Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations 12661 

Dangerous Goods Code, may be made to 

the St. Lawrence Seaway Management 

Corporation, 202 Pitt Street, Cornwall, 

Ontario, K6J 3P7, or to the Saint 

Lawrence Seaway Development 

Corporation, P.O. Box 520, Massena, 

New York, U.S.A. 13662. 

* * * * * 

■ 16. In § 401.74, revise paragraphs (a) 

and (f) to read as follows: 

§ 401.74 Transit Declaration. 

(a) A Seaway Transit Declaration 

Form (Cargo and Passenger) shall be 

forwarded to the Manager by the 

representative of a vessel, for each 

vessel that has an approved 

preclearance except non-cargo vessels, 

within fourteen (14) days after the 

vessel enters the Seaway on any up 

bound or down bound transit. The form 

may be obtained from the St. Lawrence 

Management Corporation, 151 Ecluse 

Street, St. Lambert, Quebec, J4R 2V6 or 

downloaded from the St. Lawrence 

Seaway Web site at www.greatlakesseaway.com. The form may also be 

completed and submitted on the Seaway 

Web site via e-business. 

* * * * * 

(f) Seaway Transit Declaration Forms 

shall be used in assessing toll charges in 

accordance with the St. Lawrence 

Seaway Schedule of Tolls, and toll 

accounts shall be forwarded to the 

representative or its designated agent. 

* * * * * 

■ 17. In § 401.75, revise paragraph (b) 

and add a new paragraph (d) to read as 

follows: 

§ 401.75 Payment of tolls. 

* * * * * 

(b) Tolls established by agreement 

between Canada and the United States, 

and known as the St. Lawrence Seaway 

Schedule of Tolls, shall be paid by 

pleasure crafts with prepaid tickets 

purchased in Canadian funds using 

credit card ticket dispensers located at 

pleasure craft docks or Paypal on the 

Seaway Web site. At U.S. locks, the toll 

is paid in U.S. funds or the preestablished equivalent in Canadian 

funds or through payment via Pay.gov 

on the Seaway Web site. 

* * * * * 

(d) Vessel representatives with past 

due toll accounts, unpaid after 45 days, 

may be subject to the suspension of 

preclearance for each vessel of which a 

preclearance has been given and/or the 

immediate removal of the waved 

security for the toll charges set in 

§ 401.26(c) and § 401.26(d.) 

■ 18. In § 401.79, add a new paragraph 

(b)(5) to read as follows: 

§ 401.79 Advance notice of arrival, vessels 

requiring inspection. 

* * * * * 

(b) * * * 

(5) A tall ship or vessel of an unusual 

design is subject to Seaway yearly 

inspection. 

Issued at Washington, DC, on February 28, 

2014. 

Carrie Lavigne, 

Chief Counsel, Saint Lawrence Seaway 

Development Corporation. 

[FR Doc. 2014–04821 Filed 3–5–14; 8:45 am] 

BILLING CODE 4910–61–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 450 

[EPA–HQ–OW–2010–0884; FRL–9906–51– 

OW] 

RIN 2040–AF44 

Effluent Limitations Guidelines and 

Standards for the Construction and 

Development Point Source Category 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing changes to 

the effluent limitations guidelines and 

standards for the Construction and 

Development point source category. 

EPA is promulgating these changes 

pursuant to a settlement agreement to 

resolve litigation. This final rule 

withdraws the numeric discharge 

standards, which are currently stayed, 

and changes several of the non-numeric 

provisions of the existing rule. 

DATES: This final rule is effective on 

May 5, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OW–2010–0884. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the USEPA Docket Center, WJC West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

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

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

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jesse W. Pritts at Engineering and 

Analysis Division, Office of Water 

(4303T), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; telephone 

number: 202–566–1038; fax number: 

202–566–1053; email address: 

pritts.jesse@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Regulated Entities 

Entities potentially regulated by this 

action include: 

Category Examples of regulated entities 

North American 

Industry Classification System 

(NAICS) Code 

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

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

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

EPA does not intend the preceding 

table to be exhaustive, but provides it as 

a guide for readers regarding entities 

likely to be regulated by this action. 

This table lists the types of entities that 

EPA is now aware could potentially be 

regulated by this action. Other types of 

entities not listed in the table could also 

be regulated. To determine whether 


tkelley on DSK3SPTVN1PROD with RULES
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your facility is regulated by this action, 

you should carefully examine the 

applicability criteria at 40 CFR 450.10 

and the definition of ‘‘storm water 

discharge associated with industrial 

activity’’ and ‘‘storm water discharge 

associated with small construction 

activity’’ in existing EPA regulations at 

40 CFR 122.26(b)(14)(x) and 

122.26(b)(15), respectively. If you have 

questions regarding the applicability of 

this action to a particular site, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

Overview 

This preamble describes the terms, 

acronyms, and abbreviations used in 

this document; the legal authority for 

this final rule; background information; 

and a summary of the final changes. 

