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Final National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges From Construction Activities
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[Federal Register: July 1, 2003 (Volume 68, Number 126)] [Notices] [Page 39087-39091] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr01jy03-60] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [FRL-7520-7] Final National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges From Construction Activities AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of final issuance. ----------------------------------------------------------------------- SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are issuing EPA's final NPDES general permit for discharges from large and small construction activities. Hereinafter, the terms ``permit'' or ``construction general permit'' or ``CGP'' will replace ``permits.'' Today's permit will replace the existing permit covering large construction sites in EPA Regions 1, 2, 3, 7, 8, 9 and 10 that expired on February 17, 2003 and the permit covering large construction sites in EPA Region 6 that expires July 6, 2003. Today's permit covers large construction sites in EPA Region 5. In addition, today's permit incorporates coverage of small construction activity in EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10. State Coastal Zone Management Act (CZMA) certification was not received from Massachusetts in time for that state to be included in this permit. As such, large construction activities in Massachusetts covered under the 1998 permit will continue to be covered under that permit. Today's permit is similar to the 1998 permits and will authorize the discharge of pollutants in storm water runoff associated with construction activities in accordance with the terms and conditions described therein. DATES: The effective date of this permit is July 1, 2003. The permit will expire five years from the effective date. ADDRESSES: The administrative record is available for inspection and copying at the Water Docket, located at the EPA Docket Center in the basement of the EPA West Building, Room B-102, at 1301 Constitution Ave., NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: For further information on the final permit, the permit's Notice of Intent (NOI) or Notice of Termination (NOT) requirements, visit EPA's website at http://www.epa.gov/npdes/ stormwater/cgp, contact the appropriate EPA Regional Office listed in I.B., or contact Jack Faulk, Office of Wastewater Management, Office of Water, EPA Headquarters at tel.: (202) 564-0768 or email at faulk.jack@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. How Can I Get Copies of This Document and Other Related Information? 1. Permit. Copies of the permit, permit fact sheet, and the Response to Comments document may be downloaded from EPA's website at http://www.epa.gov/npdes/stormwater/cgp. 2. Docket. EPA has established an official public docket for this action under Docket ID No. OW-2002-0055. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 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 Water Docket is (202) 566- 2426. 3. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www. epa.gov/edocket to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select ``search,'' then key in the appropriate docket identification number. B. Who Are the EPA Regional Contacts for This Permit? For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or e-mail at murphy.thelma@epa.gov. For EPA Region 2, contact Karen O'Brien at tel.: (212) 637-3717 or e-mail at obrien.karen@epa.gov or for Puerto Rico, Sergio Bosques at tel.: (787) 977-5838 or e-mail at bosques.sergio@epa.gov. For EPA Region 3, contact William Toffel at tel.: (215) 814-5706 or toffel.william@epa.gov. For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e- mail at bell.brianc@epa.gov. For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-mail at larsen.brent@epa.gov. For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or e-mail at matthews.mark@epa.gov. For EPA Region 8, contact Greg Davis at tel.: (303) 312-6082 or e- mail at davis.gregory@epa.gov. For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or e-mail at bromley.eugene@epa.gov. For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or e-mail at vakoc.misha@epa.gov. II. Background A. Statutory and Regulatory History Section 405 of the Water Quality Act of 1987 (WQA) added section 402(p) of the Clean Water Act (CWA), which directed EPA to develop a phased approach to regulate storm water discharges under the NPDES program. EPA published a final regulation on the first phase of this program on November 16, 1990, establishing permit application requirements for ``storm water discharges associated with industrial activity.'' EPA defined the term ``storm water discharge associated with industrial activity'' in a comprehensive manner to cover a wide variety of facilities. Construction activities that disturb at least five acres of land and have point source discharges to waters of the U.S. were included in the definition