[Federal Register Volume 62, Number 105 (Monday, June 2, 1997)]
[Notices]
[Pages 29786-29825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14191]
[[Page 29785]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
Proposed Reissuance of NPDES General Permits for Storm Water Discharges
From Construction Activities; Notice Agency Information Collection
Activities: Notice
Federal Register / Vol. 62, No. 105 / Monday, June 2, 1997 /
Notices
[[Page 29786]]
ENVIRONMENTAL PROTECTION AGENCY
[FRL-5832-6]
Proposed Reissuance of NPDES General Permits for Storm Water
Discharges From Construction Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed NPDES general permits.
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SUMMARY: The Regional Administrators of Regions I, II, III, VI, VII,
VIII, IX, and X are today proposing to re-issue National Pollutant
Discharge Elimination System (NPDES) general permits for storm water
discharges associated with construction activity. EPA first issued
permits for these activities in September 1992. Almost all of these
existing permits expire in September 1997 and today's proposed permits
will be replacements. Today's permits are similar to the 1992 permits
and will authorize the discharge of storm water from construction
activities consistent with the terms and conditions of these permits.
ADDRESSES: The index to the administrative record for this permit is
available at the appropriate Regional Office or from the EPA Water
Docket in Washginton, DC. The complete administrative record is located
at the Water Docket, MC-4101, U.S. EPA, 401 M Street SW, Washington, DC
20460. Copies of information in the record are available upon request.
A reasonable fee may be charged for copying. Specific record
information can also be made available at the appropriate Regional
Office upon request.
FOR FURTHER INFORMATION CONTACT: For further information on the
proposed NPDES general permit write or telephone the EPA Regional Storm
Water Coordinators at the addresses listed in Part IV. J. of this Fact
Sheet.
PUBLIC COMMENT PERIOD: The public comment period for this proposed
permit will be from the date of publication until August 1, 1997. All
public comments shall be submitted to: ATTN: CBGP--Comments, W-97-01,
Water Docket MC-4101, U.S. EPA, Room 2616 Mall, 401 M Street SW.,
Washington, DC 20460
Please submit the original and three copies of your comments and
enclosures (including references). Comments must be received or post-
marked by midnight no later than August 1, 1997. To ensure that EPA can
read, understand and therefore properly respond to comments, the Agency
would prefer that commenters cite, where possible, the paragraph(s) or
sections in the notice or supporting documents to which each comment
refers. Commenters who want EPA to acknowledge receipt of their
comments should enclose a self-addressed stamped envelope. No
facsimiles (faxes) will be accepted. Comments may also be submitted
electronically to: ow-docket@epamail.epa.gov. Electronic comments must
be submitted as an ASCII file avoiding the use of special characters
and forms of encryption. Electronic comments must be identified by the
docket number W-97-01. No Confidential Business Information (CBI)
should be submitted through e-mail. Comments and data will also be
accepted on disks in WordPerfect 5.1 format or ASCII file format.
Electronic comments on this notice may be filed online at many Federal
Depository Libraries.
The record for these proposed permits has been established under
docket number W-97-01, and includes supporting documentation as well as
printed, paper versions of electronic comments. It does not include any
information claimed as CBI. The record is available for inspection from
9 am to 4 pm, Monday through Friday, excluding legal holidays, at the
Water Docket, Room M2616, Washington, DC 20460. For access to the
docket materials, please call (202) 260-3027 to schedule an
appointment.
Public Hearings
Public hearings will be held at the times and locations provided
below.
EPA Region 1:
Boston, Massachusetts
Date: Thursday, July 24, 1997.
Time: 6:00 pm-9:00 pm.
Place: John A. Volpe National Transportation Systems Center, 55
Broadway--Kendall Square, Cambridge, MA 02142.
Portland, Maine
Date: Tuesday, July 22, 1997.
Time: 2:00 pm-5:00 pm.
Place: Portland City Hall, 389 Congress Street, Room 208, Portland,
ME 04101.
Concord, New Hampshire
Date: Tuesday, July 1, 1997.
Time: 6:00 pm-9:00 pm.
Place: Department of Environmental Services, Auditorium, 6 Hazen
Drive, Concord, NH 03302.
EPA Region 6:
Public Meetings
Houston, TX: June 17, 1997, 1:00 pm, Howard Johnson/Hobby, 7777 Airport
Blvd., Houston, Texas.
Albuquerque, NM: June 20, 1997, 1:00 pm, University of New Mexico,
Student Union Grand Ballroom, Albuquerque, New Mexico.
Dallas, TX: July 10, 1997, 9:00 am, EPA Region 6 Offices, 12th Floor,
1445 Ross Ave., Dallas, Texas.
Public Hearing
Dallas, TX: July 10, 1997, 1:00 pm, EPA Region 6 Offices, 12th Floor,
1445 Ross Ave., Dallas, Texas.
The public meetings will include a presentation on the draft
permits and a question and answer session. Written, but not oral,
comments for the official permit record will be accepted at the public
meetings. The public hearing in Dallas covers all Region 6 draft
permits proposed today, will be conducted in accordance with 40 CFR
124.12, and provides interested parties with the opportunity to provide
written and/or oral comments for the official record.
