[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Rules and Regulations]
[Pages 68215-68217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28033]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 450

[EPA-HQ-OW-2010-0884; FRL-9222-2]


Direct Final Rule Staying Numeric Limitation for the Construction 
and Development Point Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to stay the numeric effluent 
limitation of 280 NTU and associated monitoring requirements for the 
Construction and Development Point Source Category. This action is 
necessary so that EPA can reconsider the record basis for calculating 
the numeric effluent limitation. EPA expects to move expeditiously with 
its reconsideration, and will remove the stay when such reconsideration 
is completed.

DATES: This rule is effective on January 4, 2011 without further 
notice, unless EPA receives adverse comment by December 6, 2010 for 40 
CFR 450.22(a) and (b), which are stayed indefinitely. If EPA receives 
adverse comment, we will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0884, by one of the following methods:
    <bullet> http://www.regulations.gov: This is EPA's preferred 
approach, although you may use the alternatives presented below. Follow 
the on-line instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#83ccd4aec7ece0e8e6f7c3e6f3e2ade4ecf5"><span class="__cf_email__" data-cfemail="0c435b2148636f6769784c697c6d226b637a">[email protected]</span></a>.
    <bullet> Mail: USEPA Docket Center, Environmental Protection 
Agency, Docket Number EPA-HQ-OW-2010-0884, Mailcode 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> Hand Delivery: USEPA Docket Center, Public Reading Room, 
1301 Constitution Ave., NW., Room 3334, EPA West Building, Washington, 
DC 20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0884. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through  http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the  http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the USEPA Docket 
Center, Public Reading Room, Room 3334, EPA West Building, 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) 
566-2426.

FOR FURTHER INFORMATION CONTACT: Janet Goodwin, USEPA Office of Water, 
by phone at (202) 566-1060 or by e-mail at <a href="/cdn-cgi/l/email-protection#45222a2a21322c2b6b2f242b2031052035246b222a33"><span class="__cf_email__" data-cfemail="41262e2e2536282f6f2b202f2435012431206f262e37">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

Regulated Entities

    Entities potentially regulated by this action include:

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

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of entities that 
EPA is now aware could potentially be regulated by this action. Other 
types of entities not listed in the table could also be regulated. To 
determine whether your facility is regulated by this action, you should 
carefully examine the applicability criteria in 40 CFR 450.10 (74 FR 
62995) and the definition of ``storm water discharges associated with 
industrial activity'' and ``storm water discharges associated with 
small construction activity'' in existing EPA regulations at 40 CFR 
122.26(b)(14)(x)

[[Page 68216]]

and 122.26(b)(15), respectively. If you have questions regarding the 
applicability of this action to a particular site, consult the person 
listed for technical information in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Background

    On December 1, 2009, EPA published in the Federal Register (74 FR 
62995) effluent limitations guidelines and new source performance 
standards (ELGs) for the Construction and Development Point Source 
category. These ELGs control the discharge of pollutants from 
construction sites and require construction site owners and operators 
to implement a range of erosion and sediment control measures and 
pollution prevention practices to control pollutants in discharges from 
construction sites. These control measures became effective on February 
1, 2010. In addition, the rule subjected discharges from certain larger 
construction sites to a numeric effluent limitation of 280 NTU starting 
in August of 2011 (for sites 20 acres or more) and February of 2014 
(for sites 10 acres or more). These regulations are located at 40 CFR 
part 450.
    Subsequent to the promulgation of the construction and development 
ELGs, EPA received two petitions for reconsideration of the rule. These 
petitions pointed out a potential error in the calculation of the 
numeric limitation. Based on EPA's examination of the dataset 
underlying the 280 NTU limit, EPA has concluded that it improperly 
interpreted the data and, as a result, the calculations in the existing 
administrative record are no longer adequate to support the 280 NTU 
effluent limitation. EPA intends to expeditiously conduct a separate 
rulemaking to correct the numeric effluent limitation. EPA plans to 
publish a proposed correction rule in December 2010 for public comment, 
and take final action on the proposal by May 30, 2011 so that the 
revised limitation will be effective by June 29, 2011. An effective 
date for any revised limitation of June 29, 2011 is necessary in order 
for EPA to incorporate the corrected numeric limitation in its next 
Construction General Permit by June 30, 2011.
    In 2010 and 2011, EPA estimates that 16 states will incorporate the 
new construction and development ELG requirements, including the 
numeric limitation, in their construction general permits. Since EPA 
acknowledges an error in calculating the 280 NTU limit, it would be 
inappropriate for states to incorporate the current numeric limitation 
in construction and development permits. Consequently, EPA believes a 
stay of the 280 NTU effluent limitation and associated monitoring 
requirements is appropriate until EPA can correct its error in 
calculating the numeric limitation. EPA plans to initiate a limited 
rulemaking to correct the numeric limitation, and plans to take final 
action on the proposal by May 30, 2011. This direct final rule stays 
the numeric limitation in 40 CFR 450.22(a) and (b) and associated 
monitoring requirements until the new rulemaking is effective. States 
issuing permits between effective date of the stay and the effective 
date of the new rule need not incorporate the 280 NTU numeric 
limitation into their permits.

