authorized non-stormwa ter flow onto, over, and from the site property bef ore and after major grading activities;"

Consider removing the criteria to indicate stormwat er flow onto, over, and from the site property afte r major grading activities. A SWPPP is a living document and is required to be up dated to reflect site conditions as the project pro gresses. This layer of stormwater flow to reflect post construction flows will not be accurate, has potential to add a layer of confusio n for operators, and would be best represented in a separate series of maps. There is no benefit to this additional layer until ground-tr uthing 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 wet lands that exist within or in the immediate vicinit y 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: 8.2.5 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: 8.2.5Unformatted 2012 CGP Comment Response Essays February 16, 2012

846 8.2.5 Site Map. Some of the requirements in the lis t provided in this part do not apply to linear util ity projects. For example, National Grid very rarely collects topographic information a s linear projects typically do not alter the topogr aphy along a ROW. We r ecommend that language be included that provides 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 p ermit.

Response Refer to Response 8.1.



# 8.2.6 SITE PLANNING DOCUMENTATION

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 suc h steep slopes is considered infeasible, or inconsistent with the requirements o f the project, you must document how you intend to comply with the Part 2.1.4.2 requirements applicable to steep slope disturbances ."

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 stabi lization initiation for the greater than 15% slope areas and/or vegetation establishment. No plant can be established, meaning independently viable, within 3 days. It can be pla nted, or installed. Consider changing the word "established".

Typical linear tran sportation projects span great lengths and will hav e a majority of 3:1 slopes (33%) over the length of the project. In the arid southwest, initiation of vegetative cover or e ven non-vegetative cover within 3 working days will prove to be unachievable. Consider including provisions for linear transporta tion projects and more consideration for the arid s outhwest should be taken into

consideration.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

847 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 topsoi l is necessary, you must document how you intend to comply with the Part 2.1.3.5 requirements applicable to stockpiling and reapplic ation of the removed native topsoil."

In referenced Part 2.1.3.5, the Permit States: "Whe re disturbance to native topsoil will occur at your site, unless infeasible, you should stockpile and reuse it in areas that will be stabil ized with vegetation if applicable."

No permittee will claim stockpiling of topsoil to b e feasible and therefore never adhere to this claus e. Furthermore, the dir ection to stockpile uses the words "should" and "if applicabl e". These words are neither regulatory, nor legally binding.

Consider revising the language in this clause to re place the phrase: ", unless infeasible, you should stockpile and reuse it in area s that will be stabilized with vegetation if applicable." with: When topsoil is present at the site, stockpile and reuse it in area s 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 cu rrently requires compliance with this part as part of its internal environmental guidance. National Grid is in support of this part.

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 Necess ary.



# 8.2.8 CONSTRUCTION SITE POLLUTANTSUnformatted 2012 CGP Comment Response Essays February 16, 2012

848 

# 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 imprac tical, or at least inaccurate in noting potential pollutants. Perhaps EPA could supp ly a check box list of activities of concern such a s 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.



# 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 inclu de any manufacturer's specifications for installation or m aintenance of any stormwater

control measure that is used. There are situations where the operator may prefer to install and mainta in a stormwater control measure according to the industry standard and good enginee ring practice rather than the manufacturer's instal lation specifications. Some stormwater control measures, e.g., earthen berm, se diment trap, or stormwater detention ponds, are con structed on site and not

pre

‐ manufactured. It is recommended that this requirement is revised as follows: "Specificat ions for installation and maintenance based on the industry standard and good engineering pract ice including manufacturer's specifications where a ppropriate."Unformatted 2012 CGP Comment Response Essays February 16, 2012

849 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 chemica l additives used, including the dosages used, appli cable Material Data Safety Sheets (MSDS), manufacturer's application instructi ons 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: 8.2.11.2 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 pr oject boundaries with proper BMPs adequately preven ting pollution from the site. Is it the intent of EPA to require all slabs and old p arking lots within construction/demolition project boundaries be cleaned?

Consider revising the language to read: Sweeping or removal of sediment and other debris that has been tracked or deposited onto publicly accessible streets and other paved surface s unrelated and external to your project site.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

850 Refer to Response 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, CORR ECTIVE 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 schedule s for conducting inspections "including any higher frequency inspections consistent with Parts 2.1.4.2c and 4.2.2.2." However, the Part s listed do not address inspections or inspection f requency. EPA should verify that t he 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: 8.2.13

This section should be removed. It is redundant and just causes more paper work. The staff training re quirements are already covered in

Part 7.

AGC recommends that all EPA inspectors be required to successfully complete training programs with ins truction in construction applications. AGC members report that many field in spectors are greatly lacking in practical field app lications.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

851 

# 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 alrea dy exist in public record on federal highway projec ts as to threatened and endangered species and historic properties, why rep eat 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: 8.3 5.Paragraph 8.3 On-Site Availability of Your SWPPP a.I recommend also requiring (if applicable) a repr esentative of the appropriate land management agency to have access to the SWPPP and relative monitoring records. This could possibl y aid land management agencies to plan resource monitoring and not overla p with work that is already being done.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

852 

# 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 t he sign required in Sec tion 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 o f Your SWPPP" section

•Please confirm this suggests an electronic SWPPP i s acceptable. We would support EPA's push to make S WPPPs 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 Gr id is in support of access to downloadable files

Response Refer to Response 8.1.



# 8.3.1 PUBLIC AVAILABILITY OF SWPPP - INCLUDE IN NOI SUBMISSION - UPDATED SWPPPS SHOULD BE MADE PUBLICLY AVAILA BLE

Comment ID 0012-A1.001.003Unformatted 2012 CGP Comment Response Essays February 16, 2012

853 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 avail able for the public to view. Regular inspection reports and reporting releases o f reportable quantities of hazardous substances. ar e a public health and safety issues and should be made public.



# Comment ID 0024-A2.001.009

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: 8.3.1 Finally, we support EPA's move towards electronic N Ols and other changes that will increase the public 's notice and opportunity to participate in the authorization and enforcement as pects of the COP. However, we ar e concerned that EPA's position on public access to SWPPPs falls short of what the Clean Water Act ("CW A") requires. As set forth in more detail below, we urge EPA to expressly provide for public access to the initial and any revised ve rsions 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 Cl ean Water Act goal of furtheri ng public participation. As EPA has stated in the prop osed 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 re view the SWPPPs, and to provide feedback to EPA. [F N 2] These are positive changes that will greatly improve the opportunity for publi c participation in implementing and enforcing the C GP. However, we believe additional changes are necessary to sufficiently co mply with the CW A requirements governing public pa rticipation. Specifical ly, EPA should expressly require permittees to submit their initial SWPPPs to EPA along with their NOIs so tha t the public can review the SWPPPs without having to file a request. Additional ly, EPA should require permittees to make any updat ed SWPPPs publicly avai lable.

Public participation in the issuance and enforcemen t ofNPDES permits is a critical component of the CW A. See Castle v. Pac. Legal Found., 445 U. S. 198,216 (1980) (noting the "gener al policy of encouraging public participation is ap plicable to the administration of the NPDES permit program."); Waterkeeper Alliance, Inc. v. United States EPA, 399 F.3d 486, 503 (2d Ci r. 2005) ("Congress clearly intended to guarantee the public a meaningful role in the implementation of the Clean Water Act."). As provided by t he very first section

of the Act:

Public participation in the development, revision, and enforcement of any regulation, standard, efflue nt limitation, plan, or program established by the Administrator, or any State unde r this chapter shall be provided fo r, encouraged, and assisted by the Administrator an d

the States.Unformatted 2012 CGP Comment Response Essays February 16, 2012

854 CWA, § 101(e), 33 U.S.C. § l251(e). Consistent with this broad policy of providing 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 Sh eet at 26, but does not expressly state that it will allow public access to the initi al or any subsequent version s of the SWPPP, see id. at 29. [FN 3] By failing t o expressly provide for public access to SWPPPs, the draft 201 1 CGP deprives the public of its right to assist in the "'development, revision, and enforcement of any regulation, standard, effluent l imitat ion, plan, or program established by [EPA]" under t he Act. 33 U.S.C. § 1251(e) (emphasis added); see Waterkeeper Alliance, 399 F.3 d at 503- 04 (holding EPA's NPDES general permit program gove rning combined animal feeding operations violated 33 U.S.C. § l251 (e) by failing to provide public access to the nutr ient management plans required for coverage under that program)). The SWPPPs are the s ite- specific plans describing what permittees will do t o comply with the terms of the CGP. Without access to SWPPPs, th e public has no ability to meaningfully participate in the 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 acce ss 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 co pies of the SWPPP, upon request, to EPA; a state, tribal or local agency approving s tormwater 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 Nati onal Marine Fisheries Service (NMFS). EPA may provide access to portions of the S WPPP to a member of the public upon request.

2011 Fact Sheet at 29 (emphasis added). We urge EPA , at the very least, 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 mai led to members of the public. However, EPA strongly encourages permittees to provide public access to SWPPPs at reasonable hours. Upon r equest, EPA intends to assist members of the public in obtaining access to permitting information, including SWPPPs.

EPA 2008 fact sheet at 44 (emphasis added), availab le at http://www.epa.gov/npdes/pubs/cgn2008 fmalfac tsheet.pdf.

Response Refer to Response 8.1.



# 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 co nstruction site operators to keep the SWPPP on the site. However, EPA shou ld makeUnformatted 2012 CGP Comment Response Essays February 16, 2012

855 available from its website an electronic copy of th e SWPPP submitted by the permittees that can be eas ily retrieved by the public 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. Clari fy... "inspections or investigations by site staff," to read, "inspections or investigations by the site's Stormwater Team, as id entified in the SWPPP..." This clarification will in sure 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 SIT E MAP(S), IN RESPONSE TO ANY OF THE FOLLOWING CONDITIONS:

No Comments are Applicable to this Issue Category, and Thus No Response is Nec essary.



# 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 modifica tions include any changes to the site map? Modific ations to the site map will usually occur daily and are already dated and initi aled. This will be a lot of tracking changes and se ems redundant.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

856 

# 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 o f "log" in this Part so that the requirement is not construed to require e ntry of data into some specific "log book," but simply the recor dation of the data in a written document of some ki nd.

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 cover ed under this permit, you must immediately notify any operat ors who may be impacted by the change to the SWPPP. "

•This requirement seems subjective. If multiple ope rators are on a project, they will all sign the wee kly or biweekly inspection form indicating Action Items/Corrective Actions and corr esponding changes to SWPPP. This signature requirem ent seems sufficient as an effective means of notifying operators of SWPPP mod ifications.

Response Refer to Response 8.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

857 

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Issue Category: 9, 9.1, 9.2, 9.3, 9.4, 9.5Unformatted 2012 CGP Comment Response Essays February 16, 2012

858 

# 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 p ermit 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 perm itted construction support activities. Part 1.1 doe s 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 p ermit accordingly. See Part 8.2.1 of the final perm it.



# 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 Pa rt refers to a person's name, a position title, a c ompany entity or a maintenance contractor. If any of these is acceptable, please c larify that. In addition, we believe that requiring an individual's name or that of a contractor raises the possibility that the informat ion will become s tale when personnel or contractors change and, as a result, impose an unnecessary burden on permittees to update their re cords every time a change of that nature occurs.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

859 Refer to Response 1.6.7.



# 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 id entify who is responsible for ongoing maintenance o f any SW controls left on the site for long-term use following your termination of permit coverage". There is nowhere o n the NOT form to make this identification. Is

it the EPA ‟ s intent that this information be placed in the pro ject 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 maintai ned during construction, except those that are intended for long-term use. MDT woul d 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 Response 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 a ny trigger event listed in the permit being realized. This timeframe is not always practicable for MDT forces, nor does it seem neces sary to force permit termination within a specified timeframe. As such, MDT does not believe a deadline should be specified for submitt ing NOTs.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

860 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 Nec essary.Unformatted 2012 CGP Comment Response Essays February 16, 2012

861 

# Construction General Permit

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862 

# 10 PERMIT CONDITIONS APPLICABLE TO SPECIFIC STATES, INDIAN COUNTRY LANDS, OR TERRITORIES

Comment ID 0011-A2.001.003

Author Name: Colón-Zavala Emilio Organization: ECZ Group, Inc. Issue Category: 10 This will allow EPA, with the participation of affe cted shareholders, such as PRHA members to develop CGP permit conditions that, while protecting the quality of Commonwealth waters in a cost effective manner, will permit the introd uction of streamlining measures, advocated by the NAHB and the PRHA, such as the Sin gle Lot Permit and the Qualifying Local Program (QL P). 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 authorit y 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 p ermits consistent with federal rules. EPA's propose d CGP contains many prescriptive requirements that go wel l beyond the requirements of federal rule and which may not be appropriate for

Texas. In reissuin g Texas' Construction General Permit, the TCEQ may elect to maintain the flexibility for choosing best management practices or propose different best management prac tices that will meet the requirements of federal ru les.

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 authorit y for the construction storm water program (except oil and gas), is delegated to the TCEQ. As the permitting authority, TCEQ has the aut hority to issues NPDES permits consistent with fede ral rules. EPA's propos ed CGP contains many prescriptive requirements that go wel l beyond the requirements of federal rule and which may not be appropriate for Texas. In reissuing Texas' Construction General Per mit, the TCEQ may elect to maintain the flexibility for choosing best mana gement practices or propose different best management prac tices that will meet the requirements of federal ru les.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

863 Refer to Response 2.1.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

864 

# Construction General Permit

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Issue Category: APP.AUnformatted 2012 CGP Comment Response Essays February 16, 2012

865 

# 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 pr ovide this clarification. The 2003 CGP did not incl ude a definition of the term

"minimize." However, that permit used the term frequently, in a ddition to the terms "eliminate or reduce" and "pre vent." The permit also used phrases such as "where practicable" and "to th e extent feasible," without providing a consistent definition of those terms. In response to comments, EPA determined that it was be neficial to use these terms consistently, especiall y where the Agency inte nded that these words be used inter-changeably. Consistent wi th the control level requirements of the CWA, in th is final permit EP A is clarifying

that the term "minimize" means to reduce and/or eli minate to the extent achievable using control measu res (including best man agement practices) that are technologically available and e conomically achievable and practicable in light of best industry practice. Therefore, wherever this term is used in Part 3, the permittee now has a consistent definition for what EPA inten ds by this requirement.

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 bullete d 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 pu rposes of the CGP) porous pavement (e.g., on roads, sidewalks, or parking lots) or vegetated rooftops, if such pavement or rooftops ar e designed to have high capacity for soil infiltrat ion?



# Comment ID 0038-A1.001.022Unformatted 2012 CGP Comment Response Essays February 16, 2012

866 Author Name: Minervini W. Organization: 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 str eams, dry weather flow is maintained by other sources such as reservoir relea ses, wastewater effluent, or melting snowpacks or g laciers.

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 al lowed under this permit, including:

1 Wastewater from washout of concrete; 2 Wastewater from washout and cleanout of stucco, p aint, 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 w ashing; 5 Toxic or hazardous substances from a spill or oth er release; and waste, garbage, floatable debris, c onstruction debris, and sanitary waste from pollutant-generating activities.

Brevard County Comment: If vehicle and equipment wa sh water is prohibited from being discharged then t he use of soaps and sol vents

is irrelevant.

Response Refer to Response 9.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

867 

# Comment ID 0066-A1.001.005

Author Name: Saenz Amadeo Organization: Texas Department of Transportation (TxDOT) Issue Category: APP.A The definition of "Operator" in Appendix A does not match the definition of "Operator" in Part 1.2. Wh ereas Part 1.2 defines an "operator" to include the party that "has operation al control over construction plans and specificatio ns, including the ability to make modifications to those plans and specifications," A ppendix A defines an "operator" to include the part y that "possesses the title of the land where the construction activity will take plac e and has operational control over construction pla ns and specifications, including the ability to make modifications to those plans and sp ecifications." The addition of the underlined phras e in the Appendix A definition is unjustified and not explained. Possession of title to land is, traditionally, neither required nor suf ficient for an entity to qualify as an "operator" for purposes of NPDES permit coverage. F or these reasons, the underlined phrase should be d eleted 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 respo nsible for filing the NOI/Storm Water Pollution Pre vention 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 of the CGP. To the contrar y, most electric utility linear projects are constr ucted and maintained on servitudes or easements. The landowners are typically not involve d in the design or details of the construction proj ect 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 To xic Waste is Hazardous Waste. Hazardous Waste in de fined in the Resource Conservation and Recovery Act (RCRA). I am not awar e of a regulatory definition of Toxic Waste. A regu latory definition should be provided. Labeling a container Haz ardous/Toxic Waste is not consistent with the conta iner marking requirements in 40 CFR 262.32, or 49 CFR part 172. Permitees should not be directed t o violate the law.Unformatted 2012 CGP Comment Response Essays February 16, 2012

868 Response Refer to Response 9.1.



# 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 inclu de well point dewatering and draining of any impoun dments such as ponds or lakes

Response Refer to Response 9.1.



# Comment ID 0098-A1.001.025

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.A In the construction industry the term "footprint" t ypically refers to the boundaries of a building pad. Because the intent here is to identify the "limits of disturbance," we suggest that this l atter phrase be substituted for the term "footprint ."

Response Refer to Response 9.1.



# Comment ID 0098-A1.001.026Unformatted 2012 CGP Comment Response Essays February 16, 2012

869 Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.A We suggest rewording this definition to read: "A st ructure placed at or below grade used to collect st ormwater runoff for conveyance purposes."

Response Refer to Response 9.1.



# 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 acr onyms.

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 Append ix A, it states "As used in this permit, the benchm ark monitoring requirem ent only applies to sites with disturbances of 10 or more ac res that discharge to sediment and/or nutrient-impa ired waters without an EPA-approved or established TMDL." In Permit Part 4 .2.2, it states "if you discharge to an impaired wa ter that is impaired for se diment or a sediment-related parameter ... .... .... , inc luding impaired waters for which a TMDL has been ap proved or established for the impairment, you are required to comply with the fol lowing stormwater control requiremenls .... _ .... Those controls being benchmarkUnformatted 2012 CGP Comment Response Essays February 16, 2012

870 monitoring. These seem to be contradictory statemen ts and require clarification or correction.

Response

EPA notes that the 2012 CGP does not define benchma rk monitoring.Unformatted 2012 CGP Comment Response Essays February 16, 2012

871 

# Construction General Permit

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Issue Category: APP.BUnformatted 2012 CGP Comment Response Essays February 16, 2012

872 

# 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

873 

# Construction General Permit

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Issue Category: APP.CUnformatted 2012 CGP Comment Response Essays February 16, 2012

874 

# 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 SWPPP. Perhaps they should just keep a copy of the revised waiver on-site?

Response Refer to Response 9.3.Unformatted 2012 CGP Comment Response Essays February 16, 2012

875 

# Construction General Permit

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Issue Category: APP.DUnformatted 2012 CGP Comment Response Essays February 16, 2012

876 

# 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 En dangered Species Act responsibilities by not providing clear guidance on the type of stormwater discharges and their effects to a var iety of different endangered species. The EPA shoul d do a programmatic con sultation

under Section 7 of the ESA with the USFWS to identi ty which species may be adversely affected and to w hat extent. In this way, the agencies could identify measures to reduce the impa cts to endangered species and their habitats. The c urrent situation of having each construction agent responsible for a development co ntact each USFWS office is inefficient, and does no t result in any measurable conservation benefit as would having more definitiv e guidance on the type of activities during constru ction, how they may affect federally listed species and how thos e 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 re quirements under section 7(a)(2). The EPA has not u pdated its analysis during this time frame with changes in species and their habita ts. Impacts from construction such as erosion and s edimentation have not been identified with best management practices such that improvements can be tracked or analyzed, and the r equirements for contact by the applicants instead of EPA skirts the requirements u nder the ESA. The frustration experienced by the ap plicants under this permit is monumental and likely expensive to legitimate busin ess and government operations. With a system of end angered species act consultation in this permit that is so disfunctiona l and broken, it is unreasonable to continue it for even 2 more years. The EPA should

evaluate the effectiveness of the conservation bene fit provided to listed species by implementation of Appendix D methods versus the benefit provided by formal consultation with the US FWS and generation of a biological opinion and guid ance 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 Appendi x D, Endangered Species Act Requirements

Comment: Ensure that eligibility criteria receive p ublic review.

Discussion: It is not clear if the eligibility crit eria mentioned in the Appendix will be promulgated for public review after EPA completes

its consultation with USFWS and NMFS. The text note s that the eligibility criteria are draft and subje ct to change. Since the criteria are subject to change EPA is not, in a substantive way providing an opportunity to review and comment. Thi s is an important issue to DoD as eligibility has been declined in the past causin g uncertainty in efficient construction project p rogress which can impact schedule andUnformatted 2012 CGP Comment Response Essays February 16, 2012

877 cost.

Recommendation: Recommend that EPA promulgate the f inal eligibility criteria after consultation with U SFWS and NMFS is comple te 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 endan gered species and historical properties. There are irrelevant to Stormwater Management.

Response Refer to Response 9.4.Unformatted 2012 CGP Comment Response Essays February 16, 2012

878 

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Issue Category: APP.EUnformatted 2012 CGP Comment Response Essays February 16, 2012

879 

# 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 Requirem ents" is not consistent with the Advisory Council o n Historic Preservation's regulations 36 CFR 800 that implement Section 106 o f the National Historic Preservation Act of 1966 as amended.

Appendix E has applicants or their consultants make critical decisions and determinations about the pr esence of or effects on historic properties, and requires them to enter into consult at ions and agreements to mitigate or avoid adverse ef fects with the SHPO without the participation of the EPA.

Under 36 CFR 800, however, these are EPA's responsi bilities to meet the requirements of Section 106 of the National Historic Preservation Act. While the EPA may formally delega te 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 de terminations. The responsibilities to make determin ations of adverse effect, to participate i n consultation, and to enter into agreement documen ts cannot be wholly delegated to applicants or thei r consultants (36 CFR 800.2(a), and 800.3 to 800.6).

Appendix E can be shortened, written in plain langu age, and made consistent with the steps in 36 CFR 8 00. MHC suggests that the following text be substituted for Appendix E:

Section 106 of the National Historic Preservation A ct of 1966 as amended (16 USC 470f) requires the EP A to take into account the, direct or indirect effects to historic properties f rom undertakings (projects) for which EPA provides funding or issues permits. The federal regulations that implement Section 106 are "Protection of Historic Properties 36 CFR 800" (ava ilable at www.achp.gov). The

EPA has determined that activities carried out unde r this EPA program are projects that require review and consideration to be in compliance with the federal historic preservation l aw and regulations.

Applicants or their consultant need to answer the q uestion and follow the procedures below to assist E PA in compliance with 36 CFR

800.

Does the project involve new construction, or the d emolition or rehabilitation of existing buildings o r other structures or facilities?

If no, then the applicant should certify that fact in writing and file the statement with the EPA. Bas ed on that statement, EPA will document that the project has "no potential to caus e 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 shou ld submit project information to the State Historic Preservation Officer (SHPO) that

consists of:Unformatted 2012 CGP Comment Response Essays February 16, 2012

880 • The project name; project location / address; com plete contact information for the project proponent and for the person sub mitting the information;

• A list of all federal and state permits and fundi ng required for the project;

• A narrative description of the project including a description of any proposed demolition or rehabil itation 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 propose d conditions; and

• Current photographs of the project area keyed to the plans.

(1) Mail or deliver your submittal to the State His toric Preservation Officer. See http://www.ncshpo.o rg 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 pro jects within "local historic districts" also provide a copy of your submittal to the town or city government local historic distric t commission. The conta ct addresses

for local historical and historic district commissi ons 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 will 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 b e 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 histo ric properties. National Grid supports Appendix E, which sets forth procedures to certify that a Notice of Intent meets one of the ne cessary criteria. National Grid is pleased to see t hat Criterion D is in place. In our experience, response time from some of the Tribal H istoric Preservation Officer's is much longer than 30 days, and sometimes not at all.

Response Refer to Response 9.5.Unformatted 2012 CGP Comment Response Essays February 16, 2012

881 

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882 

# 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 propose d that EPA substitute "site" or "project" for the term "property" on NOI form (Sect ion 3 -- Project/Site). This is consistent with ins tructions for completing EPA

3510-X.

Also, we request that Section III of the NOI form l ink to the primary permittee's project tracking num ber in order to avoid t he 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 Refer ence to Appendix C is incorrect in Section VIII. Th e reference should be to Appendix 0 in the statement "If you selected criter ion E from Appendix Co

Response EPA appreciates the comment and has revised the for m consistent with the suggestion.Unformatted 2012 CGP Comment Response Essays February 16, 2012

883 

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884 

# 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 an d could be simplified by providing specific BMPs fo r a variety of situatio ns. EP A is relying on a large-scale agricultural model to dete rmine BMP effectiveness in a micro-scale engineerin g 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 AST M D6459? There is only one commercial laboratory in the US that can run ASTM D 6459 and the ASTM D18.25.02 committee is currently making serious revision s to this standard. Other laboratories commonly used are Texas Transportation Institute, Utah Water Res earch Lab, San Diego State University. The studies that are references come f rom various sources other than ASTM D6459 and are t herefore not comparable. Further, many of the referenced studies are based o n information that is over 30 years old. The indus try and the technologies used for erosion control have evolved considerably in the la st 30 years and more recent data should be utilized . I would be happy to provide

additional references and materials that is more cu rrent 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 scientifica lly comparable, otherwise the reported C-Factor values shown give the impression that they are all comparable when they were perform ed under different testing/protocol conditions.

For channel stabilization, there is no table of pro ducts 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

885 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 b ackwards. With a steeper slo pe, you would want a lower C -Factor requirement as more sediment would likely b e eroding. To follow up with my previous suggestio n 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 f acilities/field locations. I have developed an equation that allows for this to happe n and would be happy to discuss this further. Usin g the reported C-Factors from various laboratory/field conditions in their curren t 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 T ack can be used on all sites to achieve the desired EPA requirements and that blow n straw alone will meet the EPA requirements for near ly all conditions. Since these t wo techniques are considered to be the cheapest out in the marketplace, why would the end user pick any thing other than this? In the field, blown straw a nd blown straw with tack do not get used on all slopes, especially slopes greater t han 30% and this is because they have been found/observed to not work w ell under these conditions, yet the table above clearly indicates t hat these would be fine on slopes greater than 15%, which implies that they could be used for slopes up to 60% or higher. This is why I suggested the following earlier in the text commen ts:

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

Using references fo r blow straw from 1978 and 1979 is not very thoroug h as I am aware of quite a few recent studies, one in particular performed via ASTM D6459 that showed that blown str aw has a C-Factor much higher than what is reported above.Unformatted 2012 CGP Comment Response Essays February 16, 2012

886 As I mentioned earlier, either this table should be much more thoroughly developed with consistent and comparable data or removed entirely as it will lead to serious confusion and p roblems.

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 plas tic nettings should not be used. Instead, a leno we ave natural fiber netting should be required.

If Table H-1 is to be included, a much more compreh ensive listing of the advanced hydraulic matrices s hould be included, such as Bonded Fiber Matrices, Flexible Growth Mediums and Stabilized Mulch Matrices. A good reference for th ese types of products c an 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 o f the advanced hydraulic matrices should be include d, such as Bonded Fiber Matrices, Flexible Growth Mediums and Stabilized Mu lch Matrices. A good reference for these types of products can be found i n the attached published paper.

Response Refer to Response 2.46.



# Comment ID 0139-A2.001.005

Author Name: Aho Andrew Organization: Geosynthetic Materials Association (GMA) Issue Category: APP.H C Factor calculations for synthetic (Turf Reinforce ment Mats) TRMs vegetated and un-vegetated should b e included as acceptable

stabilization methods-

• In addition, there needs to be a differentiati on among the various TRMs in the industry today. W hile all may provide the same C Factor on the first day of installation, the variat ion in the C Factor through the duration of the pro ject or until a final acc epted vegetative cover of 70% is achieved will change drastically i f the wrong product is used for the application.Unformatted 2012 CGP Comment Response Essays February 16, 2012

887 • To expand upon the above, hard requirements need to be made for UV stabilization of the TRM (the in dustry standard ASTM 4355 percent of tensile strength retained at 500 hours i s a geotextile specification and needs to be modifi ed to 5000 hours for TRMs tha t could be exposed to the sun for long periods). UV compro mised TRMs' C Factor will be diminished.

• Tensile Strength Requirem ents need to be made to differentiate TRMs. A TRM that is damaged during construction or maintenance due to low tensile strength will have its C Factor diminished as well. A simple calculation shows tha t on a 3:1 slope, a typical tractor type highway mow er can exert 1800 #/ft of force in the direction pe rpendicular to face of the slope. So a TRM with le ss than 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 guidelin es 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 performance properties and hydraulic performance properties to help the designer make the appropriate TRM selectio n.

Response Refer to Response 2.46.Unformatted 2012 CGP Comment Response Essays February 16, 2012

888 

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889 

# 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 Co rnell 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 Preci pitation Extremes for the

Northeastern United States and Southeastern Canada would need to be multiplied by 1.13 to be equivalen t to a 24 -hour storm. EPA should specify which design storm should be used, a s 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 (se e Appendix I). The Cornell method requires a conver sion from a "one calend ar 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 0133-A2.001.039

Author Name: Martin Tom Organization: Montana Department of Transportation (MDT) Issue Category: APP.I Appendix I specifies national standards for rainfal l intensity at specified frequencies and durations. MDT's hydraulics analyses often includes more refined, site-specific data. MDT requ ests clarification on the acceptability of using ou r own data.

Response See Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

890 

# Comment ID 0137-A2.001.021

Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: APP.I Appendix I

‐ The permit references technical paper number 40 pub lished in 1961. This document is no longer applicab le for many parts of the country per the referenced link.

http://www.ncdc.noaa.gov/oa/documentlibrary/rainfal l.html#atlas14

This has been superseded by a statistical evaluatio n and establishment of rainfall events by NOAA. Sin ce it is interactive an d online this

should be the reference document not Technical Pa per 40. See the link below for the State of Marylan d. This information updates the 1961 data by adding over 40 years of new rainfall d ata to better define the various storm events.

http://hdsc.nws.noaa.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 techni cal paper number 40 published in 1961. This documen t is no longer applicable for many parts of the country per the referenced link.

http://www.ncdc.noaa.gov/oa/documentlibrary/rainfal l.html#atlas14

This has been superseded by a statistical evaluatio n and establishment of rainfall events by NOAA. Sin ce it i s interactive and online this should be the reference document not Technical Pape r 40. See the link below for the State of Maryland. This information updates the 1961 data by adding over 40 years of new rainfall d ata to better define the various storm events.

http://hdsc.nws.noaa.gov/hdsc/pfds/orb/md_pfds.html

Response See Response 2.9.Unformatted 2012 CGP Comment Response Essays February 16, 2012

891Unformatted 2012 CGP Comment Response Essays February 16, 2012

892 

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893 

# 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 th e 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 Color ado, 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 procedure s that are consistent with these requirements. Quit e simply, more administrative transparency is needed and appropriate.

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.J In Appendix J, EPA proposes the benchmark monitorin g levels that must be met if applicable to a site. Each level is based on theUnformatted 2012 CGP Comment Response Essays February 16, 2012

894 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 bac kground 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 us ed in water quality criteria as the benchmark since assigning a value of 0 to the natur al background levels for turbidity in many rivers a nd streams in the southwest is unrealistic and very stringent. The Southern Ute Gr owth Fund believes it is more appropriate to collec t a receiving water sample at a location upstream of the farthest upstream stormwat er outfall for the project during the rain event an d use this natural back ground level

to determine the benchmark 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 Ana costia 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 wate rsegments 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 geographic al status (as compared to the few states which will be subjec t to this rule) when determining and designating th resholds 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, MRW C supports the suggestion to require permittees to conduct a pre- construction discharge sample in order to determine possible nat ural background values, so that a specific benchmar k level could be assigned (Appendix J, Part 2). While this would admittedly r equire an extr a step of work and consideration for the permittee, the additional efforts are merited by the potential to significantly impro ve the established benchmark monitoring system by t ailoring the critical v alues to the specific water of concern. This would hopef ully serve the dual purpose of setting reasonable a nd attainable standards for operators and of protecting impaired waters from significant increas es of pollutants above a natural level.

Response Refer to Response 9.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

895 

# 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 Appe ndix J should be removed from the Proposed CGP. The 2008 CGP provides sufficient guidance and has proven successful at im plementing water quality standards obligations of t he CWA. Proposed Appendix J, recognizing EPA intended efforts to help permittees , is more likely to create confusion and significan t cost, with no demonst ration that any additional benefits will be derived in comparis on 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 s ample in order to determine 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 Ap pendix J - lead AGC to fear that EPA is seeking to establish unrealist ic performance standards for permittees. These provisions wrongly assume that the natural background level of dirt an d other pollutants in s tormwater is zero. See Appendix J at J-5. Thus, the starting poi nt for the agency's primary performance metric in t his comprehensive and critical scheme also rests on the assumption that, in a pure natural setting, rain never causes dirt to move. T his assumption infects all of the pollutant concentrations levels (i.e., the "benchma rk" values) that will, if exceeded, become a water quality concern.

Appendix J of the Draft states that EPA interpreted state- specific water quality criteria to establish the be nchmarks included in the Draft. One problem with this approach is that theinconsist ency in the way the states express such criteria ha s yielded both inconsistent and unverifiable results (e.g., "some criteria for turb idity are expressed as a single limit, such as 25 N TU, whereas other crite ria are expressed as a certain amount above background levels of turb idity"). The second problem is the one to which AGC has already pointed out: EPA did not have access to established natural backgrou nd levels for each of the impaired waters. Thus, th e agency failed to correlate benchmark levels to natural background pollutant le vels (i.e., failed to account for natural variabili ty in stormwater discharges). By assigning a value of "0" to the natural background level of each pollutant, EPA set very stringent and probably unachievable benchmarks. A third problem is that the specific be nchmarks in Appendix J are based on low-flow condi tions rather than conditionsUnformatted 2012 CGP Comment Response Essays February 16, 2012

896 likely to be present during a rain event. Finally, AGC is concerned that the use of nitrogen or phosph orous fertilizer to establish the required vegetative cover for stabilization would i mpact 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 o n an in

- stream turbidity increase from upstream values. Thi s requires upstream and downstream sampling, not sampling of the discharge from the construction site. If EPA means to apply t hese benchmarks to the construction discharge, they are not achievable. Mo st of the TMDL turbidity increases listed in Append ix J are 5 or 50 NTU (above upstream values). For most locations and soil types , it would be virtually impossible to meet either o f these limits direct ly on a consistent basis. There would be frequent exceedences of the b enchmark, which would require constant corrective a ctions that would not i mprove the discharge.

The actual discharge from a construction site shoul d not have to be as low as the benchm ark value, in part because the discharge would be diluted by the receiving stream, and in part bec ause the upstream turbidity would be elevated durin g rain events. In fact, most TMDL requirements are a differential turbidity value. Th erefore, applying these limits directly to the disc harge is unreasonable. The operator will be required to take repeated corrective action as a result of the low benchmark values. These cos ts could be very signif icant 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 b e compared to permitted entities construction site discharge. However, the data in this appendix does not indicate what might be a rea sonable turbidity benchmark for the discharge from a construction site. The footno tes to the turbidity limits (with a few exceptions) all appear to be limits to the increase over upstream background concentrations in the streams, not of actual construction site discharge. Here are two example footnotes in the Idaho TMDL t urbidity limits:

Idaho TMDLs' 50 NTU increase standard:

"IDAPA 58.01.02.250 - Surface Water Quality Criteri a 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 instantaneous ly 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 wa ter supply intake:

"IDAPA 58.01.02.252 - Surface Water Quality Criter ia for Water Supply Use Designations.

a. Section 252.01.b.ii - Domestic - Turbidity as measured at the public water intake sh all not be: 1) Increased by more than 5 NTU aboveUnformatted 2012 CGP Comment Response Essays February 16, 2012

897 natural background, measured at a location upstream from or not influenced by any human induced nonpoi nt source activity, when background turbidity is 50 NTU or less; 2) Increase d by more than 10% above natural background, measur ed at a location upstre am form or not influenced by any human induced nonpoint sou rce activity, not to exceed 25 NTU when background turbidity is greater 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 water s 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 bein g developed by EPA to help identify discharges to i mpaired waters is likely to be useful for permittees, it will lead to many false p ositives. Within a given catchment area there are l ikely to be numerous areas that are waters of the U.S. Therefore, it is likely that man y discharges from locations within the catchment wi ll drain to other water s of the U.S. before the impaired segment in the catchment. In ad dition, it is possible that the discharge would be downstream of the impaired segment. Neither of these cases should be considere d a discharge to an impaired water. This should be emphasized in the language in Appendix J.