EPA Region 9:
Date: July 24, 1997.
Time: 1-5 p.m.
Place: Arizona Department of Environmental Quality, Public Meeting
Room, 3033 North Central Ave., Phoenix, Arizona.
EPA Region 10:
Boise, Idaho
Date: Thursday, July 24, 1997.
Time: 6:00 pm-10:00 pm.
Place: Idaho Public Television Building, Telemedia Room (First
Floor), 1455 North Orchard, Boise, Idaho 83706
Seattle, Washington
Date: Tuesday, July 29, 1997.
Time: 6:00 pm-10:00 pm.
Place: Park Place Building, Denali/Kenai Room (14th Floor), 1200
6th Avenue, Seattle, Washington 98101
Anchorage, Alaska
Date: Thursday, July 31, 1997.
Time: 5:00 pm-9:00 pm.
Place: Federal Building/United States Court House, Room 135, 222
West 7th Avenue, Anchorage, Alaska 99513
SUPPLEMENTARY INFORMATION:
Contents
I. Introduction
II. Coverage of General Permits
III. Summary of Options for Controlling Pollutants
IV. Summary of Permit Conditions
A. Eligibility
B. Limitations on Coverage
C. Obtaining Coverage
D. Terminating Coverage
E. Notice of Intent Requirements
1. Deadlines for Submitting NOIs
2. Contents of the NOI
[[Page 29787]]
3. Where to Submit
4. Additional Notification
F. Special Conditions, Management Practices and Other Non-
Numeric Limitations
1. Prohibitions on Non-storm Water Discharges
2. Releases of Reportable Quantities of Hazardous Substances or
Oil
3. Compliance with Water Quality Standards
4. Operator Responsibility
G. Pollution Prevention Plan Requirements
1. Deadline for Plan Preparation
2. Signature and Plan Review
3. Making Plans Available
4. Keeping Plans Current
5. Contents of the Plan
a. Site Description
b. Controls to Reduce Pollutants
c. Maintenance
d. Inspections
e. Non-Storm Water Discharges
6. Additional Requirements
7. Contractors/Subcontractors
H. Retention of Records
I. Notice of Termination Requirements
J. Regional Offices
V. Cost Estimates
VI. Economic Impact (Executive Order 12866)
VII. Unfunded Mandates Reform Act
VIII. Paperwork Reduction Act
IX. Section 401/Coastal Zone Management Act Certification
X. Regulatory Flexibility Act
XI. Official Signatures
Part I--Introduction
The Regional Administrators of the United States Environmental
Protection Agency (EPA) are proposing to re-issue general permits to
authorize storm water discharges associated with construction activity
disturbing five or greater acres. EPA is expanding coverage in this
proposal to also provide for coverage for construction sites of under
five acres of disturbed land where designated by the Director for
coverage under 40 CFR 122.26(a)(1)(v) or 122.26(a)(9) and
122.26(g)(1)(i). These proposed permits will take the place of the
existing construction storm water general permits, which in almost all
cases were issued for five year terms in September 1992 and expire in
September 1997.
These proposed new permits are similar to the existing permit, with
several changes. The most significant changes include expanded
conditions to protect endangered and threatened species; new conditions
to protect historic properties; a new requirement to post a copy of the
permit coverage confirmation and a brief description of the project;
provide for public access to copies of a pollution prevention plan on
the site, or in another nearby location where it can be viewed by the
public, if they request; terms for construction activities
transitioning from the existing permit; clarification of who must be a
permittee and their requirements; a streamlined permitting option for
utility companies; the requirement to submit a notice of permit
termination when construction is completed; the ability to acquire
permit coverage for other construction dedicated industrial activities
(e.g. concrete batching plant) under this one permit; and pollution
prevention plan performance objectives.
Point source discharges of storm water associated with industrial
activity are prohibited unless authorized under a National Pollutant
Discharge Elimination System (NPDES) permit by the Clean Water Act. In
1990, EPA promulgated the storm water permit application rule (55 FR
47990), as revised, which defined what types of industrial activity are
subject to this requirement. EPA defined storm water discharges
associated with industrial activity to include construction activity
disturbing five or more acres of land. EPA issued the first general
permits to cover construction activities in September 1992. These
proposed general permits for storm water discharges associated with
construction activity will be issued with distinctly different permit
numbers in the following areas:
Region 1: The Commonwealth of Massachusetts, the States of Maine
and New Hampshire, and Indian Country lands in the Commonwealth of
Massachusetts, the States of Maine, New Hampshire, Rhode Island, and
Connecticut; and Indian Country lands and Federal facilities in
Vermont.
Region 2: The Commonwealth of Puerto Rico and Indian Country lands
in the State of New York.
Region 3: District of Columbia; Federal facilities in the State of
Delaware.
Region 6: The States of New Mexico and Texas; Indian Country lands
in Louisiana, Oklahoma and Texas; New Mexico (except Navajo Reservation
lands (see Region 9) and Ute Mountain Ute Reservation lands (see Region
8)).
Region 7: Indian Country lands in Iowa, Kansas and Nebraska,
(except Pine Ridge Reservation lands (see Region 8)).