Table of Contents 

I. Legal Authority 

II. Purpose & Summary of the Final Rule 

III. Statutory and Executive Order Reviews 

I. Legal Authority 

EPA is promulgating these regulations 

under the authorities of sections 101, 

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

510 of the Clean Water Act (CWA), 33 

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

1341, 1342, 1361 and 1370, and 

pursuant to the Pollution Prevention 

Act of 1990, 42 U.S.C. 13101 et seq. 

II. Purpose & Summary of the Final 

Rule 

A. Background 

EPA promulgated Effluent Limitations 

Guidelines and Standards for the 

Construction and Development Point 

Source Category (hereafter referred to as 

the ‘‘C&D rule’’) (74 FR 62996, 

December 1, 2009). The C&D rule 

established requirements based on Best 

Practicable Control Technology 

Currently Available, Best Available 

Technology Economically Achievable, 

Best Conventional Pollutant Control 

Technology, and New Source 

Performance Standards based on Best 

Available Demonstrated Control 

Technology. Construction activities like 

clearing, excavating, and grading 

significantly disturb the land. The 

disturbed soil, if not managed properly, 

can easily be washed off of the 

construction site during storms and 

enter water bodies. Stormwater 

discharges from construction activities 

can cause an array of physical, chemical 

and biological impacts to receiving 

streams. 

The C&D rule included non-numeric 

requirements to: 

• Implement erosion and sediment 

controls; 

• stabilize soils; 

• manage dewatering activities; 

• implement pollution prevention 

measures; 

• prohibit certain discharges; and 

• utilize surface outlets for discharges 

from basins and impoundments. 

The C&D rule also established a 

numeric limitation on the allowable 

level of turbidity in discharges from 

certain construction sites. The 

technology basis for the final numeric 

limitation was passive treatment 

controls including polymer-aided 

settling to reduce the turbidity in 

discharges. 

Following promulgation of the C&D 

rule, the Wisconsin Builders 

Association, the National Association of 

Home Builders (NAHB) and the Utility 

Water Act Group (UWAG) filed 

petitions for review in the U.S. Circuit 

Courts of Appeals for the Fifth, Seventh, 

and D.C. Circuits. The petitions were 

consolidated in the Seventh Circuit. 

Wisconsin Builders Association, et al. v. 

EPA, Case Nos. 09–4113, 10–1247, and 

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

petitioners filed their briefs. 

In April 2010, the Small Business 

Administration (SBA) filed with EPA a 

petition for administrative 

reconsideration of several technical 

aspects of the C&D rule. SBA identified 

potential deficiencies with the dataset 

that EPA used to support its decision to 

adopt the numeric turbidity limitation. 

In June 2010, NAHB also filed a petition 

for administrative reconsideration with 

EPA incorporating by reference SBA’s 

argument regarding the potential 

deficiencies in the data. 

On August 12, 2010, EPA filed an 

unopposed motion with the Court 

seeking to hold the litigation in 

abeyance until February 15, 2012 (see 

the docket for this action, EPA–HQ– 

OW–2010–0884–0085), and asking the 

Court to remand the record to EPA and 

vacate the numeric limitation portion of 

the rule. In addition, EPA agreed to 

reconsider the numeric limitation and to 

solicit site-specific information 

regarding the applicability of the 

numeric effluent limitation to cold 

weather sites and to small sites that are 

part of a larger project. 

On August 24, 2010, the Court issued 

an order remanding the matter to the 

Agency but without vacating the 

numeric limitation. Subsequently on 

September 9, 2010, the petitioners filed 

an unopposed motion for clarification or 

reconsideration of the Court’s August 

24, 2010 order, asking the Court again 

to vacate the numeric limitation. On 

September 20, 2010, the Court 

remanded the administrative record to 

EPA, and ordered the case held in 

abeyance until February 15, 2012, but 

did not vacate the numeric limitation. 

During this period, EPA provided 

additional information in the docket to 

supplement the administrative record 

for the C&D rule (see EPA–HQ–OW– 

2008–0465–2124 through EPA–HQ– 

OW–2008–0465–2134) and an updated 

response to comment document (see 

EPA–HQ–OW–2008–0465–2135). 

In November 2010, EPA issued a 

direct final regulation and a companion 

proposed regulation to stay the numeric 

limitation at 40 CFR 450.22 indefinitely 

(75 FR 68215, November 5, 2010 and 75 

FR 68305, November 5, 2010). The 

proposed rule solicited comment due no 

later than December 6, 2010. Since no 

adverse comments were received, the 

direct final rule took effect on January 

4, 2011. 

