E9-10536. Draft EPA Region 4 National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed permit issuance.

SUMMARY:

EPA Region 4 today is proposing for public comment the issuance of its 2009 National Pollutant Discharge Elimination System general permit for stormwater discharges on Indian Country Lands within the states of Region 4 from new dischargers engaged in large and small construction activities. Hereinafter, this NPDES general permit will be referred to as “permit” or “2009 construction general permit” or “2009 CGP.” “New dischargers” are those who did not file a notice of intent (“NOI”) to be covered under the 2004 construction general permit (“2004 CGP”) before it expired. Existing dischargers who properly filed an NOI to be covered under the 2004 CGP continue to be authorized to discharge under that permit according to its terms. This draft 2009 CGP contains generally the same limits and conditions as the National CGP issued by other EPA regions on July 30, 2008 (“2008 National CGP”). As proposed, EPA Region 4 is issuing this CGP for a period not to exceed two (2) years and will make the permit available to new construction activities and unpermitted ongoing activities only.

DATES:

Comments on EPA Region 4's proposal, including the draft permit, must be postmarked by June 14, 2009.

ADDRESSES:

Persons wishing to comment on any aspects of this permit reissuance or wishing to request a public hearing are invited to submit their comments or hearing requests in writing within thirty (30) days of this notice to the Water Protection Division, Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303, Attention: Alanna Conley.

Instructions: A copy of the draft 2009 CGP and its accompanying fact sheet is available at http://www.epa.gov/​region4/​water/​permits/​stormwater.html. EPA's policy is that all comments received will be included in the public docket without change, 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 e-mail. 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 FURTHER INFORMATION CONTACT:

The proposed NPDES general permit, fact sheet and other relevant documents are on file and may be inspected any time between 9 a.m. and 4 p.m., Monday through Friday at the address shown above. Copies of these documents may be obtained by writing the above address or by calling Alanna Conley at [phone]. In addition, copies of the proposed permit and fact sheet may be downloaded at http://www.epa.gov/​region4/​water/​permits/​stormwater.html.

For any questions, please contact Alanna Conley, telephone number: [phone], or at the following address: Water Protection Division, Stormwater and Nonpoint Source Section, Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303, or by fax at [phone].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

The 2009 CGP would potentially apply to the following construction activities:

Category	Examples of affected entities	North American Industry Classification System (NAICS) Code
Industry	Construction site operators disturbing 1 or more acres of land, or less than 1 acre but part of a larger common plan of development or sale if the larger common plan will ultimately disturb 1 acre or more, and performing the following activities:
	Building, Developing and General Contracting	233
	Heavy Construction	234

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 activities that EPA is now aware of that could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility is affected by this action, you should carefully examine the definition of “construction activity” and “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 entity, consult the person listed for technical information in the preceding FOR FURTHER INFORMATION CONTACT section.

Eligibility for coverage under the 2009 CGP would be limited to operators of “new projects” or “unpermitted ongoing projects.” A “new project” is one that commences after the effective date of the 2009 CGP. An “unpermitted ongoing project” is one that commenced prior to the effective date of the 2009 CGP, yet never received authorization to discharge under the 2004 CGP or any other NPDES permit covering its construction-related stormwater discharges. This proposal is limited to those areas where EPA Region 4 is the permitting authority, including all Indian Country Lands within the States of Alabama, Florida, Mississippi, and North Carolina.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking (subject heading: Region 4 CGP Comments).
• Consider organizing your comments by permit section numbers.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.

C. Public Hearings

EPA has not scheduled any public hearings to receive public comment concerning the proposed permit. All persons will continue to have the right to provide written comments during the public comment period. However, interested persons may request a public hearing pursuant to 40 CFR 124.12 concerning the proposed permit. Requests for a public hearing must be sent or delivered in writing to the same address as provided above for public comments prior to the close of the comment period. Requests for a public hearing must state the nature of the issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, EPA shall hold a public hearing if it finds, on the basis of requests, a significant degree of public interest in a public hearing on the proposed permit. If EPA decides to hold a public hearing, a public notice of the date, time and place of the hearing will be made at least 30 days prior to the hearing. Any person may provide written or oral statements and data pertaining to the proposed permit at the public hearing.