Response Refer to Response 9.6.



# APP.JQ ADDRESSING NATURAL BACKGROUND IN BENCHMARK

Comment 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 unr ealistic and scientifically unsupportable performan ce requirements on owne rs and developers. For purposes of setting applicable perm it requirements, the EPA assumes that the natural b ackground level of dir t and otherUnformatted 2012 CGP Comment Response Essays February 16, 2012

898 pollutants in stormwater is zero. See Appendix J at J- 5, http://www.epa.gov/npdes/pubs/cgp_appendixj.pdf (accessed June 17, 2011). In other words, the Agency's primary performance metri c in this comprehensive and critical regulatory reg ime rest s on the assumption that

dirt never moves in a rainfall.

Notwithstanding the self

- evident absurdity of this assumption, the Agency no tes only that this "will result in a very stringent benchmark level." The Agency requests comments on the zero ba ckground level and asks whether "commenters believe it is [i nstead] workable to require 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 th e final regulatory requirement will be "a benchmark that is reasonably correlated to cr iteria that are established in reference to natural background pollutant levels" in all

cases. Id.

The Chamber believes that the Agency lacks the lega l authority to impose a zero benchmark level, or an y other level, without first complying with 33 U.S.C. § 1314(b)(1)(B) and the RF A. The direct and indirect costs of this irrational and scientifically unsound approach co uld be substantial and should be calculated and acc ounted for. Furthermore, there is absolutely no evi dence that the Agency has considered, much less demonstrated, whether the re are demonstrable environmental benefits to offse t the potentially huge employm ent and economic costs this provision may impose on property owners, developers, builders and consumer s. In the absence of such a demonstration, the EPA's action is not justi fied.

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 jus tified and has been dev eloped in compliance with all IQA and statutory requirements. Also, it should cite the controlling legal authori ty that authorizes such a benchmark.

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 Bench mark Monitoring Level"

•Conducting a pre-construction discharge sample wou ld be helpful in establishing background conditions . However, for projects w ith a long duration, background water quality can change significantly throughout a calendar year. Suggest t his be accounted for by suggesting quarterly background monitoring.Unformatted 2012 CGP Comment Response Essays February 16, 2012

899 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 valu e will be of

benefit.

Response Refer to Response 9.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

900 

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901 

# APP.L STANDARD PERMIT CONDITIONS

Comment ID 0024-A2.001.006

Author Name: Rogers Gilbert Organization: Southern Environmental Law Center (SELC) Issue Category: APP.L Additionally, because EPA is in the process of revi sing the national post-construction requirements fo r 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 th at time.

[FN I] EPA, Office of Water, Stormwater Rulemaking Listening Sessions Presentation (3 Feb. 2010), avai lable at http://www.epa.gov/npdes/pubs/sw rule listening ses sions 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 h ad no involvement in de veloping a SWPPP, as may be the case with many secondary per mittees, it is a misstatement to execute a certific ation stating that t he SWPPP was prepared under the contractor's direction or superv ision. There may be alternate approaches to resolvi ng 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 a nd all attachments were prepared under my direction and supervision in accordance with a system designed to assure that qualified per sonnel properly gathered and evaluated the informat ion contained the rein OR HAVE

BEEN REVIEWED BY ME IN ACCORDANCE WITH A SYSTEM DES IGNED TO ASSURE THAT QUALIFIED PERSONNEL

PROPERLY EVALUATED THE INFORMATION CONTAINED THEREI N. Based on my inquiry of the person or persons who manage the system, or those persons directly respon sible for gathering the information, the informatio n contained is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties fo r submitting false information, including the possibility of fine and imprisonment for knowing violations.

Response Refer to Response 9.7.Unformatted 2012 CGP Comment Response Essays February 16, 2012

902Unformatted 2012 CGP Comment Response Essays February 16, 2012

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904 

# 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 C olorado (Federal Facilities in Colorado, Permit Num ber COR10000F).

Response

EPA notes that it has made available sediment removal efficiencys for the majo r geographic areas of permit coverage, but due to l imited resources, did not do this analysis for all covered areas, such as covered federal facilities and trib al areas. EPA would all ow permittees in

areas not included in the tables to either choose t he a geographic area that most closely matches thei r site, 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. Althou gh we are in complete agreement that a perimeter co ntrol

should be used between a construction area and a ve getated buffer, including this sediment removal rat e as part of the buffer does not seem appropri ate. If these tables are going to be used, they sho uld only include an estimate of the sediment remova l 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 appropriat e tools, however, they are only as reliable as the input data. Most sedime nt removal data has been generated by laboratories and manufac turer of BMP products; limited field data has been collected on sediment removal rates by construction BMPs. Furthermore, the data t hat has been collected is highly variable and depen ds a great deal on site conditions.Unformatted 2012 CGP Comment Response Essays February 16, 2012

905 Due to the uncertainty surrounding these charts and models, a toolbox approach for the design and sele ction of appropriate BMPs to manage and control construction stormwater discharg es 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" ar e, Appendix M of the draft CGP does nothing more th an quote the 40 CFR § 122.2

definition of "waters of the United States." Notwit hstanding that definition, identifying whether part icular stream s, tributaries, wetlands, ditches, or other water-related areas (or portions thereof), are legally "waters of the U.S." is not n ecessarily simple. See the proposed USEPA and Army Corps of Engineers Guidance Regardin g Identification of Waters Protected by t he Clean Water Act discussed in the May 2, 2011 Federal Register (76 Fed. Reg. 24479), and available at http://water.epa.gov/lawsregs/guidance/wetlands/upl oad/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 buffe r strips is excellent, mandating the use of such sy stems is not advisable.

• Buffer strips are only effective when they are ab le to accept sheet flows.

• Construction sites nearly always result in concen trated flow conditions.

Response See Response 2.3.3.



# Comment ID 0049-A1.001.041

Author Name: Fifield JeraldUnformatted 2012 CGP Comment Response Essays February 16, 2012

906 Organization: HydroDynamics Incorporated Issue Category: APP.M EPA emphasis on using results found in Table 1 thro ugh Table 8 is not advisable.

• No information has been provided that justifies " estimated % sediment removal" values are based upon actual field research.

• No information has b een provided that illustrates how performance value s change as numerous runoff events discharge over t he buffer strips throughout one year.

• No information has been provided about the height and mass of vegetation necessary to achieve the re ported values.

• No information has been provided about the limita tions 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 pred ictive results should not occur.

• The model has limitations on the amount of contri buting area allowing runoff to flow onto buffer str ips.

• Erosion protection by the establishment of vegeta tion represents a combined effect of interrelated c over and management variables. Thus, erosion rates are calculated using the time n ecessary 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 eff ect of support practices and management variables. The model assumes effectivene ss of sediment control measures (e.g., straw bales, si lt fences, sediment basins, etc.) function in "idea lized" conditions. For exa mple, fiber roll barriers never fail; sediment basins always re move most of the suspended particles entering the s tructure), and so forth.

• Fiber rolls and silt fence barriers will always f ail while construction activities occur. Thus, mode ling results must be viewed as assessing possible alternatives under idealized con ditions.

• RUSLE2 results should never be relied upon as bei ng "absolute"---only as providing a comparison. Eve n the author of RUSLE2 (George Foster) specifically warns users of the mod el that soil loss values are to be viewed as a ". . . guide rather than being considered

absolute."Unformatted 2012 CGP Comment Response Essays February 16, 2012

907 Response See Response 2.3.9.



# Comment ID 0049-A1.001.043

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M • Using RUSLE2 to provide absolute annual erosion r ates from a 100-foot long denuded slope does not ev en begin to represent

construction site conditions. Items associated with slope steepness, total contributing areas, individ ual storm events, and s o forth must be part of any assessment. Results of RUSLE2 modeling only provide an idealized comparison of annual load ing.

• 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 as sumption!

Response See Respones 2.3.9.



# Comment ID 0049-A1.001.044

Author Name: Fifield Jerald Organization: HydroDynamics Incorporated Issue Category: APP.M EPA must provide data from field research studies ( throughout an entire construction season) that subs tantiate 96% reduction of sediment by buffer strips. EPA is advocating that a 50-foot wide strip of vegetation is more effective than capturing polymer treated runoff waters entering a professionally designed SC S. Such a conclusion is incorrect and very misleadi ng!

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 o f the vegetative buffer strip.

The RUSLE2 model assumes silt fence barriers have b een installed correctly and never fail. Also, it ap pears the model assumes runoff will discharge through the geosynthetic material af ter depositing sediment. Finally, it appears flows discharging onto the fiber rollUnformatted 2012 CGP Comment Response Essays February 16, 2012

908 barrier (which also never fails) that always provid es filtration before discharging onto the vegetativ e buffer s trip. This second example is

idealistic and will never occur on a construction s ite. First, silt fence barriers will likely fail fo r concentrated flow con ditions. Second, a typical silt fence barrier constructed out of woven polypropylene material will dis charges very little water. Third, the fiber roll ma terial will eventually become clogged with soil material a nd provide little reduction of sediment from runoff waters. In summary, th e second

EPA scenario is also not realistic.

• EPA must proceed with utmost caution about the ef fectiveness of buffer strips. I cannot find any sci entific data or publications that

substantiate EPA's conclusions about the effectiven ess of buffer strips.

• If the EPA values have been obtained from publish ed data for the scientific community to review and assess, then this data must be made available for review and confirmation by the s cientific community.

EPA assumes construction sites have relatively unif orm 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 con struction site. • Construction sites usually consist of highly dist urbed 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 Gui dance which recognizes that buffer quality and main tenance is an important aspect of potential sediment and runoff control. We encourage making the language in this section stro nger to imply that restoring vegetation, leaving woody debris or biomass, and re placing invasive species with native plants is a re sponsibility, not an option, for the operator. To facilitate the use of native vegetatio n, we suggest providing resources about species nat ive 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 f eel that it is the role of the Agency to mandate wh at vegetation is in the natural buffer and what vegetation. However, EPA agrees native veg etation is better environmentally than i nvasive vegetation, and therefore EPA has retained the language encouraging that native veget ation be preserved and/or restored.



# Comment ID 0053-A2.001.047

Author Name: Boesch KevinUnformatted 2012 CGP Comment Response Essays February 16, 2012

909 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 si ze between the disturbed portion of your site and any waters of the U.S., implement sed iment and erosion controls that achieve the equival ent sediment loa d reduction as an undisturbed naturally vegetated, 50-foot buffer."

No permittee will claim they are able to provide an undisturbed naturally vegetated buffer to be feasi ble and therefore never adhere to this clause. Consider replacing the word "infeasibl e" 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 e xample, sites where all vegetation in the buffer area has been removed and replaced wi th impervious surfaces as a result of prior develop ment are not subj ect 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 excludi ng such cases of vegetation being absent for natura l reasons.

Consider revising the language in the first sentenc e to include naturally denuded areas, or remove the portion stating "due to prior

disturbances".

Response See Response 2.3.5.



# Comment ID 0053-A2.001.049

Author Name: Boesch Kevin Organization: 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 users to the performance charts starting on page M-10. The perfo rmance charts are very general and do not reflect s ituations, vegetatio n, soils, and

therefore accurate sediment removals for all areas.

Consider revising language/charts to refer permitte es to determine soil characteristics and vegetation types at the project location.Unformatted 2012 CGP Comment Response Essays February 16, 2012

910 Again the Permit uses the term "infeasible" and "fe asible". Consider replacing this soft language thro ughout the Permit.

Response See Response 2.3.9 and 2.3.1.



# 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. Complian ce Alternative 2.1.2.1.a: 50-foot Naturally Vegetat ed Buffer discusses the Ordinary High Water Mark as a reference point to be gin the buffer zone, but does this refer to any par ticular level? For inst ance, 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 le vel pool determination? There is no definition provided for Ordinary High Water Mark, so it seems to be left up to interpretation whic h 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 l ieu of constructing a 50-foot natural buffer are no t practical. Tables 1 through 8 in Appendix M list very specific localized vegetation and sediment removal performance for specific state s and terr itories 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 sim ilar estimated removal tables for the various regio ns and cover vegetation typical within their state. AGC asks that EPA clarify that natural buffer sediment removal values in other sta tes 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 curren tly

in force.

In addition, AGC believes that a majority of the se diment removal values presented in the tables in Ap pendix 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 int ensity or duration in m aking these % removal predictions, even though these factors wi ll have a significant impact on removal efficiencie s. EPA also has acknowledged that not every vegetation, soil type, and slope con dition is covered.Unformatted 2012 CGP Comment Response Essays February 16, 2012

911 Response See Response 2.3.9.



# Comment ID 0098-A1.001.030

Author Name: Davis Richard Organization: Beveridge & Diamond, P.C. Issue Category: APP.M

We note that the 50-foot buffer area is measured "h orizontally" from the stream channel. We suggest re placing that term with the term "perpendicular" to ensure that the buffer requireme nt 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 b e . . . the establishment of dense native vegetation . . ." (Buffer Guidance, page M- 6). But native vegetation along dry washes is rarel y dense. When a perennial flow was artificially established in local dry washes, some adjoining areas might develop dense riparian vegeta tion dominated by non-native plants, but others retained their sparse desert veg etation. EPA's demand for dense native vegetation i s therefore unrealistic.

Response See Response 2.3.7.Unformatted 2012 CGP Comment Response Essays February 16, 2012

912 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: SUPUnformatted 2012 CGP Comment Response Essays February 16, 2012

913 

# 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 pre vious general permit and it is much easier to under stand 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 th e applicability section are very useful and should assure some integration with other measures. We encourage EPA to consider local land u se 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 read ability of the CGP, and for clarifying a number of specific requir ements such as what circumstances and deadlines apply to correctiv e actions. These elements are important to improvin g the overall ease of c ompliance 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 d evelop and reissue a general NPDES perm it that requires greater efforts on the part of permittees to ensure that stormwater discharges from construction and development activities are ma naged and monitored to an appropriate extent with non-numeric effluent limita tions

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

914 Refer to Response 10.1.



# 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 (D EQ) recognizes the importance of revising the curre nt EPA's Construction General Permit (CGP). The CGP not only applies wher e EPA is the permitting authority, but also serves as a model for the perm its issued in the delegated states. The DEQ agrees with the ov erall objective of the proposed revisions which wil l implement the new Effluent

Limitations Guidelines and Standards for the Constr uction and Development Point Source Category (ELGs) under Part 450 of 40 C FR, which became effective on February 1, 2010. Additio nally, DEQ supports the concept of requiring construction site owners/operators to meet a suite of mandatory requirements, such as ero sion and sediment controls, soil stabilization prac tices, 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 prac tical and implementable permit. We seek to provide constructive comments that consider a wide variety of circumstances which will be presented nationwide at construction sites unde rneath this permit.

Target's comments focus on feasibility and implemen tation of non-numeric effluent limits (Best Managem ent Practices) and both the effluent limit and benchmark monitoring process and reporting. We believe that by clarifying and simpl ifying permit language, th e EPA will maintain environmental integrity. In addition, we are hopeful that our comments will contribute t o improved compliance from industry by seeking to clearly define standards and procedures while maintaining adequate flexibility for businesses to a dapt to weather events! Target makes no suggestion to decrease exis ting standards and supports efforts to manage storm water discharges 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 am end the Construction General Permit (CGP), the Idah o Conservation League s tronglyUnformatted 2012 CGP Comment Response Essays February 16, 2012

915 supports the proposal to revise the 2008 CGP. We ag ree that there is a need to update the CGP to incor porate current rules, best-available-science and to improve the ability o f the EPA to protect and sustain one of our nation  s precious resources: clean water.



# 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 t he attachment, the City also offers this general co mment: th e 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 St ate of New Mexico Clean Water Act 303(d)/305(b) Integrated Report). While i t doesn't rain often in New Mexico, when it does th ere is often very high intensity runoff (Gautam et al, 2010). These two facts unders core the need for strong construction stormwater re gulations to ensure the protection of New Mexico's water resources. The proposed permi t takes some much-needed steps to protect water qua lity yet still falls short in a number of areas. Section specific comments are outl ined 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 wr iting to support the improved conditions in the pro posed EPA Construction Stormwater General Permit ("Permit"); we also urge EPA to further strengthen the permit to require sta te-of-the-art control measures. We encourage the EPA to issue a permit that is stro ngly protective of water quality

Response Refer to Response 10.3.



# Comment ID 0122-A2.001.001

Author Name: Mackin KerryUnformatted 2012 CGP Comment Response Essays February 16, 2012

916 Organization: Ipswich River Watershed Association Issue Category: SUP Existing controls on construction sites are not doi ng the job of cleaning up our waterways. Meanwhile, stormwater management and treatment practices are currently available that ar e cost-effective and capable of containing pollutan ts on site. The Ipswich River Watershed Association (IRWA) supports the improved conditions in the proposed EPA Construction Stormwa ter General Permit ("Permit") and calls on EPA to further strengthen t he permit to require state-of-the-art control measu res. As a citizen who values clean streams, lakes, and coastal areas, I/we urge EPA to issue a Permit that is strongly protective of wate r 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 i mprovement 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 requi red monitoring. While CRWD supports the inclusion of this monitoring, EPA should outline ho w the reporting of monitoring data will be used to improve compliance with the permit and protect water quality. The data collecte d will be of little use if there is not a plan to r eview and respond to data indicating non-compliance. Also, it is difficult to provide a complete response without inclusion ofthe numerical Nephelometric Turbidity Unit (NTU) limit.

Response Refer to Response 10.1.Refer also to Response 13.1.



# Comment ID 0135-A2.001.002

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissio ns (MACC) Issue Category: SUP Contrary to a range of other environmental issues, means to resolve this problem are reasonably availa ble, cost-effective and implementable on the local level. Such means, which are strongly supported by the Massachusetts Associ ation of Conservation Commissions (MACC) are addressed in the in the prop osed EPA Construction Stormwater General Permit (Pe rmit).

Response Refer to Response 10.1.



# Comment ID 0138-A2.001.001

Author Name: Khalsa EkOngKarUnformatted 2012 CGP Comment Response Essays February 16, 2012

917 Organization: Mystic River Watershed Association (MyWRA) Issue Category: SUP Existing controls on construction sites are not doi ng the job of cleaning up our waterways. Meanwhile, stormwater management and treatment practices are currently available that ar e cost- effective and capable of containing pollutants on s ite. We support the improved

conditions in the proposed EPA Construction Stormwater General Permit ("Permit") and call on EPA to further stren gthen the permit to require state-of-the-art control measures. As an or ganization that values clean streams, lakes, and co astal areas, we urge EPA to iss ue 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 bet ter address both constr uction phase and post-construction phase stormwater proble ms than the prior construction general permit inclu ded.

Why Better Construction and Post-Construction Storm water Controls are Needed

Significantly more stringent stormwater controls ar e needed to address one of the most important and m ost challenging threats to the waters of the United States. For example, here in A labama construction phase stormwater and post- construction stormwater are among the Cahaba River's most serious problems. The Alaba ma Department of Environmental Management's 2010 30 3(d) list indicates that

about 109 miles of streams in the Cahaba R iver watershed are impaired by sources that ADEM at tributes to stormwater runoff problems [FN1]. This is a clear indication of the significan ce of stormwater pollution in stream impairment in the Cahaba River watershed.

Based on GIS land use change analy sis, Howard, et al. 2002 [FN 2] found the "disturbe d" 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 "distu rbed 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 on e third to one half of the Birmingham Water Works B oard customers is provided by the Cahaba River. Also, the Cahaba R iver is the last refuge for many federally listed t hreatened and endangere d species in addition to those species that were thought to be e xtinct, but which have recently be rediscovered as extant. These vital beneficial uses are currently threatened by inadequately managed st ormwater. Poorly managed stormwater is degrading th e Cahaba River's water quality as well as its physical and biological inte grity.

For these reasons, reversing the current degradatio n of water quality in the Cahaba River will require improved stormwater ma nagement and post-construction stormwater management. EPA's draft Construction General Permit may serve a model for improved stormwater management for Alabama.Unformatted 2012 CGP Comment Response Essays February 16, 2012

918 [FN 1] The "Sources" column of that 303(d) list cit es one of the following sources of stormwater runof f problems for the 109 impaired miles of the Cahaba River: "Urban Runoff/S torm sewers", "Land Devlopment", or "Municipal".

[FN 2] Howard, Hoke S., Bob Quinn, Morris C. Flexne r, and Ronald L. Raschke. 2002. Cahaba River: Biolo gical and Water Quality Studies, Birmingham, Alabama. March/April, Septembe r and July, 2002. U.S. Environmental Protection Age ncy, Region 4, Science and Ecosystem Support Division, E cological Support Branch.

[FN 3] Jefferson County's Stormwater Management Aut hority, 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 mak e floods more frequent and severe. [FN 1] Erosion from a construction site can strip hundreds of tons of sediment per acre per ye ar off of the exposed land into adjacent and downstream water bodies, fueling harmf ul algae blooms and smothering underwater ecosystem s.[FN 2] Additionally, construction site runoff 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. Meanwhi le, stormwater management and treatment practices a re currently available that are

cost

‐ effective and capable of containing pollutants on s ite. I/we support the improved conditions in the pr oposed EPA Construction Stormwater General Permit ("Permit") and call on EP A to further strengthen the permit to require state

‐ of

‐ the

‐ art control measures. As a citizen who values clean streams, lakes, and coasta l areas, I/we urge EPA to issue a Permit that is st rongly protective of water quality

[FN 1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Poi nt Source Category (the “C&D Rule”), Preamble, 74 Fed. Reg. 6 2,996, 62,998 (Dec. 1, 2009); EPA, Report to Congre ss 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 Stormwa ter Management in the United States, at 26, 180 (20 08), available at http://www.epa.gov/npdes/ pubs/nrc_sto rmwaterreport.pdf.Unformatted 2012 CGP Comment Response Essays February 16, 2012

919 Response Refer to Response 10.1 and Response 10.2.



# 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 t o downstream water bodies. The

nutrients associated with sediment can fuel harmful algae blooms and smother underwater ecosystems. Th e Connecticut River i s under enough pressure from nutrient loading all the way t o Long Island Sound that has itself been declared a n impaired water for nitrogen.

Response Refer to Response 10.1 and Response 10.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

920 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: OPPUnformatted 2012 CGP Comment Response Essays February 16, 2012

921 

# 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 th e apparent lack of flexibility for variations in th e nature of construction sites. Fo r example, our experience indicates that many of the proposed requirements will be difficult, if not imp ossible, to meet for specif ic 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 Ind ustry numeric effluent limit, the inclusion of a water quality based effluent lim it, the prescriptive nature of the non numeric effl uent limits, and the reporting requirement after exceedances of the Numeric Efflue nt Limit. The cumulative impact of all the new requ irements will have dele terious impacts on our members' businesses.

Response Refer to Response 11.1.



# Comment ID 0036-A1.001.003

Author Name: President Mike Organization: National Asphalt Pavement Association (NAPA) Issue Category: OPP NAPA appreciates the opportunity to provide comment s on the EPA's proposed draft CGP. For the reasons outlined above, we are concerned that many provisions would impose unreali stic, significantly burdensome, and economically de vastating requirements on construction site operators. We strongly urge EPA t o focus on a BMP based and flexible approach to ens ure the CGP is economically achievable, effective in reducing pollution from st ormwater discharges, and workable on a national bas is. EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing st ate and local permit re quirements, and proven effective in protecting water quality.Unformatted 2012 CGP Comment Response Essays February 16, 2012

922 Response Refer to Response 11.1.



# 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, bu t we are concerned that compliance with the propose d CGP would not be feasible. The cumulative impact of all the new requirements w ill have deleterious impacts on the business of con struction.

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 opportuni ty 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 devastating requirements on construction site operators. We str ongly urge EPA to focus on a BMP- based and flexible approach to ensure the CGP is economically achievable, effective in reducing poll ution from stonn water discharges, and workable on a national basis. EPA should focus on implementation of erosion and sediment con trol BMPs that are practical and consistent with ex isting state and local penn it requirements, and proven effective in protecting wa ter 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 economic impac t and limited environmental benefit of the proposed CGP. The proposed chan ges to the CGP would greatly confuse the construction i ndustry due to its sheer size and complexity. The p ermit will require much more paperwork and the costs associated with the additio nal steps would have to be borne by the constructio n industry. Placing additionalUnformatted 2012 CGP Comment Response Essays February 16, 2012

923 requirements, rather than adequately assisting with compliance with existing policies and requirements already in place , will adversely impact the industry and the economy as a whole.

Response Refer to Response 11.1.



# 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 com ments on EPA's proposed draft CGP. For the reasons outlined above, we are concern ed that many draft provisions would impose unrealis tic, significantly bur densome, and economically devastating requirements on constr uction site operators. We strongly urge EPA to focu s on a BMP- based and flexible approach to ensure the CGP is economically achievab le, 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 pract ical and consistent wit h existing state and local permit requirements, and proven eff ective in protecting water quality.

We encourage EPA to work closely with the commercia l construction industry and the Associated General Contractors of America during the comment review process and as it continu es 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 2008 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 bel ow are the concerns that the City of Nampa has on t hese new provisions list ed in the

draft CGP.

Response Refer to Response 11.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

924 

# Comment ID 0150-A1.001.003

Author Name: Borysenko Jim Organization: REI Engineering Inc. Issue Category: OPP In conclusion, my company appreciates the opportuni ty 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 operators. We str ongly urge EPA to focus on a BMP- based and flexible approach to ensure the CGP is economically achievable, effective in reducing poll ution from stormwater discharges, and workable on a national basis. EPA should focus on implementation of erosion and sediment con trol BMPs that are practical and consistent with ex isting state and local permit requirements, and proven effective in protecting wa ter quality.

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 con cerned that many of the benefits of a general permi t will be lost if EPA a dopts the CGP as proposed. The proposed CGP would require ext ensive site-specific effort to obtain coverage and thereafter to demonstrate compliance. The draft CGP contains new and additive requirements that collectively render the permit n early unusable in pract ice. These requirements include the 30-day waiting period for coverage, the obligation to install all BMPs before initiating construction, the 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 C GP as proposed. The pro posed CGP would require extensive site-specific effort to obtain data in order to demonstrate compliance. Th e draft CGP would appear to contain new and additive requirements that collecti vely would make it extremely difficult to apply a p ermit 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 practices before initiating construction, and the 5 0- foot buffer requirement and the numeric turbidity l imit. All of these requirements will have significant impacts on construction and operating costs, costs that would negatively impact our members and the members of eachUnformatted 2012 CGP Comment Response Essays February 16, 2012

925 Illinois cooperative.

Response Refer to Response 11.1.



# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: EXTUnformatted 2012 CGP Comment Response Essays February 16, 2012

926 

# 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 i n response to EPA's proposal to extend the expirati on date of the above- referenced CGP from June 30, 2011, to January 31, 2012 (79 Fed . Reg. 22891, April 25, 2011). UWAG supports the pr oposed extension, and further supports a longer one if necessary, so that EPA can proceed with separate but related administ rative proceedings in a step-wise fashion. In the pending CGP reissuance proceeding, EPA must incorporate the effluent limitations guide lines and new source performance standards for the construction and deve lopment point source category (the "C&D Rule"). The C&D Rule was finalized on December 1, 2009, but was subsequently remanded bas ed on appeals filed by UWAG and other parties. As p art this remand, EPA must address and resolve concerns raised by UWAG in the original C&D rulemaking, as well as correct the num eric turbidity limit. Unless and until EPA takes these actions on remand, EPA ca nnot meaningfully proceed with reissuance of the CG P. To date, EPA h as not even released a proposal on remand. Recognizing that thi s proposal will be followed by a public notice-and- comment period, and thereafter by a final Agency action informed by the comments r eceived, UWAG questions whether EPA has given itsel f suffic ient time to finalize the remanded C&D rule, then revise and ultimately f inalize the CGP on or before January 31, 2012. So, while UWAG strongly sup ports an extension of the currently effective CGP, UWAG urges EPA to make the extension long enough to acco mmodate the actions that need to occur, as well as to foster a meaningful pu blic 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 f or new CGP permit issuance resulting from "the unce rtainty surrounding the error in calculating the 280 NTU limit and the appropriate w ay for EPA to address it..." [FN 4] it is obvious to all that more time is necessary. The PRHA understands, however, that the time allott ed by EPA for concluding this complex regulatory pr ocess, with potentially significant impacts for the regulated community in Puerto Rico, should result in the extension of the 2008 CGP for what would be its full-five year term, which ends on June 30, 2013.

[FN 4] 76 Fed. Reg. 22894.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

927 Refer to Response 12.1.



# 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 a nd believes the Agency should delay the EA until bo th the ELG numeric rulemaking is complete and all litigation associate d 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 com ply with applicable federal statutory requirements.

Response Refer to Response 12.1. Refer also to Response 13.1

.



# Comment ID 0013-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 li mit is finali zed and incorporated in the CGP. EPA should extend the existing 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 0031-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 it s full five- year term, which ends on June 30, 2013, to provide EPA with much needed time and flexibility to further streamline t he permits, incorporate the final Construction & De velopment ELG requireme nts, and allow the court to fully adjudicate all issues asso ciated with the pending C&D ELG lawsuit.

The current stormwater permitting program is burden some and duplicative - especially for builders who are simply building one single family home on a lot within a larger subdivision. E PA is strongly urged to take th e time needed to develop provisions to streamline t he permitting process. OHBA recommends that EPA adopt a Single Lot Permit and enhance and facilitate the Qualifying Local ProgramUnformatted 2012 CGP Comment Response Essays February 16, 2012

928 (QLP) provisions within the stormwater program. Rei ssuing the CGP provides an obvious and timely oppor tunity to clarify the permit process and provide ways to improve overall complia nce with EPA's stormwater program. A single lot per mit will allow builders who construct homes on single lots to better understand their permit oblig ations, thereby improving their ability to implemen t the necessary practices to reduce their impacts. Likewise, the QL P also simplifies the permitting process by allowin g builders and develope rs to obtain and comply with one stormwater permit through their communities instead of multiple and duplicative per mits issued at the federal, state and local levels. Not only does implementation of t he QLP reduce burdens on builders, it can significa ntly reduce the administrative burdens of the state and local govern ments. The Single Lot Permit and the QLP implement necessary improvements to the CGP that are timely and appropriate. EPA is strongly urged to in corporate these new provisions into the draft CGP a nd to extend the expira tion date of the 2008 permit to June 30, 2013, so that it has su fficient time to do so.

Response Refer to Response 12.1.



# 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 Gu idelines are implemente d, 74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric ut ility industry argued, and the court agreed, that t hese final C&D effluent guidelines failed to address important concerns including the inappropriateness of the regulations when applied t o linear development. See U.S. Court of Appeals of the Seventh Circuit Order in WB A, et. al. v. EPA, dated September 20, 2010. EPA is sued a stay for parts of the rule

and the rule has been remanded to address the flawe d numeric limit and other issues raised by utility industry through UWAG. While EPA has yet to repropose the C&D rule 10 months aft er remand, EPA is nonetheless proceeding to impleme n t its original requirements by issuing the draft CGP; seemingly ignoring many o f the concerns raised by the utility industry and r ecognized by the courts.

Sunflower encourages EPA to delay finalizing the pr oposed CGP until the final C&D effluent guidelin es are reissued in response to the remand and affected parties have had a chance to re view 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 ref erence for the final numeric limit on turbidity to allow EPA additional ti me to refine the calculation It is expected the revised numeric value will be public noticed prior to the expiratio n of the current Construction GeneralUnformatted 2012 CGP Comment Response Essays February 16, 2012

929 Permit (CGP) (currently January 31, 2012). U. S. St eel takes exception to the piece- meal issuance of the proposed rule as it is difficu lt to comment without fully understanding the ramificatio ns of the numeric limit in relation to the other requirements of this proposed CGP. Given the refined calculation will most likely be c omplete 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-929 7-8; EPA-HQ-OW- 2008-0238]) and then issue the prop osed CGP once the

numeric limit was revised.

Recommended Change: It is recommended for the EPA t o extend the issuance of the proposed rule until th e numeric limit is complete and issue the complete proposed rule for public com ment 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 an y 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 li mit into th eir construction storm water permits." It should be noted that the final r ule would also include an extension of the first ph ase- 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 i ncorporate the new numeric effluent limits into their statespecific co nstruction 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 limitation s are determined. ODOT has concern about the permit being implemented without these limitations finalized. This makes it very difficult to assess potential im pacts on erosion control budgets and ODOT's current devel opment and planning process. We recommend postponin g the proposed permit until the technical public has an opportunity to co mment on these limitation guidelines.Unformatted 2012 CGP Comment Response Essays February 16, 2012

930 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: EXT However, EPA has stayed an enforceable numeric turb idity limit of 280 Nephelometric Turbidity Units (N TU) for certain larger construction sites since January 4, 2011. As a resu lt, EPA's proposed CGP includes a placeholder for a recalculated numeric turbidity limit. It also includes corresponding permit requir ements for monitoring, reporting, and the acreage t hreshold. DEQ's main concems with the proposed CGP include the unknown numeric l imit on the stormwater discharges and some overly p rescriptive erosion and sediment control requirements. DEQ encourages EPA t o avoid including the numeric turbidity limit or as sociated requirements in 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 th at the EPA delay the issuance of the proposed CGP u ntil after the C&D numeric limit has been finalized allowing for incorporation into the CGP. To that end, the EPA should extend t he existing CGP through its full term of July 13, 2013 before issuing the proposed C GP in order to allow the C&D numeric limit to be fi nalized.

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 eff ective 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 extensio n is long enough. Can the Agency propose and complete the C&D rulemaking on r emand, and then propose and comple te a CGP that incorporates the C&D Rule,Unformatted 2012 CGP Comment Response Essays February 16, 2012

931 by next February? To date, EPA has not even release d a C&D proposal 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 ne cessary, 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 0093-A2.001.017

Author Name: Pilconis Leah Organization: Associated General Contractors of America (AGC) Issue Category: EXT EPA should extend the 2008 CGP for its full five-ye ar term, which ends on June 30, 2013. EPA has the a uthority to extend the CGP through the entire five-year time period set forth in its NPDES regulations for such permits. See 40 C FR § 122.46. EPA needs the additional time to complete and defend its C&D ELG and to incorporate that rule's requirements into th e CGP in a clear and re asonable way that will ensure the long-term success of its e ffort to regulate stormwater runoff.

As of today, EPA has yet to propose any revisions t o C&D ELG. If it published a proposal this month, E PA 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 d ecided to extend the 20 08 CGP.

And EPA would find i t well beyond impossible to wrap up the related lit igation. EPA has been working on a proposal to revi se the C&D ELG for nearly one year. That proposal is certain t o require and/or include new analyses and assessmen ts, and to raise new is sues (such as linear construction). Give the complexity of the anticipated proposal, any comment period of less t han 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 t he public comments on most of its proposals, and to develop its options for a final rule. AGC knows of no reason to expect the rulemaki ng on the C&D ELG to be any exception. The long his tory of this rule sugge sts that, if anything, EPA will require more and not less tha n 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 anoth er 90 days to review an d then either approve or reject EPA's final package. EPA w ould be fortunate to complete its unfinished work o n 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 adjudicat e 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 i ncluded in the C&D ELG are consistent the Clean Wat er Act. These issues must be fully litigated before EPA inserts them into a new CGP.

Response Refer to Response 12.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

932 

# 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, o r through July 13, 2013. This time is needed to allow public participation and in put into various critical CGP terms and conditions, prior to incorporating those provisions into a new permit.

Response Refer to Response 12.1.



# Comment 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 incorp orate the final C&D ELG requirements into the CGP a nd 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 i s needed to allow the 7th Circuit Court of Appeals to fully adjudicate all issues associated with the pending C&D ELG lawsuit. Many o f the issues raised could impact whether any of the new C&D ELG requiremen ts that EPA has proposed to incorporate into the CGP a re legally authorized under the Clea n Water Act. These issues must be allowed to be litigated in full prior to inserting them into a ne w CGP and mandating compliance.