As of this date, neither states nor EPA 

were required to incorporate the 

numeric turbidity limitation and 

monitoring requirements found at 

§ 450.22(a) and § 450.22(b) into NPDES 

permits because the numeric limitation 

was stayed. However, the remainder of 

the C&D rule was still in effect and had 

to be incorporated into newly issued 

NPDES permits. 

After issuing the stay of the numeric 

turbidity limitation, EPA continued to 

consult with stakeholders regarding 

next steps with respect to numeric 

discharge standards. EPA published a 

Federal Register notice (77 FR 112, 

January 3, 2012) seeking data on the 

effectiveness of technologies in 

controlling turbidity in discharges from 

construction sites and information on 

other related issues. 

EPA also continued to meet with the 

petitioners in an effort to settle the 

litigation over the C&D rule. On 

December 10, 2012, EPA entered into a 

settlement agreement with petitioners to 

resolve the litigation in Wisconsin 

Builders Association, et al. v. EPA, Case 

Nos. 09–4113, 10–1247, and 10–1876 

(7th Cir.). The settlement agreement 

provides for EPA to propose for public 

comment certain changes specific to the 

non-numeric portions of the C&D rule, 

as well as withdrawal of the numeric 

limitation, and take final action on the 

proposal. Under the terms of the 

settlement agreement, by April 15, 2013 

EPA was to sign for publication in the 

Federal Register a notice of proposed 

rulemaking, with at least a 30-day 

comment period, to amend the C&D rule 

in a manner substantially similar to 

Exhibit A, which is attached to the 

settlement agreement. The settlement 

then provides that by February 28, 2014, 

EPA will take final action on the 

proposed rule. Under the settlement, if 

EPA takes the above actions by the 


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specified dates, and EPA’s final action 

on the proposed rule amends the C&D 

rule in any manner, then Petitioners and 

EPA will promptly file a joint request 

with the Court asking it to dismiss the 

C&D litigation. In addition, if EPA’s 

final action amends the C&D rule in a 

manner substantially similar to Exhibit 

A, Petitioners will not seek judicial 

review of those amendments. Finally, 

the settlement provides that within 60 

days after EPA signs the proposal 

mentioned above, NAHB and EPA will 

file a joint request with the Court to 

dismiss NAHB’s challenge to the 2012 

Construction General Permit (CGP), 

which EPA issued on February 29, 2012 

(see 77 FR 12286). EPA proposed a rule 

on April 1, 2013. Today’s final rule 

satisfies EPA’s commitments under the 

settlement agreement. 

B. Revisions to 40 CFR Part 450 

The revisions to 40 CFR part 450 

being promulgated consist of the 

following three elements: 

• Addition of a definition of 

‘‘infeasible’’; 

• revisions to the effluent limitations 

reflecting the best practicable control 

technology currently available (BPT), 

effluent limitations reflecting the best 

available technology economically 

achievable (BAT), effluent limitations 

reflecting the best conventional 

pollutant control technology (BCT), and 

the new source performance standards 

reflecting the best available 

demonstrated control technology 

(NSPS) found at 40 CFR 450.21, 450.22, 

450.23 and 450.24, respectively; and 

• withdrawal of the numeric turbidity 

effluent limitation and monitoring 

requirements found at 40 CFR 450.22(a) 

and 450.22(b) and reserving these 

subparts. 

EPA has made these revisions to 

clarify when and where these provisions 

apply and what exceptions apply. 

Today’s changes provide clarity to 

permitting authorities on how to 

implement or incorporate these 

provisions into permits. The following 

discusses each of the changes 

promulgated today, and summarizes the 

comments EPA received on each of the 

changes. 

1. Addition of Definition at 40 CFR 

450.11 

EPA proposed to add a definition of 

infeasible at 40 CFR 450.11(b). Several 

of the provisions of the C&D rule require 

permittees to implement controls, 

unless infeasible. EPA did not provide 

a definition of infeasible in the 2009 

C&D rule, although EPA did provide a 

definition in the preamble (74 FR 63005, 

63017, December 1, 2009). The 

proposed definition of infeasible was 

derived from EPA’s preamble language 

from the 2009 final rule and the 2012 

CGP. 

EPA received a number of comments 

on the proposed definition of infeasible. 

Some commenters supported EPA’s 

inclusion of a definition, while some 

did not. Some commenters offered 

specific revisions to the definition, 

while others requested that EPA provide 

additional examples of specific 

instances where a given practice may be 

infeasible. Some commenters requested 

that EPA incorporate an infeasibility 

condition into all of the requirements of 

the final rule, not just those where it is 

currently included. 