D. Finalizing the Permit

After the close of the public comment period, EPA Region 4 will issue a final permit. This permit will not be issued until after all public comments have been considered and appropriate changes made to the permit. EPA's response to public comments received will be included in the administrative record as part of the final permit decision. Once the final permit becomes effective, operators of new and unpermitted ongoing construction projects may seek authorization to discharge by filing a NOI to be covered under the new 2009 CGP. Under EPA's regulations at 40 CFR 122.6, any construction site operator obtaining permit coverage prior to the April 30, 2009, expiration date of the 2004 CGP, automatically remains covered under that permit until:

• The operator submits a Notice of Termination;
• EPA issues an individual permit or denies coverage under an individual permit for the site's stormwater discharges, or;
• EPA issues a new general permit that establishes procedures for covering these existing dischargers to obtain coverage under the new general permit and the operator obtains coverage consistent with the procedures detailed in that new general permit.

II. Background of Permit Proposal

A. Statutory and Regulatory History

The Clean Water Act (“CWA”) establishes a comprehensive program “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). The CWA also includes the objective of attaining “water quality which provides for the protection and propagation of fish, shellfish and wildlife.” 33 U.S.C. 1251(a)(2). To achieve these goals, the CWA requires EPA to control the discharges through the issuance of National Pollutant Discharge Elimination System (“NPDES”) permits.

Section 405 of the Water Quality Act of 1987 (WQA) added section 402(p) of the CWA, which directed EPA to develop a phased approach to regulate stormwater discharges under the NPDES program. EPA published a final regulation in the Federal Register on the first phase of this program on November 16, 1990, establishing permit application requirements for “storm water discharges associated with industrial activity.” See 55 FR 47990. EPA defined the term “storm water discharge associated with industrial activity” in a comprehensive manner to cover a wide variety of facilities. Construction activities, including activities that are part of a larger common plan of development or sale, that ultimately 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 stormwater program was published in the Federal Register on December 8, 1999, and required NPDES permits for discharges from construction sites disturbing at least one acre, but less than five acres, including sites that are part of a larger common plan of development or sale that will ultimately disturb at least one acre but less than five acres, pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR 68722.

NPDES permits issued for construction stormwater discharges are required under Section 402(a)(1) of the CWA to include conditions for meeting technology-based effluent limits established under Section 301 and, where applicable, Section 306. Once an effluent limitations guideline or new source performance standard is promulgated in accordance with these sections, NPDES permits are required to incorporate limits based on such limitations and standards. See 40 CFR 122.44(a)(1). Prior to the promulgation of national effluent limitations and standards, permitting authorities incorporate technology-based effluent limitations on a best professional judgment basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

B. Summary of Permit Proposal

EPA proposes to issue the 2009 CGP for a period not to exceed two years. As proposed, the 2009 CGP will include conditions and limits that are generally identical to the 2008 National CGP issued by other EPA Regional offices, with a few requirements carried over from the 2004 CGP. Note that the 2009 CGP only applies to new and unpermitted ongoing construction projects. Discharges from ongoing projects (or “existing dischargers”) would continue to be covered under the existing 2004 CGP. (However, EPA clarifies that if an operator of a permitted ongoing project transfers ownership of the project, or a portion thereof, to a different operator, that subsequent operator will be required to submit a complete and accurate NOI for a new project under the 2009 CGP.) Although the existing permit expires on April 30, 2009, dischargers who filed NOIs to be authorized under that permit prior to the expiration date will continue to be authorized to discharge in accordance with EPA's regulations at 40 CFR 122.6. The draft permit proposed here will only apply to dischargers who were not authorized under the 2004 CGP, which includes both “new projects” and “unpermitted ongoing projects.” Operators of new projects or unpermitted ongoing projects seeking coverage under the 2009 CGP would be expected to use the same electronic Notice of Intent (eNOI) system that is currently in place for the 2004 CGP.

As stated, EPA Region 4 proposes to issue the 2009 CGP for a period not to exceed two years. As a result of recent litigation brought against EPA concerning the promulgation of effluent limitations guidelines and standards for the construction and development (“C&D”) industry, EPA was required by court order to propose effluent limitations guidelines and new source performance standards (hereinafter, “effluent guidelines”) for the C&D industry by December 2008, and promulgate those effluent guidelines by December 2009. See Natural Resources Defense Council, et al. v. U.S. Environmental Protection Agency, No CV—0408307-GH (C.D. Cal.) (Permanent Injunction and Judgment, December 5, 2006). EPA believes it is appropriate to propose a revised National CGP once EPA has issued C&D effluent guidelines, and therefore proposes a maximum two-year duration for this permit to better coincide with the court-ordered deadlines for the C&D rule. EPA intends to propose and finalize a new, revised National CGP sooner, if the C&D rule is promulgated earlier than the date directed by the court.