Region 8: Federal facilities in Colorado and Indian Country lands
in Colorado (including the portion of the Ute Mountain Ute Reservation
located in New Mexico); Indian Country lands in Montana; Indian Country
lands in North Dakota (including that portion of the Standing Rock
Reservation located in South Dakota--except for the Lake Traverse
Reservation which is covered under the permit for areas of South
Dakota); Indian Country lands in South Dakota (including the portion of
the Pine Ridge Reservation located in Nebraska and the portion of the
Lake Traverse Reservation located in North Dakota--except for the
Standing Rock Reservation which is covered under the permit for areas
of North Dakota); Indian County lands in Utah (except Goshute and
Navajo Reservation lands (see Region 9)) and Indian Country lands in
Wyoming.
Region 9: The Island of American Samoa, the State of Arizona, the
Island of Guam, Johnston Atoll, Midway Island and Wake Island,
Commonwealth of the Northern Mariana Islands; and Indian Country lands
in the State of Arizona (including Navajo Reservation lands in New
Mexico and Utah), the State of California, and the State of Nevada
(including the Duck Valley Reservation in Idaho, the Fort McDermitt
Reservation in Oregon and the Goshute Reservation in Utah).
Region 10: The States of Idaho and Alaska; Indian Country lands in
Idaho (except Duck Valley Reservation (see Region 9)), Alaska,
Washington, and Oregon (except see Region 9 for Fort McDermitt
Reservation); and Federal facilities in Washington.
Part II--Coverage of General Permits
Section 402(p) of the Clean Water Act (CWA) states that storm water
discharges associated with industrial activity to waters of the United
States must be authorized by an NPDES permit. On November 16, 1990, EPA
published regulations under the NPDES program which defined the term
``storm water discharge associated with industrial activity''. Included
in this definition are storm water discharges from construction
activities (including clearing, grading, and excavation activities)
that result in the disturbance of five or more acres of total land
area, including smaller areas that are part of a larger common plan of
development or sale (40 CFR 122.26(b)(14)(x)).1 These types
of construction activity are commonly referred to as Phase I
construction activities. The term ``storm water discharge from
construction activities'' will be used in this document to refer to the
variety of storm water discharges from Phase I construction sites that
are related to actions commonly occurring on, or in
[[Page 29788]]
support of, construction, including those that meet the definition of a
storm water discharge associated with industrial activity or those that
are designated under the designation provisions of 40 CFR 122.26.
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\1\ On June 4, 1992, the United States Court of Appeals for the
Ninth Circuit remanded the exemption for construction sites of less
than five acres to the EPA for further rulemaking (Natural Resources
Defense Council v. EPA, Nos. 90-70671 and 91-70200, slip op. at 6217
(9th Cir. June 4, 1992). Until a new rule is promulgated to address
sites of under five acres, EPA will continue to require NPDES
permits for storm water discharges from construction activities of
five or more acres.
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The previous permit may have created some confusion as to
eligibility for operators of sites disturbing less than five acres that
are part of a larger common plan of development or sale. EPA is
clarifying in today's proposed permit, that all construction activity
regulated under 40 CFR 122.26(b)(14)(x) is eligible for coverage under
this permit including small construction sites disturbing less than
five acres that are a part of a larger common plan of development of
which disturbance cumulatively exceeds five acres. These are also Phase
I construction activities.
EPA further clarifies that singular construction sites with
disturbances of less than five acres are not eligible for coverage
under this permit unless they are specifically designated for coverage
under 40 CFR 122.26 (a)(1)(v) or under 122.26(a)(9) and
122.26(g)(1)(i). Under EPA's existing regulations, these facilities are
required to submit permit applications not later than August 7, 2001,
unless an applicant is specifically required by the Director to submit
an application before that time. These small (Phase II) construction
sites will be addressed by EPA in future rulemaking in response to the
Ninth Circuit decision. EPA is employing the assistance of a Federal
Advisory Committee to make recommendations on how best to deal with
such sites. EPA will publish a proposed rule addressing these Phase II
small construction activities by September 1, 1997 and will finalize
this rule by March 1, 1999. As a result of this effort, if singular
construction sites of less than five acres are regulated under the
NPDES Phase II storm water permitting program, permits for those sites
will be issued at a future date.
EPA issued the first round of Phase I construction general permits
on two dates; September 9, 1992 for certain States and territories and
on September 25, 1992 for the remaining States and territories where
EPA is the permitting authority. Today's proposed permit is the second
round permit for use in the States, Territories and Indian Country
lands where EPA is the NPDES permitting authority. In this second round
permit, EPA is expanding permit coverage to certain Indian Country
lands which were not covered under the 1992 permit. These new areas are
listed in the areas of coverage section of the proposed permit and this
fact sheet.
All Phase I construction activity operators in EPA Region IV should
take note, that different from the 1992 permit, this second round
permit no longer authorizes discharges from construction activities in
Indian Country lands located in Florida, Mississippi or North Carolina.
EPA Region IV is preparing a separate second round permit for use in
all Region IV areas where EPA is the NPDES permitting authority. This
permit was separately noticed in the Federal Register on April 16, 1997
(Volume 62, Number 73, pages 18605-18628) for storm water discharges in
Florida.