EPA had previously concluded that 

an infeasibility provision for some 

requirements (specifically, buffers, 

preserving topsoil, and use of surface 

outlets) was appropriate, given that sitespecific constraints may exist. EPA now 

concludes that a definition of infeasible 

is appropriate in the rule in order to 

provide clarity to permitting authorities. 

EPA has not changed the proposed 

definition for today’s final rule as a 

result of comments received because the 

definition allows sufficient flexibility 

for permitting authorities to incorporate 

appropriate requirements into their 

permits to address the limited number 

of circumstances where a given 

requirement may be infeasible. See the 

comment response document for today’s 

action for additional discussion of the 

comments received. 

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

EPA received several comments on 

this proposed amended requirement. 

Some stated that this requirement is not 

needed since there are other ways of 

controlling erosion besides controlling 

volume and velocity, or that the 

requirement is too prescriptive. Others 

stated that the ‘‘within the site’’ 

language that is contained in the 2009 

final rule is necessary and should be 

retained in this rule so that permittees 

are not held responsible for installing 

controls beyond their area of 

disturbance in order to control erosion 

caused by their discharges. Others 

stated that EPA does not have authority 

to regulate internal processes at a 

construction site, and that removal of 

the ‘‘within the site’’ language is 

justified on this basis. 

After consideration of comments, EPA 

did not make any changes to the 

proposed requirement for this final rule. 

EPA has determined that the revision, as 

proposed, is an important component of 

construction stormwater management as 

increased volume and duration of flows 

resulting from removal of vegetation and 

soil compaction that accompany 

construction activities can contribute to 

significant increases in soil erosion and 

transport and discharge of pollutants to 

surface waters. EPA has authority to 

promulgate non-numeric effluent 

limitations that regulate internal 

processes at construction sites in order 

to control and minimize the discharge of 

pollutants to surface waters. See EPA– 

HQ–OW–2008–0465–2124 through 

EPA–HQ–OW–2008–0465–2134 for 

discussion linking up-slope/on-site 

activities to controlling or minimizing 

the discharge of pollutants from the site 

to surface waters. See also Citizens Coal 

Council, et al. v. EPA, 446 F.3d 879, 895 

(6th Cir. 2006)(‘‘under the [Clean Water] 

Act, effluent limitations are not limited 

to numeric discharges but encompass 

‘any restriction’ on discharges’’); 

Waterkeeper Alliance, Inc. v. EPA, 399 

F.3d 486, 502 (2nd Cir. 2005)(‘‘rather 

than setting forth numerical effluent 

limitations for land application of 

manure, the CAFO Rule establishes nonnumerical effluent limitations in the 

form of best management practices’’); 

Texas Municipal Power Agency v. EPA, 

836 F.2d 1482, 1488 (5th Cir. 1988) (‘‘it 

is sometimes necessary to regulate 

discharges within the treatment process 

to control discharges at the end . . . 

[t]his position has support in the 

language of the CWA, its legislative 

history, and common sense.’’); Public 

Service Company of Colorado, Fort St. 

Vrain Station v. EPA, 949 F.2d 1063, 

1065 (10th Cir. 1991) (‘‘We find no clear 

Congressional or Presidential intent 

expressly forbidding EPA from 

imposing internal waste stream effluent 

limitations when such limitations 

would be impracticable to monitor at 

the end of the pipe.’’). 

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

EPA received a number of comments 

on this proposed revision. One 

commenter suggested that EPA change 

the language to require management of 

local scour. Others suggested that EPA’s 

proposed change to limit erosion in the 

‘‘immediate vicinity of discharge 

points’’ narrows the requirement from 

what was contained in the 2009 rule. 

Others stated that EPA does not have 

authority under the effluent guidelines 

program to control erosion in receiving 

waters since effluent guidelines regulate 

the discharge of pollutants from point 

sources, and more broadly that EPA 

does not have authority to regulate 

volume. Some comments stated that 

projects with constrained space, such as 

linear projects, cannot feasibly control 

the volume of discharges. Other 

comments suggested that the 

requirement is too prescriptive, and that 


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12664 Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations 

there are other measures to control 

erosion in receiving waters. Some 

commenters suggested that the ‘‘in the 

immediate vicinity’’ language is 

ambiguous and should be removed, and 

that permittees should be responsible 

for downstream erosion caused by their 

discharges. Other comments stated that 

the language should be expanded to 

state that attainment of water quality 

standards should be the goal and that 

the discharges should not contribute to 

an existing impairment. 