of ``industrial activity'' pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the storm water program was published in the Federal Register on December 8, 1999. Phase II includes sites disturbing equal to or greater than one acre and less than five acres as well as sites less than one acre of total land area that are part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. Small [[Page 39088]] construction activity is defined per 40 CFR 122.26(b)(15)(i). In developing the Phase II storm water regulations, EPA conducted an analysis of the potential impacts of the regulation on the National economy and also analyzed impacts on small businesses. These impacts focused on implementation of sediment and erosion control practices or best management practices to reduce pollutants commonly associated with construction storm water discharges. In performing these analyses, EPA considered affected industrial sectors, including the oil and gas industry. Initially, EPA determined that few, if any oil and gas exploration sites would be affected by Phase II and impacts on the accuracy of Phase II rule cost estimates were unlikely to be significant. Therefore, EPA did not include oil and gas exploration sites in the Final Draft of the Economic Analysis of the Phase II Final Rule. Since rule promulgation, EPA has become aware that close to 30,000 oil and gas sites may be affected by the Phase II storm water regulations. On March 10, 2003 (68 FR 11325), EPA postponed the permit requirement for small oil and gas small construction activity from March 10, 2003, to March 10, 2005. During the two-year postponement, EPA plans to work with states, industry, and other entities to gather and evaluate data on the development and use of appropriate best management practices for the oil and gas industry. B. Summary of Significant Changes From 1998 Construction General Permit This permit replaces the previous Construction General Permits which were issued for a five-year term by various EPA Regions in February 1998 (63 FR 7858) and July 1998 (63 FR 36490). The organization and numbering of today's CGP has been revised slightly from the 1998 CGP to more clearly present permittee responsibilities. In addition, following is a list of significant changes included in the CGP as compared to the February 1998 CGP. These changes are discussed in more detail in the CGP fact sheet. 1. Change in Permit Areas Covered. i. Additions. a. Indian Country within the States of Michigan, Wisconsin, and Minnesota, Louisiana, Oklahoma, New Mexico, and Texas, b. State of New Mexico, c. Discharges in the State of Oklahoma that are not under the authority of the Oklahoma Department of Environmental Quality, including activities associated with oil and gas exploration, drilling, operations, and pipelines (includes SIC Groups 13 and 46, and SIC Codes 492 and 5171), and point source discharges associated with agricultural production, services, and silviculture (includes SIC Groups 01, 02, 07, 08, and 09), and d. Discharges in the State of Texas that are not under the authority of the Texas Commission on Environmental Quality (formerly TNRCC), including activities associated with the exploration, development, or production of oil or gas or geothermal resources, including transportation of crude oil or natural gas by pipeline. ii. Deletions. a. State of Maine, b. Indian Country, including disputed areas, within the State of Maine, and c. State of Arizona. 2. Permit coverage modified to include small construction activities (those disturbing one to five acres), and to provide waivers for small construction for low rainfall erosivity, total maximum daily loads (TMDLs), and equivalent analyses. 3. Uncontaminated excavation dewatering added as an allowable non- storm water discharge. 4. Restrictions and documentation requirements added for discharges to waters with TMDLs, and procedures included for addressing attainment of water quality standards. 5. State and county Endangered Species Act (ESA) appendix of Federally-listed or proposed species removed. 6. Discharge authorization procedures and NOI submission deadlines altered to accommodate new seven-day ESA reviews of NOIs by U.S. Fish & Wildlife Service and National Marine Fisheries Service, and to account for ongoing projects. 7. Information required on NOI form modified to require: i. Applicable permit number; ii. Internal Revenue Service Employer Identification Number; iii. Methodology for determining latitude and longitude; iv. Name of Indian reservation or affiliated Tribe; v. Address of SWPPP location (changed from optional to required); vi. Whether the discharge is consistent with the assumptions and requirements of applicable EPA approved or established TMDLs; and vii. The specific permit tracking number of an operator certifying under criterion F. 8. Language added to support the operator's ability to submit NOIs and NOTs using EPA's electronic NOI system when available. 9. Procedure clarified for operator to delineate on the SWPPP areas of the project where no further requirements apply following earth- disturbing activities and stabilization. 