Response Refer to Response 12.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

933 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: MISCUnformatted 2012 CGP Comment Response Essays February 16, 2012

934 

# 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 permitte e's in order to address site specific conditions. F or instance, section 2.1.3.2 requires the installation of stormwater controls along all down slope areas of disturbance prior to construction st arts in any portion of the site. It is

unwarranted to install erosion controls in areas wh ere earth disturbing activities are not occurring a nd then require the inspection of erosion control devices at the increased frequency identified in section 5.1.2. For a linear project w hich may include staged construction (depending on the length of the project), the regul ations should al low 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 Qual ity Based Effluent Limitations be available? It is important for tools lik e this to be available long before permit issuance to give opera tors 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

935 

# Comment ID 0021-A1.001.026

Author Name: Unrein Terrance Organization: Tepa Issue Category: MISC Will the EPA be making any recommendations for Make s/Models of nephelometers along with associated tra ining?

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 fo r 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 SWPP P Administration Software or Site Inspection Softwa re 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 Issue Category: MISC 1. As a threshold matter, the Chamber notes that th e Congress, through the Information Quality Act, 44 U.S.C. § 3516 note ("IQA"), directed EPA to comply with the Office of Managemen t and Budget's (OMB) information quality guidelines. See 44 U.S.C. § 3516 note (b); Guidelines for Ensuring and Maximizing the Qua lity, Objectivity, Utility, and Integrity of Inform ation Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002); see al so Prime Time v. Vilsack, 599 F.3d 678 (D.C. Cir. 2 010)(discussing IQA requirements). To comply, EPA must ensure all infor mation disseminated with respect to a listing deter mination meet OMB's high standards for objectivity, utility, and integrity b efore it is disseminated and to substantia te information quality "through documentationUnformatted 2012 CGP Comment Response Essays February 16, 2012

936 or other means appropriate to the information." 67 Fed. Reg. at 8459.

The EPA's draft CGP permit provisions, including bu ffers (Notice § III(E)(2)), design requirements (No tice § III(E)(3)), stabilization criteria and pollution prevention standards (Notice §§ III(E)(9), (10) and (11)), discharge sampling a nd quality standards (Notice §§ III(E)(12), (13), (14) and (17)), and especially re quirements for discharges to "sediment or nutrient- impaired waters" (Noti ce § III(E)(18) and (20)) ought to be informed by and in conformanc e with the IQA guidelines and the quality principle s applied by Congress to risk information used and disseminated pursuant to the S afe 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 i n accordance with sound and objective scientific practices and data collect ed by accepted methods or best available methods an d must specify, to the extent standards or practices are based on risk estimates, the expected risk or central estimate of risk, eac h appropriate upper-bound or lower-bound estimate of risk, each significant unce rtainty identified in the process and peer-re viewed studies that support, are directly relevant to, or fail to support the Agency's determ inations. 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 Commerce Issue Category: MISC F. The EPA ought to demonstrate that it has complie d with all applicable IQA requirements in the formu lation 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 n ot sure that it is nece ssary to "design a SWPPP", why not just include a copy of the CGP, with the appropriate forms for t he EPA requirements, after all, it seems the goal has shifted from preventing actual polluting a ctivities to rendering fines for documentation defi ciencies,

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

937 

# 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 therefor e difficult to comply with. For example, truly "eliminating" track out from vehicle s is very difficult to comply with; the same is tru e for prohibiting the d ischarge of any potential pollution. In practical terms, "minimizin g" track out and the discharge of potential pollution is a more realistic 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 CG P.

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 mee t the following requirements:" and then proceeds to list the requirements provided in Part 2.2.2.1.c. This s tatement in the Fact Sh eet implies that the requirements listed in Part 2.2.2.1.c only apply if the permittee chooses to comply with the Cfacto r 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.) apply to both the 70% cover method and the

C

‐ factor stabilization approach. Please clarify the c orrect interpretation of this permit requirement.

Response Refer to Response 13.1.



# Comment ID 0037-A1.001.050

Author Name: Valdez Bruce Organization: Southern 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

938 

# 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 thir d 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 Const ruction General Permit (CGP) - Fact Sheet, "the req uirements in Part 2.1.2 implement the C&D rule's requirement to minimize th e discharge of pollutants from the site by providin g and maintaining ‘natural buffers around surface waters, unless infeasible.' See 40 CFR 450.21(a)(6)" [emphasis added]. This Fac t Sheet did not, however, mention that (or explain why) the draft CGP definit ion of "buffer" (Appendix A) uses the phrase "strea ms, rivers, lakes, wetlands, or other waters of the U.S" [emphasis added] rather th an "surface waters." (Appendix A of the dra ft 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 prospectiv e 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 a nd Benefits Associated with Guidance Clarifying the Scope of Clean Water Act Ju risdiction)? Will the USEPA and/or the Army Corps o f Engineers respond to JD requests made for purposes of that CGP? If States i ssue NPDES CGPs that provide for "buffers" around " waters of the United States," will the USEPA and/or the Army Corps of Engineers r espo nd to JD requests made for purposes of those State CGPs? If PJDs are allowed for purposes of USEPA's new CGP, will CGP applicant s include those PJDs in their NOIs or other CGP doc uments?

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

939 

# 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 pr event the spread of invasive species including truc k tire washing between sites, requirement that soil, fill, or other materials tha t are brought in be free of invasive species and se eds.

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 l ink to the EPA CGP approved inspection report: http://www.epa.gov/npdes/pubs/sw_swppp_inspection_f orm.doc

Response Refer to Response 13.1.



# Comment ID 0056-A2.001.001

Author Name: Purinton Tim Organization: Massachusetts Department of Fish & Game, Division o f Ecological Restoration (DER) Issue Category: MISC Within this draft NPDES permit there is an indicati on that projects permitted under §404 of the Clean Water Act need not obtain 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 o r is not needed,the DER would like to take this opp ortunity 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 revitali zation warrant consideration of exceptions to speci fic 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 permi t requirements.

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

940 

# 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 through out the draft general permit. This language is subj ective and should be deleted because it makes it very difficult for a re gulator 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 conside red "infeasible" must be defi ned 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 understan d and meet all the proposed requirements, many of which will pose major challenges to many sm all scale operations with limited personnel. Many s mall operators and municipalities will be unable to meet the technical requirements in the proposed General Permit. The i mpacts to small and rural operations will also encourage avoidance of the pro posed 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 unles s EPA ramps up enforcement. In the current climate of tight budgets where will EPA obtain the funds for the numerous inspectors necess ary 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 OfficeUnformatted 2012 CGP Comment Response Essays February 16, 2012

941 Issue Category: MISC 4) Avoid including graphs and data from outside age ncies, such as NOAA, which are subject to change by those agencies. In par ticular, the rainfall statistics are being revised and the o ld data should NOT be allowed for use once the ne w data is published. To allow use of the old data will induce "cherry picking" of the data b y permittees.

Response Refer to Response 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 m ay increase if the sediment load to the local chann els is below the carryi ng 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 S WPPP 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 ambiguous about the type of discha rges it addresses. Suggest adding stormwater to the permit title: "National Pollutant Discharge Elimination System General Permit for Sto rmwater Discharges from Construction Activities."

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

942 

# Comment ID 0065-A1.001.001

Author Name: Jaeger Lisa 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 bod ies. However, the CGP m ust be within EPA's regulatory authority and rational i n scope and in its requirements, including accounti ng for the full range of 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 C GP does in several areas, does not resolve the unde rlying lack of authorit y, because the permit term measures compliance against a basel ine requirement which EPA has no authority to impos e. In addition, where compliance alternatives are provided, they do not p rovide adequate means to ensure that construction c ompanies will be able to adjust their activities sufficiently to meet the alternati ve 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 bas ed on dissimilar typical project footprints or layouts. Even where the CGP a llows alternative means to comply with the requirem ents, the alternative comp liance measures are based on compliance measures required for typical or average construction projects. For l arge infrastructure pr ojects of the type constructed by CCWC members, including hundred s of projects underway or in planning across the co untry, the terms of the CGP must be precise in their applicability to those typ es of projects. Permit terms that are vague or poor ly fit to the permitted activity are arbitrary and arbitrarily create compliance uncerta inty. Particularly because the penalties for noncom pliance are so significant, permit terms must be clear and rationally related to the p ermitted activity and must establish clear lines fo r compliance.

Where the CGP imposes irrational or unclear complia nce requirements on sources seeking permits, EPA sh ould amend the CGP term s or provide clarity in the final CGP. CCWC would be ple ased to work with EPA to develop alternative appr oaches that are appropriate for the heavy construction sector, and provide these sp ecific comments on the CGP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

943 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 nati onal and state priority, and the NPDES program is o ne of many components t o ensure that water quality is maintained Controlling sedime nt and other potential pollutants in storm water ru noff from construction sites, and maintaining the quality of waters of the U.S. and t hose of the State of Texas, is also a TxDOT priorit y.

Our comments reflect our goal to minimize the admin istrative burden and encourage the development of p ract ical, feasible, flexible and clear requirements. This would allow for the CGP to be implemented more effectively, and would therefo re improve the overall quality of storm water runoff from construction sites, and maximize the environmental benefits through the imp lementation 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 Coalitio n, and endorses and incorporates by reference into these comments the c omments 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. Issue Category: MISC 2. EPA requested comments on 26 specific items in t he CGP. Alcoa is providing comment to a number of those specific items. In general Alcoa believes the CGP should provide flexi bility wherever possible and prudent, so for those items containing alternatives Alcoa would like to have the final permit include t he various alternatives.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

944 Refer to Response 13.1.



# 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 obliga tions for permittees. The proposed permit is voluminous, burdensome, and ofte n unclear. While general permits are intended to si mplify and standardize compliance expectations along a range of activities deemed to have similar environmental impacts, the proposed CGP would require extensive site-specific effort to obtain coverage a nd thereafter to demonstrate compliance. We believe this is inconsistent with the value and purpose of NPDES general permits, marks a depar ture from past EPA practice, and stymies the use an d availability of the C GP for owners and operators of regulated construction site s.

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 requirement s that collectively render the permit nearly unusab le in practice. These requirements include the obligation to obtain all C WA Part 404 dredge and fill permit(s) before being eligible for coverage, the 30- day waiting period for coverage, the obligation to inst all all BMPs before initiating construction, the 50 -foot buffer requirement, the as-yet undefined numeric turbidity limit, the obligation t o collect a minimum of three samples in connection with each a nd every storm event from each and every stormwater outfall (with limite d opportunity to designate representative outfalls) on each and every day of discharge, and the more stringent expectations asso ciated with discharges to impaired waters, coupled with an often ill-defined obligation to determine the impairment status of th e receiving water body. [FN 5]

[FN 5] Section 4.2 provides that "[i]f you discharg e to an impaired water that is impaired for sedimen t or a sediment- related parameter, such as total suspended solids (TSS) or turbidity, and/or nutrients, including impairments for nitroge n and/or phosphorus, you are required to comply with the requirements in Part 4. 2.2." This presumes a level of detail in state list ing decisions that may not exist. In many states, impairment listing are tied to uses as opposed to criteria (e.g., aquatic life use impair ment) and do not provid e further detail on the specific parameters or stressors contributin g to the use impairment. In these situations, it wi ll be difficult if not impossible for affected permittees to determine if they have, in f act, triggered the requirements of Part 4.2.2.

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

945 

# 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" requ irements. See e.g., Sections 2.3.2.5.c.i.(1) (pollu tion prevention standards for construction and domestic waste), 2.3.2.5.c.11.(1) (pollution prevention standards for hazardous or to xic waste), and 4.2.2.3.b (daily visual examination for discharges to impaired water s). EPA should clarify that daily means those days on which construction a ctivities 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 di rect jurisdiction to implement the Draft Permit. However, the federal Construction General Permit will effectively establish a baselin e for state permits, which will be expected to be a t least as stringent as the federal CGP - or more stringent. So by imposing unreasonable an d unworkable requirements in the CGP, EPA will effe ctively move these same requirements into state permits. We understand that EPA regional offices have recently taken a heavy i ntervention and enforcement approach to states' permitting activities, using bo th its "objection authority" under the Clean Water Act and interim guidance letters to impose NPDES standards beyond the scope of what sta tes' permitting authorities consider feasible and p ractical. 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 autho rity, [FN 11] AGA members are concerned that the mo re stringent parameters EPA proposes could make their way into states' perm itting guidelines for linear construction projects. This is primarily because E PA has not hesitated to exercise expansive oversight autho rity 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 ex ample, that "[w]here a state is not able or willing to make p rogress in addressing these important issues, a region may need to act. A ctions may include prioritizing the issuance of per mits, objecting to permits, conducting inspections for a particular sector or w atershed, taking direct enforcement action in a sta te, or acting on specificUnformatted 2012 CGP Comment Response Essays February 16, 2012

946 recommendations identified in permit or enforcement program reviews." [FN 13]

[FN 11] Notice of Proposed Rulemaking, 76 Fed. Reg. 22890.

[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 Results 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 int erim guidance letters on states' NPDES permitting activities. For example, i n West Virginia, EPA Region III issued two guidance letters in 2009 to the Department of Environmental Protection (DEP), order ing compliance with federal effluent limits and imp osing an independent conductivity benchmark that DEP considered unattain able. [FN 14] This prevented DEP from obtaining req uired NPDES permits for its mine reclamation activities; to make matters worse, when DEP appealed the wholly impracticable set of guidance provisions, the Four th

Circuit held that DEP had no choice in the matter u ntil Congress stepped in. [FN 15] The Court merely concluded: "Permit require ments are often, and sometimes understandably, a source o f discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congr ess or the EPA to create exceptions to the CWA for states that m ove to ameliorate the problems private companies leave behind." [FN 16] G iven this court's ruling, the current ability of EP A to impose federal standards through allegedly non-binding guidance documents ma y be construed broadly. AGA requests that EPA refra in from using such an end-run approach to implementing more stringent sto rmwater permitting requirements on existing state p rograms, and reconsider the disproportionate impacts such requirements would ha ve on linear construction projects.

[FN 14] Inside EPA, "EPA Mining Guidance Obstructin g State Issuance of Reclamation Permits," 2010; U.S . EPA, "The Detailed Guidance: Improving EPA Review of Appalachian Surfa ce Coal Mining Operations under the Clean Water Act , National Environmenta l Policy Act, and the Environmental Justice Executive Order," 2010.

[FN 15] West Virginia Highlands Conservancy v. Huff man, No. 09-1474 (4th Cir. 2010), available at http://pacer.ca4.uscourts.gov/opinion.pdf/091474.P. pdf.

[FN 16] Id. at 17.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

947 Refer to Response 13.1.



# Comment ID 0090-A1.001.044

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: MISC On a similar note, AGA urges EPA to reconsider its recent position on the Phase II stormwater regulati ons, as strong statewide permitting is more efficient and well-tailored to t he environment cost-benefit calculus than a myriad of local government programs. Even as under current regulations, localities do no t have to duplicate MS4 requirements that the state is already performing, See 40 CFR §122.35(b), EPA has pushed to impute federal permit ting guidelines that mandate local permitting in th is very manner. A telling example comes from Alabama, where businesses are cu rrently disputing EPA Region IV's mandate that a lo cal permitting process regulate construction sites over and above the stat e's permitting program.[FN 17] The contested Alabam a Phase II MS4 General permit basically incorporates federal permitting guideline s independent of those set out in the state permit- a n additional burden on questionable legal footing. Essentially, the Phase I and II unfu nded federal mandate as imposed in Alabama, forces local government to act on standards without affording the state an opportunit y to adequate notice and comment. Further, this sce nario imputes the burden of haphazard local permitting to AGA's members, who mu st then manage a linear project involving multiple municipal jurisdictions . For all these reasons, AGA urges EPA to reconsider its appr oach going forward with this Dr aft 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 Responsible Developme nt's Request for Hea ring to Contest Administrative Action, In re Alabam a Dept. of Environmental Management National Pollutant Disc harge Elimination System Permit No. ALR040000, Alab ama Environmental Management Commission, Docket ID. 11-05, 11-06 (Mar ch 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 regulator y regimes that require hiring, training, deploying, and supervising an army of construction stormwater inspectors. EPA should enco urage the use of Qualified, Credentialed Profession als (QCPs) to develop and enforce Construction Best Management Practices Plan s (CBMPPs). There is no question that the bleak fis cal picture in the s tates 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 r esource advantage in this area, EPA would be remiss to adopt r egulations that reallocate responsibilities away from permittees.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

948 Refer to Response 13.1.



# Comment ID 0091-A2.001.033

Author Name: Burris Martin Organization: DEPARTMENT OF PUBLIC WORKS Issue Category: MISC 33. General: Permit requirements are project specif ic based on site conditions, project features, and receiving waters. Recommend a table or other device to evaluate the project and d irect the permitee to the correct requirements for the project. Guidance for the Toxic Release Inventory includes a flow charge to determi ne reporting requirements. This is an example of on e method to explain reg ulatory 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 an d provide ways to improve overall compliance with EPA's stormwater pr ogram. For example, introducing the Qualifying Loca l Program (QLP) would simplify the permitting process by allowing construction site op erators to obtain and comply with one stormwater pe rmit throughout their communities, instead of the multiple and often dupl icative permits issued at the federal, state and lo cal levels. Not only does implementation of the QLP reduce burdens on builder s, it can also significantly reduce the administrat ive burdens of the stat e 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 M anagement and Budget's (OMB) information quality guidelines. See 44 U.S.C. § 3516 note (b); Guidelines for Ensuring and Maxim izing the Quality, Objectivit y, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. at 8,452 (Feb. 22 , 2002); see also PrimeTime v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)(discussing I QA requirements). To comply, EPA must ensure that a ll information mee ts OMB's high standards for objectivity, utility, and integr ity before it is disseminated and that it meets sub stantiate information q uality "through documentation or other means appropriate to the inf ormation." See 67 Fed. Reg. at 8,459.Unformatted 2012 CGP Comment Response Essays February 16, 2012

949 The Draft, incl uding buffers, design requirements, stabilization c riteria, pollution prevention standards, discharge sampling and quality standards, and especially requirements for discharg es to "sediment or nutrient-impaired waters" ought to be informed 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 i n accordance with sound and objective scientific practices and data collect ed by accepted methods or best available methods an d must specify, to the extent standards or practices are based on risk estimates, the expected risk or central estimate of risk, eac h appropriate upper-bound or lower-bound estimate of risk, each significant unce rtainty identified in the process and peer-reviewed studies that support, are directly relevant to, or fail to support the agency's determ inations. See 42 U.S.C. 300g-1(b)(3)(A) & (B). AGC maintains that the metrics employed by the agency to develop the draft CGP's t echnical provisions, particularly those in Appendix J, Section 4, were c reated using procedures that are inconsistent with these require ments. Quite simply, more administrative transparen cy 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 b elieves that EPA should expand the "no discharge" c oncept to the entire permit

program. Specifically, the CWA and its NPDES permit program regulate the discharge of pollutants from point sou rces 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 source and a discharge. Conversely, if there is not a discharge, or if a di scharge comes from something other than a point sou rce, the CWA does not apply. Section 502(12) of the Act defines "discharge of a pollutant" to mean "any addition of any pollutant t o navigable waters fro m any point

source." Nowhere does the Act mention or indicate t he need to obtain permit coverage for potential dis charges. In 2008, EPA r ecognized that certain animal feeding operations do not disch arge pollutants and therefore are not subject to se ctions 301 and 402 of the CWA. Thus, the agency finalized a process whereby Concen trated Animal Feeding Operations (CAFO) operators m ay certify that they do not discharge or propose to discharge pollutants. See 7 3 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 p oint 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: MISCUnformatted 2012 CGP Comment Response Essays February 16, 2012

950 The proposed changes to the CGP would greatly incre ase its complexity and the cost of complying with i ts 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 da y. The proposed permit would rigidly prescribe the stormwater controls tha t operators have to put in place, require them t o 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 implem ented all of the prescribed measures, and require them to sel f-report any non-compliance to a publicly accessibl e database within 24 hours. It would also add a heavy layer of water quality bench marks 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 environment al benef its. With all due respect, AGC urges EPA to slow do wn, change course, and proceed in an orderly way that better reflects the enormous economic risks as well as the environmenta l rewards of its undertaking.

Response Refer to Response 13.1. Refer also to the economic analysis developed in support of the 2 012 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 Under the current regulations, residential constru ction activities that disturb less than an acre, bu t are part of a larger common plan of development or sale that will ultimately disturb mo re than one acre must get CGP coverage. In reality, this means th at nearly every single

lot on which a home is built within a new subdivisi on must have permit coverage. While NAHB recognizes that uncontrolled disc harges during active construction operations have the pote ntial to negatively impact the environment, NAHB be lieves that the burden of the current CGP requirements on single lot operations f ar outweighs the environmental risk, especially giv en the fact that most of the single-family housing construction firms are small businesses. For these small site operations, the st ormwater permit process can be confusing, overwhelming, and otherwise unreasonabl e, particularly given that many of the requirements are not applicable. NAHB believes there is a better approach that will achie ve the same environmental protection, but eliminate s many of the unnecessary and inapplicable aspects and burdens of the CGP and wil l promote widespread compliance.

The reissuance of the CGP is an excellent opportuni ty to clarify the permit process and provide ways t o improve overall complian ce with EPA’s stormwater program. NAHB recommends that EPA adopt a Single Lot Permit. A single lot permit will allow builders buildin g on single lots to comply with a streamlined permit, an d improve overall compliance with the stormwater pr ogram because it will tailor the requirements to builders and eliminate any unnecess ary mandates that apply to larger sites. This idea is not new. NAHB develo ped and submitted a proposed Single Lot Permit to EPA on No vember 19, 2007 (See Attachment I) [Please see Atta chment I in the origional comment letter. Docket ID EPA-HQ-OW-2010-0782-0096- A1]. Similarly, several states have adopted some ve rsion 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 s tormwater discharges from residential construction activities that occur on single lots (i.e., a single lot or lots within a larger subdivi sion). The reason NAHB drafted this permit was to c larify and simplify the permit requirements and better distinguish a builder’s res ponsibilities from those of a developer. In short, the CGP is largely written forUnformatted 2012 CGP Comment Response Essays February 16, 2012

951 developers and other operators of large constructio n activities. Many of the components and directives are simply not applicable to someone who is constructing a single home on a sing le lot within a subdivision (for example, requirem ents to install sedimen t ponds). Because these requirements are not applicable, it m akes little sense to include them in the permit, as it only creates c onfusion and uncertainty for the permittee. Further , it is obvious from construction starts

statistics18 that there are thousands of home build ers who would benefit from such a permit.

Over the past several years, NAHB has heard complai nts from homebuilders regarding the difficulty in b oth understanding the permit requirements and complying with them. Overall, our members agree that the detail and work related to t he Stormwater Pollution Prevention Plan is overwhelming, complicated, and c onfusing, particularly as it relates to a single ho me site. We believe a single lot permit will clearly outline the BMP and other permi t requirements for single home sites and therefore, foster higher rates of compliance among small residential construction sites within s ub divisions resulting in enhanced protection of the e nvironment. In light of the added burdens associated with the incorporation of the EL G and the differing requirements for larger sites, it makes even more sens e to adopt a simplified permitting framework for builders buil ding on single lots as soon as possible.

NAHB urges EPA to review the attached Single Lot Pe rmit and find a way to issue it (or a modified vers ion) along with or as p art of the CGP. We also would welcome the opportunity to work with the Ag ency to further refine the Single Lot Permit, as ne cessary. The Single Lot permit can be updated when EPA finalizes the nu meric limit in the ELG. EPA could include the singl e lot permit either as a standalone permit or a chapter within the CGP, simi lar to the Multi-Sector General Permit (MSGP) which has different subparts to the main permit for different categories. The single lo t permit will streamline the CGP requirements for s mall builders, and redu ce burdens while improving compliance. Further, if EPA decline s to implement such a streamlining package, NAHB po ints to the recent Memorandum on Regulatory Flexibility, Small Business, and Job Creation, which states, “whenever an executive agency chooses, for reasons other tha n legal limitations, not to provid e such flexibility to a proposed or final rule that i s likely to have a significant economic impact on a substantial number of small entities, it should explicitly justify this decision not to do s o in the explanation that accompanies that proposed or final rule.” [FN 19]

[FN 18] U.S. Census Bureau and U.S. Department of H ousing and Urban Development, New Residential Const ruction in May 2011, June 16, 2011, accessed at http://www.cen sus.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 Nat ional Pollutant Discharge Elimination System Permit Regulation and Effluent

Limitations Guidelines for Concentrated Animal Feed ing Operations (CAFO), which included a voluntary o ption for an unpermitted CAFO to certify to the permitting authority that th e CAFO does not discharge or propose to discharge. NAHB believes the enactme nt of a ‘no discharge’ certification program was a wise m ove to encourage the CAFO industry to eliminate dis charges into waterways.Unformatted 2012 CGP Comment Response Essays February 16, 2012

952 Because all land disturbing activities do not resul t in point source discharges, we soundly support th e adoption of a similar program for

construction activities within the CGP.

The CWA and its NPDES permit program regulate the d ischarge of pollutants from point sources to waters of the U.S. In order to be subjected to the Act’s provisions, one must meet th e two- part test of having both a point source and a disch arge. Conversely, if there is not a discharge, or if a discharge comes from somet hing other th an a point source, the CWA does not apply. Section 502(12) of the Act defines “discharge of a pollutant” to mean “any add ition of any pollutant to navigable waters from any point source.” In 2008, EPA recognized that certain animal feeding operations d o no t discharge pollutants and therefore are not subjec t to sections 301 and 402 of the CWA. Thus, the agency finalized a process whereby C AFO operators may certify that they do not discharg e or propose to discharge pollutants.[FN 20] Because the CWA regulates actual discharges only, and, like CAFOs, all construction activities do not result in the discharge of pollutants from point sources, the ado ption of a similar program for construction activit ies makes sense.

In certain areas around the country, develope rs engineer their property to retain all sites, the stormwater either evaporates or is absorbed into the ground, and no discharge of stormwater int o waters of the U.S. occurs. To date, however, EPA has treated the CGP as a land disturbance permit rather than a discharge permit. The Agency’s position is that any person who distur bs land and has a potential to discharge stormwater needs a permit. Furthermore, E PA believes that any site with disturbed land has a potential to discharge stormwater. Therefore, according to EPA, if an oper ator disturbs land, he or she needs a permit. That is not what the Clean Water Act says however, and case law affirms that only “actua l” discharges require permits. [FN 21] And further, EPA has no inherent au thority to regulate sources themselves, unless there is a discharge of a pollutant. [FN 22]

In Waterkeeper Alliance, the Court of Appeals for t he Second Circuit made the requirement for an actua l discharge perfectly clear: “unless there is a “discharge of any pollutant,” th ere is no violation of the Act, and point sources a re, accordingly, neither statutorily obligated to comply with EPA regulations for point source discharges, nor are they statutorily obligat ed to seek or obtain an NPDES permit . . .. [I]n the abse nce 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 regu lation for point source discharges and no statutory obligation of point sources to see k or obtain an NPDES permit . . ..23”

The Waterkeeper Alliance decision explicitly define d 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 i n order to be regulated under the CWA. The court based its statement on the statute, and it therefore must apply equally to all point so urce discharges. It is not e xclusive to CAFO’s. Contrary to the Waterkeeper Alliance dec ision, 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 Waterke eper Alliance decision applies to all discharges, the agency should make a similar certif ication process available to construction site oper ators.

The process of developing a parcel of land does not guarantee the establishment of a point source or t he discharge of pollutants into waters of the U.S. Contrary to EPA’s assumption tha t all construction activities that disturb one or m ore acres result in a point source discharge, land disturbance activities can be condu cted and sites can be designed to retain all water on site. For example, berms or buffers 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 natura l hydrology, and increaseUnformatted 2012 CGP Comment Response Essays February 16, 2012

953 opportunities to recharge ground water supplies without resulting in a discha rge. In many areas of the country, builders and dev elopers purposely plan and conduct their ground disturbing activities during the dry season when there is less likelihood of precipit ation 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 parce ls in areas with little topography, there may be sh eet 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 mec hanism in place by which a discharger may certify o r otherwise notify the agency that no stormwater will exit the site. Absent a way to d emonstrate this, EPA, as above, assumes everyone ha s or needs a permit. To eliminate liability, permittees who have designed their proje cts to retain all stormwater on site are forced to obtain a permit and comply with the permit terms to avoid future enforcement activity. Even though this is contrary to law, it seems to be the only recourse. NAH B continues to urge the agency to adopt a process to recognize those activities for which no discharge will occur, as it has done for the CAFO industry. Like the CAFO option, the construction op erator “no discharge” option could certify 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, construction, operation and maintenance. Not only will this ensure compliance w ith the Act, it provides a strong incentive for pot ential permittees to design their projects to retain stormwater on site. Building sit es that control stormwater so that there are no dis charges would provide maximum

environmental benefits to both the local surface wa tershed and underground reservoirs. The availabilit y of a no discharge certification would provide encouragement for builders and develo pers to explore the potential of meeting their stor mwater requirements while contributing reduced pollutant loadings and improve d water supplies.

The adoption of a no discharge certification will a lso reduce the number of permits an d administrative burdens faced by the permittees and the permitting authorities. EPA estimated that approximately 25 percent of the total universe of C AFOs would not discharge and thus would not need NPDES coverage under the 2008 f inal rule.[FN 25] Similarly, EPA posited that CAFOs that do not seek permit coverage because they do not discharge or propose t o discharge will save approximately $14 million ann ually in reduced permitting costs.[FN 26] Assuming the construction industry co uld garner similar savin gs and efficiencies, such a program could garner si gnificant benefits while still meeting its CWA obligations. L ikewise, such an option would also further the Obam a Administration’s goals to reduce unnecessary regulatory burdens and limit imp acts on small businesses.

[FN 20] 73 Federal Register 70,418 (November 20, 20 08). [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 W ater Act regulates the discharge of pollutants, not the cons truction of new sources. The Act does not prohibit construction of a new source without a permit. . . . The Act only p rohibits new sources from discharging pollutants wi thout 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 Constructio n General Permit (CGP), http://cfpub.epa.gov/npdes/stormwater/application_c overage.cfm#coverage (explaining that “[i]n general , you need to apply for coverage under the CGP if your constru ction site will disturb one or more acres . . .,” y et failing to recognize that a discharge is also required); NPDES General Permit for Storm Water Discharges from Con struction Activities-Fact Sheet, p.4, http://www.epa.gov/npde s/pubs/cgp2003_fs.pdf (providing “If there is a pot ential for a discharge, you need to apply for coverage under thi s permit.”).Unformatted 2012 CGP Comment Response Essays February 16, 2012

954 [FN 25] 73 Federal Register 70,469 (November 20, 20 08). [FN 26] Id.

Response Refer to Response 13.1.



# Comment ID 0096-A1.001.010

Author Name: Asmus Susan Organization: National Association of Homebuilders Issue Category: MISC Stormwater compliance has been further complicated by the multiple layers of regulation. In addition t o state- or federally-issued NPDES permits, most construction site operators mus t also obtain a permit from the county and/or munic ipality. Filling out tw o or more sets of applications to control stormwater runoff f rom your project is overly burdensome, bureaucratic and hinders efforts that could be made to improve e nvironmental protection. It also creates confusion that may result in nonc ompliance issues because builders might assume that complianc e with a local jurisdiction’s permitting requiremen ts also meets state or federal obligations.

Recognizing the challenges of satisfying multiple p ermits and their requirements, and in an attempt to minimize redundancy in the construction permit requirements, in 1999 EPA estab lished a “Qualifying, State, Tribal or L ocal Programs” (QLP) option.[FN 27] This program is designed to streamline the regulatory re quirements for construction site operators by incorporating the qualifying State, Tribal or local erosion and sediment control program requirements by reference into the NPDES permit. Once completed, permittees only have one se t of requirements to follow, thereby significantly reducing overlap, dupli cation, and

confusion.

According to the regulations, a qualifying State, T ribal, or local erosion and sediment control progra m is one that includes: (i) Requirements for construction site operators to implement appropriate sediment and erosion control best management practices; (ii) Requirements for construction site operators t o control waste such as discarded building material s, concrete truck washout, chemicals, litter, and sanitary waste at the constr uction site that may cause adverse impacts to water quality; (iii) Requirements for construction site operators to develop and implement a stormwater pollution pre vention plan (A stormwater pollution prevention plan includes a site descripti on, descriptions of appropriate control measures, c opies of approved State, Tribal or local requirements, maintenance procedures, inspect ion procedures, and identification of non-stormwate r 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 t he QLP and the “Construction Site Runoff Control” m easure in all Phase II municipalities, meeting these baselines should not be difficult. As a result, it would be reasonable t o believe that the use of QLPs would be widespread, but that has not been the case. Unfo rtunately, the program is so complicated that most states have not adopted the QLP language into their permits. For example, states mu st 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 w indow of time in which programs can be recognized. Likewise, the municipalities have to submit extensive documentati on to the state and receiveUnformatted 2012 CGP Comment Response Essays February 16, 2012

955 approval to be a QLP. The extra work for both state s and municipalities has not created an incentive f or the municipalities to participate.

EPA should revamp the QLP program to remove impedim ents and make it more attractive for state and loca l adoption. EPA also sh ould work with the regions to educate them about the QLP and provide incentives or other enticements to inc rease state adoption of this language and streamline the permitting process. As Mr. Benjamin Grumbles, former Assistant Administrator, Office of Water, U.S. EPA, recognize d, “[m]ore fully utilizing the qualifying local pro gram will increase admi nistrative efficiencies in the program and simplify the requir ements for construction site operators.” [FN 29]

In the CGP, EPA has not included any language on th e QLP and NAHB is concerned that EPA is missing an opportunity to incorpor ate a provision that will simplify the permit and impro ve compliance. EPA should develop a process for fac ilitating and encouraging implementation of the QLP. The CGP should include a list of communities and associated permit language which will at least encourage more communi ties to be involved. NAHB is willing to work with E PA and regional Home Building Association staff to assist EPA in identif ying communities that could be QLPs and to develop appropriate language to be

included in the CGP.

[FN 27] See 40 C.F.R. 122.44(s) and 64 Federal Regi ster 68,777-68,778 (December 8, 1999). [FN 28] 40 C.F.R.122.44(s)(1). [FN 29] Memo from B. Grumbles, Assistant Administra tor, Office of Water, EPA, to R. Varney, Administra tor, Region I, EPA (May 8, 2006) (Qualifying Local Programs for Co nstruction 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: National Association of Homebuilders Issue Category: MISC NAHB is particularly concerned about the cost impli cations of the new water qualitybased effluent limi tations. According to E PA’s TMDL website, roughly 40,000 impaired waters have b een identified within the 50 states. More than 13,0 00 of those 40,000 impaired waters suffer from nutrient and/or sediment impairm ents, requiring any NPDES permits for construction projects that may discharge to those waterbodies to contain a requirement for reductions of nutrients and/or sediment from th e project’s

stormwater di scharges. In addition, to these known impaired wate rs, there are likely thousands of other water bodie s that have not been assessed for water quality due to a lack of resourc es at the state level, so the number of impaired wa terbodies can be expected to gr ow. Under the proposed CGP, all developments that distu rb greater than ten-acres and discharge into an imp aired waterbody must perform monitoring for the “action levels” given in the CGP . This means that thousands of projects will be sub ject to the additio nal, costly water quality-based monitoring requirement, yet the Agenc y has failed to consider these cost implications in its deliberations.

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

956 

# 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 finalizes the proposed “Draft Guidance Regarding Identification o f Waters Protected by the Clean Water Act,” recently released for public comm ents by the EPA and the U.S. Army Corps of Engineers. Th e guidance, according to EPA and the Corps, will bring more water bodies under federal jurisdiction, and thus require additional assessments by the sta tes 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 being

constructed will have to be monitored under the CGP

.

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 o f Waters Protected by the Clean Water Act," recentl y released for public c omments by the EPA and the U.S. Army Corps of Engineers. Th e guidance, according to EPA and the Corps, will br ing more water bodies under federal jurisdiction, and thus require additional a ssessments by the states as to whether an impairmen t exists in those water bodies and if so, what is the cause of the impairment. The result is more areas where new homes are being constructe d 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 Issue Category: MISC The USEPA should define how compliance with this pr ovision be enforced.

Response It is not clear from the comment letter which provi sion the commenter is referring to.Unformatted 2012 CGP Comment Response Essays February 16, 2012

957 

# 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 fro m construction activities includes many prescripti ve requirements that go well beyond the requirements of federal rules. TCEQ requ ests that the flexibility in the storm water rules should be preserved in EPA's general permit, allowing operators to select best m anagement practices that are appropriate for their site. Application of prescriptive best management practices on a nation-wide scale does no t account for geographical and environmental differ ences.