EPA made one change to the proposed 

requirement for today’s final rule, which 

is the insertion of the words ‘‘and 

scour’’ after the word ‘‘erosion’’. EPA 

made this change as a result of 

comments received by the American 

Association of State Highway and 

Transportation Officials (AASHTO) (see 

EPA–HQ–OW–2010–0884–0194), which 

indicated that ‘‘local scour’’ is an 

appropriate term for the erosion in 

receiving waters that EPA is intending 

to address by this requirement. EPA did 

not include the ‘‘local’’ qualifier since 

the requirement is limited to erosion ‘‘in 

the immediate vicinity’’ of discharge 

points, and therefore the addition of 

‘‘local’’ would be redundant. EPA has 

not elected to make any of the other 

changes suggested by commenters. 

While EPA understands that some 

would find a requirement to also 

include downstream erosion 

environmentally beneficial, it is more 

appropriate to consider downstream 

erosion on a site-specific water quality 

basis than in this nationally applicable, 

technology-based rule. 

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

EPA received several comments on 

this proposed amended requirement. 

Some commenters expressed concern 

over requiring infiltration for controlling 

pollutants, indicating that there are 

other methods for reducing pollutants 

other than infiltration. Commenters also 

were concerned about the requirement 

to provide buffers, indicating that some 

disturbance would be needed, such as 

stream crossing. Commenters were also 

concerned about the overlap between 

this requirement and Section 404 

permits, and the switch from ‘‘surface 

waters’’, which was the language in the 

2009 rule, to ‘‘Waters of the United 

States,’’ as they believed that the latter 

has a broader scope. Specific mention 

was made of the need to install buffers 

around jurisdictional wetlands. 

Commenters also requested clarification 

of the terms ‘‘provide’’ and ‘‘natural 

buffers’’. 

EPA did not make any changes to the 

proposed requirement for today’s final 

rule. The language, as proposed, 

includes an exception for infeasibility 

and provides sufficient flexibility for 

permitting authorities to incorporate 

appropriate language into permits to 

address the range of site-specific 

conditions that may exist and to address 

instances where a buffer or infiltration 

may be infeasible for some part of a 

project. See the 2012 CGP for an 

example of how EPA has incorporated 

buffer requirements, as well as 

alternative controls, into a general 

permit. 

EPA has not changed the proposed 

use of the term ‘‘waters of the United 

States’’ instead of the phrase ‘‘surface 

waters.’’ EPA intended that the two 

phrases mean the same set of waters. 

See the comment response document for 

specific responses to other comments 

concerning this provision. 

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

EPA proposed to amend this 

requirement, as well as separate the two 

provisions (minimizing soil compaction 

and preserving topsoil) into two 

separate requirements. EPA received 

several comments on this proposed 

amended requirement. Some 

commenters requested more specificity 

on types of practices that would meet 

this provision, such as use of soil 

amendments or deep ripping. Other 

comments suggested that the use of soil 

compaction for temporary soil 

stabilization should be permitted. Still 

other comments indicated that there are 

methods to provide stabilization other 

than preserving topsoil. 

EPA did not make any changes to the 

proposed requirement for today’s final 

rule. The provision, as proposed, 

provides sufficient flexibility for 

permitting authorities to develop 

appropriate language for their permits 

and provides permittees sufficient 

flexibility to obtain relief in cases where 

these practices would be infeasible 

based on site-specific conditions. The 

requirement to minimize soil 

compaction does not prohibit use of 

compaction for temporary stabilization 

since the requirement is to minimize, 

not prohibit, compaction. If the 

permitting authority determines that 

compaction is an appropriate temporary 

stabilization measure (considering other 

stabilization language contained at 

450.21(b)), then it may elect to develop 

appropriate language to this effect in its 

permit. 

6. Revision of 40 CFR 450.21(b) 

EPA received several comments on 

this proposed amended requirement. 

One commenter requested an exemption 

from the ‘‘immediate’’ initiation of 

stabilization requirement for areas of 

disturbance less than one acre on a site 

so as to allow prioritization of 

stabilization activities. The commenter 

also requested inclusion of the 

definition of ‘‘initiate immediately’’ 

from the 2012 CGP, and other 

commenters requested additional 

clarification of the term ‘‘immediately.’’ 

Commenters also requested that 

additional exemptions be provided, for 

example, during periods with low 

temperatures or excessive or inadequate 

moisture that would limit the ability to 

establish vegetative stabilization. One 

commenter was also concerned that the 

language regarding ‘‘intended function’’ 

was not specific, and that this could 

allow permittees to take advantage of 

this exemption. This commenter 

suggested that requiring that the 

permittee obtain a waiver from 

stabilization would be a reasonable 

requirement. 