C. What Is EPA's Rationale for This Permit Proposal?

In consideration that the 2004 CGP expires on April 30, 2009, it is incumbent upon EPA Region 4 to make available a similar general permit that provides coverage for any new dischargers commencing construction in the areas where EPA Region 4 is the permitting authority. Without such a permit vehicle, the only other available option for construction site operators is to obtain coverage under an individual permit. EPA is proposing to issue a CGP that adopts the same limits and conditions of the 2008 National CGP issued by other EPA regions for a limited period of time. This action is appropriate for several reasons. One main reason, as discussed above, is that EPA is working on the development of a new effluent guideline that will address stormwater discharges from the same industrial activities (i.e., construction activities disturbing one or more acres) as the CGP. Because the development of the C&D rule and the issuance of the CGP are on relatively similar schedules, and the C&D rule will establish national technology-based effluent limitations and standards for construction activities, EPA believes that it is more appropriate to proceed along two tracks to permit construction discharges. The first track entails issuing a CGP for a limited period of time, not to exceed 2 years, that contains the 2004 CGP limits and conditions, but for only operators of new and unpermitted ongoing projects, so that such entities can obtain valid permit coverage for their discharges. The second track involves proposing and issuing a revised 5-year CGP that incorporates the requirements of the new C&D rule after the rule is promulgated.

In addition, EPA believes that issuing a substantially revised CGP would be impracticable given the number of unknowns concerning the outcome of the C&D rule. EPA does not believe that it would be appropriate to issue a permit containing technology-based limitations that could be quickly outdated, given the timing of a promulgation of the C&D rule and permit issuance. If EPA had attempted to approximate the requirements of the new C&D rule and incorporate such limits into a new CGP, such a permit would presuppose the outcome of the C&D rule and potentially conflict with the scope and content of the effluent limitation guideline. Instead, EPA Region 4 has decided to wait the short time until after the C&D rule promulgation to issue a revised CGP that is fully reflective of the new effluent limitation guideline. In the meantime, during this relatively short period of time prior to the C&D rule's promulgation and prior to the issuance of the revised CGP that incorporates those standards, EPA is proposing to use similar permit limits and conditions as the 2004 CGP as an effective vehicle to control new discharges. EPA notes that it has minimized the amount of time during which the 2009 CGP will remain effective in order to underscore the Agency's intention to issue a revised CGP once the C&D rule is finalized.

D. Significant Changes From 2004 CGP

As discussed above, EPA is proposing to issue the 2008 CGP for a period not to exceed two years. This permit would include similar limits and conditions as the 2004 CGP with the following noteworthy differences:

1. Clarification that eligibility for coverage under the 2009 CGP is limited to operators of new and unpermitted ongoing construction projects.

2. Clarification that operators of ongoing permitted construction projects are not eligible for coverage under the 2009 CGP.

E. Geographic Coverage

EPA is only authorized to provide permit coverage for classes of discharges that are outside the scope of a state's NPDES program authorization. EPA Region 4 is proposing to issue the 2009 CGP to replace the expiring 2004 CGP for operators of new and unpermitted ongoing construction projects. The geographic coverage and scope of the 2009 CGP includes all Indian Country Lands within the States of Alabama, Florida, Mississippi, and North Carolina, where EPA Region 4 is the NPDES permitting authority. There is no change in the scope of coverage from the 2004 CGP.

III. Compliance With the Regulatory Flexibility Act

A. EPA's Approach to Compliance With the Regulatory Flexibility Act for General Permits

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.

The legal question of whether a general permit (as opposed to an individual permit) qualifies as a “rule” or as an “adjudication” under the Administrative Procedure Act (APA) has been the subject of periodic litigation. In a recent case, the court held that the CWA Section 404 Nationwide general permit before the court did qualify as a “rule” and therefore that the issuance of that general permit needed to comply with the applicable legal requirements for the issuance of a “rule.” National Ass'n of Home Builders v. US Army Corps of Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army Corps general permits under Section 404 of the CWA are rules under the APA and the Regulatory Flexibility Act; “Each NWP [nationwide permit] easily fits within the APA's definition `rule. * * * As such, each NWP constitutes a rule * * * ”).