# 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 fro m construction activities incl udes many prescriptive requirements that go well beyond the requirements of federal rules. TCEQ requ ests that the flexibility in the storm water rules should be preserved in EPA's general permit, allowing operators to select best m anagement practices that are appropriate for their site. Application of pres criptive best management practices on a nation-wide scale does no t account for geographical and environmental differ ences.

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 Activitie s is a Critical Environmental Problem.

"Stormwater runoff is one of the most significant s ources of pollution in the nation, ‘at times compar able to, if not greater than, contamination from industrial and sewage sources.'" See Environmental Defense Center v. Browner, 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 ENV IRONMENTAL PROFESSIONAL, Vol. 14, at 10 (1992) and Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1295 (9th Cir. 1992) ).

Stormwater poll ution is one of New England's most critical environ mental problems, including in the two states where the provisions of the Draft CGP will apply:Unformatted 2012 CGP Comment Response Essays February 16, 2012

958  In Massachusetts, approximately 75% of assessed la kes and 70% of assessed rivers are impaired, and st ormwat er is the single largest source of water pollution in the Commonwealth. The vast majority of impairments in Massachusetts are a ttributed to nutrients, bacteria, and metals - pollutants commonly found in stormwate r runoff. See Massachusetts Integrated List of Waters, Massachusetts Department of Environmental Protection ("MassDEP") (2010), ava ilable at http://www.mass.gov/dep/water/ resources/ tmdls.htm. The Lower Charles River basin, landmark and anchor of the Bos ton metropolitan area, routinely suffers from seaso nal blooms of toxic blue-green algae that can only be remedied by dramatic reducti on 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 (20 07), available at http://www.mass.gov/dep/water/resources/tmdls.htm.

 In New Hampshire, stormwater pollution is a signif icant and ongoing threat to the state's many surfac e waters. Of all the w aters listed as violating water quality standards in 2008, eight y-three percent - consisting of 23,778 acres of lak es, and 1,524 miles of river - were deemed impaired wholly or in part as a result of st ormwater. N.H. Dept. of Envt'l Servs., New Hampshir e Water Resources Primer, at 10-5 (Dec. 2008), at http://des.nh.gov/ organizatio n/divisions/water/dwgb/wrpp/documents/water_resourc es_primer.pdf. There is a growing body of evidence regarding the effects of s tormwater pollution in the state, such as significa nt chlorides- 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 recogniz ed, stormwater pollution from construction sites ha s especially severe imp acts and is an important target for regulatory action by EPA. L ands cleared of vegetation for construction and not otherwise stabil ized deliver much

more sediment to downstream waters than either the original, vegetated area or the same area restabili zed with vegetative cover following construction. Pollutants in construction stormwater contaminate drinking water, impair recre ation in affected water bodies, harm commercial and recreational fisheries, and mak e floods more frequent and severe. See EPA, Effluen t Limitations Guideline s and Standards for the Construction and Development Poin t Source Category (the "C&D Rule"), Preamble, 74 Fe d. Reg. 62,996, 62,998 (Dec. 1, 2009) ("Improper control of stormwater dis charges associated with construction activity is a contributor of sediment , turbidity, nutrients and other pollutants to surface waters in the United States. Sediment (both suspende d and deposited) and turbidity are common construction site pollutants and are significant ca uses of surface water quality impairment. . . . The sediment, turbidity, and other pollutants entrained in stormwater discharges assoc iated with construction activity contribute to aqua tic ecosystem degradation, increased drinking water treatment costs, and impai rment of the recreational use and aesthetic value o f impacted waters."). See also National Research Council, URBAN STORMWATER MANAGEM ENT IN THE UNITED STATE S, at 22, 26 (2008), available at http://www.epa.gov/npdes/ pubs/nrc_stormwaterreport .pdf. Accordingly, EPA's general NPDES permit estab lishing limits on and requirements for such discharges has been and shoul d continue to be a critical regulatory tool for imp roving 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: MISCUnformatted 2012 CGP Comment Response Essays February 16, 2012

959 CLF strongly urges EPA to include performance stand ards in the final permit reflecting Low-Impact Deve lopment ("LID") or "green infrastructure" stormwater management practices, an d/or numeric effluent limitations that are commensu rate with such standards. As CLF has demonstrated in recent comments to EPA Regi on 1 regarding proposed general permits for small m unicipal storm sewer systems, these practices are widely available, well proven, are generally more effective than conventi onal infrastructure at pollutant removal and volume reduction, and confer additional benefits to the community and environment.[FN 8] Performance standards b ased on LID/green infrastructure should be included as a n appropriate means of compliance with the non-nume ric effluent limita tions of Part 2 of the permit. At construction and development si tes, 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 t o conventional stormwater controls wherever possibl e, see Draft CGP, Parts 2.1.3 and 2.1.4, and deployed during stabilization activities , especially final stabilization, see Draft CGP 2.2 . CLF recommends that LID/green infrastructure be required - or at least be require d to be evaluated - at sites discharging to impaire d or other sensitive waters. Greater adoption of LID, including in the final permit here , will benefit communities by keeping pollutants an d concentrated pulses of stormwater out of our rivers, ponds and streams, ge nerating increased green space, cooling urban areas , and relieving cost and maintenance burdens on aging municipal stormwater i nfrastructure.

[FN 8] See, e.g., Comments of Conservation Law Foun dation on Draft General Permit for Small Municipal Storm Sewer Systems (MS 4) for Massachusetts South Coastal, Merrimack, and Int erstate 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 t he regulated community view violating the Clean Water Act as an acceptable busi ness 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 call ed "Effects 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 in vertebrate emergence from the eggs that were left b y previous generations by 99.7%! The soil egg banks t ested were from the prairie pothole region of Monta na, N. and S. Dakota, M innesotaUnformatted 2012 CGP Comment Response Essays February 16, 2012

960 and Iowa. From the controls (the soil that was not buried by sediment ), ostracods (seed shrimp), copepods (copepods), an d 3 families of cladocerans (Daphnia) Macrothricidae, and Chydorida e) hatched out, and in numbers - nearly 10,000 individuals. From the samples that were buried with 0.5 cm of sediment (free of pestic ides) , only 29 individuals emerged. Wow! The numbers fro m 1 cm and 2 cm sediment treatments were lower yet. Of all of their 0.5 cm t reatments, 84% hatched no animals at all, whereas o nly 14% of the 0 cm treatments(controls) hatched no animals.

Construction si te without adequate sediment protection have the po tential to deliver immense amounts of sediment per acre per year off of the exposed land into adjacent and downstream wa ter bodies, damaging aquatic ecosystems as exemplif ied in the above mentioned research. In addition to the threat of sediment, ot her contaminants are also carried into the wetlands and water bodies creating added pollution.

One can easily observe failed sediment and pollutio n controls by just randomly driving past constructi on sites - commercial such as in industrial parks or malls, government projects alon g highways, and individual home construction or lar ge condo developments. Better stormwater management and best practices are availa ble to use in these cases. Parker River Clean Water A ssociation strongly supports the proposed EPA Construction Stormwater General Pe rmit and believes the EPA should further strengthen the 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 Environme ntal Protection Agency ("EPA" or "Agency") should c larify that this draft

General Permit is indeed focused on the constructio n industry and not the mining industry. NMA previou sly had commented on the EPA's November 28, 2008 Proposed Rule on Effluent L imitations Guidelines for the Construction and De velopment Point Source Category on February 26, 2008, and those comments a re attached and hereby incorporated by reference. S ee Letter from Karen Be nnett,

NMA , to James Hanlon, U.S. EPA (Feb. 26, 2009). NMA al so commented on and supported EPA's proposed rule t o stay the numeric effluent limitations and associated monitoring requ irements for the Construction and Development Point Source Category, as pu blished on November 5, 2010, 75 Fed. Reg. 68,305. NMA's Dec ember 6, 2010 comments are also attached and incorp orated herein by reference

.

EPA's draft General Permit for Stormwater Discharge s from Construction Activities confirms that it is focused upon the construction industry sectors classified as "Building, Developin g and General Contracting" (NAICS Code 233) and "He avy Construction" (NAICS Code 234). These construction sectors are part of t he broader NAICS Code 23 for the Construction Secto r. Mining is listed under 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 natura lly 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 flotat ion), 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.com/censusfiles/N DEF21.htm. In contrast, to the mining sector, the " construction sector comprisesUnformatted 2012 CGP Comment Response Essays February 16, 2012

961 establishments primarily engaged in construction of buildings or engineering projects (e.g., highway o r utility systems)." See www.naics.com/censusfiles/NDEF23.htm (emphasis adde d). These considerations indicate quite correctly t hat EPA does not intend to cover mining activities in this General Permit for Stormwater Discharges from Construction Activities.

Furthermore, EPA's draft General Permit for Stormwa ter Discharges from Construction Activities notes t he close relationship b etween the draft General Permit and the pending rulemaking to establish numeric Effluent Limitations Guidelin es ("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 longstanding effluent limitations (e.g., 40 C.F.R. Parts 434 (Coal Mining ), 436 (Mineral Mining), and 440 (Ore Mining)) and the specific mining sec tors of the 2008 Multi-Sector General Permit ("MSGP") for Storm Water Discharges from Industrial Activity. Non etheless, NMA members may be indirectly and unintentionally affected by this pen ding rulemaking and the draft General Permit, and s o we urge EPA to recons ider and clarify the scope of this action.

With the foregoing points in mind, we direct you to perti nent parts of the President's recent Executive Orde r 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 promotin g e conomic growth, innovation, competitiveness, and job creation. . . . It must en sure that regulations are accessible, consistent, w ritten in plain language, and easy to

understand. Some sectors and industries face a si gnificant number of regulatory requirements, some o f which may be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, th us reducing costs and s implifying and harmonizing rules. In developing regulatory act ions and identifying appropriate approaches, each a gency shall attempt to promote such coordination, simplification, and harmonizatio n". [Emphasis added.]

Following these principles, we urge EPA to make it clear that mining activities will continue to be su bject to the mining-specif ic ELGs and the mining-specific sections of the 2008 MSGP. The mining industry must not be subjected to requir ements that have been developed for the construction industry and which h ave been designed without consideration of the uniq ue and dynamic nature of the large mine sites located in rural areas where storm water discharges are heavily influenced by natural background conditions. Accordingly, EPA should clarify that the mining sec tors will not be subject to the General Permit for Stormwater Discharges from

Construction Activities and the associated Construc tion 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 regulatio ns tends to be irregular and inconsistent already. This lack of regular an d consistent enforcement lends itself towards a wide disparity b etween stormwater controls implemented by various c ompanies. Companies that work hard to achieve full compliance with regulator y requirements, at great cost I might add, are ofte n under bid on construction jobsUnformatted 2012 CGP Comment Response Essays February 16, 2012

962 that require expensive erosion and sediment control s and inspection and sampling requirements to compl y with permit requirements. Contractors that do not adhere to these requirement s are infrequently caught and punished for violatio ns. Adding additional and expensive regulatory requirements without first add ressing this issue will only widen the gap between the "goo d" 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: MISC The Stormwater Quality Management Committee (SQMC) was formed by the stormwater dischargers in the Las Vegas Valley subsequent to issuance of their first municipal sto rmwater permit by NDEP in 1990. The Las Vegas Valle y permittees include th e Cities of Henderson, Las Vegas, and North Las Vegas, and C lark 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 stormwate r and abating erosion through the implementation of detention basins that reduce peak flows, and erosion control structures that sta bilize areas prone to erosion. Some of these progra ms call for on-site requirements,

consistent with the on- site focus of EPA's stormwater program, but other p rograms provide for regional solutions, which often provide a more direct and effective response to identified st ormwater issues. EPA should keep its permitting pro gram flexible enough to avoid discouraging effective regional programs or promoti ng programs that have little effect in unique envir onments.

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 p rovide for flexibility in permit conditions, and al low state agencies such as NDEP to work with local municipalities in the arid Southwes t to develop permit requirements that are appropria te 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

963 Organization: Issue Category: MISC In 2005, the Sharon Planning Board approved constru ction of 51 housing units on approximately 10 acres of land. The development, 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 landsca pe shall be preserved in its natural state, insofar as practicable, by minimizin g tree and soil removal."

Neverthess, the construction site was stripped of a ll the trees right up to the property line (the Pla nning Board waived the 50- foot buffer requirement), and approximately 2,800 truckoads of fill were removed to level the site for constructio n.

[See original comment letter Docket ID EPA-HQ-OW-20 10-0782-0129-A2 for pictures.]

This example demonstrates the relative difficulty o f enforcing a vague standard, such as "minimize" or "to the extent practicable." Federal authority is needed, as existing local ordi nances and bylaws 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 operat ors must implement to contain runoff and pollutants. Specified control measures m ust be adequate to contain the 2!!, 24-hour storm o n site, and prevent erosion.

Silt fences and hay bales are often ineffective at controlling runoff f rom 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 pro posed CGP relating to m aintenance of silt fences are an improvement and should be kept i n the final permit. I support the proposed requirem ents that operators implement protective measures on steep slopes, avoid sensitiv e areas and stream crossings, establish a 50- foot buffer zone set back, and install truck

wheel wash stations.

Response Refer to Response 13.1.



# Comment 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 action iterative process) will require a large- scale training effort to ensure all parties are edu cated on the expanded permit requirements. ITD is greatly concerned about having enough time t o develop, deliver, and implement the training requ ired to achieve permit compliance. EPA has indicated the date the new perm it would become effective, however, there is no dat e indicating when the final permit will be released. ITD will require lead time to identify budget and sc ope necessary to implement training. For a large ag ency like a DOT, a significant level of effort is required to develop a new training program by January 31, 2012

.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

964 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 propose d 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 pe rmit conditions, especially in instances where auth ority is being expanded outside of the current regulatory framework. For e xample, if the spec requirements are not adequate t o address spill prevention, those requirements should be modified separately from the cap within e xisting regulatory framework.

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 Wor ks Issue Category: MISC

In those cases where we have observed erosion and/o r sediment transport at construction sites, it can almost invariably be tr aced to one

of a few common root causes: it is the result of im proper implementation of properly designed and appr oved Best Managem ent Practices (BMPs), operation without permits or BMPs, the impl ementation of an inadequate stormwater pollution pr evention plan (SWPPP) prepared by unqualified professionals, or inadequat ely trained personnel implementing the SWPPP. None of the common problems observed at sites are the result of having inadequa te regulations and permitting to control erosion, s ediment, or pollutant t ransport, rather, they are consistently a failure on the part of the contractor/developer to follow current rules, regul ations, and industry standards. Jurisdictionally, Denver has found that greater com pliance with existing permitting and regulatory con trols is gained through a combination of strict implementation of in-field co mpliance assistance and escalating enforcement stra tegies.

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 Wor ks Issue Category: MISC Denver does have concerns with the draft CGP's appa rent lack of flexibility for site specific conditio ns, regional climate and geologic conditions, and limited consideration for the varia ble nature of construction. For example, our experi ence indicates that many of the proposed requirements will be difficult, ifnot impo ssible, to meet for many kinds oflinear utilities, multi-model transportation, and in- fillUnformatted 2012 CGP Comment Response Essays February 16, 2012

965 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 Wor ks Issue Category: MISC A third concern involves the proposed use of floccu lants for treatment of stormwater runoff, which con tradicts the current CGP for Stormwater Discharges Associated with Construction Activities and violates Colorado water quality regu lation.

Response Refer to Response 13.1.



# Comment ID 0135-A2.001.001

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissio ns (MACC) Issue Category: MISC Improperly controlled stormwater runoff continues t o represent a serious threat to the overall quality and function of waterways throughout the nation and certainly within the New England region. One major contribu tor to such damaging runoff is from construction

sites. Such runoff is notorious for the introductio n of particulate matter into streams and rivers, le ading to the contamination of these natural resources and associated harm to biological and ecological in tegrity and loss of vital functions such as fishery management and flood control. Construction site stormwater polluta nts are not limited only to particulate matter howe ver, poorly controlled construction site stormwater runoff can introduce a variety of o ther 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 plant and animal l ife loss through resultant anaerobiosis. Indeed, construction stormwater can c ontaminate drinking water, impair recreation in aff ected water bodies, harm

commercial and recreational fisheries and make floo ds more frequent and severe.[FN 1] It is clear that the means currently em ployed to address this nationwide problem remain ineffective, and damage from construction site stormwater remai ns poorly-controlled and unnecessarily detrimental.

[FN 1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Poi nt Source Category (the "C&D Rule"), Preamble, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009); EPA, Report to Congress on the Phas e II Storm Water Regulations, EPA Pub. No. 833-R-99-01 (Oct. 1999); National Research Council, URBAN STORMWATER MANAGEM ENT IN THE UNITED STATES, at 22-26, 180-182 (2008), availa ble at www.epa.gov/npdes/ pubs/nrc_stormwaterreport .pdf.

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

966 

# Comment ID 0135-A2.001.004

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissio ns (MACC) Issue Category: MISC

Effective enforcement based on clear and measurable standards of performance (such as, a specific nume ric limit for discharge stream turbidity) and an effective monitoring program. The possibilities for infractions for the proposed run off management program are myriad, effective inspection and ease of enforcemen t are essential to its proper function and the assu rance of the environmen tal benefits

that are achievable.

Response Refer to Response 13.1.



# 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 Associati on of Idaho Cities, the City of Nampa would like to express support for the 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 Watershe d, like many areas, suffers from increased developm ent that causes increased pollutant loadings to the areas ground and surface waters. One would think that because many of the su rface waters in this area centered around the Cedar Swamp ACEC are to be protected fro m water quality degradation as Outstanding Resource Waters, the construction activities would receive a higher degree of oversig ht. Unfortunately this is not the case as MassDEP h as repeatedly ailed to adhere to existing Surface Water Quality Standards required b y the Clean Water Act.

Response Refer to Response 13.1.



# Comment ID 0147-A1.001.001

Author Name: Scott RebeccaUnformatted 2012 CGP Comment Response Essays February 16, 2012

967 Organization: SECA Issue Category: MISC This new CGP contains significant challenges to tho se in the enforcement community, already burdened w ith reduced staffing and

diminished financial resources. In the interests of transparency in government, as well as supplementi ng dwindling resources, we

recommend that the EPA establis h an online information and reporting resource, ava ilable to the general public. Such a resource could provide mapping of active construction sites, as we ll as other pertinent information, made available t o 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 Ope rators. Anyone with internet access could determine levels of comp liance and problem areas. In addition, such a resou rce could provide the formal enforcement community with additional "boot-on-the- ground" by enlisting the general public's assistanc e in reporting and compliance. Such a resource is currently in process being estab lished in the state of New Jersey, and is already i n ongoing use in Minneapolis, Minnesota and Southlake, Texas. Those in the constr uction community are well aware of the challenges t o the EPA, to state Dep artments of Environmental Quality, and to local MS4s, in bei ng able to adequately inspect and enforce, due to t he limited resource s available. The CURRENT CGP is not being adequately enforced. Given the new additional stringent requirements containe d in this draft Permit, SECA believes such an online public resource to be an id eal way to meet the goals of transparency, public p artici pation, and collaboration, as well as promoting efficiency and effectiveness in g overnment.

Response Refer to Response 13.1.



# Comment ID 0150-A1.001.002

Author Name: Borysenko Jim Organization: REI Engineering Inc. Issue Category: MISC II. Since an apparatus as discussed above will like ly come with expense and may be subject to maintena nce 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 a dditionally make sense to have a licensed professio nal engineer or a person with an approved certification in the field have to sign/s eal the analysis.

III. In junction with the modeling approach, we wou ld also strongly suggest that a licensed profession al 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: MISCUnformatted 2012 CGP Comment Response Essays February 16, 2012

968 This proposed CGP includes many specific requiremen ts that exceed the authority granted to EPA for imp lementation of a General Permit for Construction. Federal Register Document VOL. 55, No. 222, Friday, November 16, 1990, Sectio n 122.26 (b)(x) and (c) as well as Federal Register Document Vol. 64, No. 235, Wednesday, December 8, 1999, Section 122.26 (b) (1 5) and following, does not give authority for specific requirements to regulat e land use conditions. While we know that the autho rity is given to the Di rector in (v) in 122.26 to require what he/she determines as reas onable informatio n from an applicant it does not allow the Director the authority to set specific requirements such as buffer strip width, s lope steepness, or other hard and fast specific cri teria that may be best ideas but not substantiated by performance criteria. In no way shape or form does the authority extend to cont rol of the quantity of discharge. The only time a quantity control requirement could maybe be construed here is for the purposes of controlling e rosion. Therefore, plea se remove all reference to specific numerical criteria refere nced in the permit related to best practices.

Response Refer to Response 13.1.



# Comment ID 0158-A1.001.006

Author Name: 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 t o simplify and standardize compliance expectations for a range of activities d eemed to have similar environmental impacts, the pr oposed CGP would require

extensive site- specific effort to obtain coverage and thereafter t o demonstrate compliance. This concern is only made worse by the new EPA/Corps Guidance on Identifying "Waters of the Un ited States". Not only does the new permit add oner ous requirements, the requirements would have to be met at many new loca tions on a project site because of the extremely br oad scope of the new Wa ters of the United Sates guidance. In sum, we believe this is inconsistent with the value and purpose of gener al permits, marks a departure from EPA's typical stormwater general permits program, a nd stymies the use and availability of the CGP for owners and operators of regulated construction sites.

The draft CGP contains new and additive requirement s that collectively render the permit nearly unusab le in practice. These requirements include the 30- day waiting period for coverage, the obligation to install all BMPs befor e initiating construction, the 50-foot buffer requirement, the numeric turbidity l imit, the obligation to collec t a minimum of three samples in connection with eac h and every storm event from each and every stormwater ou tfall (with limited opportunity to designate repres entative outfalls), and the more stringent expectations associated with discharges t o impaired waters, coupled with an often ill-define d 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 RailroadsUnformatted 2012 CGP Comment Response Essays February 16, 2012

969 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 per mitting process and associated compliance actions. The proposed permit would appear to be burdensome, unclear and will result in significant increases in costs to our members. Thi s ge neral permitting effort would also appear to dovetail with other proposed guidanc e and rule by USEPA specifically the new Waters of the United States and o bligation to determine the impairment status of a receiving w ater body.

Response Refer to Response 13.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

970 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: STRUnformatted 2012 CGP Comment Response Essays February 16, 2012

971 

# 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 nee d to be consistent with those contained in Appendix A. We noted some discr epancies between the terms defined within the body of the pe rmit and those same terms defmed in Appendix A. Inc onsistency 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, In c. Issue Category: STR The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended t o streamline and standardize compliance expectations for a range of activities d eemed to have similar environmental impacts, the pr oposed CGP would require extensive site-specific effort to obtain coverage a nd 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, In c. Issue Category: STR Tri-State believes the approach that EPA has taken with the proposed COP is inconsistent with the valu e and purpose of general pe rm its, marks a departure from EPA's typical stormwater gen eral permits program, and raises unn ecessa!), chal lenges to the use and avai labi lity of the COP for owners and operators of regulat ed construction s ites.

Response: See Essay Response 19.1.



# Comment ID 0088-A1.001.004

Author Name: Graves John Organization: Minnkota Power Cooperative, Inc. Issue Category: STR The proposed CGP is voluminous, burdensome, and oft en unclear. While intended to simplify and standard ize compliance expectat ions for a range of activities deemed to have similar en vironmental impacts, the proposed CGP would require extensive site-specific effort toUnformatted 2012 CGP Comment Response Essays February 16, 2012

972 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 an d intent of the CGP, by adding more requirements, c ollectively 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 mo re than doubled in length since the 2008 version wh en all the appendices are included. Our hope is this increased information do esn't overcomplicate and become so prescriptive tha t an Operator cannot feasibly implement the permit conditions. Increased specific ity in permit language simply adds cost to the proj ect and potential litigation when contractors are required to implement BMP's that ma y not be best way to deal with water quality concer ns.

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 subsec tions to the sixth order heading (ex. 4.2.2.2.b.i.) . The significant use of cross-referencing coupled with the micro-sublevel h eadings make the proposed CGP less readable, more c umbersome, and more difficult to navigate than the 2008 permit.

Response: See Essay Response 14.2.



# 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 concern ed that the Proposed CGP will be very difficult for the average permittee to underst and and, as a result, comply with. The Proposed CGP is also very diffi cult to navigate as it makes many cross- references to other CGP sections throughout the tex t. This is contrasted with the 2008 CGP still in ef fect, whichUnformatted 2012 CGP Comment Response Essays February 16, 2012

973 presents its requirements in a much clearer manner. LBA recommends that EPA consider the Proposed CGP' s readability and "understandability" in considering how it may be re drafted 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): Comp liance is usually better, if the regulatory require ments are relatively consistent, and easily understood. There are several sections o f the draft permit that provide opportunities for c oordination, clarification and consistency, in order to reduce redundancy, and to "keep it simple":

-- Requirements for sampling and reporting are incl uded 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 redundan t, 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 res pect to days allowed for stabilization. Typically most cont ractors have one subcontractor performing site stab ilization, at one time. Using one set of permit requirements for stabilization that c ould be applied to all sites regardless of site slo pe, adjacent impaired 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 requirements for discharging to an impaired water by a parameter oth er than sediment or nutrients. In each case, EPA wi ll inform the permittee if any additional limits or controls are necessary. Deleti ng either the referenced paragraph in 4.2, or the e ntire 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 i n Section 2.2.1. Both activities are dependent upon precipita tion events that cause site discharge and should pr obably be consistent.

Response: See Essay Response 14.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

974 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: ENV ASSESSMENTUnformatted 2012 CGP Comment Response Essays February 16, 2012

975 

# 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 imp acts of both alternatives on threatened and endange red species, water qual ity, and historic properties.

Oceans and sea-level rise should be included in the areas of analysis.

Response Refer to Response 15.1.



# Comment ID 0012-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 requiremen ts that impose an incremental increase in costs on permittees above and beyond co sts that are already accounted for in the 2008 CGP or in the C&D rule req uirements, which together define the baseline of costs to whic h these permittees are currently subject.

Costs on the taxpayer for any costs of polluted wat er or water supply restrictions should be included. In California, costs h ave been borne on the backs of the taxpayer and specifically the p roperty owner for improper planning and execution o f laws and regulations 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 Envir onmental Quality Act CEQA, ongoing monitoring and m itigation is a living process past the construction activity. The Municipalities also have responsibility under the California State General Plan and its Elements environment documents for monitoring and mitigation . Though this is not a Federal issue by legislation , CEQA documents are us ed in lieu of NEPA on transportation issues making the Ca lifornia State CEQA requirements part of the NEPA p rocess. Any mitigation and monitoring have a direct effect on pollution of sto rmwater.Unformatted 2012 CGP Comment Response Essays February 16, 2012

976 (Please note that Oceans are not considered under C EQA.)

The incorporation of other agencies requirements mu st 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 t he requirements of testing points. In California, s ome have State jurisdiction, but there are no federal testing points and no federal enforcement, other than lawsuits. The State of Cali fornia does not recognize Federal lawsuits and resulting decisions as their jurisdict ion under the MS4 Permits (Natural Resources Defens e Council, Inc.; Santa Monica Baykeeper, v. County Of Angeles County District ETA L 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 defi nition of "beneficial u se." The permittee must have that designation in place to ma ke 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 mor e protective that earlier versions of the CGP becau se it implements the requirements of the C&D ELG. It is therefore not cl ear why a NEPA review must be conducted. EPA has su ggested in the past tha t the existing NPDES program already controls an estimate d 80-90 percent of the sediment runoff from constru ction sites.[FN 1] New programs and program refinements that have taken pl ace since 2004 have further improved this performan ce.

[FN 1] 69 Federal Register 22,477 (April 26, 2004).

Response Refer to Response 15.1.



# Comment ID 0013-A1.001.003

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB)Unformatted 2012 CGP Comment Response Essays February 16, 2012

977 Issue Category: ENV ASSESSMENT We also strongly believe EPA should limit its revie w of environmental issues associated with construct ion 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 un til 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 onl y pollutant persistently contained in stormwater ru noff from construction sites. In completing this analysis, EPA must acknowledge that sediment is the key pollutant, strike references t o other pollutants that are unsupported, and continue to refrain from taking ac tion to address any pollutant other than sediment. EPA must further recognize the balance necessary to reflect natural conditions and this industry's minor contribution of sediment rel ative to other sources.

While EPA has broadly stated that there are a numbe r of pollutants associated with stormwater runoff from C&D activities, [F N 2] the Agency has fail ed to provide sufficient data to support such gener alized conclusions. In 1984, EPA initiated NPDES pe rmit regulations for stormwater runoff from virtually all developmen t projects in the nation. In 1985, NAHB implemented a Stormwater Sampling Program to s how that stormwater discharges from construction si tes were not a significant source of pollutants. Th is program collected stormwater samples from construction sites to evalu ate the levels of certain EPA-specified pollutants. The study found that other pollutants are generally not present in significant amounts in stormwater discharges from construction sites, and that the sedim ent can be controlled effectively through the use of Best Mana gement Practices. NAHB has been intimately involved in all aspects of the federal, state, and many local stormwater programs across th e country for at least the past 25 years, and has a wealth of data and inf ormation that it has shared with EPA over this time period to hel p EPA better understand construction stormwater iss ues.

For its part, EPA has provided little new informati on since 1985 to demonstrate that any pollutants ot her than sediment are c onsistently present in stormwater discharges from construction activities. While the Environmental Impact and Bene fits Assessment for the C&D ELG identifies 11 reports that describe pollutants other than sediment found in construction site disc harges or at elevated levels immediately downstream of construction sites, EPA c oncludes: "construction sites are not thought to be important sources of metals contamination;" construction activities during site development are not believed to be major contribut ors of [oil and grease and PAHs] contaminants to stormwater runoff;" and "constructi on site activities are not believed to be major contributors to pathogen contaminationUnformatted 2012 CGP Comment Response Essays February 16, 2012

978 of surface waters." Therefore, EPA is left with sed iment and sediment alone, as the only pollutant of concern from construction site stormwater discharges.

These findings meld well with the Agency's earlier conclu sions. 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] Similar ly, EPA found that "dis charges from this [construction] activity consist predom inately of conventional pollutants under CWA Sectio n 304(a) (4), in this case total suspended solids."[FN 4] In 2006, EPA reiterated its conclusi ons, stating that, "EPA did not identify in this [3 04(m)] Plan the constru ction industry because its discharges consist almost entirely of c onventional pollutants." [FN 5] Finally, in discuss ing the considerations made when contemplating BAT during the 2004 rulemaking, EPA s tated, "we do not have data indicating that these p ollutants [toxic and non-conventional] ar e found in construction runoff nationwide."[FN 6] E PA is urged to rely on these statements and complet e the EA to

address sediment from construction sites and sedime nt only.

[FN 2] See, for example, Development Document For P roposed Effluent Guidelines and Standards for the Construction & Development Category, November 21, 2008, p. 5-1, 73 Federal Reg ister 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 alt ernatives - No Action, which is not issuing the per mit, and the proposed action, which is issuing the proposed CGP. NAHB submits tha t an additional option, in the form of a modified C GP, should also be analyzed.

No Action. The No Action alternative is not a viabl e option. The Clean Water Act requires construction site operators who dis charge storm water during construction to obtain NPDES per mits if their activities disturb 1 or more acres of land area. In just those areas where EPA is the permitting authority, this mandate resul ts in thousands of permits - permits that could not be efficiently or effectively reviewed or issued if not for the general permit pr ogram. Furthermore, the existing CGP framework has proven to be effective and should not be compromised. Permitees are now experi enced in the process and the requirements, and have adapted their planning and construction practices to adhere to the program. To date, EPA has provided no data to suggest otherwis e.

Issuing a CGP. Issuing some version of a CGP, which has been specifically designed to provide flexibil ity and reduce burdens whileUnformatted 2012 CGP Comment Response Essays February 16, 2012

979 ensuring appropriate environmental protection, is t he only reasonable option. EPA's permitting scheme and its current Construction General Permit (CGP) was purposely designed to allo w flexibility in the design and implementation of B MPs, 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 i t rains.

The CGP allows all operators who are performing sim ilar operations (e.g., construction) to quickly obt ain permit coverage, ye t includes stringent requirements to ensure water quality is not compromised. In order t o be covered by EPA's baseline general permit, cons truction site operators must prepare a Stormwater Pollution Prevention Plan (SWPPP) and file a Notice of Intent (NOI) with EPA or the state permitting agency, then comply with the terms and c onditions of the permit (i.e., install and maintain Best Management Practices conduct biweekly inspections, record any plan chang es, etc.). While these requirements may appear simp listic, they are quite complex

and bur densome. For example, EPA's "fact sheet" for the NP DES general permit for stormwater discharges from c onstruction activities is 52 pages long [FN 7] and its guidance for writin g the SWPPP (Developing Your Stormwater Pollution P revention Plan: A Guide for Construction Sites) is 50 pages long.[FN 8] In addi tion, each permittee must comply with a set of twel ve standard conditions t hat outline their duty to comply, as well as additional inspect ion and reporting requirements. These mandates help to ensure that t he CGP does not result in unacceptable adverse environmental impact s.

The alternative to the "streamlined" general permit is an individual permit, which requires considerab ly more information and paperwork, yet rarely results in any measurable environmental improvement. In addition to being mor e cumbersome to the permitees, individual permits must be submitted well in advanc e of conducting the activity (typically 90 - 180 da ys), may require additional inspections and monitoring, and require mor e oversight by program administrators. Because thou sands of construction permits must be issued each year, and appropriate protections are w ritten 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_fi nalfactsheet.pdf.

[FN 8] See http://www.epa.gov/npdes/pubs/sw_swppp_g uide.pdf.

Response Refer to Response 15.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

980 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: PROCESSUnformatted 2012 CGP Comment Response Essays February 16, 2012

981 

# 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 commercia l construction industry and the Associated General Contractors of America during the comment review process and as it continu es 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 buil ding industry and NAHB during the comment review pr ocess 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 Un ited States, and in crafting a Construction General Permit (CGP) that will serve that purpose. At the same time, AGC has to in sist on transparency, sound science and reasoned de cision- making that accounts for economic and other relevant factors. To its reg ret, 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 muc h of what EPA has propo sed. If

EPA has assessed the costs and be nefits 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 publi c review. In summary, A GC urges EPA to take the time it requires to put itself on a sound and defensible course. The agency should do this in accordance with the following comments and all relevant requirements fo r public participation in its decision-making proce ss, for the protection of small businesses and to meet the desired objective of lim itin any excessive costs of federal regulatory requ irements.Unformatted 2012 CGP Comment Response Essays February 16, 2012

982 Response See Response 16.



# 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 Dra ft CGP allowing opportunities for public review and participation in the permit 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 b oth has a right to know about proposed stormwater d ischarges 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 applica ble local government that a NOI has been filed, and the final permit shoul d specify that EPA will provide real-time public access to all eNO I information submitted by permittees , including NOIs, sampling results, and other reports. As discussed above, the final permit shoul d 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 thi s permitting program. We call upon EPA to provide o pportunity for the public to comment when each site operator applies for coverag e by filing a Notice of Intent ("NOI"). NOls should be required to be submitted electronically, and all stormwater plans and monito ring data should be required to be posted on line a nd made available to the public.

Response See Response 16.



# Comment ID 0135-A2.001.006

Author Name: Orel Linda Organization: Massachusetts Association of Conservation Commissio ns (MACC) Issue Category: PROCESS Public participation is an item of particular conce rn to MACC as our organization, comprising thousand s of volunteer municipalUnformatted 2012 CGP Comment Response Essays February 16, 2012

983 officials, serves as the "first line of defense" fo r the protection of surface water and wetland resources t hroughout the state. EPA should insist on the opportunity for public comment and di scussion for any situation which meets the current criteria for the issuance of a construction stormwater permit at the stage of fili ng of the Notice of Intent. All stormwater permit r elated documentation, including plans and monitoring data should be required to be posted on line and made available to the public.