EPA intends to issue this second round construction storm water
general permit prior to expiration of the existing 1992 permit which
expires on September 9, 1997 for most locations where EPA is the
permitting authority and on September 25, 1997 for the other areas. EPA
intends to make every effort to issue this permit prior to the
expiration date of the existing permits. However, if this does not
occur, under the Administrative Procedures Act (APA), when EPA is the
permit issuing authority, the conditions in an expired permit remain in
force until the effective date of the new permit, provided the
applicant submits a timely application (40 CFR 122.6, 48 FR 14158
(April 1, 1983)).
EPA is proposing that construction projects currently authorized to
discharge under the 1992 construction general permit, submit a new
notice of intent (NOI) for continued coverage under the APA extended
permit, should they need continuing permit coverage past the expiration
date. If a project is scheduled to begin near the time of permit
expiration and EPA has yet to issue the new permit, EPA recommends that
the operator submit an NOI further in advance of the start of the
project than the minimum 48 hours and prior to expiration of the
existing permit.
Upon issuance of the new permit, operators as defined in this
proposed permit, must submit an NOI in accordance with the requirements
of the permit. The proposed permit proposes the use of a revised NOI
form. This new general permit would authorize storm water discharges
from existing construction sites and new construction sites over the
five year term of issuance. To obtain authorization under today's
permit, a discharger must submit a complete and accurate NOI and comply
with the terms of the permit. The terms of the permit, including the
requirements for submitting an NOI, are discussed in more detail below.
The following discharges are not authorized by this proposed
general permit:
Storm water discharges associated with industrial activity
that originate from the site after construction activities have been
completed and the site has undergone final stabilization;
Non-storm water discharges (except certain non-storm water
discharges specifically listed in today's general permit). However,
today's permit can authorize storm water discharges from construction
activities where the discharges are mixed with non-storm water
discharges that are authorized by a different NPDES permit;
Storm water discharges from construction activities that
are covered by an existing NPDES individual or general permit. However,
storm water discharges associated with industrial activity from a
construction site that are authorized by an existing permit may be
authorized by today's general permit after the existing permit expires,
provided the expired permit did not establish numeric limitations for
the storm water discharges;
Storm water discharges from construction activities that
the Director has determined to be or may reasonably be expected to be
contributing to a violation of a water quality standard;
Storm water discharges from construction activity and the
construction and implementation of Best Management Practices (BMPs) to
control storm water runoff, if the discharges are likely to adversely
affect a listed endangered or threatened species or its critical
habitat (unless in compliance with specific Endangered Species Act
(ESA) related permit conditions in this permit); and
Storm water discharges from construction activities, and
the construction and implementation of Best Management Practices (BMPs)
to control storm water runoff, if the discharges are not in compliance
with the National Historic Preservation Act (NHPA).
Part III--Summary of Options for Controlling Pollutants
EPA is providing the following summary information on controlling
pollutants in storm water discharges in order to assist permittees in
preparing storm water pollution prevention plans. Most controls for
construction activities can be categorized into two groups:
Sediment and erosion controls; and
Storm water management measures.
Sediment and erosion controls generally address pollutants in storm
water generated from the site during the time when construction
activities are
[[Page 29789]]
occurring. Storm water management measures generally are installed
during and before competition of the construction process, but
primarily result in reductions of pollutants in storm water discharged
from the site after the construction has been completed. Additional
measures include housekeeping best management practices.
A. Sediment and Erosion Controls
Erosion controls provide the first line of defense in preventing
offsite sediment movement and are designed to prevent erosion through
protection and preservation of soils. Sediment controls are designed to
remove sediment from runoff before the runoff is discharged from the
site. Sediment and erosion controls can be further divided into two
major classes of controls: stabilization practices and structural
practices. Major types of sediment and erosion practices are summarized
below. A more complete description of these practices is given in
``Storm Water Management for Construction Activities: Developing
Pollution Prevention Plans and Best Management Practices,'' U.S. EPA,
1992.
1. Sediment and Erosion Controls: Stabilization Practices
Stabilization, as discussed here, refers to covering or maintaining
an existing cover over soils. The cover may be vegetation, such as
grass, trees, vines, or shrubs. Stabilization measures can also include
nonvegetative controls such as geotextiles, riprap, or gabions (wire
mesh boxes filed with rock). Mulches, such as straw or bark, are most
effective when used in conjunction with establishing vegetation, but
can be used without vegetation. Stabilization of exposed and denuded
soils is one of the most important factors in minimizing erosion while
construction activities occur. A vegetation cover reduces the erosion
potential of a site by absorbing the kinetic energy of raindrops that
would otherwise disturb unprotected soil; intercepting water so that it
infiltrates into the ground instead of running off the surface; and
slowing the velocity of runoff, thereby promoting deposition of
sediment in the runoff. Stabilization measures are often the most
important measures taken to prevent offsite sediment movement and can
provide large reductions suspended sediment levels in discharges and
receiving waters.2 Examples of stabilization measures are
summarized below.
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\2\ ``Performance of Current Sediment Control Measures at
Maryland Construction Sites,'' January 1990, Metropolitan Washington
Council of Governments.
