2010-28033. Direct Final Rule Staying Numeric Limitation for the Construction and Development Point Source Category

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

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:

• 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.
• E-mail: [e-mail].
• Mail: USEPA Docket Center, Environmental Protection Agency, Docket Number EPA-HQ-OW-2010-0884, Mailcode 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
• 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 [phone], and the telephone number for the EPA Docket Center is [phone].

FOR FURTHER INFORMATION CONTACT:

Janet Goodwin, USEPA Office of Water, by phone at [phone] or by e-mail at [e-mail].

SUPPLEMENTARY 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 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) 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 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.

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

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.

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