Response See Response 16 and 8.17.Unformatted 2012 CGP Comment Response Essays February 16, 2012

984 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: LINEARUnformatted 2012 CGP Comment Response Essays February 16, 2012

985 

# 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 Disch arge Elimination System (NPDES) General Permit for Stormwater Discharges f rom Construction Activities was pu blished in the Federal Register. The proposed rule was evidently written to address the construction a t a limited site (housing development, strip mall, etc) . Unfortunately, what may make sense for a 5 acre r ectangle site does not necessarily

make sense fo r a 60 mile utility line that crosses different top ography, various soil types, and numerous landowner s. As a consequence, linear utility projects would not be able to comply with multiple requirements of the proposed rules s uch as developing sediment basi ns, designating fueling areas, installing sediment barr iers on all downslopes, monitoring storm water disc harges, etc. The most logical solution is to have the rule exempt linear utility projects since their construction sites are complet ely 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 chal lenges 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 uti lity projects often are (i) narrow (approximately 30 to 150 feet wide, depending on th e project); and (ii) constructed on easements provi ded by multiple landowners, rather than on purchased property. Additional uniqu e characteristics of linear utility projects that a re of significance to proposed 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 te ns or hundreds of miles over different natural terr ains and watersheds; (c) frequent construction in rolling segments, as in an assembly line; (d) a tendency to be short-lived; (e) rare i nvolvement of fill, as might be expected in highway or other conventional developme nt activities; and (f) obvious physical constraints against active treatme nt systems or structural BMPs like sediment ponds.

Response Refer to Response 17.1.



# Comment ID 0053-A2.001.051

Author Name: Boesch Kevin Organization: Logan Simpson Design, Inc.Unformatted 2012 CGP Comment Response Essays February 16, 2012

986 Issue Category: LINEAR Consider issuing a separate NPDES General Permit fo r 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 h ave been, with the construction activities of conve ntional commercial and industrial builders and homebuilders primarily in mind. Such p rojects 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. Al though a small percentage of

telecommunications-related construction is of this kind, the majority of our construction activities - - and the activities that we wish to address specifically in these comments -- involve t he installation and maintenance of linear undergrou nd conduit infrastructure independent of any conventional construction projec t. For the purposes of these comments we refer to s uch projects as "Linear Communications Projects" or ("LCPs").

LCPs differ from traditional sites in a number of i mportant respects. Although many provisions in the Draft Permit work well for both conventional construction and for LCPs, these differences make other terms impractical or s imply infeasible in the context of LCPs. Not surprisingly, application of these other terms to L CPs produces costs out of keeping with those that w ould be incurred by more traditional construction projects, while generating little if any meaningful environmental benefit.

The comments that follow first describe the activit ies that constitute LCPs and the factors that diffe rentiate such projects from more traditional construction projects. They then identi fy the specific terms of the Draft Permit that are poo rly suited to LCPs and the reasons for the misfit. Wherever possible, we also suggest alternative approaches that achieve the Agency's le gitimate objectives in a manner that is consistent with the unique characteristics of LC Ps.

II. CHARACTERISTICS OF LINEAR COMMUNICATIONS PROJEC TS

As used in these comments the term Linear Communica tions Projects refers to projects within the teleco mmunications industry t hat are characterized by a narrow width [FN 2] of construct ion over a long distance that are not a part of a l arger 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 geograph ically confined to easements and other rights-of-wa y. These easements often are

fifteen feet in width or less. The actual width of earth disturbance is significantly less than that o f the entire easement - no more than six to twelve feet, and sometimes as little as a foot o r two, depending on the construction technique used . See Attachment A ("Ph otographs Illustrating Typical Easements, Construction Equipm ent, and Widths of Disturbed Area") [Please see Att achement A of the original letter (Docket ID 0061-A1.001.001)].Unformatted 2012 CGP Comment Response Essays February 16, 2012

987 This limited width of disturbance is determined pri marily by the action of the specialized cable-insta lling equipment illustrated in Attachment A [Please see Attachement A of the origi nal letter (Docket ID 0061-A1.001.001)]. The most c ommon cable installation equipment is either a plow that directly inserts th e cable or cable conduit underground and immediatel y backfills the trench to the original grade, or a trenching machine that cuts a narrow trench for subsequent placement of the condu it or cable. In rare instances a backhoe might be used to dig a short section of a t rench 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 boring technique known as directional drilling is used. Boring is used when it is necessary or desirable to avoid disturbances to thi ngs such as a highway, paved driveway, stream, wetl and, heavily vegetated area, or steep slope. A specialized drill rig is brought to the site, which drives a hollow tube down through t he 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 bac khoe at the entry point to contain excess drilling mud. Flexible cable conduit typ ically is then pulled through the hollow borepipe, which i s then withdrawn. The footprint of such a drilling operation for an LCP, including a bore 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 "h andhole" to facilitate future

access to the buried cable at a cert ain point, such as at a splice point. Typically a s mall backhoe is used to excavate a small hole to al low placement of prefabricated box-like structure, as a lso illustrated in Attachment A. Again, the width o f disturbance for this type of operation typically remains with the fifteen-foot w idth mentioned above.

B. Projects Often Run for Miles Also unlike traditional perimeter-bound constructio n, a cable-laying project can run for miles. This m eans that a single LCP can cross multiple political and regulatory boundaries, pass through multiple watersheds, and encounter a wide v ariety of soil, slope and vegetation types.

Equally important, because LCPs intersect multiple drainage features as they cross the landscape, they are characterized by a multit ude of discharge points. [FN 3] Five recent typical pro jects in four states had 75 crossings over 50 linea r project miles, for an average of one crossing every 2/3 of a mile, or one and a half cro ssings per mile. Each crossing produces two dischar ge points , one from each side of the crossing. Thus, unlike discharge points from tradit ional perimeter- bound construction, which typically aggregate runof f from as much of the site as possible, discharge points from an LCP serve only a tiny fraction of the disturbed area th at qualifies the project for permitting.

C. Active Construction Area is Small, and Constantl y Moving Forward Construction activity on an LCP occurs in a very sm all and moving area over the life of the project. U nlike traditional projects, where the construction activity typically creates large areas of disturbance over the entire project footprint f or the life of the proj ect, LCPs typically open a small trench, lay or remove cable, and close the trench as the project proceeds. [FN 4] As a re sult, the area of active construction moves daily, with virgin territory ahead and tempor arily or permanently stabilized project lands behin d. This means that only a very

small fraction of the total area of the LCP is actu ally disturbed at any given time, and that the dura tion of disturbance at any point is extremely limited in comparison with traditional co nstruction projects and in comparison with non- communications linear projects. This limited duration of disturbance also minimizes spoi l piles and returns th e site to its original grade on a daily basis, limi ting the potential for erosion and sediment transport.

This same characteristic of a "moving site" also me ans that traditional notions of "entrance and exit" points do not apply ne atly to LCPs.Unformatted 2012 CGP Comment Response Essays February 16, 2012

988 The equipment that contacts disturbed soils (trench ers, backhoes, plows, directional boring machines, etc.) is transported to and remov ed from the site by flatbed truck or trailer and typic ally does not contact roadway. Instead, the off-roa d equipment typically stays on the truck or trailer while the latter pulls off the roa d 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 w ork is completed, the off-road equipment is picked up by the on- road transport vehicle (usually at a different spot farther down the right -of-way). When the on-road vehicle (truck or traile r) pulls off the road and onto the right-of-way, typically it does not thereby contact the disturbed portion of the construction site (i. e., the trench and sidecast materials). Therefore, soil tracking offsite by any of these ve hicles typically does not occur.

Photographs illustrating typical deployments are in cluded in Attachment A, Section 5 [Please see Attac hement 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 o nly once or twice at each location, as the off-road equi pment is dropped off and later picked up. So the transport truck or trailer enteri ng and leaving the right-of-way once or twice per l ocation typically does not substantially disturb the surface.

The moving site also typically has no fixed bulk fu el and other storage facilities to which convention al 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 bet ween traditional perimeter-bound construction and L CPs. On traditional sites, stormwater run-on typically is controlled, either b y conducting it through the site in a way that isol ates it from construction runoff or by redirecting run-on and passing it around the constr uction site. In contrast, operators of linear construction sites have very little ability to control storm water running onto and across their s ites. As opposed to conventional projects with grad ing to establish, manip ulate, and control storm water flows, LCPs consist of an excav ated trench, typically placed in a right-of-way eas ement or other right-of- way, with no change to existing grades within the LCP easemen t.

As a result, the operator of an LCP typically has l ittle or no ability to control the constituents or volume of stormwater run- on entering the site from existing off-site sources. Traditional ba rrier-type run-on and runoff controls are not feasi ble, 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 incr ease the footprint of earth disturbance of each pro ject, and thus have a net effect opposite to the Agency's policy goals. Moreover, in the common scenario 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 swa le, thus frustrating the design purpose of the swale and possibly causing flooding of t he road or adjacent land. Such disruption of previo usly engineered drainage may

also violate the terms of the easement.

One important consequence of the inability of the L CP operator to control stormwater run-on is the ina bility to reliably collect site discharge samples that characterize only the runoff from the area of the LCP land disturbance. Again t aking the familiar example of construction along a roadside, all area storm water flows into a common roadside drainage ditch. The d ischarge from that ditch, therefore, includes stormwater originating througho ut the watershed, including from the road and from other areas upslope of the telecommunications excavation, in addition to runof f from the LCP's narrow and temporary trench area i tself. A single LCP several miles in length could have run-on from a great numb er of separate properties immediately adjacent to t he LCP.Unformatted 2012 CGP Comment Response Essays February 16, 2012

989 E. Little or No Capacity to Control Stormwater Run- off The operator of an LCP typically also has limited a bility to control stormwater run- off. For instance, an LCP operator theoretically co uld install a line of BMPs paralleling the line of buri ed cable, which could contain the flow. However, do ing so would create a s luiceway 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 limite d width of the easement from installing a retention pond adequate to handle the problem largely created by such line of BMPs.

Whenever the cable line lies near or in a roadside swale that eventually discharges to a stream crossi ng, the LCP operator has limited ability to capture or control the stormwater discha rged there (most of which of course was drained fro m areas outside the LCP). Again, that is because the LCP operator's rights under the easement typically do not include the right to cha nge the contours of the drainage way or to install a retention pond at the point of disc harge.

F. Limited Potential to Contribute to Sediment Load ing Fortunately, the typical LCP has very limited poten tial to contribute to sediment loading, again due t o its distinctive geome try and other factors specific to LCPs. Consider the classic case of an LCP in or near a roadside drainage swale. Th e disturbed area is typically returned to its original contours promptly, by the plow itself or by re-filling and compacting a trenc h and thus eliminating loose side- cast soil. Until that strip is revegetated, theoreticall y there is some increased potential for erosion. Ho wever, the potential for erosion is limited by the following factors: (1) the disturbed soil consists of a narrow strip; (2) the time of e xposure of disturbed areas prior to initiation of stabilization measures is very short; (3) pre-existing contours are not changed; (4) run off 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 pas ses down the length of the swale, it typically is again pass ing over a vegetated surface of modest slope.

* * * * * * * * * * * * We stand ready to provide further documentation of the differences between (A) traditional perimeter-b ound construction and (B) LCP s of the kind routinely conducted by the telecommunic ations industry. We hope, meanwhile, that this brie f synopsis of the key d ifferences is useful to the Agency and provides a background a gainst which to understand the following specific c omments.

[FN 2] Telecommunications trenches are typically le ss than I- foot in width, with ancillary disturbance from side cast excavated soil and equipment footprint disturbance.

[FN 3] One need only consider the number of culvert s 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 pr ogress at a rate of at least 500 feet per day, and up to 4,000 feet per_day in some situations._Installed cable is covered as the project proceeds, to ensure the integrity of th e installed infrastructure, to avoid unnecessary flooding of an excavation, and to protect against v andalism.

[FN 5] An LCP typically must be conducted within an easement no more than 15 feet wide. Standard pract ice is to place buried cable

next to a roadside ditch or swale rather than insid e the swale, if the easement space will allow. In a situation where the easement is not wide enough to allow this type of placement, standa rd practice is to place buri ed cable on the upper slope of the swale, rather th an in theUnformatted 2012 CGP Comment Response Essays February 16, 2012

990 lowest point of the swale. In the relatively rare i nstance when the cable must be placed in the lowest point of the swale, and/or if the swale is steeply sloped, a "check dam" or "ditch ch eck" ma y be installed across the swale, to reduce the velo city of the flow and prevent

erosion of the ditch. Ditch lines that have been di sturbed are also restored and quickly stabilized (u sually 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 l imited exception from the permit's terms for emerge ncy circumstances. Telecommunications not only are the foundation of o ur daily transactions and the infrastructure that s upports our nation's ec onomy, but

also serve as critical links with life-and-death co nsequences. Health emergencies, la w enforcement emergencies, resource management emergencies, and natural disasters of all kinds con vert the telecommunication lines that carry our dai ly 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 provi ding the critical servi ce and the satisfaction of permit requirements more appropriat e to routine installation, maintenance and removal projects.

The complexity of this question is such that it wou ld be irresponsible to attempt in these comments to catalogue all of the potential conditions in which an emergency exception would 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 identify categories of telecommunications maintenance that reflect legi timate emergency activity, and the limited number of permit terms that would need to be modified or suspended in order to enable thos e activities to occur i n a timely and responsive manner.

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 transmissio n or distribution lines. Consequently, ESI requests that EPA make several changes to the applicability of the CGP to linear, right-of-wa y-type projects. Alternatively, EPA should develop a separate general permit that replaces this CGP and applies in a more tailored fa shion to linear, right-of-way-type projects

Response Refer to Response 17.1 and 2.5.Unformatted 2012 CGP Comment Response Essays February 16, 2012

991 

# 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 easemen t documents only restrict landowner activities with in the boundaries of th e ROW. Land-use activities hydraulically-upgrade from the line ROW can drastically impact stormwater run-on w ater quality and could negatively impact water quality at the points of di scharge from the project boundaries. EPA should cla rify in the CGP that credit or an allowance for the quality of site run-on water can be reflected by the permitt ing authority in any conditions or parameters appli es 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 finalizin g the draft CGP, MoDOT encourages the EPA to consid er balance, and take in to account the vastness of the transportation network, coupled with resource constraints and public expectations for the state d epartments 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 transp ortation projects differ significantly from other t ypes ofland disturbance activities. As such, MoDOT encourages the EPA to consider devel oping a separate permit, specific to linear transpo rtation projects , which is more suited to addressing the differences in constructio n approach from nonMlinear jobs. This permit separa tion 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, In c. Issue Category: LINEAR Tri-State is subject to the ever increasing permitt ing requirements for construction and maintenance o f tran smission line infrastructure,Unformatted 2012 CGP Comment Response Essays February 16, 2012

992 and is concerned that EPA continues to promulgate s tormwater requirements that are frequently in appro priate for these types of linear

construction and maintenance activities that utilit ies are required to perform by other state and fed eral 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, In c. Issue Category: LINEAR The proposed COP fails to recognize or provide any consideration for the unique challenges associated with linear utility projects for electric transmission service lines. Many of the pr oposed requirements raise unique challenges based o n two primary factors that limit available options and decisions regarding erosion a nd sediment control - linear utility projects often are

(i) on very narrow rights-of-way by design to minim ize impacts to the environment and adjacent propert ies (approximately 30 t o 150 feet wide) (ii) constructed on easements provided by multiple landowners, rather than on purchased property (iii) extend over tens or hundreds of miles over di fferent natural terra ins and watersheds (iv) frequently constructed in rolling topography (v) a tendency to be short-lived (vi) rarely involve the use offill material, as mig ht be expected in highway or other conventional dev elopment activities (vii) have physical constraints against active trea tment systems or structural BMPs like sediment pond s

Tri-State believes that EPA should provide more con sideration for these particularly unique characteri stics 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. In asmuch as it is premature to apply the original turbidity limit, it is also prem ature to apply the non- numeric requirements that remain unresolved pending EPA's final

action on remand. UWAG's comments and concerns i n the C&D rulemaking centered on the applicability and feasibility of the following requirements in the linear context: (i) control sto rmwater discharges (Section 2.1.3.1.b); (ii) minimi ze soil compaction, which should (but does not) exclude access roads, equipment pads, and other similar areas on linear p rojects that, by design and due to their function, will be compacted and for which a variety of measur es beyond those mentioned in the C&D Rule and CGP a re available to deal withUnformatted 2012 CGP Comment Response Essays February 16, 2012

993 compaction; (iii) provide and maintain natural buff ers (Section 2.1.2), which as discussed below is un workable 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 utility projects to imple ment along miles of linear construction and will re sult in hydrological barriers across miles of landscape in natural areas, would be impra cticable if not unsafe on active urban streets, and would impair livestock and agricultural activities in rural areas; and (v) imp lement measures to minimize the exposure of stormwa ter 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 des igned 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 rights-of- way over which ownership may be both limited and varied; (2) extend tens or hundreds of miles over different na tural terrains and wate rsheds; (3) often are constructed in rolling segments, as in an assembly line; (4) rar ely involve extensive grading, clearing or filling, as is common with highway and other more conventional constructi on activities; and (5) may render active treatment systems and retention/d etention basins infeasible due to site limitations, public s afety, and energy reliability. By way of example, t he type of sediment basins that are

common at residential and commercial construction s ites are entirely uncommon within utility rights-of -way because the areas of disturbance and, in turn, the stormwater flows, ten d to be isolated and disconnected; the rights-of-wa y tend to be too narrow to accommodate the installation of basins; and the pro ximity of basins to high voltage electric lines and towers, or to gas pipe lines, raises serious safety concerns.

Linear utility construction, particularly overhead electric transmission lines, typically do not incre ase impervious surfaces or conc entrate or re-direct stormwater. In fact, many such project s apply above-grade vegetation removal practices (r ather than more traditional clearing and grubbing) such that the only actual di sturbance occurs in the immediate vicinity of the l ine support structure. In short, the impacts from linear utility projects, if any, are m inimal, temporary, and best controlled, where appro priate, with BMPs that are peculiar to the narrow linear setting (as compared to highwa ys, shopping centers, or other planned commercial o r residential developme nt). [FN 9]

[FN 9] Many states further distinguish overhead tra nsmission projects from other linear utility projects, because overhead projects do not create new flow patterns, concentrate flow, add imp ervious surface, or otherwise materially affect wat er quality. In these situations, attempting to install sediment and erosion control measures may actually be more disruptive than the p roject itself. We urge EPA to adhere to this distinction, as well.

Response Refer to Response 17.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

994 

# 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 uti lity line construction in existing paved areas (e.g., streets) where the amount of are a disturbed, and thus the exposed soil, at one time is limit ed. Section 2.1.3. Also, peak flow rates and total stormwater volume controls (Se ction 2.1.3.1.b) are not feasible for linear projec ts because the control over flow rate presumes an ability to retain stormwater on-site. A s noted above, linear utility projects typically ar e constructed within narrow easements or rights-of-way (or paved streets) that make it infeasible to construct and maintain retent ion 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 pe rmitting burdens for transmission line construction activities with respect to how much real environmental improvement would occur by making additional changes to the already existing ( mature and effective) stormwater management programs. This is particularl y true as EPA continues to promulgate stormwater re quirements that are not appropriate for the linear construction and mainten ance activities utilities perform on transmission c orridors.

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 na tural gas utilities' linear construction projects. While the Draft Permit's app roach may fit traditional housing or shopping mall development activities, it is wholly incompatible with the narrow earth-disturbing activ ity 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) Issue Category: LINEAR AGA members are directly affected by EPA's stormwat er program because they construct and maintain natu ral gas facilities thatUnformatted 2012 CGP Comment Response Essays February 16, 2012

995 frequently require construction-related stormwater permitting. However, these gas utilities are not en gaged in the type of construction that involves installing new buildings and acres of new impervious pavement. Instead, natural gas util ities typically obtain new NPDES permits for limited, temporary storm water discharg es from digging short, narrow ditches to install ga s lines, or for short-term (1- 2 days) hydrostatic test water discharges. Thus, AGA member s have substantial concerns that the Draft Permit o verlooks the distinct nature of linear construction, imposing severe compliance bur dens that impede natural gas service without any ap preciable environmental benefits. As currently drafted, the Draft Permit wo uld illogically extend criteria for traditional bui lding and housing development and redevelopment to low impact, linear natural gas pip e projects.

AGA believes that the distinct nature of pipeline i nstallation warrants a different regulatory approac h than that afforded to traditional development. Natural gas pipeline projects do not i nstall acres of new impervious surfaces (e.g., asph alt parking lots, roads, buildings, concrete sidewalks or patios) that will make perman ent changes to the hydrology of a large track of la nd. Instead, linear exc avations take a short time and once the pipe is installed or repa ired, soil is replaced and original contours restor ed, and the surface area is re-seeded with grass or native plants. (See Exhibits) And whe re existing impervious surfaces (e.g., pavement) ar e disturbed as part of the gas line installation, they are typically replaced afterward s and do not cause a net increase in impervious sur face 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 stormwat er controls is unreasonably burdensome for linear c onstruction, particularly for smaller, non-transmission pipeline projects. As a t hreshold matter, the proposed controls focus on tra ditional "box" project s 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 pipe line projects, simply because implementation is bey ond the utilities' control. First, these projects are c onducted in right-of-way ("ROW") areas where utilit ies exercise no ownership of the multiple parcels of land over which the projects ta ke place. Second, the projects operate alongside ot her permitted and non-permitted entities doing road improvements in the same ROW.

Response Refer to Response 17.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

996 

# Comment ID 0090-A1.001.007

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR A typical pipeline installation operation spans sev eral parcels with distinct topography, demonstratin g little need for artif icial stormwater controls. AGA requests that EPA remove linear const ruction from the purview of these monitoring and in spection standards, and at minimum, distinguish and identify reduced reporting requirements for linear construction projects oper ating 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 impo sing the one-size-fits-all approach of the Draft Pe rmit to state permitting programs. As AGA notes below, statewide permitting programs are appropriate for linear construction pr ojects because they red uce the compliance burden of coordinating a linear project across municipal lines and impose standards that ac curately reflect localized 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 techn ology- based and water quality controls that have little b earing on linear construction operations. Utility projects are narrow, linear, an d they are typically less than 25 feet wide. Gas se rv ice line projects are as narrow as 18 inches. Under these conditions the slope length is extremely short and hardly warrants the erosion con trol measures proposed in the Draft Permit. AGA recommends that EPA include language sp ecifying that for "utility pr ojects disturbing a narrow corridor of earth, erosi on controls need only be installed in areas of concent rated flow of stormwater runoff."

Response Refer to Response 17.1.



# Comment ID 0090-A1.001.023

Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEARUnformatted 2012 CGP Comment Response Essays February 16, 2012

997 The Draft Permit is impracticable for pipeline line ar projects, which mostly operate along ROWs where the utilities have no o wnership over the surrounding area. Further, these projects could be conducted on roads possibly undergoing mul tiple improvement projects within the same ROW. Thus, land use regulations lim it utilities' practical ability to impose the type of controls that traditional "box" projects could be expected to implement. Further, t he presence of other operators conducting road impr ovements in the same ROW makes for a unique and disproportionate burden on l inear construction projects if they must undertake reporting and inspection requirements that are clearly designed for traditio nal, expansive development and redevelopment projec ts.

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 contro ls for stormwater sheet flow and heavy soil erosion: these events are not a majo r concern in linear pipeline projects. As natural g as pipes meander over a wide mix of landscape, they encounter numerous sto rmwater flow barriers, including roads, driveways, trees, flora, and elevation contours affecting the stormwater flow over the length of a linear pro ject. These existing barriers make it difficult for stormwater runoff to pick up

contamination at one local ized area and discharge it to another localized poi nt. Further, a gas pipeline installation disturbs o nly a narrow width of soil, taking three to four thousand feet o f linear length of pipe installation to disturb a o ne-acre area. On a given day, only a fraction of the project length is disturbed and bac k-filled or "buttoned up" at the end of each work d ay, leaving only laydown/storage areas for minimal potential erosion exposure. Furth er, any stormwater accumulation discharged from exp osed trench area woul d either flow naturally over a diverse landscape of mixed pe rmeability, or if contaminated, be subject to a bes t practices filtering method that prevents discharge to surface waters. In contrast, stormwater discharged from a housing "box" construc tion project is localized and concentrates impacts (e.g. stormwater volume, veloc ity) in one area. EPA should incorporate these fund amental distinctions an d 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 d ifferent regulatory approach and merit an exemption from the Draft Permit's proposed

controls.

Response Refer to Response 17.1.



# Comment ID 0090-A1.001.046Unformatted 2012 CGP Comment Response Essays February 16, 2012

998 Author Name: Lacey Pamela Organization: American Gas Association (AGA) Issue Category: LINEAR The Draft Permit's stringent, all-encompassing appr oach imposes unique and disproportionate burdens on natural gas utility construction. EPA should recognize that the Draft P ermit addresses stormwater pollution concerns regar ding increased impermea bility from large-scale construction impacts. Linear natur al gas projects should be regulated under a differe nt regime than traditional land development activities, and should certainly not be subject to post-development stormwater controls. A GA strongly believes that both the regulated utilities and state/local regulators would benefit from EPA's adoption of a bes t practices or alternative permitting 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 con struction for the purpos e of this permit and provide further guidance and r ulemaking activity as it pertains to EPA's direct permitting authority and its authority to supervise states' pe rmitting 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 r equirements, such as the 50 foot buffer and constru ction entrance, and providing the latitude and longitude of every disch arge point, are more difficult to implement on line ar projects. This permit fails to acknowledge the different characteristics and metho ds 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 Transportation (MDT) Issue Category: LINEAR As discussed in greater detail below, linear transp ortation projects present unique challenges to perm it compliance. These pr ojects often include multiple crossings of waters of the United States, are subject to right of-way constraints, an d require that public access be maintained through the project site during active c onstruction. Many of the comments below address pro posed requirements that are often impracticable or infeasible in light of the c ircumstances unique to linear facilities. in an eff ort to develop a more understandable and uniform COP, MDT suggests developing a separate general permit for linear transportation facilitie s. Doing so would help streamline environmental requirements and result in a more understandable and easily enforceable penni t. It would also help alleviate the undue regulatory burden placed on transportation ag encies to demonstrate infeasibility in many common instances.

Response Refer to Response 17.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

999 

# 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 chal lenges 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 uti lity projects often are (i) narrow (approximately 30 to 150 feet wide, depending on th e project); and (ii) constructed on easements provi ded by multiple landowners, rather than on purchased property. Additional uniqu e characteristics of linear utility projects that a re of significance to proposed 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 te ns or hundreds of miles over different natural terr ains and watersheds; (c) frequent construction in rolling segments, as in an assembly line; (d) a tendency to be short-lived; (e) rare i nvolvement of fill, as might be expected in highway or other conventional developme nt activities; and (f) obvious physical constraints against active treatment 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 wou ld be considered "linear projects" for our members here in Illinois. AIEC is concerned that USEPA's failure to modify the permit to cover the unique situations presented by linear projects such as construction and maintenance activities on utility transmission and distribution corridors would severely impact our me mbers 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: LINEAR Many of the proposed requirements raise unique chal lenges in association with linear utility projects in particu lar 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 StephenUnformatted 2012 CGP Comment Response Essays February 16, 2012

1000 Organization: Association of Illinois Electric Cooperatives Issue Category: LINEAR Areas that are cleared for overhead utility constru ction often do not meet the definition of land dist urbance as much of electric utility rights of way are cut with materials being windrowe d. 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1001 

# Construction General Permit

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Issue Category: NCUnformatted 2012 CGP Comment Response Essays February 16, 2012

1002 

# 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. Su pplemental 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. Su pplemental information for Docket ID EPA-HQ-OW-2010 -0782-0082.

Response Refer to Response 18.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1003 

# Construction General Permit

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1004 

# 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, bu t are concerned that compliance with the proposed C GP would not be feasible. Moreover, the cumulative impact of all the new requirements will have a detrimental impact on the construction busin ess. As you may know, the construction industry is suffering from t he worst economic downturn since the Great Depressi on. Millions of constru ction jobs

have been lost since December 2007 as state and loc al governments grapple with budget deficits and the housing and commercial markets for construction declined sharply and are n ot expected to return to pre-2007 levels for years to come. Production of asphal t has declined over 35% since 2007 and as Congress contin ues to extend the Federal highway and aviation prog rams, there is very little certainty in the construction market from which con struction companies can plan and invest in labor an d equipment. Consideration of

this rule should not be conducted in a vacuum. The overall fiscal health of the industry must and shou ld be considered by EPA in evaluating the capacity of the industry to undertak e such a burdensome regulation at this point in tim e.

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 engage d, ARTBA members must participate in a clearly- established transportation planning process. According to a report by the U.S. Governme nt Accountability Office (GAO), as many as 200 majo r steps are involved in developing a transportation project from the identi ficatio n of the project need to the start of construction. According to the same report, it typically takes between nine and 19 years to pla n, gain approval of, and construct a new major fede rally funded highway pr oject. This process involves dozens of overlapping state and fe deral laws-including dealing with stormwater issues

.

A study by the U.S. Federal Highway Administration (FHWA) found the time required to process environme ntal documents for transportation projects has doubled over the past t wo decades. In the 1970s, the average time for comp letion of an environmental impact statement (EIS) was 2.2 years. Former U.S. Departme nt of Transportation (U.S. DOT) Assistant Secretary for Policy Emil Frankel reported that from 1999-2001 the median time for co mpleting an EIS was 4.4 years. However, delays in t he transportation project environmental review and approval process are not o nly limited to large projects requiring an EIS. Whi le FHWA reports three p ercent of federally funded transportation improvement project s require an EIS, the remaining 97 (90.6 percent). A report conducted by the National Cooperative Highway Research Program ("NCH RP") stated:

"[D]elays in completing [EA and CE] reviews are enc ountered frequently despite the minimal environment al impacts associated with such projects. Even if such project-level delays ar e individually small, their cumulative impact may b e significant because mostUnformatted 2012 CGP Comment Response Essays February 16, 2012

1005 transportation projects are processed as CEs or EAs .[FN 1]"

Water quality issues, including stormwater, are dea lt with during the NEPA process. According to the r eport, 63 percent of all state DOTs responding to the survey reported environmenta l process delays with preparation of CEs and 81 per cent reported similar delays involving EAs. These delays triple average environm ental review times for CEs-from about eight months to just under two years-and have more than doubled review times for EAs, from u nder 1.5 years to about 3.5 years.

[FN 1] Environmental Streamlining: A Report on Del ays Associated with the Categorical Exclusion & Environmental 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 measure s affecting transportation projects should allow fo r the level of flexibil ity needed to

make sure stormwater issues can be addressed in a manner suited to the individual natu re 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 in additi onal 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 protections 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 enter tainment services to households, businesses, and fe deral, state and local government agencies nationwide. To provide these se rvices, AT&T operates, maintains, and continuously adds to AT&T-owned

infrastructure that includes thousands of miles of underground cable. Each year, AT&T has hundreds of cable installation and relocat ion projects that would be subject to the terms of the Draft Permit. AT&T's concerns and recommendations r egarding the Draft Permit are

included in the attached comments of the Environmen tal, Health & Safety Communications Panel, which AT &T endorses and hereby incorporates by reference

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0096-A1.001.012

Author Name: Asmus SusanUnformatted 2012 CGP Comment Response Essays February 16, 2012

1006 Organization: National Association of Homebuilders Issue Category: CUMULATIVE The CGP will increase the costs of stormwater manag ement for nearly all construction projects. EPA sta tes that the costs for implementing the CGP have been accounted for throug h the ELG rulemaking [FN 30]. Given EPA’s more pres criptive require ments in the CGP for several of the non numeric ELG requirem ents, however, and the addition of the water qualit y based requirements, i t is not

accurate to state that all the costs have been acco unted for in the C&D ELG rulemaking. For example, t he buffer r equirement and steep slope provision will be more costly because the req uirement 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 n ot accounted for this. The water quality based requ irements 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 p ermittees, but will have significant impacts on small business es.

[FN 30] Appendix 1: Economic Analysis for the Propo sed Construction General Permit (CGP). www.regulati ons.gov. EPAHQ-OW-2010-0782, Accessed July 11, 2011

Response: See 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 sig nificant. The CGP will increase the costs of stormw ater management for nea rly all construction projects. EPA states that the costs fo r implementing the CGP have been accounted for thro ugh the ELG rulemaking [FN 75]. Given EPA's more prescriptive requirements in the CGP for several of the non numeric ELG requirem ents, 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 v ary depending on the size of the project, yet EPA h as not accounted for this. The water quality based requirements are new and will b e costly to implement, even though they will not li kely lead to measurable benefits. Before finalizing the CGP, EPA must de velop a cost benefit analysis that fully assesses t he cost impacts of the draft CGP on the industry and small businesses, in particular, and then use t hat information to develop more reasonable alternat ives.

[FN 75] Appendix 1: Economic Analysis for the Propo sed Construction General Permit (CGP).www.regulatio ns.gov. EPAHQ-OW-2010-0782, Accessed July 11, 2011

Response: See Essay Responses 19.1 thru 19.6.



# Comment ID 0115-A2.001.001

Author Name: Smith Timothy Organization: National Grid Issue Category: CUMULATIVE National Grid operates electric and natural gas uti lity infrastructure across thousands of linear mile s of rights -of-way to safely and reliably serve millions of customers. The maintenan ce, repair, and normal improvement of this critical ly- important public infrastructureUnformatted 2012 CGP Comment Response Essays February 16, 2012

1007 frequently requires that we seek compliance with NP DES and other regulatory 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 Prope rties (MAIOP) Issue Category: CUMULATIVE We also request the basis for EPA's determination t hat the existing process in place is not adequately protecting waters of t he U. S or the public interest as defined in Section 402 of the Cl ean 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 revie w to take into account the potential financial and regulatory burden that this permit places on small business operators to comply with the same conditions as larger businesses. Whi le we do not have specific alternatives to offer at this time, the Water Subco mmittee would be available to assist EPA in develop ing alternatives for small 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: CUMULATIVE We are concerned that the ELGs, as implemented thro ugh this proposed permit, will result in increased costs for BMP implement ation, as well as increased exposure to enforcement for si tes that have limited or no potential to impact wat er quality. This direction of effort and resources could result in high-priority sites, including some smaller sites, not receiving appropr iate 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 Association (NRECA) Issue Category: CUMULATIVE Electric cooperatives own and maintain 2.5 million miles or 42 percent of the nation's electric distri bution 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 a nd state requirements. NRECA recognizes the signifi cantly increased permittingUnformatted 2012 CGP Comment Response Essays February 16, 2012

1008 burdens for transmission line construction activiti es but we question how much real environmental impr ovement wi ll result by making changes to already mature and effective stormwater management programs. This is particularly true as E PA continues to promulgate stormwater requirements that are frequently inappro priate for the types of linear construction and mai ntena nce 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, bu t we are concerned that compliance with the propose d CGP would not be feasible. The cumulative impact of all the new requirements w ill have deleterious impacts on the business of con struction. Below we ide ntify our five main concerns with the draft permit.

Response: See Essay Responses 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1009 

# Construction General Permit

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Issue Category: BAC, BAC.1, BAC.2, BAC.3Unformatted 2012 CGP Comment Response Essays February 16, 2012

1010 

# 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 NP DES permits for stormwater discharges associated wi th most construction activities, including residential development and h ome building. This means that thousands of permits must be authorized and obtained each year. To address the challenges associated wit h 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 purp orted streamlined authorization process so that the Agenc y could meet its permitting obligations efficiently and effectively. To date, this process has w orked as evidenced by the thousands of permits that have been issued and the thousands of construction projects that have been completed without adversely impacting water qu ality. Importantly, the general permit scheme is al so designed to reduce the burdens and simplify the process for permit applica nts. While NAHB believes the Agency continues to st ray from this goal with today ’s proposal, we remain convinced that the CGP is the o nly viable option.

Issuing a workable version of a CGP, which has been specifically designed to provide flexibility and r educe burdens while ensuring appropriate environmental protection, is very criti cal to the homebuilding industry. EPA’s permitting scheme and its current CGP were purposely designed to allow flexibility in the desi gn and implementation of Best Management Practices (BMPs), reflecting the fundamental principle that the variable nature of p recipitation and the variability of other site attr ibutes (such as soils type and topography) affect the transport of sediment when i t rains. The CGP allows all operators who are perfo rming similar operations (e.g., construction) to quickly obtain permit coverage, ye t includes stringent requirements to ensure water quality is not compromised.