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a. Temporary Seeding. Temporary seeding provides for temporary
stabilization by establishing vegetation at areas of the site where
activities will temporarily cease until later in the construction
project. Without temporary stabilization, soils at these areas are
exposed to precipitation for an extended time period, even though work
is not occurring on these areas. Temporary seeding practices have been
found to be up to 95 percent effective in reducing erosion.3
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\3\ ``Guides for Erosion and Sediment Control in California,''
USDA, Soil Conservation Service, Davis CA, Revised 1985.
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b. Permanent Seeding. Permanent seeding involves establishing a
sustainable ground cover at a site. Permanent seeding stabilizes the
soil to reduce sediment in runoff from the site by controlling erosion
and is typically required at most sites for aesthetic reasons.
c. Mulching. Mulching is typically conducted as part of permanent
and temporary seeding practices. Where temporary and permanent seeding
is not feasible, exposed soils can be stabilized by applying plant
residues or other suitable materials to the soil surface. Although
generally not as effective as seeding practices, mulching by itself,
does provide some erosion control. Mulching in conjunction with seeding
provides erosion protection prior to the onset of vegetation growth. In
addition, mulching protects seeding activities, providing a higher
likelihood of successful establishment of vegetation. To maintain
optimum effectiveness, mulches must be anchored to resist wind
displacement.
d. Sod Stabilization. Sod stabilization involves establishing long-
term stands of grass with sod on exposed surfaces. When installed and
maintained properly, sodding can be more than 99 percent effective in
reducing erosion,4 making it the most effective vegetation
practice available. The cost of sod stabilization (relative to other
vegetative controls) typically limits its use to exposed soils where a
quick vegetative cover is desired and sites which can be maintained
with ground equipment. In addition, sod is sensitive to climate and may
require intensive watering and fertilization.
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\4\ ``Guides for Erosion and Sediment Control in California,''
USDA--Soil Conservation Service, Davis CA, Revised 1985.
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e. Vegetative Buffer Strips. Vegetative buffer strips are preserved
or planted strips of vegetation at the top and bottom of a slope,
outlining property boundaries, or adjacent to receiving waters such as
streams or wetlands. Vegetative buffer strips can slow runoff flows at
critical areas, decreasing erosion and allowing sediment deposition.
f. Protection of Trees. This practice involves preserving and
protecting selected trees that exist on the site prior to development.
Mature trees provide extensive canopy and root systems which help to
hold soil in place. Shade trees also keep soil from drying rapidly and
becoming susceptible to erosion. Measures taken to protect trees can
vary significantly, from simple measures such as installing tree
fencing around the drip line and installing tree armoring, to more
complex measures such as building retaining walls and tree wells.
2. Sediment and Erosion Controls: Structural Practices
Structural practices involve the installation of devices to divert
flow, store flow, or limit runoff. Structural practices have several
objectives. First, structural practices can be designed to prevent
water from crossing disturbed areas where sediment may be removed. This
involves diverting runoff from undisturbed up slope areas through use
of earth dikes, temporary swales, perimeter dike/swales, or diversions
to stable areas. A second objective of structural practices can be to
remove sediment from site runoff before the runoff leaves the site.
Approaches to removing sediment from site runoff include diverting
flows to a trapping or storage device or filtering diffuse flow through
silt fences before it leaves the site. All structural practices require
proper maintenance (removal of sediment) to remain functional.
a. Earth Dike. Earth dikes are temporary berms or ridges of
compacted soil that channel water to a desired location. Earth dikes
should be stabilized with vegetation.
b. Silt Fence. Silt fences are a barrier of geotextile fabric
(filter cloth) used to intercept sediment in diffuse runoff. They must
be carefully maintained to ensure structural stability and to remove
excess sediment.
c. Drainage Swales. A drainage swale is a drainage channel lined
with grass, riprap, asphalt, concrete, or other materials. Drainage
swales are installed to convey runoff without causing erosion.
d. Sediment Traps. Sediment traps can be installed in a drainage
way, at a storm drain inlet, or other points of discharge from a
disturbed area.
e. Check Dams. Check dams are small temporary dams constructed
across a swale or drainage ditch to reduce the
[[Page 29790]]
velocity of runoff flows, thereby reducing erosion of the swale or
ditch. Check dams should not be used in a live stream. Check dams
reduce the need for more stringent erosion control practices in the
swale due to the decreased velocity and energy of runoff.
f. Level Spreader. Level spreaders are outlets for dikes and
diversions consisting of an excavated depression constructed at zero
grade across a slope. Level spreaders convert concentrated runoff into
diffuse runoff and release it onto areas stabilized by existing
vegetation.
g. Subsurface Drain. Subsurface drains transport water to an area
where the water can be managed effectively. Drains can be made of tile,
pipe, or tubing.
h. Pipe Slope Drain. A pipe slope drain is a temporary structure
placed from the top of a slope to the bottom of a slope to convey
surface runoff down slopes without causing erosion.
i. Temporary Storm Drain Diversion. Temporary storm drain
diversions are used to re-direct flow in a storm drain to discharge
into a sediment trapping device.
j. Storm Drain Inlet Protection. Storm drain inlet protection can
be provided by a sediment filter or an excavated impounding area around
a storm drain inlet. These devices prevent sediment from entering storm
drainage systems prior to permanent stabilization of the disturbed
area.
k. Rock Outlet Protection. Rock protection placed at the outlet end
of culverts or channels can reduce the depth, velocity, and energy of
water so that the flow will not erode the receiving downstream reach.
l. Other Controls. Other controls include temporary sediment
basins, sump pits, entrance stabilization measures, waterway crossings,
and wind breaks.