The final rule allows an exemption 

from stabilization in limited 

circumstances. In general, stabilization 

represents sound industry practice to 

minimize discharges from an active 

construction site. Industry 

representatives have pointed out to the 

Agency that there are limited 

circumstances where this requirement 

may not make sense. Therefore the rule 

gives permitting authorities flexibility to 

provide a waiver from stabilization in 

limited circumstances (an example 

might be a motocross track where the 

intended function is an unstabilized 

area). Rather than specify in this 

national rule all such circumstances, 

which would likely miss some 

reasonable exception, the rule allows 

permitting authorities to define these 

circumstances at the time of permitting. 

As stated above, however, EPA expects 

that sound industry practice of 

stabilizing the site immediately will be 

the norm. 

With respect to providing additional 

exemptions from vegetative 

stabilization, EPA notes that 450.21(b) 

does not require vegetative stabilization. 

Both vegetative and non-vegetative 

stabilization may be appropriate 

measures, consistent with permit 

requirements. In arid, semiarid and 

drought-stricken areas, the amended 

requirement states that alternative ‘‘e.g., 

non-vegetative’’ stabilization measures 

must be employed in these areas 

because vegetative stabilization is 

infeasible (because adequate moisture 

would not be present to establish and 

maintain such vegetation). However, the 

language does not limit the use of nonvegetative stabilization in other 

instances, such as during cold weather 

conditions. All areas (except those 

where the intended function 


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necessitates that it remain disturbed) 

would require stabilization, vegetative 

or non-vegetative, consistent with 

requirements developed by the 

permitting authority. 

After consideration of all comments 

on this provision, EPA did not make any 

changes to the proposed requirement for 

today’s final rule. EPA has determined 

that the requirement contains sufficient 

flexibility for permitting authorities to 

develop appropriate criteria for 

vegetative and non-vegetative 

stabilization, and to develop permit 

language regarding the timing of such 

stabilization activities. 

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

EPA did not receive any substantive 

comments on this proposed amended 

requirement, and therefore EPA did not 

make any changes to the proposed 

requirement for today’s final rule. 

8. Removal of Numeric Standard and 

Monitoring Provisions at 40 CFR 

450.22(a) and 450.22(b) 

The final change removes the numeric 

discharge standard and monitoring 

requirements previously found at 40 

CFR 450.22(a) and 450.22(b). 

EPA received several comments on 

this proposed change. While many 

commenters were supportive of 

removing the numeric turbidity effluent 

limitation and monitoring requirements, 

some commenters were opposed to this 

and requested that EPA reinstate a 

numeric limitation. Some commenters 

suggested that EPA completely remove 

these sections of the CFR instead of 

reserving these sections. 

EPA is withdrawing the numeric 

limitation but has reserved these 

paragraphs for potential revisions 

should EPA decide to propose and 

promulgate additional effluent 

limitations guidelines and monitoring 

requirements in a future rulemaking. 

The Agency is considering data and 

comments submitted in response to the 

January 3, 2012 Federal Register notice 

(77 FR 112) seeking additional 

information and data on numeric 

standards. At this time, EPA is 

concerned that a numeric limitation 

may create a disincentive to green 

infrastructure techniques for managing 

stormwater. For example, meeting a 

numeric standard may require 

installation of a sediment basin or other 

impoundment on certain sites, which 

may be a disincentive to installing 

distributed stormwater controls. Also, 

EPA recognizes that additional data 

collection would likely be necessary in 

order to inform any establishment of 

numeric discharge standards and 

monitoring requirements in the future. 

At such time that EPA decides on a path 

forward with respect to numeric 

discharge standards and monitoring 

requirements, EPA will take appropriate 

actions to notify interested stakeholders. 

EPA encourages interested parties to 

continue submitting data and 

information to EPA with respect to 

numeric discharge standards at 

construction sites. In the interim, it is 

preferable to reserve these sections of 

the CFR for future action. Removing 

these paragraphs altogether would 

require re-organization of other sections 

of the rule. EPA sees no meaningful 

disadvantage of reserving these sections 

as opposed to removing these sections. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

defined at 5 CFR 1320.3(b). The action 

does not impose an information 

collection burden because the 

amendments do not impose any data 

collection or reporting requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s final rule on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

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

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

The final rule clarifies applicability of 

the existing non-numeric effluent 

limitations at 40 CFR Part 450 and 

provides exemptions to some 

requirements in limited cases. We have 

therefore concluded that today’s final 

rule will relieve regulatory burden for 

affected small entities. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

This rule clarifies applicability of the 

existing non-numeric effluent 

limitations at 40 CFR Part 450 and 

provides exemptions to some 

requirements in limited cases. The rule 

does not impose new or more stringent 

requirements, and therefore this action 

does not subject regulated entities to 

any costs incremental to the existing 

rule. Thus, this rule is not subject to the 

requirements of sections 202 or 205 of 

the Unfunded Mandates Reform Act 

(UMRA). 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule clarifies applicability of the existing 

non-numeric effluent limitations at 40 

CFR Part 450 and provides exemptions 

to some requirements in limited cases. 