The alternative to the “streamlined” general permit is an individual permit, which requires considerab ly more information and paperwork, yet rarely results in any measurable env ironmental improvement. In addition to being more c umbersome for the permi ttees, individual permits must be submitted well in advanc e of conducting the activity (typically 90 –180 day s), may require additional inspections and monitoring, and require more oversi ght by program administrators. Because thousands of construction permits m ust be issued each year, and appropria te protections are written into the CGP, it makes l ittle sense, either environmentally or administrati vely, to require the use of individual permits. NAHB appr eciates the Agency’s planned continuation of this important permit, but suggests important stream lining 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 CommerceUnformatted 2012 CGP Comment Response Essays February 16, 2012

1011 Issue Category: BAC In its final C&D ELG, EPA relaxed many of the propo sed overly- prescriptive erosion and sediment control practices , often stating that, for example, the "need for these controls is dictat ed by site-specific considerations," because they w ere "not always feasible," or that "implementing the requirement would be cost-prohibi tive." See 74 Fed. Reg. at 63,018. Now, EPA, throug h its permitting authority in four states and in various parts of many other stat es (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 m andates 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 t he opportunity to comment on the referenced draft g uidance. KDOW is the delegated National Pollutant Discharge Elimination System program agency for Kentucky. In that role, K DOW issues general and individual permits for stormwater discharges from c onstruction activities. KDOW has reviewed the propo sed EPA General Permit for Stormwater Discharges from Construction Activitie s on Tribal Lands within the Southeastern United St ates. Our review was conducted with the understanding that general permits issued by EPA reflect EPA's current thinking regarding exp ectations of all permit s issued for that sector of the NPDES program. As such KDOW's comments reflect, in part, the anticipa ted affects the requirements of the proposed general permit will have on the Kentucky NPDES prog ram and permits. Response: No response necessary



# BAC.1 STATUTORY AND REGULATORY HISTORY - CLEAN WATE R 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, se veral significant changes to the 2008 CGP are now i ncluded in the prescriptive language contained in the 2011 Draft CGP. The signi ficant changes from the 2008 version, as we underst and them, are summarized

below:

•Person(s) Responsible for Obtaining Permit Coverag e. Where there are multiple operators associated wi th the same project, all operators are required to obtain permit coverage. O nce covered by a permit, all such operators are to be considered as co-permittees if

their involvement in the construction activities af fects the same project site. Co- permittees are held jointly and severally responsib le for complying with the permit. Any operator who seeks c overage under this permit must develop a Stormwater Pollution Prevention Plan (SWPPP). A group SWPPP may be developed where sever al operators will be engaged in construction activi ties at the site.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1012 •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 p ortions of the site and such waters are treated thr ough buffer- related approaches. The permittee has the following compliance alternatives to meet these requirements:

a) Provide and maintain a 50-foot buffer of undistu rbed natural vegetation between the disturbed porti ons of the site and any waters of the U.S.; or

b) Provide an undisturbed, naturally vegetated buff er that is less than 50 feet but is supplemented by additional sediment and erosion controls, which in combination achieve the equivale nt sediment load reduction as a 50- foot buffer of undisturbed natural vegetation; or

c) If it is infeasible to provide an undisturbed, n aturally vegetated buffer of any size between the d isturbed 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 undisturbed, naturally vegetated 50- foot buffer. EPA provides charts as tools to determ ine the efficiency of the buffer. Controls must the n be designed to provide sediment removal efficiency equivalent t o the buffer. EPA suggests choosing one of several m odels to determine which best management practices (BMPs) will provide the equiva lent efficiency. There are some exemptions for pree xisting conditions, utility lines, roadways, and water-dependent structures and access-ways such as piers, boat ramps, etc.

•Deadlines to Initiate Stabilization and Complete S tabilization. Typically, a permittee must initiate stabilization on expose d portions of the site where earth-disturbing activities have per manently 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 tempor arily ceased when clearing, grading, and excavation within any area of the construction site will not resume for a period of 14 or more days, o r for a period of 7 or more days if there are any special circumstances such as steep s lopes or if disturbed areas are within buffer areas . All stabilization act ivities must be completed within 7 days of when they are initiated. There is some additional flexibility in arid or se miarid 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 conditio n that results in a discharge of stormwater from th e site or when there is an

authorized non- stormwater discharge from the site. The timetable f or these requirements depends on when EPA releases the recalculated turbidity limit. Exemptions include:

a) Storms larger than the local 2-year, 24-hour sto rm 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 Regulatory Commission (FERC)-regulated pipeline pro jects.

d) Sites with stormwater flows that exit the site i n a "non-discernible, non-confined and non-discrete form."

•Section 4.2-Discharge Limitations for Impaired Wat ers. A site is considered to discharge to an impair ed water if the first water of the U.S. to which a site discharges is listed as impair ed on the state "303 (d) List" or has an EPA-approv ed Total Maximum Daily Load (TMDL). If a site discharges to a storm sewe r system, then the receiving water for the storm se wer discharge is considered the first waterUnformatted 2012 CGP Comment Response Essays February 16, 2012

1013 of the U.S.

Specific requirements apply for sites disturbing 10 or more acres of land at any one time that dischar ge to receiving waters impaired for

sediment or a sediment- related parameter, such as total suspended solids ( TSS), turbidity, and/or nutrients (e.g., nitrogen, phosphorus). Specifically, the permittee must comply with the re quirements in Part 4.2.2, which include water quali ty benchmark monitoring for the sediment and/or nutrient parameter(s) for which the receiving water is impaired. Benchmark sampling ca n be discontinued when temporary or final stabilization criteria have been met and less than 10 acres are disturbed. Addition ally, if discharges are to a receiving water impaired for sediment or sediment-related par ameters, there are additional stabilization timelin es, daily visual inspections, and weekly formal inspection requirements. EPA states t hat it will inform permittees if there will be any additional requirements when discharging to a receiving water impaired for a pol lutant 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 requirements as outlined in the proposed CGP include:

•Requirement to install all stormwater controls pri or to starting earthwork (not just initial BMPs). T his requirement does not apply to earth disturbances related to initial site clearing and establishing entry, exit, and access to the si te, which may require that stormwater controls be installed immediately after the earth d isturbance.

•Potentially requiring all sites to have 50-foot-lo ng 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 wit h precipitation or to prevent sediment discharges for all stockpiles containing i n 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 germin ates and grows.

•Removing concrete from a washout when it fills one -half of the container.

• Providing project-specific training and documenta tion of the trainings.

In summary, the 2011 draft is a much more prescript ive permit than the current 2008 CGP which the 2 005 version offers a more flexible "toolbox" approach to BMP selection and permit impl ementation.

Furthermore, in response to the EPA's request for a response to specific programmatic language, the Pa rtners offer the following comment. To help facilitate our responses in a clea r and concise manner, the actual permit language ha s been lifted from the permit as was the specific request for comment.

The Partners then provided a concise response follo wing each specific EPA request for comment. The Par tners felt this format provedUnformatted 2012 CGP Comment Response Essays February 16, 2012

1014 most useful in educating the various agency departm ents as well as helpful to those reviewing our comm ents 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 requireme nts that extend upstream of the discharge itself to activities occurring within a construction site (e.g., Section 2.1.3.7.c., and Se ctions 2.3.2.1 through Section 2.3.2.5). We respect fully submit that EPA's authority is limited to the discharge of "pollutants" from a "po int 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 m ention stormwater and directed EPA to establish req uirements for controlling stormwater discharges (both point and nonpoint) fro m virtually every source in the nation. Within its regulations, EPA clarified that stormwater discharges associated with construction activit ies, such as clearing, grading and excavating that result in the disturbance of at least five acres of total land area were equally si gnificant contributors of pollutants and, thus, wer e 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 through NPDES permits “to protect water quality.” Thus, EPA has required NPDES permits for most stormwater dis charges from industrial

, municipal, and construction sources since 1992.

Because EPA’s comprehensive program covers nearly e very construction project across the nation, it spe cifically adopted a general permit approach so that these sources could be regu lated efficiently and effectively. EPA issued the f irs t 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 Agenc y has reauthorized it regularly since, typically in five year increments , as federal law prohibits any NPDES to be issued for a period t hat exceeds five years. EPA last reauthorized the C GP in January 2008, but limited its applicability to only two years.[FN 3] The Agen cy subsequently extended the expiration date of the 2008 p ermit by one year so that it would expire on June 30, 2011, [FN 4] and most rece ntly extended it once again. [FN 5] The 2008 CGP is now due to expire on F ebruary 15, 2012.

Today’s draft CGP includes new requirements that im plement the technology-based Effluent Limitation Gu idelines (ELGs) and New Source Performance Standards (NSPSs), which were is sued by EPA for the construction and development in dustry on December 1, 2009. The draft permit also includes new water qual ity- based requirements for certain construction sites. EPA is proposing to issue this CGP for five (5) years. EPA is the NPDES permitting authority, and thus, the CGP is only directly appl icable in Idaho, Massac husetts, New Hampshire, New Mexico, Indian Country Lands, Pu erto Rico, Washington, DC, and U.S. territories and protectorates. However

,Unformatted 2012 CGP Comment Response Essays February 16, 2012

1015 because the delegated states’ programs must be cons istent 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. C ategory Ten: Construction Activity is included in t he 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 propo sed EPA/USACE Guidance concerning Clean Water Act. Several measur es within this Permit may have a synergistic effect when comb ined with other concurrent rulemaking and guidance. In particular, the proposed expansion to the base definition of Waters of the U nited States that may occur through the EPA/Army Corps of Engine ers' Guidance for Clean Water Act, would affect the Permit language c oncerning buffers, and expand the applicability con cerning determination of impacts to impaired waters. Between this draft perm it and the other guidance currently under developme nt, the definition of Waters of the United States is significantly expanded to unre asonable levels. The EPA should consider the ramifi cation 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 defi nition of Waters of the U.S., these are outside the scope of this permit issuance.



# 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 CORRE CTION

Comment ID 0013-A1.001.005

Author Name: Asmus Susan Organization: National Association of Home Builders (NAHB) Issue Category: BAC.2 The C&D ELG, finalized in December 2009, includes r equirements for a range of erosion and sediment con trol measures and pollu tionUnformatted 2012 CGP Comment Response Essays February 16, 2012

1016 prevention practices and a numeric effluent limit o f 280 NTU for larger construction sites. EPA is in the process of developing a new C&D numeric effluent limit due to petitions filed b y the Small Business Administration's (SBA) Office of Advocacy and NAHB as king the agency to revise its numeric limit because of p roblems with the data and modeling. NAHB also filed a lawsuit chall enging the rule in the U.S. Court of Appeals for the 7th Circuit. As a result, DOJ/EPA filed a motion asking the 7th Circ uit to vacate the numer ic effluent limit portion of the ELGs to address flaws in the f inal rule. These flaws include EPA's admission th at it "improperly interpreted the data" such that it can no longer support the 280 NTU limi t. EPA stated in the motion that the technical natu re of the issue and num ber of steps required to resolve the flaws would require an 18-m onth abeyance in the case, or until February 15, 20 12.

There are other issues associated with the C&D ELG rulemaking that have been raised by NAHB in the Sev enth Circuit litigation that are being held in "abeyance" until at least February 15 , 2012. Many of the issues raised could impact whet her any of the new C&D ELG requirements EPA has proposed to incorporate into t he 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 comp liance, particularly because EPA asked for the "abeyance" of those issues through February 15, 201 2 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.2 We urge EPA to expedite its efforts to revise the 2 80 nephelometric turbidity unit ("NTU") limit that EPA stayed in 2010 so t hat it can be incorporated into the 2011 CGP. Requiring numeric l imits for stormwater discharges is long overdue. In deed, 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 that u ntil now has largely been ignored. In addition, requiring a numeric limit is an important tool to make both com pliance and enforcement of the CGP more effective. The general permit scheme for c onstruction stormwater relies heavily on enforcemen t to ensure waters receive adequate protection, yet the federal government, an d many states, lack the resources necessary to prop erly police and enforce the CGP. Including a numeric permit limit would go a long wa y to address this issue.

Accordingly, we are disappointed that EPA has thus far suggested that a numeric limit may not be requi red in the 2011 cap. Th ere is no question that regulating construction stormwater us ing a numeric limit is feasible, as EPA's rulemakin g for the 280 NTU limit demonstrates. Although EPA has stayed the 280 NTU o n the grounds of alleged errors in the interpretati on of the data to develop thatUnformatted 2012 CGP Comment Response Essays February 16, 2012

1017 limit, a numeric limit nevertheless remains feasibl e. The technology for controlling sediment through active or passive treatment systems, and for monitoring compliance with a numer ic limit, clearly exists. The only question is what the limit should be. EPA has had ample time since staying the 280 NTU limit to revie w the data and to propose a revised limit. We there fore urge EPA to adopt a proposed limit as soon as possible. In the event EPA fails t o complete a revised NTU limit before adopting the cap, EPA shoul d include a specific reopener provision in the cap to allow it to insert the numeric limit into the permit as soon as it is finalized.

Response

Refer to 3.1.



# Comment ID 0024-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 th e stayed 280 NTU turbidity limit for construction s tormwater and to incorp orate such limit into the final 2011 CGP. Incorporating a nume ric turbidity limit into the CGP will dramatically improve permit compliance and enforceability due to the clarity that numeric limi ts provide. Additionally, it will result in muchnee ded reductions in sedim ent loading by ensuring protections against discharges of fine-gra ined and slowly- settling particles contained in stormwater, which c onventional 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 in corporated into the permit, if the limits have not been finalized, yet the permit has.

Response

Refer to 3.1.



# 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 w ith the C&D ELG rulemaking that have been raised by NARB in the Sev enth Circuit litigation that are being held in "abe yance" until at least Februar y 15, 2012. Many of the issues raised could impact whethe r any of the new C&D ELG requirements EPA has propo sed to incorporate into the CGP are legally authorized under the Clean Water Ac t. These issues must be allowed to be litigated in full prior to inserting them into a new CGP and mandating compliance, particularly beca use EPA asked for the "abeyance" of those issues th rough February 15, 2012.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1018 Therefore, EPA should postpone any proposal to upda te 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 limi t and associated monitoring and reporting requireme nts for construction site stormwater runoff is premature. EPA should not incl ude the numeric stormwater limit or associate provi sions in its new permit until the Agency has promulgated revisions to that regulation and concluded related litigation before the 7th Ci rcuit 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, 20 13. This will allow the 7th Circuit Court of Appeals to fully adjudicate all is sues 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. a t 22,885. EPA asserts that once a new national stan dard is established pur suant to the Clean Water Act's effluent limitations guidelin es provisions, they must be incorporated into subse quent NPDES permits, as appropriate. Id. However, EPA has not truly set FIN AL ELG standards for the construction and developme nt 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, FSWA asserts that doing so is confusing, inappropriate, and may result in an unnecessary and continued stri ng of corrective rulema kings that, to date, have plagued construction stormwater regulato ry efforts.

After promulgating the final C&D ELG in December 20 09, subsequent litigation revealed to EPA that the C&D ELG regulations contained significant errors. See 75 Fed. Reg. 68,2 15 (November 5, 2010)(EPA admitting to its errors a nd seeking a stay of the 280 NTU turbidity limit and other issues surrounding ongoin g litigation in the Seventh Circuit Court of Appeal s in the case Wisconsin Builders Association v. EPA, Case No. 09-4113). In that case , EPA filed a "Motion for Partial Vacature of t he Final Rule, Remand of the Record, to Vacate Briefing Schedule, and to hold Case in Ab eyance" (and which that court approved), which iden tified many issues that required additional rulemaking. Those include:

• the calculation errors associated with the 280 NT U numeric limit;Unformatted 2012 CGP Comment Response Essays February 16, 2012

1019 • issues associated with how the ELGs would be appl ied to linear construction (including applicable BM Ps 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 A gency" during EPA's upcoming C&D ELG correction rul emaking.

(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, after almost a year in the making, EPA has failed to pro pose any such regulatio n. Not only has EPA not revealed what it hopes to pro pose, but obviously EPA cannot now predict what "ot her issues" will reveal themselves during that rulemaking.

What is evident is that EPA has identified errors i n its C&D ELG rulemaking that are more significant than minor recalculatio ns. EPA is more than capable of proposing a revised turbidity standard within a few months, let alone almost an e ntire year, if the only issues we re related to the mechanics of how it calculated a fin al limit. Obviously, EPA is reexamining more than m erely the data and calcul ations but also perhaps the data sources and other complicatin g factors. Clearly, EPA is reassessing multiple asp ects of its C&D ELG rul emaking prior to proposing a revamped C&D ELG.

Hence, EPA's assertion that it must now, through th e Proposed CGP, implement final ELG standards for t he construction industry is hollow and unjustified. There are no current "final " C&D ELG standards, even if EPA asserts that it ha s not stayed the entirety of the December 2009 rulemaking and that parts of that rul emaking are ripe for immediate implementation. The bottom line is that the C&D ELG can only be assessed as an entire package of no n-numeric AND numeric effluent limits. In December 2009, EPA did not promulgate separate non-numeric and numeric effluen t limits as stand-alone rulemakings, each with thei r 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 analysi s and other support documents that analyzed a the c omprehensive package of technology controls as a "complete rulemaking." EPA cannot now assert that the non-numeric and nume ric effluent limitations are separate efforts and that its admitted errors affec ting one-half of that complete package have no impa ct on implementing the comprehensive package.

As a result, EPA cannot and should not be attemptin g to implement ANY subpart of the C&D ELG rulemakin g until that entire rulemaking has been completed. Quite s imply, there is no C&D ELG package to implement unt il the upcoming corrective rulemaking 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.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

1020 Nevertheless, even if EPA were to disagree and proc eed with its Proposed CGP and implement subsections of the C&D ELG, it fac es timing issues that make its effort to implement the C&D ELG inappropriate. On June 30, 2011, EPA annou nce d that it would extend the current 2008 CGP only until February 15, 2012 - the same date it has set forth as the deadline for rev isions to the C&D ELG (http://cfpub.epa.gov/npdes/stormwater/cgp.cfm). EP A could have extended the 2008 CGP until June 30, 2 013 . In not doing so, EPA is sending a message that its primary focus is to comp lete work on a new CGP, especially because EPA is n ot likely to complete w ork on its C&D ELG prior to its self-imposed deadline of Febru ary 15, 2012.

EPA has yet to propose any C &D ELG revisions. Assuming it issues a proposal thi s month, a final C&D ELG rule is virtually impossib le to accomplish in a six- to seven- month period. EPA has been working on a proposal fo r 11 months and that proposal certainly contains new provisions, an alyses, cost and benefits assessments, and other is sues (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 9 0-days, under these

circumstances would be unreasonable and unfair to t he affected stakeholders (including FSWA). EPA typi cally requires a substantive time period then to review the comments and develop options for a final rulemaking. Ninety days would seem like an expedited time period for the Agency to accomplish those tasks. Th en, the Office of Management 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 fortunat e to promulgate the new, f inal C&D ELG package in nine months, let alone the seven mon ths between mid-July (assuming a proposal is immedi ately forthcoming - something that FSWA has no reason to believe is lik ely) 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 promul gate revisions to the C&D ELG by the new February 1 5, 2012 expiration date for

the 2008 CGP , it cannot reasonably anticipate implementing thos e provisions through the Proposed CGP before the 20 08 CGP expires. Hence, EPA should delink these two rulemaking effor ts. Instead, EPA should be committing itself to pro mulgating a new CGP absent the controversies, errors, and litigation that has surrounded the C&D ELG effort. Such an approach wou ld greatly simplify the CGP promulgation process.

By delinking the two rulemakings, EPA should focus the new CGP on modifications and issues not embroil ed in the C&D ELG. Hence, EPA should focus on water quality issues, establish ing a reasonable eNOI system (if appropriate), and best management practices - but NOT those specific BMPs set forth in the C&D ELG un til that rulemaking is finalized and fully litigate d. I n doing so, however, EPA should remove all of the C&D ELG-related implementa tion 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 r equirements and possible implementation issues) OR as separate but companion "guidance," for which it should seek sepa rate public notice and comment in a parallel path to the specific C&D ELG revision s rulemaking.

Response

Refer to 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1021 

# 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 m istakes when it promulgated its C&D ELG rule in Dec ember 2009. The Agency stayed part of that regulation and promised to revi se the ELG to address certain specific issues and " any other issues that reveal themselves to the Agency" during that rulemaking. E PA cannot now predict what those issues will includ e. Because it cannot foreshadow how to implement all of the as yet undet ermined provisions in its upcoming C&D ELG rulemaki ng, EPA should not attemp t to implement such provisions in its Proposed CGP. B ecause the entire package of C&D ELG standards is n ot yet final, EPA need not attempt to piecemeal its implementation, especially considering the fact that the "initial" implementa tion is and will be pre cedent setting across the country. The Agency's current attempt to do so is unnecessarily complex and confusing for t he public, permitted sites, and permitting authorities.

In promulgating the C&D ELG, EPA asserted that a le ngthy (18-month) implementation process, as origina lly envisioned in the December 2009 rulemaking would: allow permitting authorities to develop any necessa ry training or certification programs. An important factor in the effective implementation and compliance with this rule will b e the permitting authority being able to digest the numeric limitation and monitoring requirements and developing guidance and outreach t o the regulated community to provide assistance so the requirements are understood and can be effectively met by owners and operators of C&D sites. This will provide the regu lated industry with the guidance, knowledge and tools necessary in order to effe ctively 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 C GP 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 a n appropriate future da te, after it has worked its way through the APA rulemak ing process and, hopefully, the 7th Circuit litigat ion can be fully resolved.

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 t hat EPA should delink the C&D ELG rulemaking and ne w CGP promulgation efforts. The following comments continue to reflect that understanding. In other words, comments on C& D ELG imp lementation issues - to the extent provided below - are premised on FSWA's position that the two rulema kings should be delinked and these comments in no way support a position that presumptive C&D ELG imp lementation is appropriate or supported by FSWA thr o ugh any interpretation of the following comments.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1022 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 commen t on Part 3 of the Proposed CGP. There simply is no basis from which to judge what monitor ing requirements will be appropriate, what outfalls might require monitoring, or what the final standard (if any) will necessitate i n terms of compliance. EPA should delink the Propos ed CGP from the C&D ELG rulemaking process. It should first promulgate and defend its ELG standards before proceeding with a n otice-and- comment procedure to develop implementation guidance and a revised CGP, a process that will help to ensure the most efficie nt and effective monitoring protocols/requirements.

While EPA may have stated a prior intent to finaliz e a numeric effluent limit for turbidity in a revis ed C& D ELG, it is entirely possible that EPA will not promulgate or be able to defend s uch a limit. EPA may settle for a "benchmark" or "a ction level" type appro ach for a final turbidity or total suspended solids threshold . Because we cannot predict what EPA ca n or will do, these issues should be removed from the Proposed or Final CGP and used in a propos ed C&D ELG-related guidance document at a future ti me.

Response

Refer to 3.1.



# Comment ID 0068-A1.001.043

Author Name: Longsworth Jeffrey Organization: Federal StormWater Association (FSWA) Issue Category: BAC.2 Alternatively, the Proposed CGP is ripe with ineffi ciencies and prospective implementation problems. E PA's attempt to impleme nt the C&D ELG before that regulation is fully completed h as resulted in a Proposed CGP that is based more on guesswork than a "reasoned determination" that "imposes the least burden on so ciety," which can only be crafted when all of the v ariables are known in a dvance. The Proposed CGP goes too far beyond merely setting for th specific "performance objectives" and, in fact, dictates specific "manners of compliance" that all construction operators must ad opt, even when site- specific circumstances may dictate otherwise. In sh ort, until EPA has completed work on the C&D ELG rulemak ing, EPA's most efficient and effective path forwar d for the Proposed CGP is to tweak and make necessary minor adjustments to the 2008 CGP an d refocus its efforts on implementing the C&D ELG a t an appropriate future date when the contents of that regulation are fully unde rstood. EPA recognized the benefits of such an appr oach in December 2009 when it espoused 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 wh en it is completed, perhaps

sometime in 2012.

Response

Refer to 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1023 

# 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 s erious concerns, in particular, where EPA is propos ing stringent MS4 permittee implementation requirements as a result of the new technology-based effluent limitations guidelines (ELGs) for turbidit y. The draft CGP includes a placeholder for the new ELGs. The draft CGP states EPA is preparing to issue a proposed rul e in the near future th at will have a recalculated turbidity limit and a 1-year extensi on to the first phase-in date for complying with th e numeric limits. Assuming the recalculated numeric limit is promulgated prior to the CGP issuance, the uncertainty of what the efflu ent limitations will ul timately be, the difficulty in meeting any prop osed limit, and the considerable cost of obtaining statistically reliable samples resulting from the n ew ELGs are problematic for the regulated community. P ermitted agencies, particularly in the arid southwe st, where small, infrequent runoff producing storms occur will find the Constru ction & Development (C&D) ELG particularly burdenso me.

Response

Refer to 3.1.



# Comment ID 0086-A1.001.002

Author Name: Walz Barbara Organization: Tri-State Generation & Transmission Association, In c. Issue Category: BAC.2 The CGP is the vehicle by which the requirements of the C&D Efnu ent Guidelines are implemented, 74 Fe d. Reg. 62,996 (Dec. 1, 2009). The electric utility indu stry argued, and the cour t agreed, that these final C&D efnuent gu ide lines fa iled to add ress important concerns, including the inappropriateness of the regulations when applied to linear development. (WBA, el. oJ. v . EPA, September 20, 20 10) EPA issued a stay for parts of the rule and the rule ha s been remanded to address the flawed numeric l imit and other issues raised by the utility industry. It appears that EPA is proceeding to impl ement its original requirements by issuing the draf t CGP, ignoring many of the concems raised by the utility industry and recogniz ed by the courts. The C&D rule was remanded to EPA over 10 months ago, and EPA

should take action to issue the rev ised C&D efflue nt guidelines before it finalizes the CGP.

Tri-State encourages EPA to finalize the C&D efflue nt guidelines in response to the remand, and allow the affected parties an adequate opportunity to review the new effluent guidelines b efore 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 impleme nt the C&D Rule. However, the C&D Rule has been rem anded to correct theUnformatted 2012 CGP Comment Response Essays February 16, 2012

1024 numeric turbidity limit (which EPA conceded was fla wed), as well as to address comments and concerns t hat UWAG raised regarding applicability of the C&D Rule to linear utility pro jects (which EPA admitted it had failed to address as part of the original rulemaking). EPA cannot legitimately proceed with the CGP, at le ast as applied to linear projects and turbidity lim it, 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 signa led its intent to interpret other aspects of the C&D Rule t hrough the CGP. For example, the C&D Rule includes a general requirement to "[p]rovide and maintain natural buffers around surf ace 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, specifically requiring a 50-foot buffer of undisturbed natural v egetation or its equivalent sediment load reduction . Section 2.1.2.1. Similarly, the general guideline for "minimizing the disturbance o f steep slopes" in the C&D Rule (40 C.F.R. § 450.21 (a)(4)) has been expand ed in the proposed CGP to include a specific steepness thresh old of 15% grade, as well as multiple specific stab ilization requirements 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 addi tion of requirements for removing track-out of sediment by the end of the sa me work day (Section 2.1.3.4) and for stabilizing c onstruction entrance and exit points for a minimum of 50 feet from the point of e ntry/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) Issue Category: BAC.2 In a particularly significant example, in the CGP, EPA appears to be misapplying, and as are sult grea tly 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 thres hold for applicability of the numeric turbidity limit. 40 C.F.R. § 450.22(a)-(b). In the CGP, EPA proposes to apply the 2-year, 24-h our standard as a design storm standard for stormwater controls, which would be ap plic able 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 p rojects, 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 an ything contemplated - or subject to comment - in th e C&D Rule. We respectfully submit that, if EPA wis hes to apply the standard in this fashion, it must amend the C&D Rule and, thereafter, apply the amendment t o a future CGP [FN 4].

[FN 3] For example, detention capacity for stormwa ter runoff in order to add flocculants, for areas w here the 2-year 24-hour events corresponds to a 6-inch rain, would be approximatel y 163,350 gallons per acre of watershed assuming sa turated soil conditions. For a linear utility project spanning numerous watersheds , this cap acity would be impossible to accomplish within norm al ROW boundaries.

[FN 4] EPA must propose any amendments to the C&D R ule using a notice-and-comment process, to ensure t hat EPA reaches a

well-informed and reasoned result. Issues such as t he application of the rule to linear facilities, th e turbidity limit, and use of the 2- year,Unformatted 2012 CGP Comment Response Essays February 16, 2012

1025 24-hour storm standard are complex and fundamental 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 speci fic requirements of the C&D Rule and CGP are not, a nd will not be, identic al, EPA must first propose its remanded C&D Rule for public notice and comment, and then take final action in the remanded proceeding in a manner that is informed by the comments that it rec eives. After EPA finalizes the remanded C&D Rule, E PA must then propose what, when, and how the rule will be implemente d through the CGP. A placeholder is simply inadequa te to provide interested members of the public, like UWAG, with a meaningful basis to comme nt on what EPA has in mind. 5 U.S.C. § 553(c); Conn . Light Power Co. v. Nu clear Regulatory Comm'n, 673 F.2d 525, 530 (D.C. Cir. 198 2); Paralyzed Veterans of Am. v. DC Arena LP, 117 F .3d 579, 586 (D.C. Cir. 1997).

Response

Refer to 3.1.



# Comment ID 0087-A1.001.017

Author Name: Smith Brooks Organization: Utility Water Act Group (UWAG) Issue Category: BAC.2 UWAG notes, at the outset, that some of the require ments in Section 2.1.3 of the draft CGP originate w ith portions of the C&D Rule that were remanded to EPA so that the Agency could addre ss the specific comments and concerns from UWAG tha t the Agency previously failed to address. These include, for example, Sect ion 2.1.3.2.b perimeter controls. Unless and until EPA takes final action on remand of the C&D Rule, it would be both premature and futile for UWAG to comment on the CGP. Instead, UWAG simp ly cautions EPA that these requirements are not suitable or appropriate for linear utility projects.

Response

Refer to 3.1.



# Comment ID 0088-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 re quirements of the Construction and Development (C&D ) Effluent Guidelines are implemented, 74 Fed. Reg. 62,996 (De c. 1, 2009). The electric utility industry argued, and the court agreed, that these final C&D effluent guidelines failed to address imp ortant concerns including the inappropriateness of the regulations when applied to linear development (See U.S. Court of Appeals of th e Seventh Circuit Order in WBA, et. 01. v. EPA, dat ed September 20,2010). EPAUnformatted 2012 CGP Comment Response Essays February 16, 2012

1026 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 repropo se the C&D rule 10 months after remand, EPA is none theless proceeding to implement its original requirements by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility i ndustry and recognized by the courts. Minnkota encourages EPA t o delay finalizing the proposed CGP until the final C&D effluent gUidelines are reissued in response to the remand and affected par ties have had a chance to review the new effluent g uidelines 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 n ew limit. It follows that EPA is not under any immediate obli gation to implement the Construction & Development Effluent Limitations Gui delines (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 r ule staying EPA's numeric limitation in C&D ELG); See 76 Fed. Reg. at 22,885, April 25, 2011 (notice of draft CGP).

When EPA finalizes a new limit, and if that limit s urvives the litigation already pending in the U.S. Court of Appeals for the Seventh Circuit, EPA will certainly have to take the steps necessary to implement the C&D ELG. To that end, EP A 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 fa iled very shortly after industry mounted a legal challenge to that limit and its associated monitoring and reporting requirements. The litigati on forced E PA to reexamine its work on the C&D ELG. To its credit, however, the agency did volunteer that this process had revealed miscal culations; and the agency did agree to put the limit on hold, pending a new rulem aking. 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 ongoing litiga tion in the Seventh Cir cuit Court of Appeals in the case Wisconsin Builders Association v. EPA, Case No. 09-4113). EP A originally planned to complete that rulemaking on February 15, 2012, but nearly one year later, the a gency has yet to even complete its proposal.

In addition to the limit itself, this new rulemakin g will provide an opportunity for EPA to reconsider the feasibility of meeting a numeric effluent limit on cold weather sites, small sites t hat are part of a common plan of development, and o n linear gas and electric utility projects. EPA has already committed itself to revie wing these issues, as well as other issues that may that may come to the surface, as th e new rulemaking proceeds. At this point, it is quite obviously impossible to know what those other issu es might be.

Proceeding immediately to revise the CGP to the ext ent that EPA has proposed unnecessarily threatens g reat confusion. To bring everything into alignment, AGC fears that EPA would require yet another string of extended deadlines a nd corrective rulemakings, much like the several that have already plagued its effort to regulate construction sto rmwater runoff. Indeed, even in December of 2009 - when it reached what it thought was the end of it s 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 preamb le to theUnformatted 2012 CGP Comment Response Essays February 16, 2012

1027 final C&D ELG rule, the agency contemplated a lengt hy (18- month) implementation process that would "allow per mitting authorities to develop any necessary training or certification pro grams." See 74 Fed. Reg. at 63,050. As the agency f urther explained:

An important factor in the effective implementation and compliance with this rule will be the permitti ng authority being able to digest the numeric limitation and monitoring requirements and developing guidance and outreach to the regulat ed community to provide assistance so the requirements are understood and c an 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 th eir discharges in order to ensure they are meeting the numeric limitation. Id.

In December of 2009, EPA was right, and today, it i s equally - and inexplicably - wrong. If EPA hopes to succeed, it must wait for al l of the issues to surface, for the new rulemaking to co me to a close, and for both the permitting authorit ies and the regulated c ommunity to digest its unprecedented provisions. Only then shou ld the agency undertake the difficult task of revis ing the CGP.

At this point, there is simply is no way to determi ne which monitoring requirements will be appropriat e for a revised permit to include, or which outfalls might require monitoring, or what th e final limit (if any) will necessitate, in terms o f compliance . EPA must promulgate and defend a complete C&D ELG, and give both permit ting authorities and the regulated community time t o assess its requirements,

before it can determine the most efficient and effe ctive monitoring protocols and related requirements

.

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 subje ct to the numeric turbi dity limit, the average turbidity of any discharge for any day must not exceed the value listed."

While EPA may intend to finaliz e a numeric effluent limit for turbidity in a revis ed C&D ELG, it is entirely possible that EPA will n ot promulgate or be able to defend such a limit. EPA m ay settle for a "benchmark" or "action level" type approach for a final turbidity or total suspended solids threshold. Because EPA cannot predict how it s ELG rulemaking or related litigation will end, th e agency 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 Construct ion & Development Effluent Limitation Guidelines (C &D ELG), published onUnformatted 2012 CGP Comment Response Essays February 16, 2012

1028 December 1, 2009.[FN 7] EPA asserts that after it e stablishes a new effluent lim itation guideline the standard must be incorporated into subsequent NPDES permits, as appropriate.[FN 8] How ever, the C&D ELG is not yet final. EPA is therefor e not obligated to inco rporate (or to include placeholders for) these provisions i n 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 has remanded the related administrative record, stayed the numeric limit of 280 nephelometric turbidity un its (NTU), and agreed to reconsider certain aspects of the rule.[FN 9] EPA f iled a motion with the court promising to address t he many flaws in the C& D ELG 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 simpl e matter. Considering that the C&D ELG is not “fina l” and there appears to be no easy fixes to the many flaws, it is inappropriate and pr emature to include the C&D ELG terms in the draft C GP.

Even if EPA asserts that it has not stayed the enti re December 2009 rulemaking and that parts of that rule are ripe for immediate implementation, it is still inappropriate to includ e those terms in the draft CGP. In short, EPA canno t pick and choose the elements it wishes to implement now and save others for later. In December 2009, EPA did not promulgate separate n on-numeric and numeric effluent limits as stand-alone rulemakings, each wi th its own independent economic, benefits, or cost- effectiveness analyses. Instead, EPA promulgated a single, unified package of non-nu meric and numeric effluent limits, including a tech nical development document, economic analysis, and other supporting documents t hat analyzed a comprehensive package of technology controls as a “complete rulemaking.” EPA cannot now assert that the non-num eric 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 ru le package.

[FN 9] EPA voluntarily stayed the numeric limit and remanded the administrative record to reconsider c ertain aspects of the rule, such as the implementation of the numeric limit on cold weather sites, issues related to sma ll sites, implementation in linear gas and electric utility p rojects, and other issues that may reveal themselve s during EPA’s review. 75 Fed. Reg. 68,215 (Nov. 5, 2010); EPA’s U nopposed Motion for Partial Vacature of the Final R ule, Remand of 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1029 

# 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 th at EPA agreed to reconsider, there are several othe r C&D ELG provisions th at exceed EPA’s authority under the CWA. For example, as set forth in the ongoing litigation over this rulemakin g, the C&D ELG illegally imposes certain BMPs that improperly regulate inter nal site processes. The CWA authorizes EPA to control discharges of pollutants from point sources into navigable waters.[FN 11] Yet, the C&D ELG imp oses 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 m inimize 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 neces sarily point sources at a construction site; they are merely con ditions within a construction site that may or may not contribute to a point source pollutant discharge to U.S. waters. The Act “does n ot empower the agency to regulate point sources the mselves; rather EPA’s [CWA] jurisdiction . . . is limited to regulating the discharge of pol lutants” from a point source. [FN 13]

[FN 11] EPA cannot impose effluent limitations – nu meric 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). [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 con trol only actual discharges – not potential discharges, and c ertainly not the point sources themselves.”) (empha sis in original); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 50 4 (2d Cir. 2005) (“The Clean Water Act authorizes t he 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 controlling pollutant discharges fro m a point source, not internal processes; Congress intended t o give permittees the flexibility to select their o wn 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 any subpart of the C&D ELG rulemaking until that entire rulemaking is co mplete.[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 proce ed with its draft CGP that implements subsections of the C&D ELG, it faces tim ing issues tha t make its effort to implement the C&D ELG inapprop riate. On June 30, 2011, EPA announced that it would extend the cu rrent 2008 CGP only until February 15, 2012 – the d eadline for revisions to the

C&D ELG.15 EPA could have extended the 2008 CGP unt il 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1030 The fact that EPA did not proceed in this logical m anner implies that the new CGP – not the new indust ry standard – is the Agency’s top priority, especially because EPA is unlikely to fin alize the C&D ELG before the February 15, 2012 dead line.