As EPA stated in 1998, “the Agency recognizes that the question of the applicability of the APA, and thus the RFA, to the issuance of a general permit is a difficult one, given the fact that a large number of dischargers may choose to use the general permit.” 63 FR 36489, 36497 (July 6, 1998). At that time, EPA “reviewed its previous NPDES general permitting actions and related statements in the Federal Register or elsewhere,” and stated that “[t]his review suggests that the Agency has generally treated NPDES general permits effectively as rules, though at times it has given contrary indications as to whether these actions are rules or permits.” Id. at 36496. Based on EPA's further legal analysis of the issue, the Agency “concluded, as set forth in the proposal, that NPDES general permits are permits [i.e., adjudications] under the APA and thus not subject to APA rulemaking requirements or the RFA.” Id. Accordingly, the Agency stated that “the APA's rulemaking requirements are inapplicable to issuance of such permits,” and thus “NPDES permitting is not subject to the requirement to publish a general notice of proposed rulemaking under the APA or any other law * * * [and] it is not subject to the RFA.” Id. at 36497.

However, the Agency went on to explain that, even though EPA had concluded that it was not legally required to do so, the Agency would voluntarily perform the RFA's small-entity impact analysis. Id. EPA explained the strong public interest in the Agency following the RFA's requirements on a voluntary basis: “[The notice and comment] process also provides an opportunity for EPA to consider the potential impact of general permit terms on small entities and how to craft the permit to avoid any undue burden on small entities.” Id. Accordingly, with respect to the NPDES permit that EPA was addressing in that Federal Register notice, EPA stated that “the Agency has considered and addressed the potential impact of the general permit on small entities in a manner that would meet the requirements of the RFA if it applied.” Id.

Subsequent to EPA's conclusion in 1998 that general permits are adjudications rather than rules, as noted above, the DC Circuit recently held that Nationwide general permits under section 404 are “rules” rather than “adjudications.” Thus, this legal question remains “a difficult one” (supra). However, EPA continues to believe that there is a strong public policy interest in EPA applying the RFA's framework and requirements to the Agency's evaluation and consideration of the nature and extent of any economic impacts that a CWA general permit could have on small entities (e.g., small businesses). In this regard, EPA believes that the Agency's evaluation of the potential economic impact that a general permit would have on small entities, consistent with the RFA framework discussed below, is relevant to, and an essential component of, the Agency's assessment of whether a CWA general permit would place requirements on dischargers that are appropriate and reasonable. Furthermore, EPA believes that the RFA's framework and requirements provide the Agency with the best approach for the Agency's evaluation of the economic impact of general permits on small entities. While using the RFA framework to inform its assessment of whether permit requirements are appropriate and reasonable, EPA will also continue to ensure that all permits satisfy the requirements of the CWA. Accordingly, EPA has committed to operate in accordance with the RFA's framework and requirements during the Agency's issuance of CWA general permits (in other words, the Agency has committed that it will apply the RFA in its issuance of general permits as if those permits do qualify as “rules” that are subject to the RFA).

B. Application of RFA Framework to Proposed Issuance of CGP

EPA has concluded, consistent with the discussion in Section IV.A above, that the proposed issuance of the 2009 CGP could affect a handful of small entities. In the areas where the CGP is effective (see Section II.E), (those areas where EPA is the permit authority), a total of 27 construction projects were authorized under the 2004 CGP—some of these projects could have been operated by small entities. However, EPA has concluded that the proposed issuance of the 2009 CGP is unlikely to have an adverse economic impact on small entities. The draft 2009 CGP includes the same requirements as those of the national 2008 CGP issued by other EPA regions. Additionally, an operator's use of the CGP is volitional (i.e., a discharger could apply for an individual permit rather than for coverage under this general permit) and, given the more streamlined process for obtaining permit coverage, is less burdensome than an individual NPDES permit. EPA intends to include an updated economic screening analysis with the issuance of the next national CGP.

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Dated: April 28, 2009.

William L. Cox,

Acting Director, Water Protection Division, Region 4.