C. Description of This Action

    EPA is staying Section 22(a) and (b) of 40 CFR part 450 until it 
can complete a new rulemaking to correct the 280 NTU numeric 
limitation. Otherwise, compliance with the 280 NTU numeric limitation 
based on an inadequate administrative record would be required. This 
stay provides certainty to dischargers, which would need to comply with 
the numeric limitation and associated monitoring requirements, and to 
permitting agencies, which would need to incorporate the numeric 
limitation and associated monitoring requirements in construction 
permits. This is especially critical for the 16 states that are 
expected to issue new construction general permits in 2010 and 2011. 
Pursuant to 5 U.S.C. 553(b), EPA has determined for the reasons stated 
above that good cause exists for issuing this stay without notice and 
public comment procedures because in this context, for the reasons 
discussed above, such procedures are unnecessary and not in the public 
interest. EPA is not staying any other provision of 40 CFR part 450.

D. Statutory and Executive Order Reviews

    Under Executive Order 12866, 58 FR 51735 (October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget. Because the 
Agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., or to sections 202 and 205 of the Unfunded Mandates Reform Act 
of 1995 (UMRA) Public Law 104-4. In addition, this action does not 
significantly or uniquely affect small governments or impose a 
significant intergovernmental mandate, as described in sections 203 and 
204 of UMRA. This rule also does not significantly or uniquely affect 
the communities of tribal governments, as specified by Executive Order 
13175. 65 FR 67249 (November 9, 2000). This rule 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. 64 FR 43255 (August 10, 1999). This 
rule also is not subject to Executive Order 13045, 62 FR 19885 (April 
23, 1997), because it is not economically significant and it does not 
make decisions based on environmental health or safety risks. This rule 
is not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355 (May 22, 2001)) because it is not a significant 
regulatory action under Executive Order 12866.
    This action does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995, 15 U.S.C. 272, do not apply. This rule also 
does not involve special consideration of environmental justice related 
issues as required by Executive Order 12898, 59 FR 7629 (February 16, 
1994). In issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct, as required by 
section 3 of Executive Order 12988, 61 FR 4729 (February 7, 1996). EPA 
has complied with Executive Order 12630, 53 FR 8859 (March 15, 1988), 
by examining the takings implications of the rule in accordance with 
the ``Attorney General's Supplemental Guidelines for the Evaluation of 
Risk and Avoidance of Unanticipated Takings'' issued under the 
executive order. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501 et seq. EPA's compliance with these statutes and Executive 
Orders for the underlying rule is discussed in the December 1, 2009 
Federal Register notice. 74 FR 62995.
    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

[[Page 68217]]

Congress and to the Comptroller General of the United States. Section 
808 allows the issuing agency to make a rule effective sooner than 
otherwise provided by the CRA if the agency makes a good cause finding 
that notice and public procedure is impracticable, unnecessary, or 
contrary to the public interest. This determination must be supported 
by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has 
made a good cause finding to forego public notice and comment 
procedures. Today's stay eliminates a numeric limitation for which the 
record is inadequate and any opportunity for confusion. Any additional 
delay in correcting the calculation error would only increase the 
potential confusion and could require states to incorporate an 
incorrect numeric limitation in their construction permits. EPA sets an 
effective date to make the stay effective 60 days after publication in 
the Federal Register. 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. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 450

    Environmental protection, Construction industry, Land development, 
Erosion, Sediment, Stormwater, Water pollution control.

    Dated: November 1, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set forth in the preamble, EPA is amending 40 CFR part 
450 as follows:

PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY

0
1. The authority citation for part 450 is revised to read as follows:

    Authority:  33 U.S.C. 101, 301, 304, 306, 308, 401, 402, 501 and 
510.


0
2. Section 450.22(a) and (b) are stayed indefinitely.

[FR Doc. 2010-28033 Filed 11-4-10; 8:45 am]
BILLING CODE 6560-50-P


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