10. Requirement to provide an estimate of the site's runoff coefficient for pre- and post-construction conditions removed. 11. Documentation requirements for ESA eligibility clarified. 12. Inspection provisions modified to include option for weekly site inspections rather than biweekly inspections with follow-up inspections after each rain event, and guidelines included for utility line installation, pipeline construction, and other linear construction activities. 13. Further clarification provided concerning stabilization requirements for project areas where construction has temporarily ceased. 14. Additional guidance and options provided for adjusting SWPPP to address applicable water quality standards after authorization. 15. Clarification added that coverage under an alternative NPDES permit qualifies as a basis for submitting an NOT. 16. Definitions added for the following terms: i. ``Arid Areas''; ii. ``Eligible''; iii. ``Federal Facility''; iv. ``Indian Country''; v. ``Large Construction Activity''; vi. ``New Project''; vii. ``Ongoing Project''; viii. ``Permitting Authority''; ix. ``Project Area''; x. ``Receiving Water''; xi. ``Semi-Arid Areas''; xii. ``Site''; xiii. ``Small Construction Activity''; xiv. ``Storm Water Discharge-Related Activity''; xv. ``Total Maximum Daily Load'' or ``TMDL''; and xvi. ``Wetland''. 17. Standard conditions revised consistent with 40 CFR 122.41. C. Summary of Terms and Conditions of Final General Permit 1. Discharges Covered Operators of large and small construction activities within the areas listed below may be eligible to obtain coverage under this permit for allowable storm water and non-storm water discharges: Region 1: The State of New Hampshire; Indian Country in the States of Rhode Island and Connecticut; and Federal facilities in Vermont. (State Coastal Zone Management Act (CZMA) certification was not received from Massachusetts in time for that state to be [[Page 39089]] included in this permit. As such, large construction activities in Massachusetts covered under the 1998 CGP will continue to be covered under that permit. EPA will reissue the CGP for Massachusetts for large and small construction activities at a later date, and will include any state-specific modifications or additions as part of the State's CZMA certification process.) Region 2: The Commonwealth of Puerto Rico and Indian Country in the State of New York. Region 3: District of Columbia; and Federal facilities in the State of Delaware. Region 5: Indian Country in the States of Michigan, Minnesota, and Wisconsin, except the Sokaogon Chippewa (Mole Lake) Community. Region 6: The State of New Mexico; Indian Country in the States of Louisiana, Oklahoma, Texas, and New Mexico (except Navajo Reservation Lands (see Region 9) and Ute Mountain Reservation Lands (see Region 8)); discharges in the State of Oklahoma that are not under the authority of the Oklahoma Department of Environmental Quality, including activities associated with oil and gas exploration, drilling, operations, and pipelines (includes SIC Groups 13 and 46, and SIC codes 492 and 5171), and point source discharges associated with agricultural production, services, and silviculture (includes SIC Groups 01, 02, 07, 08, 09); and discharges in the State of Texas that are not under the authority of the Texas Commission on Environmental Quality (formerly the Texas Natural Resource Conservation Commission), including activities associated with the exploration, development, or production of oil or gas or geothermal resources, including transportation of crude oil or natural gas by pipeline. Region 7: Indian Country in the States of Iowa, Kansas, and Nebraska (except Pine Ridge Reservation Lands (see Region 8)). Region 8: Federal facilities in Colorado; Indian Country in Colorado (as well as the portion of the Ute Mountain Reservation located in New Mexico), Montana, North Dakota (as well as that portion of the Standing Rock Reservation located in South Dakota and excluding the portion of the lands within the former boundaries of the Lake Traverse Reservation, which is covered under the permit for areas of South Dakota), South Dakota (as well as the portion of the Pine Ridge Reservation located in Nebraska and the portion of the lands within the former boundaries of the Lake Traverse Reservation located in North Dakota and excluding the Standing Rock Reservation which is covered under the permit for areas of North Dakota), Utah (except Goshute and Navajo Reservation lands (see Region 9)), and Wyoming. Region 9: The Islands of American Samoa and Guam, Johnston Atoll, Midway/Wake Islands and Commonwealth of the Northern Mariana Islands; Indian Country in Arizona (as well as Navajo Reservation lands in New Mexico and Utah), California, and Nevada (as well as the Duck Valley Reservation in Idaho, the Fort McDermitt Reservation in Oregon, and the Goshute Reservation in Utah). Region 10: The States of Alaska and Idaho; Indian Country in Alaska, Idaho (except Duck Valley Reservation (see Region 9)), Washington, and Oregon (except for Fort McDermitt Reservation (see Region 9)); and Federal facilities in Washington. 