EPA has been reassessing the C&D ELG for nearly a y ear and has yet to propose any C&D ELG revisions. E ven if EPA issues a pro posal this month, given the gamut of issues to be address ed, 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 c ontain new provisions, analyses, cost and benefits assessments, and other issues (e.g., linear construction concerns) that wi ll require significant review and analyses by the p ublic during a notice and comment period. Any comment period less than 90-days, under these circumstances, would be unreasonable and unf air to the affected

stakeholders. EPA must also set aside time to revie w comments and develop options for a final rulemaki ng. An additional 90- day period seems insufficient to accomplish those tasks.Beyond this six- month period, the Office of Management and Budget i s entitled to its own 90-day review under E.O. 12866 before approving or rejecting the final regulatory package. Considering this process, it is optim istic to assume that EPA could promulgate the new, final C&D ELG package in nine months, let alone in the seven months between mid-July (assuming a proposal is immediately forthcoming) an d mid-February.

EPA cannot reasonably be expected to promulgate wel l-reasoned revisions to the C&D ELG by the new Febr uary 15, 2012 expiration date for the 2008 CGP. Therefore, EPA should not at tempt to implement the non- final C&D ELG provisions in this draft CGP. Instead

, EPA should promulgate a new CGP apart from the cont roversies, errors, and litigation that has surround ed the C&D ELG effort. In other words, the draft CGP should focus on water quality issues, establishing a reasonable eNOI system (if a ppropriate), and enhanced best management practices (not including the BMPs set fo rth in the C&D ELG until that rulemaking is finaliz ed and fully litigated). A reasoned approach would greatly simpli fy 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 implementat ion: (i) within the context of the C&D ELG rulemaki ng itself; or (ii) as separat e but companion “guidance” document developed in para llel with the final C&D ELG with a meaningful notic e and comment period. In fact, when EPA originally promulgated the C&D ELG, EPA anticipated that a full 18-month implementation period would be necessar y to adequately implement the program. EPA claimed th at this implementation period would allow permittin g authorities to: (i) “ digest the numeric limitation and monitoring requirements;” (i i) “develop any necessary training or certification programs;” and (iii) “develop guidance and outreach to the regulated community” t o ensure compliance.[FN 16] EPA’s current CGP promulg ation strategy completely ignores and conflicts wit h these important goals . By separating the draft CGP from the ongoing revisions to the C&D ELG, EPA can provide a more comprehensive C&D E LG rulemaking package, reduce duplicative rulemaking efforts, and allow permitting authorities time to implement pro grams in a manner that reduces confusion and ensures compliance.

In sum, EPA conceded l ast August that it made mistakes when it promulgate d its C&D ELG rule in December 2009. The Agency sta yed part of that regulation and promised to revise the ELG to address certain specific issues and “any oth er issues that reveal t hemselves to the Agency” during that rulemaking. Because it cann ot anticipate how to implement undetermined provisi ons in its upcoming C&D ELG rulemaking, EPA should not attempt to implement such provisions in its draft CGP. A piecemeal appr oach is unnecessarily complex and confusing for the public, construction site operators, and permitting authorities.

[FN 14] NAHB’s opening brief in the C&D ELG litigat ion challenged several other aspects of the rule. S ee generally

Brief of Petitioners Wisconsin Builders Association and NAHB, Wisconsin Builders Association v. EPA, N o. 09- 4113 (7th Cir. July 9, 2010).Unformatted 2012 CGP Comment Response Essays February 16, 2012

1031 [FN 15] 76 Federal Register, 40355 (July 8, 2011) [FN 16] 74 Federal Register 63,050 (December 1, 200 9).

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 no t 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 for final, recalculated nume ric turbidity limit - 40 CFR 450.22]. NAHB believes trying to complete a rulemaking (and garne r meaningful public comment) without all of the relevant data is misguided. While it is EPA’s i ntention to propose and finalize a numeric effluent limit for incorporation into the CGP befor e the CGP is finalized, it is impossible to effectively complete a final C&D ELG rule in a six- to seven-month period. Setting timing aside, quite simply, the gravity of the requirement s found in the proposed CGP cannot be effectively evaluated until a final numeric limit i s issued. At this point, there is simply is no way to determine which monitoring requirements may be a ppropriate to include in the revised CGP, which outfalls might require monitoring and how oft en, or what BMPs or other practices the final limit (if any) will necessitate, in terms of compliance. EPA must promulgate and defend a complete ELG for the construction industry, and giv e both permitting authorities and the regulated community time to assess its requirements , before it can determine not only the most efficie nt and effective sampling and monitoring protocols, but other related requirement s needed for compliance with the CGP.

Response

Refer to 3.1.



# Comment ID 0103-A2.001.001

Author Name: Vickery Mark Organization: Texas Commission on Environmental Quality (TCEQ) Issue Category: BAC.2 The EPA published a turbidity limit for constructio n storm water discharges that became effective on F ebruary 1, 2010. Howeve r, after several lawsuits challenging these regulations, EPA reevaluated the limit and conclude d that it was constructed in error and would need to be reissued. EPA received numerous state and pub lic comments on this particular limit, but continue d to move forward witho ut fully examining 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1032 EPA has proposed to adopt a limit that does not yet exist, denying the public, states, and regulated c ommunity of the opportunity to provide comments. That action alone is not appropri ate; however, it is particularly troubling consider ing EPA's previous attempts 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 constructio n storm water discharges that became effective on F ebruary 1, 2010. Howeve r, after several lawsuits challenging these regulations, EPA reevaluated the limit and concl uded that it was constructed in error and would nee d to be reissued. EPA received numerous state and pub lic comments on this particular limit, but continue d to move forward witho ut fully examining 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 not yet exist, denying the public, states, and regulated c ommunity of the opportunity to provide comments. That action alone is not appropri ate; however, it is particularly troubling consider ing EPA's previous attempts 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 0110-A1.001.008

Author Name: Robeson Michael Organization: Profile Products LLC Issue Category: BAC.2

EPA admitted that it miscalculated the stormwater r unoff limit published in the December 2009 Construc tion and Development Ef fluent Limitations Guidelines (C&D ELG) rule and subsequen tly put the limit on hold pending the completion of a new rulemaking. EPA has yet to issue a revised turbidity limit so it does n ot know for certain what other issues will surface during that rulemaking. The pending C&D ELG "correction rule" is critical to amending t he 2008 CGP and must be completed before the CGP is reissued in order to avoid confusion in EPA's construction stormwater permitti ng program. Likewise, EPA must first promulgate and defend a numeric storm water limit before the regulated community can assess and comment on the most efficient and effective monito ring protocols/requirements.

Response

Refer to 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1033 

# 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 Wh ile Simultaneously Promulgating Corrected C&D ELG R egulations.

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. a t 22, 885. EPA asserts that once a new national standard is established pursuant to the Clean Water Act's effluent limitations guidelin es provisions, they must be incorporated into subse quent NPDES permits, as appropriate. Id. However, EPA has not truly set FIN AL ELG standards for the cons truction 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, the Chamber asserts that doing so is confusing, inappro priate, and may result in an unnecessary and contin ued string of corrective rulemakings that, to date, have plagued constructio n stormwater regulatory efforts. The Chamber suppor ts the Federal StormWater Association comments in this regards.

Response

Refer to 3.1.



# 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 limi t and associated monitoring and reporting requireme nts for construction site stormwater runoff is premature. Turbidity limits need to consider natural surroundings and backgroun d levels of the receiving waters. It is not reasonable to expect construction project stormwater runoff to be far clearer than the recei ving waters ... where is the value gained (cost vs benefit) to putting a few thousand gallons of super clean water into millions of gallo ns of very dirty water; let's put our $

where it counts. For instance the Yukon River in Al aska .... the volume runoff from a construction proje ct adjacent to the Yuko n river is negligible to the overall volume of high turbidly w ater that this very large river carries. However th e cost and effort to clean up the comparative small volume of water from the construc tion project could be quite large. The one size fit s all conditions has ve ry large cost

ramifications. Further - EPA admitted that it mi scalculated the storm water runoff limit published in the December 2009 C onstruction and Development Effluent Limitations Guidelines (C& D ELG) rule and subsequently put the limit on hold pending the completion of a new rulemaking. EPA has yet to issue a revised turb idity limit so it does not know for certain what other issues w ill surface during that rulemaking. The pending C&D ELG "correction rule" i s critical to amending the 2008 CGP and must be com pleted before the CGP is

reissued in order to avoid confusion in EPA's const ruction stormwater permitting program. Likewise, EP A must first promulgate and defend a numeric stormwater limit before the regula ted community can assess and comment on the most ef ficient and effective monitoring protocols/requirements.

Response

Refer to 3.1.



# Comment ID 0137-A2.001.001Unformatted 2012 CGP Comment Response Essays February 16, 2012

1034 Author Name: Ballentine Tom Organization: Maryland Association of Industrial and Office Prope rties (MAIOP) Issue Category: BAC.2 We are especially concerned that EPA will be promul gating changes to the CGP before final izing revisions to the ELG turbidity limits. It is difficult to provide comprehensive comments a nd determine the full impact of these changes witho ut the benefit of understanding 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 Agen cy has promulgated revi sions to that regulation and concluded related litigation be fore the 7th Circuit Court of Appeals.

Response

Refer to 3.1.



# Comment ID 0158-A1.001.002

Author Name: Stine James Organization: Rural Electric Cooperative Association (NRECA) Issue Category: BAC.2 NRECA is also very c oncerned about EPA's failure to modify the permit t o cover the unique situations presented by linear p rojects such

as construction and maintenance activities on utili ty transmission and distribution corridors (collect ively identified as "transmission" lines). Such modifications were the subject of exte nsive negotiations between EPA and the utility indu stry and are scheduled to be implemented in the forthcoming Effluent Limitation Guidelines for the Construction and Development ind ustry. Unfortunately EPA ha s turned the process on its head by issuing the gener al permit that implements the guidelines

before the guidelines themselves have been finalize d. With all due respect, NRECA encourages EPA to de lay finalizing the proposed CGP until the final C&D effluent guidelines are rei ssued and affected parties have had a chance to rev iew the new effluent guidelines

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.2Unformatted 2012 CGP Comment Response Essays February 16, 2012

1035 The CGP is the vehicle by which the requirements of the Construction and Development (C&D) Effluent Gu idelines are implemente d, 74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric ut ility industry argued, and the court agreed, that t hese final C&D effluent guidelines failed to address important concerns including the inappropriateness of the regulations when applied t o linear development. See U.S. Court of Appeals of the Seventh Circuit Order in WB A, et. al. v. EPA, dated September 20, 2010. EPA issued a stay for par ts of the rule

and the rule has been remanded to address the flawe d numeric limit and other issues raised by the util ity industry through UW AG. While EPA has yet to repropose the C&D rule 10 months aft er r emand, EPA is nonetheless proceeding to implement i ts original requirements by issuing the draft CGP; seemingly ignoring many o f the concerns raised by the utility industry and r ecognized by the courts.

NRECA encourages EPA to delay finalizing the propos ed CGP until the final C&D effluent guidelines are reissued in response to the remand and affected parties have had a chance to re view the new effluent guidelines and a revised CGP.

Response

Refer to 3.1.



# 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 dra ft Construction General Permit. Although this parti cular permit is not likely to directly impact Maryland construction activities, we have concerns about some of the elem ents that may be proposed for the CGP from which Maryland permit authority is delegated. We ar e especially concerned that EPA will be promulgatin g changes to the CGP before finalizing revisions to the ELG turbidity limits. It is difficult to provide compre hensive comments and determine the full impact of t hese 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 pro tecting waters of the U. S or the public interest a s defined in Section

402 of the Clean Water Act.

Response Refer to 3.1. In response to the request for the ba sis for EPA's determination that the existi ng process in place is not adequately protecting waters of the U. S or the public interest as define d in Section 402 of the Clean Water Act, EPA notes that the new requirements in the permit primarily relate to the implementation of th e C&D rule non-numeric requirements. Other new prov isions in the new permit the Agency felt were necessary to improve permit clarit y and to ensure that discharges are consistent with water quality standards.



# Comment ID 0166-A1.001.001

Author Name: Unknown Unknown Organization: Mass Comment Campaign Issue Category: BAC.2 I. EPA's attempt to implement a numeric turbidity l imit and associated monitoring and reporting requir ements for construction site stormwater runoff is premature. EPA admitted that i t miscalculated the stormwater runoff limit publish ed in the December 2009 Construction and Development Effluent Limitations G uidelines (C&D ELG) rule and subsequently put the l imit on hold pending the completion of a new rulemaking. EPA has yet to issu e 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 tedUnformatted 2012 CGP Comment Response Essays February 16, 2012

1036 before the CGP is reissued in order to avoid confus ion in EPA `s construction stormwater permitting program. Like wise, EPA must first promulgate and defend a numeric stormwater limit be fore the regulated community can assess and comment on the most efficient and effective monitoring 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.2 It is our understanding that USEPA has chosen to pu t 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 Developm ent 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 requireme nts by issuing 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 propo sed CGP until the final C&D effluent guidelines are reissued and affected parti es have had a chance to review the new effluent guidel ines and a revised CGP.

Response

Refer to 3.1.



# BAC.3 CD RULE - OBSERVATIONS ON ADVANTAGES/DISADVANTAGES OF ADOPTING A NUMERIC LIMI TUnformatted 2012 CGP Comment Response Essays February 16, 2012

1037 

# 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 issua nce 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 th e prior expiration date of June 30, 2011.[FN 3] The primary reason, as stat ed in the Notice, for proposing the January 31, 2012 expirati on date is to allow EPA to "incorporate for the fir st time new effluent li mitations guidelines and new source performance standards, wh ich EPA promulgated in December 2009 [C&D ELG]... [an d] to make up for delay in the issuance process of the new CGP due to an error discovered in the December 2009 final rul e regarding the calcula tion of the numeric limitation on turbidity, then established a s 280 NTU. Both the NAHB, before the Seventh Circui t Court of Appeals, and the Small Business Administration, through the Administ rative Procedure Act, had requested that EPA withdr aw the 280 NTU limitati on as one of impossible compliance by the affected constr uction industry sectors. EPA is currently in the pr oce ss of proposing a new numeric effluent limitation for turbidity under separate ru le. The PRHA has been particularly concerned with t he application of turbidity limitations to streams and creeks that, in the case of Commonwealth surface waters, may commonly excee d, the proposed limitation, because of naturally occurring background condition s.

[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 o f Ecological Restoration (DER) Issue Category: BAC.3 While it is currently rare to have a restoration pr oject encompassing 10 or more acres, restoration is trending toward larger, sub-watershed scale designs to achieve larger gains in functionality and sustainability of altered eco systems. Projects on this scale can involve ‘passive' disturbances such as the draining of an impoundment when a dam is removed. In these instances, restoration ef forts in one part of the system leads to changes throughout the interconnected ecosystem. This may include incr eased turbidity in one area and deposition in another.

As mentioned previously, restoration work frequentl y involves allowing a dynamic natural system to fin d its level. This approach

increases the likelihood a restoration effort will be self- sustaining in the long term. Manipulating the shift s in materials could slow this process. The DER fully supports the intent behind a dopting a turbidity limit for larger construction p rojects but sees the value in assessing restoration cases differently. One option would be to defer to the approval and conditioning found in the permits and

certificates for sections 401 and 404 of the CWA. A quatic, estuarine a nd 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 f or interstate gas pipel ines whereUnformatted 2012 CGP Comment Response Essays February 16, 2012

1038 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.3 ARTBA members have participated in a variety of wor k group meetings with EPA staff specifically concer ning stormwater runoff regulations, particularly from construction project s. One area of particular concern, which has been d iscussed in these meetings and is also present in the proposed general permit, is the establishment of specific numeric standards for st ormwater runoff. Currently, many transportation projects effectively use state-speci fic Best Management Practices (BMPs), as opposed to set numeric s tandards, to address stormwater concerns and effectively balance environ mental protection without exacerbating already ardu ous delays. In discussi ng how to approach future regulation of stormwater runoff, ARTBA strongly supports allowing states to continu e the use of BMPs as opposed to more stringent "one size fits all" approached relyi ng on such predetermined numeric standards.

BMPs allow the flexibility necessary for project sp onsors to be able to select stormwater control tech niques best suited to a projects particular circumstances. Every transportation proj ect faces unique challenges based on a number of fa ctors, including where actual construction is taking place, the size of the proje ct and climate issues such as rainfall amounts duri ng the time construction is being performed. A numeric standard applied to all projec ts, however, would not be able to take such differe nces into account. Tran sportation projects in areas with heavy rainfall would be held to the same effluent limitation standards as proje cts in dry, arid regions. Such a "one-size-fits-all" approach to stormwater permitti ng could constrain and/or delay transportation proj ects by treating them like concentrated development projects and forcing them to adhere to numeric standards designed for an enti rely different type of construction activity.

In one specific instance, an ARTBA member company h ad a project on a fairly large site (70 to 100 acre s). 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 project's customer could

not afford to wait until all of the BMPs treated th e water and needed the contractor to dry out the si te as fast as possible so construction could continue. The contract granted weat her days, but the water needed to be processed fast er requiring the contractor to implement an Alternative Treatment System (ATS, which would be r equired on many projects to meet numeric standards) using settlement ponds, flocking, filtering, pumping, hand ling, etc. The contractor agreed to do this work on an audited Time and Material basis. The final cost and change order resulted in over $1,000,000 in add itional charges to the project.

The ARTBA contractor involved in this job noted mos t projects in tha t area had the same problem that summer but none of them had the ATS expense this contractor incurred. ARTBA is conc erned the implementation of numeric stormwater disc harge standards will add substantial additional costs by requiring expensive ATSs, which could limit competition for transportation projects due to the high cost of purchasing equipment necessary for compliance be ing potentially prohibitive for smaller and medium- sized contractors. Further, these additional costs are especially troublesome f or transportation projects where needs vastly outwe igh available resources.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

1039 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 i s the lack of availability of treatment equipment n ecessary to meet the st andards. According to ARTBA contractor members, it could tak e years until there is enough equipment to fully im plement numeric discharge standards. Meanwhile, many projects will be in limb o while waiting for this equipment to become availa ble. Currently, there a re only a relatively small number of vendors who sell the nec essary equipment. Implementing a numeric discharge standard would essentially 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 t he 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 i mposition of numeric standards. If a project tempor arily violates a proposed numeric standard, it could open the door for litigation. Fu rther, it is unclear who would bear the responsibil ity of any such litigat ion. Would the project planner be responsible, the contractor in c harge 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 opponen ts to use litigation as a means to delay and disrupt transportation improvements. As s oon as there is a violation of a numeric standard, a "rush to the courthouse door" could be triggered, potentially resulting in additi onal years of delay to affected 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 alt ernative approach to the ELG that adequately protec ts the environment and improves the current permitting framework. This app roach provides a BMP-based option combined with a n umeric action level that provides additional protection for sites that pose higher risks to the environment. Because the CWA on ly requires compliance with minimum technology standards that are economically achievable on a national basis, not standards that would ensure that each and e very site across the country is regulated to the extent necessary for its discharges to meet the toughest w ater quality standards for the most sensitive waterbodies, an alternative action level approach makes sense.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1040 The proposed “action level approach,” which has bee n presented to EPA and OMB, would streamline implem entation, ensure environmental protection, and serve as a national b aseline while recognizing the vast variability in s oil type, rainfall, etc. across the nation (See Attachment II) [Please see Attachment II in the origional comment letter. Docket ID EPA-H Q-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 p onds, but also establishes an actio n level for turbidity for discharges from projects disturbing 30 or more acres. This means any operato r 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 discharg e to below the action level.

The environmental benefit of an action level approa ch as compared to a numeric standard (if such a sta ndard is even achievabl e) is likely to be very similar due to the limited universe of e xpect ed benefits accruing from a numeric standard. Takin g into account both costs and benefits, the adoption of an action level approach is vastly superior to simply changing the numeric s tandard, which is EPA’s current plan. A more careful review of the availa ble data leads to the conclusion that an action lev el approach is more appropriate because it will incentivize facilities to reduce pollutant discharg es at a much lower cost than the standard-based app roach that requires facilities to install costly treatment systems to ensure regulato ry compliance. An action level approach also signif icantly reduces administrative burdens. State regulators are overwhelmingly oppose d to a single numeric limit, because of the increas ed workload and doubts that the numeric limit would be feasible or yield significan t benefits. On the other hand, an action level appr oach as currently adopted by a fe w states will keep discharges low by requiring re-eva luations of best management practices for any bench mark turbidity exceedances and appropriate corrective actions and reporting to state agencies.

Response Refer to Response 3.1. Additionally, EPA appreciate s 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 to consider alternative 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 Requirement s (3)

Simplot recommends if a numeric requirement for tur bidity is implemented, that the numeric requirement is as a "benchmark" an d 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 o pportunity of the discharger to take corrective act ion 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 a s a surrogate for suspe nded solids or sediment. This is because turbidity is a measuremen t of water clarity; suspended solids are a mea surement of the concentration of solids

in the water. There is no common correlation betwee n these measurements; thus if a relationship is des ired it must be determined on- site specific basis. Even then though, such measurements show that developing a relationship can be technic ally difficult to achieve.

Attached are data from a series of streams located near a mining operation that shows the variability between turbidity and totalUnformatted 2012 CGP Comment Response Essays February 16, 2012

1041 suspended solids measurements. Though a correlation can sometimes be determined for a particular water body or flow discharge, considerable data is needed to develop a statistica lly valid relationship between turbidity and suspen ded solids or sediment.

Response

Refer to 3.1.



# 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 A ugust 1st, 2011 and 10 acres or more beginning February 2nd, 2014. This limit ma y not be exceeded on any given day or time regardle ss of pre

‐ existing conditions of the land to be developed. Therefore they are imposi ng a higher level of standard than may currently ex ist prior to the develo pment or land disturbance. This may not be achievable until stabi lization of an existing area occurs. In other words you may be in violation prior to your development occurring or at the onset of propo sed development and approval of a CGP. Development will require stabilizat ion of an existing area that has turbid runoff before dist urbing the area for development and then maintainin g 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 cond ucting monitoring is no t 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 signi ficant concerns about the impact of the numeric tur bidity limitations. Using a placeholder does not allow us to adequately review this permit.

Response

Refer to 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1042 

# Comment ID 0132-A1.001.002

Author Name: Goodmann Peter Organization: Kentucky Division of Water (KDOW) Issue Category: BAC.3 I would like to bring your attention two specific c oncerns that KDOW has with the proposed general per mit as these concerns r elate to the Kentucky NPDES program. Firstly, the proposed g eneral permit seeks to maintain a narrative approac h with regards to th e effluent limit for construction site discharges, identifying a menu of practices necessary to protect water qua lity from discharges as sociated with construction sites. In addition, the general permit seeks to include a numeric effluent limit as part of t he permit. KDOW has the following concerns where EPA deviating from the narrative app roach and incorporating:

1. The initial proposed effluent limit was subseque ntly recalled and it seems there is some uncertaint y as to what the numeric effluent will eventually look like.

2. Given this uncertainty, is it understood whether the industry actually comply with the eventual num eric effluent limit.

a. If a site is in compliance with the narrative as pects of the effluent limit, but fails to meet the numeric effluent limit, how are the compliance issues to be remedied?

3. There may result secondary public health, safety and environmental issues with the implementation o f a numeric effluent limit, including the widespread use of sediment structures /p onds that the industry will employ. In addition, th e EPA must resolve the Class V UIC permitting issues associated with Green Infrast ructure 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 a bout 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 Guideli nes and New Source Performance Standards are established, they must be incorporated into NPDES permits. However, without knowing the actual turbid ity limitation proposed, it is problematic to review an d adequately consider the implications of the propo sed permit conditions. MDT requests that all possible legal avenues be explore d to allow further public involvement o/the permit conditions related to the turbidity

effluent limitation.

Response

Refer to 3.1.



# Comment ID 0145-A2.001.012Unformatted 2012 CGP Comment Response Essays February 16, 2012

1043 Author Name: Haddock Randall Organization: CAHABA RIVER SOCIETY Issue Category: BAC.3 We cannot over-emphasize how important it is to hav e a numeric limit for turbidity. Our experience has shown that turbidity measurements of streams receiving discharges from e ven small construction sites frequently range above >1000 Nephelometric Turbidity Units. Unfortunately, we hear from develo pers and sometimes from environmental enforcement s taff that "the BMPs are properly installed" and that is all, they assume, t hat is required or all that is enforceable. A numer ic limitation is an objective standard that would be far more easily enforced and would he lp avoid problems associated with inadequately inst alled and maintained BMPs.

We suspect there is enormous pressure from economic interests to avoid designating a numeric turbidity limit. But such a limit is an

essential and an objective standard that holds permittees accountabl e for the potential impacts of their activities. Th e lack of a numeric standard up to this point in time is an important r eason for the failure to avoid the impacts associat ed with development projects that currently degrade our streams. Without that account ability, 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 1 0 or 20 acres. We have seen far

smaller sites 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 nu meric effluent limits (NELs). The California permit additionally includes act ion levels which apply to both high risk and modera te 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 high-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-bas ed approach is appropriate in that acknowledges tha t some construc tion projects pose a higher environmental risk. The proposed Permit la nguage differentiates between construction sites on ly through project size, whichUnformatted 2012 CGP Comment Response Essays February 16, 2012

1044 will result in all sites, regardless of their poten tial for runoff pollution, to require extensive mon itoring and assessment. The lack of

discrimination in this draft Permit in relation to site potential for runoff pollution, and the sensit ivity of the receiving water to pollution

from a construction site will not result in an effi cient life cycle cost over water quality benefit. W e request that a risk- based approach be incorporated into the EPA Permit for application of the proposed numeric effluent limitation. We under stand 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 tha t have been used for stormwater sediment are total suspended solids (TSS), settleab le solids (SS), and turbidity (NTU). Each has its a dvantages and disadvantages, as

shown below.

Total Suspended Solids: A TSS standard of 35 mg/I a verage has been used i n 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. Th e cons are that it is time consuming to measure and results ar e not available for a number of days. The state of South Carolina currently requires 80% trapping efficiency of TSS for active construct ion sites for the lO-year 24 hour design storm even t.

Settleable Solids: SS is defined as the amount of s ediment that accumulates in the bottom of an Imhoff cone after one hour of settling. The volume of the sample is one liter and the resul ts are reported in mill. The typical standard is 0. 5 mill. The pros for th e use of SS are that it is easy to measure and results can be avail a ble 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 con e 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 se ttle to the bottom of the cone, but a sizeable frac tion 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 Imh off cone.

Turbidity: Turbidity (TB) is a measure of the clari ty of the sample. It is measured instantly and can be continuously monitored and recorded by using commercially available probes, th us eliminating the timing issues for sampling. Rece ntly, procedures have been developed at Oklahoma State University to predict t urbidity from TSS and soil specific information. Th e standard originally p roposed by EPA of 13 NTUs in a 2-year storm and the revised st andard of 280 NTUs are very difficult to meet with traditional sediment control BMPs and the reduction of NTUs require the use of f locculants for most soils. With a realistic turbidi ty standard, it is poss ible to meet it in some locations with sandy or highly aggregated s oils without using flocculants. Final turbidity sta ndards 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. Th e results of these studies will be disclosed July 1 , 2011. Flocculants require an appropriate injection system that can keep the conc entration 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 turbidity sta ndard are that there is not a great deal of experie nce in designing system s to meet aUnformatted 2012 CGP Comment Response Essays February 16, 2012

1045 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 simp le, instantly available, and can be continuously mo nitored. Recent studies at North Carolina State University and Oklahoma State Univer sity have shown that flocculation can be very effec tive. In addition, Galb recht et al. (2011) and others are reporting July 1, 2011 on sys tems that passively inject flocculent to maintain 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 o ut of a baSin, and a model that will predict the growth of flocs as well as the final tu rbidity in effluent from construction site sediment BMPs (Sonal et aI., 2011). The most important issue is developing a realistic standard. The values proposed by the EPA to date are not rea listic. At the prese nt time, based on existing information, a value in the range of 700 t o 800 NTUs could be met in locations with sandy or highly aggregated soils without the use of flocculants. For areas with high levels of f ine clays and silts, it appears that the use of flo cculants 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 A ugust 1st, 2011 and 10 acres or more beginning February 2nd, 2014. This limit ma y not be exceeded on any given day or time regardle ss of pre-existing cond itions of the land to be developed. Therefore they are imposi ng a higher level of standard than may currently ex ist prior to the develo pment or land disturbance. This may not be achievable until stabi lization of an existing area occurs. In other words you may be in violation prior to your development occurring or at the onset of propo sed development and approval of a CGP. Development will require stabilizat ion of an existing area that has turbid runoff before dist urbing the area for development and then mai ntaining a turbidity level under 280 NTD's.

If an effluent limitation must be applied to the de velopment discharge it should be compared to the ex isting runoff conditions. An existing base line NTU sample should be taken durin g a stormwater runoff event at a minimum of 120 days prior to the land disturba nce. This existing NTU value or turbidity limit of 280 N TD's which ever is greater could then be used as th e comparison to the dev elopment discharge under the CGP.

Response

Refer to 3.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1046 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: ADMIN, ADMIN.1, ADMIN.2, ADMIN.3, A DMIN.4, ADMIN.5Unformatted 2012 CGP Comment Response Essays February 16, 2012

1047 

# Comment ID 0012-A1.001.005 Issue Category: 

# ADMIN.1

Author Name: J. Dillard Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Joyce Dillard

Author Type: Private Citizen Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The burden of mitigation of pollutants should not b e borne by the taxpayer when proper mitigation and monitoring activities are occurring.

Response See Essay Response 19.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1048 

# Comment ID 0016-A1.001.001 Issue Category: 

# ADMIN.3

Author Name: Virgil , Moose Tribal E.O. 13175 Consultation and Coordination with

Indian Tribal Governments Organization: Big Pine Paiute Tribe of the Owens Valley

Author Type: Tribal Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### On January 24,2006, the EPA approved the Big Pine T ribal Water Quality Standards (WQS) for waters loca ted within the boundaries of the Big Pine Indian Reservation. Thes e water quality standards were approved by EPA unde r the Federal Clean Water Act which recognizes tribal authority o ver the "Management and protection of water resourc es ...within the borders of an Indian Reservation". The Tribe's WQS are periodically reviewed, and following a recent r eview, were reaffinned by the Big Pine Tribal Council in Septem ber 2009.

EPA may not issue a pennit authorizing discharges i nto waters of the Big Pine Paiute Tribe of the Owen s Valley (Tribe) until the Tribe has granted certification as allowed unde r CWA Section 401. Section X of the Tribe's WQS rea ds as follows:

Clean Water Act Section 401 (Water Quality Certific ation) gives the Big Pine Tribal Council extremely broad authority to review proposed activities in and/or affecting the Reservation's waters requiring certification ofstat e or federal permits or licenses. The Big Pine Tribal Council can recommend to the permitting agency that it grant, deny, or c ondition certification offederal and state permits or licenses that may re sult in a discharge to "waters ofthe United States" to achieve compliance with the Tribe's water quality standards . For waters within the Reservation boundaries, the Tribal Council shall have full authority to grant, deny, or condition ce rtification. Section 401 Cert(fication Process Applications for ~'ater quality certification within the Reservation boundaries shall be submitted to the Tribal Council. They will be revi ewed by the Tribal Environmental Office for complia nce with Tribal water quality standards. After a thorough analysis, the Environmental Office shall make a recommendati on to the Tribal Council who will grant, deny, or condition the appl ication. The Tribal Council is the only entity whic h holds the authority to permit or deny water quality certification applicat ions. Ifcertification is denied, the applicant may request a meeting with the Tribal Council to appeal the decision.

The Tribe's Water Quality Standards were establishe d 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 fo r water quality objectives of the surface waters can be found within the Big P ine Tribal WQS at Sections V and VI and Tables 1-11

.

EPA's correspondence requested a statement of the e xtent to which conditions of a proposed permit can be made less stringent. This is addressed in the Tribe's WQS Sec tion VII(e):

If a proposed action has the possibility to adverse ly affect the water quality ofBig Pine Creek, an ap plication must be filed with the Tribal Environmental Office. The applicati on must describe the action proposed and its effect s on the Creek, how this information was derived, and a justification f or the action. Upon satisfYing these requirements, the Tribal

Environmental Office will recommend or not recommen d this proposal to be considered by the Tribal Coun cil. TribalUnformatted 2012 CGP Comment Response Essays February 16, 2012

1049 

### Council will make a determination whether to consid er the proposalfurther. If the Tribal Council wishe s to consider the application further, the public participation proce ss will take place (see paragraph VII(d)). The Trib al Council has the sole authority in permitting degradation to Big Pine Cre ek. Ifthe Tribal Council makes the decision to allo w 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 compliance with T ribal water quality standards. The Tribe holds the legal right and mana gement capability to regulate water quality within the boundaries of the Big Pine Indian Reservation. The Tribal WQS Antideg radation Policy (Section VII) includes provisions f or 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 th e primary basis for Section 401 certification decis ions.

Response See Essay Response 19.2.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1050 

# Comment ID 0023.001.001 Issue Category: 

# ADMIN.1

Author Name: T. Atkinson Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Public Input

Author Type: Private Citizen Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The requirements of the proposed Construction Gener al Permit (CGP) raises two issues of concern relate d to the regulatory

burden and cost due to the introduction of ELGs on activity associated with one acre or greater. One a cre of construction activity is approximately the size of a large resid ential housing lot in North Dakota. North Dakota zo ning laws already require that sediment and erosion controls, soil st abilization, pollution prevention and stormwater po llution prevention plans be approved by a city or county engineer for all ne w 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 cou ld face the requirement of submitting two different applications for basically the same requirement, but uses different application processes, different requirements and d ifferent approval authorities. I realize that the goal of the 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 i s building within city limits.

Response See Essay Response 19.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1051 

# Comment ID 0023.001.002 Issue Category: 

# ADMIN.1

Author Name: T. Atkinson Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Public Input

Author Type: Private Citizen Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### A second issue is that the cost associated with thi s regulation is not identified. Executive Order (EO ) 12866 establishes the guiding principles that agencies must follow when d eveloping regulations, including the use of cost-be nefit analysis, risk assessment and performance-based standards. The EPA web page identifies an Economic Analysis for the P roposed Construction General Permit, but the document is da ted Jan 1, 2008, and is based upon the previous gen eral permit requirements. There is no reference to accomplishin g a review of EO 12866 for the new general permit. The addition of EGLs is a major change to the previous permit and t he cost associated with this change needs to be ide ntified.

Response See Essay Response 19.3.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1052 

# Comment ID 0026-A1.001.001 Issue Category: 

# ADMIN

Author Name: William , L. Kovacs Administrative

Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### 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 demonst rate compliance with the cost-benefit requirement of 33 U.S.C. § 1314(b) (1)(B), Executive Order 13563 or the Regulatory Fle xibility Act, 5 U.S.C. § 601 et seq. Also, it appears certain provi sions in the draft CGP are not justified by control ling law and/or fail applicable information quality requirements. Theref ore, the Chamber urges the Agency to withdraw the d raft CGP and comply with all appropriate laws, guidance and Orde rs designed to promote public participation, protec t small businesses, and reduce excessive regulatory costs.