B. Storm Water Management Measures
Storm water management measures are installed during and prior to
completion of the construction process, but primarily result in
reductions of pollutants in storm water discharged from the site after
the construction has been completed. Construction activities often
result in significant changes in land use. Such changes typically
involve an increase in the overall imperviousness of the site, which
can result in dramatic changes to the runoff patterns of a site. As the
amount within a drainage area increases, the amount of pollutants
carried by the runoff increases. In addition, activities such as
automobile travel on roads can result in higher pollutant
concentrations in runoff compared to preconstruction levels.
Traditional storm water management controls attempt to limit the
increases in the amount of runoff and the amount of pollutants
discharged from a site associated with the change in land use.
Major classes of storm water management measures include
infiltration of runoff onsite; flow attenuation by vegetation or
natural depressions; outfall velocity dissipation devices; storm water
retention structures and artificial wetlands; and storm water detention
structures. For many sites, a combination of these controls may be
appropriate. A summary of storm water management controls is provided
below. A more complete description of storm water management controls
is found in ``Storm Water Management for Construction Activities:
Developing Pollution Prevention Plans and Best Management Practices,''
U.S. EPA, 1992, and ``A Current Assessment of Urban Best Management
Practices,'' Metropolitan Washington Council of Governments, March
1992.
1. Onsite Infiltration
A variety of infiltration technologies, including infiltration
trenches and infiltration basins, can reduce the volume and pollutant
loadings of storm water discharges from a site. Infiltration devices
tend to mitigate changes to predevelopment hydrologic conditions.
Properly designed and installed infiltration devices can reduce peak
discharges, provide ground water recharge, augment low flow conditions
of receiving streams, reduce storm water discharge volumes and
pollutant loads, and protect downstream channels from erosion.
Infiltration devices are a feasible option where soils are permeable
and the water table and bedrock are well below the surface.
Infiltration basins can also be used as sediment basins during
construction 5. Infiltration trenches can be more easily
placed into under-utilized areas of a development and can be used for
small sites and infill developments. However, trenches may require
regular maintenance to prevent clogs, particularly where grass inlets
or other pollutant removing inlets are not used. In some situations,
such as low density areas of parking lots, porous pavement can provide
for infiltration.
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\5\ ``Controlling Urban Runoff: A Practical Manual for Planning
and Designing Urban BMPs,'' July, 1987, Metropolitan Washington
Council of Governments.
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2. Flow Attenuation by Vegetation or Natural Depressions
Flow attenuation provided by vegetation or natural depressions can
provide pollutant removal and infiltration and can lower the erosive
potential of flows 6. In addition, these practices can
enhance habitat values and the appearance of a site. Vegetative flow
attenuation devices include grass swales and filter strips as well as
trees that are either preserved or planted during construction.
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\6\ ``Urban Targeting and BMP Selection,'' United States EPA,
Region V, November 1990.
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Typically the costs of vegetative controls are less than other
storm water practices. The use of check dams incorporated into flow
paths can provide additional infiltration and flow
attenuation.7 Given the limited capacity to accept large
volumes of runoff, and potential erosion problems associated with large
concentrated flows, vegetative controls should usually be used in
combination with other storm water devices.
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\7\ ``Standards and Specifications for Infiltration Practices,''
1984, Maryland Water Resources Administration.
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Grass swales are typically used in areas such as low or medium
density residential development and highway medians as an alternative
to curb and gutter drainage systems.8.
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\8\ ``Controlling Urban Runoff: A Practical Manual for Planning
and Designing Urban BMPs,'' Metropolitan Washington Council of
Governments, July 1987.
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3. Outfall Velocity Dissipation Devices
Outfall velocity dissipation devices include riprap and stone or
concrete flow spreaders. Outfall velocity dissipation devices slow the
flow of water discharged from a site to lessen erosion caused by the
discharge.
4. Retention Structures/Artificial Wetlands
Retention structures include ponds and artificial wetlands that are
designed to maintain a permanent pool of water. Properly installed and
maintained retention structures (also known as wet ponds) and
artificial wetlands 9 can achieve a high removal rate of
sediment, BOD, organic nutrients and metals, and are most cost-
effective when used to control runoff from larger, intensively
developed sites.10 These devices rely on settling and
biological processes to
[[Page 29791]]
remove pollutants. Retention ponds and artificial wetlands can also
create wildlife habitat, recreation, and landscape amenities, as well
as corresponding higher property values.
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\9\ See ``Wetland basins for Storm Water Treatment: Discussion
and Background,'' Maryland Sediment and Storm Water Division, 1987
and ``The Use of Wetlands for Controlling Stormwater Pollution,''
Strecker, E., et. al., 1990.