These requirements apply to all 

governmental entities that undertake 

construction activities regulated at 40 

CFR 122.26, and therefore do not 

significantly or uniquely affect small 

governments. 


tkelley on DSK3SPTVN1PROD with RULES
12666 Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule 

clarifies applicability of the existing 

non-numeric effluent limitations at 40 

CFR Part 450 and provides exemptions 

to some requirements in limited cases. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule clarifies applicability of 

the existing non-numeric effluent 

limitations at 40 CFR Part 450 and 

provides exemptions to some 

requirements in limited cases. The rule 

does not impose new or more stringent 

requirements, and therefore this action 

would not subject regulated entities to 

any costs incremental to the existing 

rule. Thus, Executive Order 13175 does 

not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is 

based solely on technology 

performance. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involved 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low income 

populations from this final rule. This 

final rule clarifies applicability of the 

existing non-numeric effluent 

limitations at 40 CFR Part 450 and 

provides exemptions to some 

requirements in limited cases. While 

EPA considers it unlikely, it is possible 

that the changes to some of these 

requirements could result in greater 

pollution discharge to waters of the 

United States. However, EPA does not 

expect the quantity of pollution 

discharges to specific waterbodies or at 

the national level to significantly 

increase as a result of this final rule. 

Furthermore, the primary pollutants 

discharged by this industry, which are 

sediment and turbidity, are present in 

background levels to varying quantities 

in waters of the United States. 

Therefore, the extent, if any, of changes 

in human health or environmental 

effects as a result of this action would 

depend upon waterbody-specific 

conditions and the locations and 

interaction of populations with those 

waterbodies. Due to the varying nature 

and location of construction site 

discharges, and due to the fact that there 

are often other sources of sediment and 

turbidity pollution in waterbodies, it is 

not practicable to quantify the extent to 

which this action would alter levels of 

pollution discharges or whether any 

change in pollution discharges as a 

result of this action would contribute 

disproportionately high and adverse 

human health or environmental effects 

on minority and/or low income 

populations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective May 5, 2014. 

L. Judicial Review 

In accordance with 40 CFR 23.2, 

today’s rule is considered promulgated 

for the purposes of judicial review as of 

1 p.m. Eastern Standard Time, March 

20, 2014. Under Section 509(b)(1) of the 

Clean Water Act (CWA), judicial review 

of today’s effluent limitations guidelines 

and new source performance standards 

may be obtained by filing a petition in 

the United States Circuit Court of 

Appeals for review within 120 days 

from the date of promulgation of these 

guidelines and standards. Under Section 

509(b)(2) of the CWA, the requirements 

of this regulation may not be challenged 

later in civil or criminal proceedings 

brought to enforce these requirements. 

List of Subjects in 40 CFR Part 450 

Environmental protection, 

Construction industry, Land 

development, Water pollution control. 

Dated: February 20, 2014. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 44 / Thursday, March 6, 2014 / Rules and Regulations 12667 

PART 450—CONSTRUCTION AND 

DEVELOPMENT POINT SOURCE 

CATEGORY 

■ 1. The authority citation for part 450 

is revised to read as follows: 

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

1316, 1341, 1342, 1361 and 1370. 

Subpart A—General Provisions 

■ 2. Section 450.11 is amended by 

adding paragraph (b) to read as follows: 

§ 450.11 General definitions. 

* * * * * 

(b) Infeasible. Infeasible means not 

technologically possible, or not 

economically practicable and achievable 

in light of best industry practices. 

Subpart B—Construction and 

Development Effluent Guidelines 

■ 3. Section 450.21 is amended by: 

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

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

■ b. Adding paragraph (a)(8). 

■ c. Revising paragraph (b). 

■ d. Revising paragraph (d)(2). 

The added and revised text read as 

follows: 

§ 450.21 Effluent limitations reflecting the 

best practicable technology currently 

available (BPT). 

* * * * * 

(a) * * * 

(1) Control stormwater volume and 

velocity to minimize soil erosion in 

order to minimize pollutant discharges; 

(2) Control stormwater discharges, 

including both peak flowrates and total 

stormwater volume, to minimize 

channel and streambank erosion and 

scour in the immediate vicinity of 

discharge points; 

* * * * * 

(6) Provide and maintain natural 

buffers around waters of the United 

States, direct stormwater to vegetated 

areas and maximize stormwater 

infiltration to reduce pollutant 

discharges, unless infeasible; 

(7) Minimize soil compaction. 