2. Limitations on Coverage The final general permit includes a number of eligibility restrictions including: post-construction discharges; discharges which may adversely affect endangered or threatened species and critical habitat; discharges which may cause or contribute to excursions above any applicable water quality standards; and discharges that are inconsistent with applicable approved TMDLs. Construction operators that do not meet the eligibility requirements of the general permit will be required to submit an individual permit application or seek coverage under any alternate general permit, if available. Eligibility restrictions for discharges that adversely affect historic properties have been reserved pending ongoing discussions with the Advisory Council on Historic Preservation, State Historic Preservation Officers, and Tribal Historic Preservation Officers. EPA may modify the permit at a later date based on those discussions. 3. Deadlines and Permit Application Process To obtain discharge authorization under the final general permit, dischargers are required to submit an NOI requesting discharge authorization. The NOI must include basic information about the construction project (e.g., operator name, site name, and site address) and certification that a storm water pollution prevention plan (SWPPP) has been prepared for the site describing the best management practices that the discharger will implement to control pollutants in the discharges in accordance with the requirements of the CWA. NOI due dates are as follows: i. New Projects: The NOI must be submitted at least seven days prior to commencement of construction activities. ii. Permitted Ongoing Projects: If the operator previously received authorization to discharge for an ongoing project under the 1998 CGP, the NOI must be submitted within 90 days of the effective date of this permit, unless the permittee is eligible to submit a Notice of Termination (NOT) before the 90th day, provided that the NOT is submitted in compliance with the permit requirements. Until authorized under this permit, the operator must comply with the terms and conditions of the 1998 CGP. iii. Unpermitted Ongoing Projects: Due to the lack of availability of this permit by the March 10, 2003 deadline for small construction activities to apply for permit coverage and by the February 17, 2003 expiration of the 1998 CGP for large construction activities, EPA anticipates that a number of otherwise regulated construction projects were left without the ability to obtain coverage under a valid general permit. EPA's Office of Enforcement and Compliance Assurance issued a memorandum on March 7, 2003 making administrative or civil enforcement for these activities a low priority because a new CGP had not been promulgated, on the condition that affected operators implement an interim SWPPP and associated best management practices until the new permit is available. For this class of operators, which did not previously receive authorization to discharge for an ongoing project under the 1998 CGP, the NOI must be submitted within 90 days of the effective date of this permit, unless the permittee is eligible to submit a Notice of Termination (NOT) before the 90th day. Until authorized under this permit, the operator must comply with an interim SWPPP consistent with the 1998 CGP. 4. Storm Water Pollution Prevention Plans The final general permit requires that all operators covered by the permit develop and implement a SWPPP. The SWPPP is the principal means through which dischargers comply with the CWA's requirement to control pollutants in their discharges. All SWPPPs are required to be developed in accordance with sound engineering practices and developed specific to the site. These SWPPPs are required to be prepared prior to commencement of construction activities and then updated as appropriate. Specific elements to be addressed in the SWPPP include: [[Page 39090]] i. Pollution Prevention Plan Contents: Site and Activity Description, ii. Pollution Prevention Plan Contents: Controls to Reduce Pollutants, iii. Non Storm Water Discharge Management, iv. Maintenance of Controls, v. Documentation of Permit Eligibility Related to Endangered Species, vi. Copy of Permit Requirements, vii. Applicable State, Tribal, or Local Programs, viii. Inspections, ix. Maintaining an Updated Plan, x. Signature, Plan Review and Making Plans Available, xi. Management Practices, and xii. Documentation of Permit Eligibility Related to Total Maximum Daily Loads. 5. Permit Appeal Procedures Within 120 days following notice of EPA's final decision for the general permit under 40 CFR 124.15, any interested person may appeal the permit in the Federal Court of Appeals in accordance with Section 509(b)(1) of the CWA. Persons affected by a general permit may not challenge the conditions of a general permit as a right in further Agency proceedings. They may instead either challenge the general permit in court, or apply for an individual permit as specified at 40 CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the Environmental Appeals Board to review any conditions of the individual permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886). III. Executive Order 12866 Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has exempted review of NPDES general permits under the terms of Executive Order 12866. IV. 