\10\ ``Controlling Urban Runoff, A Practical Manual for Planning
and Designing Urban BMPs,'' Metropolitan Washington Council of
Governments, 1987.
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5. Water Quality Detention Structures
Storm water detention structures include extended detention ponds,
which control the rate at which the pond drains after a storm event.
Extended detention ponds are usually designed to completely drain in
about 24 to 40 hours, and will remain dry at other times. They can
provide pollutant removal efficiencies that are similar to those of
retention ponds.11 Extended detention systems are typically
designed to provide both water quality and water quantity (flood
control) benefits.
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\11\ ``Urban Targeting and BMP Selection,'' United States EPA,
Region V, November 1990.
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C. Housekeeping BMPs
Pollutants that may enter storm water from construction sites
because of poor housekeeping include oils, grease, paints, gasoline,
concrete truck wash down, raw materials used in the manufacture of
concrete (e.g., sand, aggregate, and cement), solvents, litter, debris,
and sanitary wastes. Construction site management plans can address the
following to prevent the discharge of these pollutants:
Designate areas for equipment maintenance and repair;
Provide waste receptacles at convenient locations and
provide regular collection of wastes;
Locate equipment wash down areas on site, and provide
appropriate control of washwaters;
Provide protected storage areas for chemicals, paints,
solvents, fertilizers, and other potentially toxic materials; and
Provide adequately maintained sanitary facilities.
Part IV--Summary of Permit Conditions
A. Eligibility
These proposed permits would authorize all discharges of storm
water from construction activities, except those discussed under the
Limitations on Coverage section. Any discharge authorized by a
different NPDES permit may be commingled with discharges authorized by
this permit. The proposed permit would also authorize discharges from
support activities which are related to the construction project (e.g.,
concrete or asphalt batch plants, equipment staging yards, material
storage areas, etc.) provided that the support activities meet the
following conditions:
The support activity is not a commercial operation serving
multiple unrelated construction projects and does not operate beyond
the completion of the construction project; and
Appropriate controls and measures are identified in the
storm water pollution prevention plan for the discharges from the
support activity areas.
B. Limitations on Coverage
The following storm water discharges from construction sites are
not authorized by this permit:
1. Storm water discharges which originate from the site after the
construction activities have been completed and the site has undergone
final stabilization
2. Storm water discharges which are mixed with non storm water
sources other than those identified and in compliance with the permit.
Non storm water discharges which are authorized under a different NPDES
permit may be commingled with discharges authorized under this permit.
3. Storm water discharges associated with construction activity
that have been issued an individual permit or required to obtain
coverage under an alternative general permit are not covered under this
permit.
4. Storm water discharges which the Director (EPA) has determined
to be or may reasonable be expect to be contributing to a violation of
water quality standards are not covered by this permit.
5. Discharges which are not in compliance with the Endangered
Species Act (ESA). In order to obtain coverage, the applicant must
certify to meeting one of the criteria detailed in the permit. The
criteria are as follows: (a) The storm water discharge(s), and the
construction and implementation of Best Management Practices (BMPs) to
control storm water runoff, are not likely to adversely affect species
identified in Addendum A 12 of this permit or critical
habitat for a listed species; or (b) the applicant's activity has
received previous authorization under section 7 or section 10 of the
Endangered Species Act and that authorization addressed storm water
discharges and/or BMPs to control storm water runoff (e.g., developer
included impact of entire project in consultation over a wetlands
dredge and fill permit under Section 7 of the Endangered Species Act);
or (c) the applicant's activity was considered as part of a larger,
more comprehensive assessment of impacts on endangered and threatened
species under section 7 or section 10 of the Endangered Species Act
that which accounts for storm water discharges and BMPs to control
storm water runoff (e.g., where an area-wide habitat conservation plan
and section 10 permit is issued which addresses impacts from
construction activities including those from storm water, or a National
Environmental Policy Act (NEPA) review is conducted which incorporates
ESA section 7 procedures); or (d) consultation under section 7 of the
Endangered Species Act is conducted for the applicant's activity which
results in either a no jeopardy opinion or a written concurrence on a
finding of no likelihood of adverse effects; or (e) the applicant's
activity was considered as part of a larger, more comprehensive site-
specific assessment of impacts on endangered and threatened species by
the owner or other operator of the site and that permittee certified
eligibility under item (a), (b), (c), or (d) above (e.g., owner was
able to certify no adverse impacts for the project as a whole under
item (a), so the contractor can then certify under item (e)). Utility
companies applying for permit coverage for the entire permit area of
coverage as defined under Part I.A. may certify under item (e) since
authorization to discharge is contingent on a principal operator of a
construction project having been granted coverage under this, or an
alternative NPDES permit for the areas of the site where utilities
installation activities will occur.
---------------------------------------------------------------------------
\12\ Proposed Addendum A is a State/County listing of endangered
species that applicants can refer to to ensure compliance with the
eligibility terms and conditions of the proposed permit. Addendum A
is not included in this notice, but can be found as Addendum H to
the Multi-Sector Storm Water General Permit issued on September 29,
1995 (60 FR 50804). EPA will prepare a final Addendum A to accompany
the issuance of the final permit after the public comment period.
Reviewers wishing to make comment on Addendum A for today's proposed
permit may do so by reviewing Addendum H in the Multi-Sector Permit.