Minimizing soil compaction is not 

required where the intended function of 

a specific area of the site dictates that it 

be compacted; and 

(8) Unless infeasible, preserve topsoil. 

Preserving topsoil is not required where 

the intended function of a specific area 

of the site dictates that the topsoil be 

disturbed or removed. 

(b) Soil Stabilization. Stabilization of 

disturbed areas must, at a minimum, be 

initiated immediately whenever any 

clearing, grading, excavating or other 

earth disturbing activities have 

permanently ceased on any portion of 

the site, or temporarily ceased on any 

portion of the site and will not resume 

for a period exceeding 14 calendar days. 

In arid, semiarid, and drought-stricken 

areas where initiating vegetative 

stabilization measures immediately is 

infeasible, alternative stabilization 

measures must be employed as specified 

by the permitting authority. 

Stabilization must be completed within 

a period of time determined by the 

permitting authority. In limited 

circumstances, stabilization may not be 

required if the intended function of a 

specific area of the site necessitates that 

it remain disturbed. 

* * * * * 

(d) * * * 

(2) Minimize the exposure of building 

materials, building products, 

construction wastes, trash, landscape 

materials, fertilizers, pesticides, 

herbicides, detergents, sanitary waste 

and other materials present on the site 

to precipitation and to stormwater. 

Minimization of exposure is not 

required in cases where the exposure to 

precipitation and to stormwater will not 

result in a discharge of pollutants, or 

where exposure of a specific material or 

product poses little risk of stormwater 

contamination (such as final products 

and materials intended for outdoor use); 

and 

* * * * * 

§ 450.22 [Amended] 

■ 4. Section 450.22 is amended by 

removing and reserving paragraphs (a) 

and (b). 

[FR Doc. 2014–04612 Filed 3–5–14; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 15 

[ET Docket Nos. 10–23 and 10–27; FCC 14– 

2] 

Level Probing Radars 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document modifies the 

Commission’s rules for level probing 

radars (LPRs) operating on an 

unlicensed basis in the 5.925–7.250 

GHz, 24.05–29.00 GHz, and 75–85 GHz 

bands to revise our measurement 

procedures to provide more accurate 

and repeatable measurement protocols 

for these devices. LPR devices are lowpower radars that measure the level 

(relative height) of various substances in 

man-made or natural containments. The 

new rules will benefit the public and 

industry by improving the accuracy and 

reliability of these measuring tools, and 

providing needed flexibility and cost 

savings for LPR device manufacturers 

which should in turn make them more 

available to users, without causing 

harmful interference to authorized 

services. 

DATES: Effective April 7, 2014. 

FOR FURTHER INFORMATION CONTACT: Anh 

Wride, Office of Engineering and 

Technology, 202–418–0577, 

Anh.Wride@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order and Order, ET Docket 

Nos.10–23 and 10–27, FCC 14–2, 

adopted January 15, 2014 and released 

January 15, 2014. The full text of this 

document is available for inspection 

and copying during normal business 

hours in the FCC Reference Center 

(Room CY–A257), 445 12th Street SW., 

Washington, DC 20554. The complete 

text of this document also may be 

purchased from the Commission’s copy 

contractor, Best Copy and Printing, Inc., 

445 12th Street SW., Room, CY–B402, 

Washington, DC 20554. The full text 

may also be downloaded at: 

www.fcc.gov. People with Disabilities: 

To request materials in accessible 

formats for people with disabilities 

(braille, large print, electronic files, 

audio format), send an email to fcc504@

fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

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

Summary of Report and Order 

1. By this action, the Commission 

modifies part 15 of its rules for level 

probing radars (LPRs) operating on an 

unlicensed basis in the 5.925–7.250 

GHz, 24.05–29.00 GHz, and 75–85 GHz 

bands to revise our measurement 

procedures to provide more accurate 

and repeatable measurement protocols 

for these devices. LPR devices are lowpower radars that measure the level 

(relative height) of various substances in 

man-made or natural containments. In 

open-air environments, LPR devices 

may be used to measure levels of 

substances such as water basin levels or 

coal piles. An LPR device that is 

installed inside an enclosure, which 

could be filled with liquids or 

granulates, is commonly referred to as a 

tank level probing radar (TLPR). LPR 

(including TLPR) devices can provide 

accurate and reliable target resolution to 

identify water levels in rivers and dams 

or critical levels of materials such as 

fuel or sewer-treated waste, reducing 

overflow and spillage and minimizing 


tkelley on DSK3SPTVN1PROD with RULES