Response See Essay Response 19.4.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1053 

# Comment ID 0026-A1.001.002 Issue Category: 

# ADMIN.1

Author Name: William , L. Kovacs Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### However, the EPA has neither calculated the economi c and employment costs of these provisions nor disc losed or quantified their potential environmental benefits.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1054 

# Comment ID 0026-A1.001.003 Issue Category: 

# ADMIN

Author Name: William , L. Kovacs Administrative

Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The Notice neither demonstrates nor discusses the A gency's compliance with 33 U.S.C. § 1314(b)(1)(B), Executive Order 13563 or the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. The EPA's apparent failure to comply w ith these laws and the Order, which are designed to promote public partici pation, protect small business, reduce excessive co sts, and allow a congressional check, is arbitrary, capricious, an a buse of discretion and contrary to law. Furthermore , given both the breadth of the draft CGP's coverage (all construction activ ities disturbing more than one acre, see 76 Fed. Re g. at 22882 - 84) and the depth of the new requirements it imposes on permitt ees, the EPA's failure to comply is contrary to sou nd administrative policy and practice. Therefore, the Chamber urges t he EPA to withdraw the draft CGP until after it com plies with all of its statutory and Executive Order obligations.

Response See Essay Response 19.3 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1055 

# Comment ID 0026-A1.001.004 Issue Category: 

# ADMIN.1

Author Name: William , L. Kovacs Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### A. The Agency Has Failed To Comply With The CWA. Th e draft CGP purportedly contains the "best practica ble control technology" that the Agency has determined is neede d to meet technology-based effluent limits establis hed 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 a nd "considered the total cost of the application of this technology in

relation to the effluent reduction benefits to be a chieved from such application" as required by 33 U. S.C. § 1314(b)(1)(B). [FN 1] If the Agency promulgates a final CGP withou t demonstrating that it has reasonably quantified a nd balanced both the

total costs and the effluent reduction benefits of the various control measures set forth therein, the n it will contravene a direct Congressional command and violate the Clean Water A ct. [FN 2]

[FN 1] 33 U.S.C. § 1314(b)(1)(B) provides in releva nt part that: Factors relating to the assessment of best practicable control technology currently available to comply with...secti on 1311 of this title shall include consideration o f the total cost of application of technology in relation to the efflue nt reduction benefits to be achieved from such appl ication , and shall also take into account...the engineering aspects of the ap plication of various types of control technology, p rocess changes, non-water quality environmental impact (including e nergy requirements), and such other factors as the Administrator deems appropriate...

[FN 2] On December 1, 2009, EPA published final reg ulations establishing technology-based Effluent Lim itations Guidelines (ELGs) and New Source Performance Standa rds (NSPS) for the Construction & Development (C&D) point source category. See 40 CFR Part 450, and 74 Fed. R eg. 62996 (Dec. 1, 2009). The C&D rule included non -numeric requirements for erosion and sediment control, stab ilization, and pollution prevention (see 40 CFR 450 .21(a) thru (f)), and, for the first time, a numeric limitation on the dis charge of turbidity from active 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 incorpora te the C&D rule requirements." See 76 Fed. Reg. at 22885. The Agenc y, 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1056 

# Comment ID 0026-A1.001.005 Issue Category: 

# ADMIN.4

Author Name: William , L. Kovacs E.O 13563 Improving Regulation and Regulatory

Review Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### B. The Agency Has Failed To Comply With Executive O rder 13563.

Executive Order 13563 provides: "Our regulatory sys tem must protect public health, welfare, safety, an d our environment while promoting economic growth, innovation, compet itiveness, and job creation." Regulatory action mus t be based on the best available science, promote predictability and reduce uncertainty, and propose or adopt a regulati on only upon a reasoned determination that its benefits justify it s costs. See Executive Order 13563 at §§ 2, 5. Als o, the President has commanded the EPA to tailor its regulations to impo se the least burden on society, consistent with obt aining regulatory objectives, taking into account the costs of cumula tive 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 1375 1 (Consultation and Coordination with Indian Tribal Governments) re views for the draft CGP. See 75 Fed. Reg. at 22890 - 91. However, it appears the Agency has chosen to ignore or avoid it s obligations under Executive Order 13563. Specific ally:

 There is no evidence that the EPA has made a reaso ned determination that the draft CGP's environmenta l benefits (if any) will justify its jobs, development and consumer cos t burdens.

 There is no evidence that the EPA has tailored the draft CGP to impose the least burden on society, c onsistent with obtaining regulatory objectives and taking into acc ount, among other things, and to the extent practic able, the costs of cumulative regulations affecting developers, builde rs and consumers.

 There is no evidence that the EPA has considered a lternative approaches, much less selected the measu res that maximize

net economic and environmental benefits.

 There is no evidence that the EPA has to the exten t feasible used the draft CGP to specify performanc e objectives and not the specific behaviors or manners of compliance tha t regulated entities must adopt.

 There is no evidence that the EPA has identified a nd assessed available alternatives to the measures specified in the draft CGP for the purpose of drafting the least burdensom e permit possible.

 There is no evidence that the EPA has considered o r specified metrics for determining the efficacy of the draft CGP in order to facilitate retrospective review and evalua tion.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1057 

### Response See Essay Response 19.3 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1058 

# Comment ID 0026-A1.001.006 Issue Category: 

# ADMIN.5

Author Name: William , L. Kovacs Regulatory Flexibility Act

Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### 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 unnecessa ry regulatory burdens. It determined that federal r ules (such as the CGP) 3 often impose disproportionately heavy demand s on small businesses and that the federal agencies ' systemic failure to recognize differences in the scale and resources of regulated entities has adversely affected compe tition, discouraged innovation and restricted productivity improvements . Therefore, it directed agencies to employ alterna tive regulatory approaches to minimize the significant economic imp act of rules on small businesses and to tailor rule s 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 "small businesses." See generally 76 Fed. Reg. at 2 2885. Consequently, the Agency should have prepared or be preparing an initial regulatory flexibility analysis for the dra ft CGP, published it in the Federal Register and tr ansmitted a copy to the Chief Counsel for Advocacy of the Small Business Ad ministration. 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 ava ilable to small entities; the clarification, consol idation, or simplification of compliance and reporting requirements; the use of p erformance rather than design standards; and an exe mption from coverage of the rule, or any part thereof, for such small entities. 5 U.S.C. § 603(c). However, it app arently has not done any of these things. [FN 5]

[FN 3] The CGP is an "agency statement of general o r particular applicability and future effect design ed to implement, interpret, 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 estimat ed the number of small entities subject to the CGP; described projected reporting, recordkeeping and other compli ance requirements, estimated the classes of small e ntities subject to CGP requirements and summarized the professional sk ills needed for compliance; and identified duplicat ive, 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 regulatory fle xibility analysis containing a succinct statement of the need for, an d objectives of, the CGP; a summary of the signific ant issues raised by the public in response to the initial analysis and a st atement of any changes made as a result; a descript ion and an estimate of the number of small entities subject to the CGP or an e xplanation of why no such estimate is available; a description of the type of professional skills needed for compliance; and a description of the steps taken by the EPA to minim ize the final CGP'sUnformatted 2012 CGP Comment Response Essays February 16, 2012

1059 

### impact on small entities consistent with the stated objectives of applicable statutes, including a sta tement of the factual, policy, and legal reasons for selecting the alterna tive adopted in the final rule and why each one of the other significant alternatives to the rule that might mitigate the im pact on small entities was rejected. See 5 U.S.C. § 604.

Response See Essay Response 19.3 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1060 

# Comment ID 0026-A1.001.011 Issue Category: 

# ADMIN

Author Name: William , L. Kovacs Administrative

Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The Chamber supports the promulgation of a scientif ically sound and economically rational CGP by the E PA. The draft CGP may ultimately prove to provide a generally ac ceptable framework for doing so. However, the Chamb er believes that the draft CGP ought to be withdrawn until the Agenc y demonstrates that it has been formulated in full compliance with all applicable laws, guidelines and Executive Orders th at promote public participation, protect small busi ness, reduce excessive costs, and allow a congressional check. Specificall y, the Chamber requests that the Agency take the fo llowing actions.

Response See Essay Response 19.3 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1061 

# Comment ID 0026-A1.001.012 Issue Category: 

# ADMIN.1

Author Name: William , L. Kovacs Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### A. The EPA ought to demonstrate that it has properl y calculated and considered the total cost of appli cation of technology required by the draft CGP in relation to the efflue nt reduction benefits to be achieved from such appl ication and has taken into account the engineering aspects of the applica tion of various types of control technology, proces s changes, non-water quality environmental impact (including energy requ irements), and other appropriate factors as require d under 33 U.S.C. § 1314(b)(1)(B). The relevant draft CGP provisions in clude, but are not limited to, those identified in Notice §§ III(E)(2) (buffers); (3) (design requirements); (9), (10) and (11) stabilization criteria and pollution preventi on standards); (12), (13), (14), (17) (discharge sampling and quality standard s); and (18), (20) (requirements for discharges to "sediment or nutrient-impaired waters" including Appendix J). Al ternatively, 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 exe mption improves the CGP's quality and efficacy.

Response See Essay Response 19.3 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1062 

# Comment ID 0026-A1.001.013 Issue Category: 

# ADMIN.4

Author Name: William , L. Kovacs E.O 13563 Improving Regulation and Regulatory

Review Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### B. The EPA ought to demonstrate that it has complie d with President Obama's Executive Order 13563, pre cisely as it has demonstrated compliance with Executive Orders 12898 (Federal Actions to Address Environmental Justice) and 13751 (Consultation and Coordination with Indian Tribal G overnments). See 75 Fed. Reg. at 22890 - 91. Specif ically:

1. The Agency should demonstrate that the draft CGP 's requirements are based upon a reasoned determina tion that the environmental benefits (if any) will justify the jo bs, development and consumer cost burdens.

2. The Agency should demonstrate that the provision s of the draft CGP have been tailored to impose the least burden on society, consistent with obtaining regulatory objec tives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations af fecting owners, developers, builders and consumers.

3. The Agency should demonstrate that it has select ed permit provisions that maximize net economic and environmental

benefits and that the EPA has to the extent feasib le used the draft CGP to specify performance object ives and not the specific behaviors or manners of compliance that re gulated entities must adopt.

4. The Agency should demonstrate that it has identi fied and assessed available alternatives to the mea sures specified in the draft CGP for the purpose of drafting the least bur densome permit possible.

5. Finally, the Agency should demonstrate that it h as considered or specified metrics for determining the efficacy of the measures in the draft CGP aimed at improving the qu ality of receiving waters, thereby facilitating ret rospective review and

evaluation.

6. Alternatively, the Agency ought to cite the cont rolling 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 whil e promoting the Executive Order's priorities, including promoting e conomic growth, innovation, competitiveness, and jo b creation; identifying and using the best, most innovative, an d least burdensome tools for achieving regulatory e nds; accounting for benefits and costs, both quantitative and qualitati ve; and improving the results of results of regulat ory requirements. See Executive Order 13563 at §1(b).

Response See Essay Response 19.3 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1063 

# Comment ID 0026-A1.001.014 Issue Category: 

# ADMIN.5

Author Name: William , L. Kovacs Regulatory Flexibility Act

Organization: U.S. Chamber of Commerce

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### 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 prepar e an initial regulatory flexibility analysis, publi sh it in the Federal Register and transmit a copy to the Chief Counsel f or 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 compli ance requirements, estimate the classes of small en tities subject to CGP requirements and summarize the professional skills needed for compliance; and identify duplicative, ov erlapping or conflicting Federal rules. See 5 U.S.C. § 603(b).

3. The EPA should incorporate significant alternati ves into the draft CGP such as the establishment of differing compliance or reporting requirements or timetables that accoun t for the resources available to small entities; th e clarification, consolidation, or simplification of compliance and reporting requirements; the use of performance rat her than design standards; and an exemption from coverage of the ru le, 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 flex ibility analysis containing a succinct statement of the need for, an d objectives of, the CGP; a summary of the signific ant issues raised by the public in response to the initial analysis and a st atement of any changes made as a result; a descript ion and an estimate of the number of small entities subject to the CGP or an e xplanation of why no such estimate is available; a description of the type of professional skills needed for compliance; and a description of the steps taken by the EPA to minim ize the final CGP's impact on small entities consistent with the stated objectives of applicable statutes, including a sta tement of the factual, policy, and legal reasons for selecting the alterna tive adopted in the final rule and why each one of the other significant alternatives to the rule that might mitigate the im pact on small entities was rejected. 5 U.S.C. § 604

.

5. Alternatively, the EPA ought to cite the control ling legal authority that it believes exempts the C GP 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1064 

# Comment ID 0029-A1.001.001 Issue Category: 

# ADMIN.1

Author Name: Trey Pebley Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: McAllen Construction, Inc.

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### We share EPA's goal of protecting water quality, bu t we are concerned that compliance with the propose d CGP would not be feasible. The cumulative impact of all the new requ irements will have deleterious impacts on the busin ess of construction. Below we identify our five main concerns with the d raft permit.

Response See Essay Response 19.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1065 

# Comment ID 0029-A1.001.003 Issue Category: 

# ADMIN.1

Author Name: Trey Pebley Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: McAllen Construction, Inc.

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### In conclusion, my company appreciates the opportuni ty to provide comments on EPA's proposed draft CGP. For the reasons outlined above, we are concerned that many draft pr ovisions would impose unrealistic, significantly bu rdensome, and economically devastating requirements on constructi on 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 s torm water discharges, and workable on a national basis.

Response See Essay Response 19.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1066 

# Comment ID 0031-A2.001.007 Issue Category: 

# ADMIN.1

Author Name: Vincent Squillace Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Ohio Home Builders Association (OHBA)

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### OHBA appreciates the opportunity to provide comment s on EPA's proposed draft COP. The proposal raises serious concerns regarding the requirements for numeric eff luent limits, Water Quality Based Effluent Limit an d prescriptive BMPs. Because it imposes unrealistic, significantly burdensome, and economically devastating impacts o n construction site operators, OHBA strongly urges EPA to focus on a BM P-based and flexible approach to ensure the COP is economically achievable, effective in reducing pollution from st orm water discharges, and workable on a national ba sis.

Response See Essay Response 19.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1067 

# Comment ID 0040-A1.001.003 Issue Category: 

# ADMIN.1

Author Name: Paul , E. Reynolds Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Sunflower Electric Power Corporation

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended t o simplify and standardize compliance expectations for a range of activities deemed to have similar environmental imp acts, the proposed CGP would require extensive site-specific effort to obtain coverage and thereafter to demonstrate comp liance. This concern is only made worse by the new EPA/Corps Guidance on Identifying "Waters of the United States". Not onl y does the new permit add onerous requirements, the requirements w ould have to be met at many new locations on a proj ect site because of the extremely broad scope of the new Waters of the United Sates guidance. In sum, we believe this is i nconsistent with the value and purpose of general permits, marks a depar ture from EPA's typical stormwater general permits program, and stymies the use and availability of the CGP for own ers and operators of regulated construction sites.

The draft CGP contains new and additive requirement s that collectively render the permit nearly unusab le 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 n umeric turbidity limit, the obligation to collect a minimum of three samples in connection with each and every storm eve nt from each and every stormwater outfall (with lim ited opportunity to designate representative outfalls), and the more st ringent expectations associated with discharges to impaired waters, coupled with an often ill-defined obligation to det ermine the impairment status of the receiving water body.

Response See Essay Response 19.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1068 

# Comment ID 0042-A2.001.001 Issue Category: 

# ADMIN.1

Author Name: John Mackinnon Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: General Contractors of Alaska (AGC)

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### We are concerned that compliance with the proposed CGP is unreasonable and would not be feasible. The cumulative impact of all the new requirements will have delete rious impacts on the business of construction and t he public in general. The estimated annual cost of complying with the cur rent EPA storm water regulations on Alaska construc tion sites is over 8% of the entire annual highway construction progra m - over $50 million a year. This represents two ma jor road projects a year we don't do. Projects that could result in saf er highways and save lives or less congestion and r educe air pollution. If you did a realistic cost-benefit analysis, you migh t find your stormwater efforts are counterproductiv e.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1069 

# Comment ID 0062-A1.001.002 Issue Category: 

# ADMIN.1

Author Name: Bach McClure Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Brevard County, Natural Resources Management Office

Author Type: Local government Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### 2) Many small sites will become uneconomical if the se requirements are implemented. The effect of this permit will be increased costs for small site development (economi es of scale will be exaggerated) and the incentive ignore permit

conditions will be increased. EPA should meet with construction personnel and discuss how EPA envision s many of these requirements will be implemented.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1070 

# Comment ID 0066-A1.001.002 Issue Category: 

# ADMIN.1

Author Name: Amadeo Saenz Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Texas Department of Transportation (TxDOT)

Author Type: State Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### Many of our comments on the proposed NPDES construc tion general permit will reflect a central theme, t his being that the economy is something that is often unpredictable, a nd that many of the proposed guidelines and permit requirements will negatively impact the economy of the transportation construction industry. This is in direct oppositio n to what the EPA has cited in a recent document, where it is stated, "No n-building construction, of which the transportatio n and pipelines sectors may be affected by this rule, has generally experie nce flatter, less cyclical growth as compared to th e building construction sectors. Nevertheless, this sector has been affecte d 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 a pproximately 5 percent increase in spending The increase in spending and a ctivity effect In 2010 is limited, since the majori ty of the federal stimulus spending on infrastructure projects is expected to occur in 2010 and 2011." (Reed, August 2009; Global Insight, August 2009) Financial impacts should not be anticipated b ased on something that is "expected", but rather on realistic numbers. At this time, many state DOTs are struggling with fina ncial crises, implementing these new rules and perm it 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1071 

# Comment ID 0068-A1.001.042 Issue Category: 

# ADMIN.4

Author Name: Jeffrey , S. Longsworth E.O 13563 Improving Regulation and Regulatory

Review Organization: Federal StormWater Association (FSWA)

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### On January 21, 2011, President Obama issued Executi ve Order 13,563, Improving Regulation and Regulator y 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 minim ize the regulatory burdens associated with developi ng new regulations and facilitate a retrospective analysis of existing regulations that are inefficient and i neffective.

As stated above, FSWA believes that the 2008 CGP is a well-crafted NPDES general permit. EPA can impro ve it through minor tweaks and modifications that build upon the experience and collective knowledge that has been g ained since 2008, but the overall structure and general mandates of t hat permit achieve an appropriate balance in terms of environmental protection benefits and costs of implementation. Th is is the type of regulation that is consistent wit h the goals of the EO,

which include:

(1) propose or adopt a regulation only upon a reaso ned determination that its benefits justify its cos ts (recognizing that some benefits and costs are difficult to quantify);

(2) tailor its regulations to impose the least burd en on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent prac ticable, the costs of cumulative regulations;

(3) select, in choosing among alternative regulator y approaches, those approaches that maximize net be nefits (including potential economic, environmental, public health an d safety, and other advantages; distributive impact s; and equity);

(4) to the extent feasible, specify performance obj ectives, rather than specifying the behavior or man ner of compliance that regulated entities must adopt; and

(5) identify and assess available alternatives to d irect regulation, including providing economic ince ntives to encourage the desired behavior, such as user fees or marketable p ermits, or providing information upon which choices can be made by the public.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1072 

# Comment ID 0072-A2.001.023 Issue Category: 

# ADMIN.1

Author Name: Nate Muenks Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Missouri Department of Transportation

Author Type: State Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### MoDOT is a performance-based agency, and as such, w e are concerned with projections that certain aspec ts of the proposed COP could significantly increase resource investmen t for construction projects with, at this point, an undetermined amount of benefit to the natural environment. MoDOT reques ts that the EPA provide supportive documentation (i .e., a cost- benefit analysis) to the public that these increased protec tive measures, such as the numeric turb id ity limi t, 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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1073 

# Comment ID 0088-A1.001.021 Issue Category: 

# ADMIN.1

Author Name: John , T. Graves Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Minnkota Power Cooperative, Inc.

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### In summary, this draft rule will result in adverse economic impacts on the regulated community in the form of additional costs and increased delays. Minimal net environment al gain would be realized in comparison to the sign ificant additional resources necessary for implementation of this draf t rule.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1074 

# Comment ID 0093-A2.001.015 Issue Category: 

# ADMIN.5

Author Name: Leah , F. Pilconis Regulatory Flexibility Act

Organization: Associated General Contractors of America (AGC)

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The benchmark limits and the associated monitoring and reporting requirements in the Draft are unneces sary and unproven requirements that would do more to fuel private lit igation than to protect the environment. Water qual ity based effluent

limits and TMDLs should be written at the state lev el and in close coordination with proper monitoring programs that will yield appropriate benchmarks. AGC also maintains th at EPA lacks the legal authority to impose a zero b enchmark level, or any other level, without first complying with 33 U. S.C. § 1314(b)(1)(B) and the Regulatory Flexibility Act (see AGC comments at Section III). The direct and indirect c osts of this irrational and scientifically unsound approach could be

substantial and must be calculated and accounted fo r. Furthermore, there is absolutely no evidence tha t the agency has considered, much less demonstrated, whether there a re demonstrable environmental benefits to offset th e potentially huge employment and economic costs this provision may im pose on property owners, developers, builders and c onsumers. In the absence of such a demonstration, EPA's action is no t justified.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1075 

# Comment ID 0093-A2.001.019 Issue Category: 

# ADMIN.4

Author Name: Leah , F. Pilconis E.O 13563 Improving Regulation and Regulatory

Review Organization: Associated General Contractors of America (AGC)

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### On January 21, 2011, President Obama issued Executi ve Order 13563, Improving Regulation and Regulatory Review. See 74 Fed. Reg. at 3,821. That order provides: "Our re gulatory system must protect public health, welfare , safety, and our environment while promoting economic growth, innova tion, competitiveness, and job creation." It adds t hat regulatory agencies must (1) base their requirements on the be st available science, (2) promote predictability an d reduce uncertainty, and (3) propose or adopt regulatory requirements on ly upon a reasoned determination that their benefit s justify their costs. See Executive Order 13563 at §§ 2, 5. Also, the Pre sident has commanded the EPA to tailor its regulati ons 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 assess available a lternatives to direct regulation. See id. at § (1)( b).

In putting the Draft together, it appears that the agency chose to ignore or avoid its obligations und er Executive Order 13563. Specifically:

* There is no evidence that the EPA has made a reas oned determination that the Draft's environmental b enefits (if any) will justify its jobs, development and consumer cost bur dens.

* There is no evidence that the EPA has tailored th e Draft to impose the least burden on society, cons istent with obtaining regulatory objectives and taking into account, amon g other things, and to the extent practicable, the costs of cumulative regulations affecting developers, builders and cons umers.

* There is no evidence that the EPA has considered alternative approaches, much less selected the meas ures that maximize

net economic and environmental benefits.

* There is no evidence that the EPA has, to the ext ent feasible, used the Draft to specify performance objectives and not the specific behaviors or manners of compliance that re gulated entities must adopt.

* There is no evidence that the EPA has identified 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 o f the Draft in order to facilitate retrospective review and evaluation.

Indeed, the proposed CGP is riddled with inefficien cies and prospective implementation problems. As EP A has yet to complete and defend its C&D ELG, the Draft necessar ily rests more on guesswork than any "reasoned dete rminations." ToUnformatted 2012 CGP Comment Response Essays February 16, 2012

1076 

### craft a permit that "imposes the least burden on so ciety," EPA obviously needs to know, in advance, wh at all of the variables are going to be. The proposed CGP does not merely s et forth specific "performance objectives"; it repe atedly dictates specific "manners of compliance" in excruciating de tail. Until EPA has completed its work on the C&D E LG, EPA's most efficient and effective path forward is to extend t he 2008 CGP for its full five-year term and refocus its efforts on implementing the C&D ELG at an appropriate future d ate when the contents of that regulation are fully understood.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1077 

# Comment ID 0096-A1.001.007 Issue Category: 

# ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory

Review Organization: National Association of Homebuilders

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### Residential construction is one of the most heavil y 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 affect housing affor dability and stifle economic development. For example, residential cons truction is one of the few industries in which a go vernment-issued permit is typically required for each unit of produ ction. The rules do not stop there, as a constricti ng web of regulatory requirements affects every aspect of the land devel opment and home building process, including how a s ite operator allows stormwater to be discharged from his or her site.

While NAHB soundly supports the continued availabil ity of the CGP, we are concerned about the increasi ng complexity and number of requirements that must be met, partic ularly with respect to those building a single home on a single lot and those who specifically design their sites to minimi ze or eliminate discharges. While we do not disagre e with the idea of preparing a Stormwater Pollution Prevention Plan (SWPPP) or fil ing a Notice of Intent (NOI) with EPA or the state permitting agency, the sheer scope of what must be included and the te rms and conditions that must be followed make compl iance quite complex and burdensome. For example, EPA’s “fact sh eet” for the current CGP is 52 pages long – hardly a simple or streamlined process! As NAHB has proposed streamlin ing options in the past, we remain disappointed tha t EPA has not taken the opportunity to even propose any of the op tions during the reissuance of the CGP.

As such, NAHB believes that the CGP is just the typ e of regulation President Obama had in mind when co ntemplating his regulatory reform strategy. On January 18, 2011, he simultaneously issued Executive Order (EO) 13563 I mproving 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 cos t effective and cost justified, transparent, coordi nated, flexible and science driven, and largely instructs the agencies to compl y with EO 12866, which was issued in 1993 and has h istorically provided the blueprint for agencies to follow when consideri ng and adopting rules. The Memorandum directs all f ederal agencies, when proposing new regulations, to include regulato ry flexibilities for small businesses such as exten ded compliance dates, simplified reporting requirements, or even regulato ry exemptions. Because the residential construction industry is dominated by small businesses and the CGP requireme nts are costly and onerous, NAHB submits that EPA i s obligated to heed the Presidents directive and streamline the pr ocess and reduce the burdens. NAHB believes there a re at least four ways to do this that will result in significant savings and improve compliance while maintaining environmen tal protection – 1) adopting a single lot permit, 2) adopting a volunta ry no discharge certification, 3) revising and faci litating the designation of Qualifying Local Programs, and 4) adopting an actio n level approach.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1078 

### [FN 17] 76 Federal Register 3821 (January 21, 2011)

.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1079 

# Comment ID 0096-A1.001.013 Issue Category: 

# ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory

Review Organization: National Association of Homebuilders

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### In recognition of the role that small businesses pl ay in the economy, on January 18, 2011, President O bama issued the Memorandum on Regulatory Flexibility, Small Busines s, and Job Creation. This new memorandum emphasizes the need to reduce burdens on small businesses whenever possibl e. Relying on the authority provided by the Regulat ory Flexibility Act, the directive suggests that agencies, when initiati ng rulemaking that will significantly impact small businesses, to increase compliance flexibility through measures such as ext ended compliance dates, simplification of reporting requirements, and partial or total exemptions. The need for regulator y relief is further supported by a recent study fun ded by the U.S. Small Business Administration that examined the proportio nal 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 that these firms pay 40 percen t more in compliance costs per employee than firms with more than 500 workers. [FN 32] The researchers further f ound that this disproportionate compliance cost results from the f act that most federal environmental regulations imp ose identical recordkeeping, reporting, and compliance costs on all firms. Smaller companie s cannot easily spread the compliance costs across a larger number of regulated activities and typically must rely on exp ensive outside professional consultants to help the m 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, re trieved on March 24, 2011, from http://www.sba.gov/advocacy/85 3/2016. [FN 32] Ibid, page 9.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1080 

# Comment ID 0096-A1.001.016 Issue Category: 

# ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory

Review Organization: National Association of Homebuilders

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### EPA’s intended efforts to improve the permit are mo re likely to create confusion and significant cost with no demonstration that any additional benefits will be derived in com parison to the more simplified and streamlined appr oach of the 2008 CGP. Therefore, NAHB urges EPA to remove the costly meas ures, such as WQBEL requirements, prior to finalizi ng the CGP

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1081 

# Comment ID 0096-A1.001.059 Issue Category: 

# ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory

Review Organization: National Association of Homebuilders

Author Type: Industry Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### In recognition of the role that small businesses pl ay in the economy, on January 18, 2011, President O bama issued the Memorandum on Regulatory Flexibility, Small Busines s, and Job Creation [FN 76]. This new memorandum em phasizes the

need to reduce burdens on small businesses whenever possible. Relying on the authority provided by the Regulatory Flexibility Act, the directive suggests that agenci es, when initiating rulemaking that will significan tly impact small businesses, to increase compliance flexibility thro ugh measures such as extended compliance dates, sim plification of reporting requirements, and partial or total exempt ions. The need for regulatory relief is further sup ported by a recent study funded by the U.S. Small Business Administration th at examined the proportional costs of federal regul ations upon smaller firms (i.e., firms with 20 or fewer employees) as c ompared to larger firms. [FN 77] The study found th at these firms pay 40 percent more in compliance costs per employee than firms with more than 500 workers. [FN 78] The rese archers further found that this disproportionate compliance cost re sults from the fact that most federal environmental regulations impose identical recordkeeping, reporting, and compliance costs on all firms. Smaller companies cannot easily spread the compliance costs across a larger number of regulate d activities and typically must rely on expensive o utside professional consultants to help them demonstrate compliance wit h technical permitting and reporting requirements. The federal regulation of storm water clearly fits this model.

NAHB is particularly concerned about the cost impli cations of the new water qualitybased effluent limi tations. According to EPA's TMDL website, roughly 40,000 impaired waters have been identified within the 50 states. More tha n 13,000 of those 40,000 impaired waters suffer from nutrient and/or sediment impairments, requiring any NPDES permits f or construction projects that may discharge to those waterbodies to contain a requirement for reductions of nutrients and/or sediment from the project's stormwater discharges. In addition, t o these known impaired waters, there are likely tho usands of other water bodies that have not been assessed for water qualit y due to a lack of resources at the state level, so the number of impaired waterbodies can be expected to grow. Under the prop osed CGP, all developments that disturb greater tha n ten-acres and discharge into an impaired waterbody must perform m onitoring for the "action levels" given in the CGP. This means that thousands of projects will be subject to the additi onal, costly water quality-based monitoring require ment, yet the Agency has failed to consider these cost implications in i ts deliberations.

[FN 76] 76 Federal Register 3828 (January 21, 2011) [FN 77] Crain, N.V. and Crain, M.W., The Impact of Regulatory Costs on Small Firms, September 2010, re trieved on March 24, 2011, from http://www.sba.gov/advocacy/85 3/2016. [FN 78] Ibid, page 9.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1082 

# Comment ID 0121-A2.001.001 Issue Category: 

# ADMIN.4

Author Name: Kevin , M. Walsh E.O 13563 Improving Regulation and Regulatory

Review Organization: Massachusetts Department of Transportation (MassDOT ), Highway Division

Author Type: State Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### MassDOT is committed to improving water quality and addressing the potential impacts of stormwater run off, yet we are

concerned that the Draft Construction General Permi t contains requirements that would not achieve this cost-effectively. In addition, the permit contains a number of condition s that could lead to enforcement actions and potent ially third party

lawsuits. To be consistent with the recent Executiv e Order 13563: Improving Regulation and Regulatory Review, modifications should be made to portions of this pe rmit to make the requirements more efficient and ea sily understood and implemented

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1083 

# Comment ID 0130-A2.001.001 Issue Category: 

# ADMIN.1

Author Name: Sue Sullivan Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Idaho Transportation Department (ITD)

Author Type: State Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### Financial resources for the state DOT are very cons trained. It is critical funds are used efficiently and with clear benefit to

the resource. EPA  s proposed draft CGP has substantial schedule and f iscal impacts to our business operations

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1084 

# Comment ID 0130-A2.001.002 Issue Category: 

# ADMIN.2

Author Name: Sue Sullivan E.O. 12898 Federal Actions to Address Env. Justice in Minority Populations and Low-Income Populations Organization: Idaho Transportation Department (ITD)

Author Type: State Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### 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, howe ver the draft permit appears significantly more dif ficult 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 the applic ant and the EPA compliance staff. The sampling, ben chmark monitoring and reporting, corrective action process, multiple inspection deadlines, and snowmelt discharge repres ent a few additional requirements that we believe add unnecessary comple xity to the permitting process without demonstrated benefit to water quality. The increased volume of paperwork and reco rdkeeping will make it challenging to be successful and compliant.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1085 

# Comment ID 0132-A1.001.003 Issue Category: 

# ADMIN.1

Author Name: Peter , T. Goodmann Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: Kentucky Division of Water (KDOW)

Author Type: State Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### In addition to the concerns regarding the effluent limit approach, the proposed general permit is subs tantially more complex with regards to many requirements. Anticipating tha t EPA will expect state permits to incorporate a si milar approach, EPA must recognize that inspections of individual permi tted construction sites will require more effort an d additional resources. In that light, KDOW believes that EPA must recogniz e that without additional resources EPA should empl oy greater flexibility to states in the percentage of permitte d sites discharging stormwater from construction ac tivities.

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1086 

# Comment ID 0168-A1.001.001 Issue Category: 

# ADMIN.1

Author Name: Jill , A Jordan Economic Impacts - Costs, Number, type, and size of entities covered under permi, General Economic Impacts, Small Business Impacts, Burden to implement Organization: City of Dallas

Author Type: Local government Responder: Garrett Budd

Status: Draft Response Assigned To: Garrett Budd



### The EPAs' economic analyses performed in support of the C&D Rule indicates that nearly 80 percent of t he estimated $255 million in implementation costs would be borne by l ocal governments. Using the EPAs estimated implemen tation costs per site for the CGP translates to anticipated increase d expenses of at least $284,000 per year for the Ci ty (about 10 percent of the existing stormwater regulatory compliance progr am budget).

Response See Essay Response 19.1 thru 19.6.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1087 

# Construction General Permit

Comment/Response - Customized Search

Search criteria selected:

Issue Category: DUPUnformatted 2012 CGP Comment Response Essays February 16, 2012

1088 

# 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 Commen t 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 Commen t 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 Commen t ID 0166- A2.001.001 through

0166-A2.001.007 for the coded comment.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1089 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 Commen t 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 Commen t ID 0166- A2.001.001 through

0166-A2.001.007 for the coded comment.

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 Commen t ID 0153- A1.001.001 through

0117-A2.001.040 for the coded comment.

Response Refer to Response 20.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1090 

# 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 Commen t 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 Commen t 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 Nati onal Mining Association (NMA) regarding this draft general permit. In the interest of brevity, the VCA incorporates those com ments by reference. The VCA does desire to emphasiz e several points.

Response Refer to Response 20.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1091 

# 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 Commen t 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 Commen t 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 t o the draft construction general permit ("CGP") provided by the Utility Water 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-2010-0782-0049.001

Response Refer to Response 20.1.



# Comment ID 0081-A1.001.001Unformatted 2012 CGP Comment Response Essays February 16, 2012

1092 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 Commen t 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 Conserva tion Issue Category: DUP Duplicate of document ID number EPA-HQ-OW-2010-0782 -0060-A2. Letter not coded.

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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1093 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 Commen t ID 0109- A2.001.002 through

0109-A2.001.010 for the coded comment.

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 Commen t 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 Commen t ID 0166- A2.001.001 through

0166-A2.001.007 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0120-A2.001.001

Author Name: Batson Jon Organization: Anderson County, South Carolina Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Commen t ID 0153- A1.001.001 through

0153-A2.001.040 for the coded comment.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1094 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 Commen t 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 Wor ks Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Commen t 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 Commissio ns (MACC) Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Commen t ID 0109- A2.001.002 through

0109-A2.001.009 for the coded comment.

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 Commen t ID 0166- A2.001.002 through

0166-A2.001.007 for the coded comment.

ResponseUnformatted 2012 CGP Comment Response Essays February 16, 2012

1095 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 Commen t 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. Issue 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 Commen t ID 0109- A2.001.002 through

0109-A2.001.009 for the coded comment.

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.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1096 

# 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 Commen t 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 Commen t ID 0109- A2.001.002 through

0109-A2.001.010 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 Commen t ID 0117-A1.001.005 through

0117-A2.001.011 for the coded comment.

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 Commen t ID 0109- A2.001.002 through

0109-A2.001.010 for the coded comment.

Response Refer to Response 20.1.Unformatted 2012 CGP Comment Response Essays February 16, 2012

1097 

# 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 Commen t 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 Conserva tion Issue Category: DUP Duplicate of document ID number EPA-HQ-OW-2010-0782 -0060-A1. Letter not coded.

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 Commen t ID 0109- A2.001.002 through

0109-A2.001.010 for the coded comment.

Response Refer to Response 20.1.



# Comment ID 0167-A1.001.001

Author Name: Alberto Feliciano JoseUnformatted 2012 CGP Comment Response Essays February 16, 2012

1098 Organization: Puerto Rico Homebuilder Assn Issue Category: DUP A portion of this comment letter duplicates another comment letter submitted to the docket. See Commen t 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.