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 rule-making requirements under the Administrative Procedures 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. Issuance of an NPDES general permit is not subject to rulemaking requirements, under APA section 553 or any other law, and is thus not subject to the RFA requirements. The APA defines two broad, mutually exclusive categories of agency action--``rules'' and ``orders.'' Its definition of ``rule'' encompasses ``an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency * * *'' APA section 551(4). Its definition of ``order'' is residual: ``a final disposition * * * of an agency in a matter other than rule making but including licensing.'' APA section 551(6) (emphasis added). The APA defines ``license'' to ``include * * * an agency permit * * *'' APA section 551(8). The APA thus categorizes a permit as an order, which by the APA's definition is not a rule. Section 553 of the APA establishes ``rule making'' requirements. The APA defines ``rule making'' as ``the agency process for formulating, amending, or repealing a rule.'' APA section 551(5). By its terms, then, section 553 applies only to ``rules'' and not also to ``orders,'' which include permits. V. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their ``regulatory actions'' on State, local, and tribal governments and the private sector. UMRA uses the term ``regulatory actions'' to refer to regulations. (See, e.g., UMRA section 201, ``Each agency shall * * * assess the effects of Federal regulatory actions * * * (other than to the extent that such regulations incorporate requirements specifically set forth in law)'' (emphasis added)). UMRA section 102 defines ``regulation'' by reference to 2 U.S.C. 658 which in turn defines ``regulation'' and ``rule'' by reference to section 601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA defines ``rule'' as ``any rule for which the agency publishes a notice of proposed rulemaking pursuant to section 553(b) of (the Administrative Procedure Act (APA)), or any other law. * * *'' As discussed in the RFA section of this notice, NPDES general permits are not ``rules'' under the APA and thus not subject to the APA requirement to publish a notice of proposed rulemaking. NPDES general permits are also not subject to such a requirement under the CWA. While EPA publishes a notice to solicit public comment on draft general permits, it does so pursuant to the CWA section 402(a) requirement to provide ``an opportunity for a hearing.'' Thus, NPDES general permits are not ``rules'' for RFA or UMRA purposes. VI. Paperwork Reduction Act EPA has reviewed the requirements imposed on regulated facilities resulting from the final construction general permit under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information collection requirements of the construction general permit for large construction activities have already been approved by the Office of Management and Budget (OMB) (OMB Control No. 2040-0188) in previous submissions made for the NPDES permit program under the provisions of the Clean Water Act. Information collection requirements of the construction general permit for small construction activities were submitted to OMB (OMB Control No. 2040-0211) for review and approval and will be published in a separate Federal Register Notice. 1. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 24, 2003. Linda M. Murphy, Director, Office of Ecosystem Protection, Region 1. 2. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 23, 2003. Kevin Bricke, Acting Director, Division of Environmental Planning and Protection, Region 2. 3. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 20, 2003. Carlos E. O'Neill, Acting Division Director, Caribbean Environmental Protection Division, Region 2. 4. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 23, 2003. Jon M. Capacasa, [[Page 39091]] Director, Water Protection Division, Region 3. 5. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 23, 2003. Rebecca L. Harrvey, Chief, NPDES Programs Branch, Region 5. 6. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 20, 2003. Miguel I. Flores, Director, Water Quality Protection Division, Region 6. 7. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 23, 2003. Leo J. Alderman, Director, Water, Wetlands, and Pesticides Division, Region 7. 8. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 23, 2003. Stephen S. Tuber, Assistant Regional Administrator, Office of Partnerships and Regulatory Assistance, Region 8. 9. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 20, 2003. Nancy Woo, Acting Director, Water Division, Region 9. 10. Authority: Clean Water Act, 33 U.S.C. 1251 et seq. Dated: June 23, 2003. Randall F. Smith, Director, Office of Water, Region 10. [FR Doc. 03-16575 Filed 6-26-03; 2:11 pm] BILLING CODE 6560-50-P