---------------------------------------------------------------------------
EPA notes that it is requiring all applicants to follow directions
provided in Addendum A to ensure protection of listed species and
critical habitat when applying for permit coverage. Those directions
require that applicants assess the impacts of their ``storm water
discharges'' and ``BMPs to control storm water run off'' on listed
species and critical habitat that are located ``in proximity'' to the
those discharges and BMPs. In proximity is defined at Addendum A to
include species: located in the path or immediate area through which or
over which contaminated point source storm water
[[Page 29792]]
flows from construction activities to the point of discharge into the
receiving water; located in the immediate vicinity of, or nearby, the
point of discharge into receiving waters; or located in the area of a
site where storm water BMPs are planned or are to be constructed. This
definition reflects the purpose of this permit which regulates storm
water discharges and measures (i.e., BMPs) to control those discharges.
However, EPA also solicits comment on whether the area or scope of
impacts to be considered by applicants should be broadened to encompass
listed species found on the entire construction site and not just those
species found ``in proximity'' as currently defined in Addendum A.
6. Storm water discharges adversely affecting properties eligible
for protection under the National Historic Preservation Act. To be
eligible for coverage under this permit, all applicants must determine
whether their storm water discharges or BMPs to control storm water
runoff would affect a property that is listed or is eligible for
listing in the National Historic Register maintained by the Secretary
of Interior (also known as ``historic properties'' in the NHPA
regulations at 36 CFR 800.2). Applicants must comply with all
requirements in this permit (including those pertaining to the
development of storm water pollution prevention plans and submission of
NOIs) to protect historic properties. Coverage under this permit is
available only if (a) the storm water discharges or BMPs to control
storm water run off do not affect a property that is listed or is
eligible for listing in the National Historic Register maintained be
the Secretary of Interior; or, (b) the applicant consults with the
State Historic Preservation Officer (SHPO) or the Tribal Historic
Preservation Officer (THPO) on the potential for adverse effects which
results in a no effect finding; or (c) the applicant has obtained and
is in compliance with a written agreement between the applicant and the
SHPO/THPO that outlines all measures to be undertaken by the applicant
to mitigate or prevent adverse effects to the historic property; or (d)
the applicant agrees to implement and comply with the terms of a
written agreement between another owner/operator (e.g., subdivision
developer, property owner, etc.) and the SHPO/THPO that outlines all
measures to be undertaken by operators on the site to mitigate or
prevent adverse effects to the historic property; or (e) the
applicant's activity was considered as part of a larger, more
comprehensive site-specific assessment of effects on historic
properties by the owner or other operator of the site and that
permittee certified eligibility under items (a), (b), (c), or (d)
above. Utility companies applying for permit coverage for the entire
construction site may certify under item (d) since authorization to
discharge is contingent on a principal operator of a construction
project having been granted coverage under this, or an alternative
NPDES permit for the areas of the site where utilities installation
activities will occur.
This permit does not authorize any storm water discharges or BMPs
to control storm water runoff which are not in compliance with any
applicable State or local historic preservation laws.
C. Obtaining Coverage
Dischargers who submit a complete and accurate NOI in accordance
with the requirements of this permit are authorized to discharge storm
water from construction sites under the terms and conditions of this
permit. As proposed, authorization to discharge occurs two days after
the date that the NOI is postmarked, unless otherwise notified by EPA.
Dischargers must have developed and be ready to implement a Storm Water
Pollution Prevention Plan (SWPPP) for the areas of the construction
project for which they are responsible prior to submission of the NOI.
A new NOI must be filed by the new operator when an operator changes or
when a new operator is added.
The Agency requests comment on an alternative time frame for NOI
submittal. EPA solicits comments on requiring a 30-day advance time
frame in which to submit a notice of intent. EPA believes this
additional time would allow for a more timely administrative processing
of each NOI and allow EPA time to acknowledge coverage and assign a
permit number to the permittee prior to work actually commencing on the
site. In addition, the 30-day advance notice period may allow EPA more
time to review potential impacts of construction activities on
endangered species and historic properties. Comments on this option
should be submitted during the public review and comment period
described above.
EPA may deny coverage under this permit and require submittal of an
individual NPDES permit application based on a review of the
completeness and/or content of the NOI or other information (e.g.,
water quality information, compliance history, etc.). Where EPA
requires a discharger authorized under the general permit to apply for
an individual NPDES permit or an alternative general permit, EPA will
notify the discharger in writing that a permit application is required.
Coverage under this general permit will automatically terminate if the
discharger fails to submit the required individual or alternative
permit application in a timely manner. Where the discharger does submit
a requested permit application, coverage under this general permit will
automatically terminate on the effective date of the issuance or denial
of the individual NPDES permit or the alternative general permit as it
applies to the individual permittee.
D. Terminating Coverage
Operators needing to terminate coverage must submit a Notice of
Termination (NOT). Permittees must submit the NOT within 30 days after
completion of their construction activities and final stabilization of
their portion of the site. An NOT must also be submitted by the first
operator when another operator takes over the responsibilities of a
previous operator. Notice of Termination requirements are discussed
later in this fact sheet. When a utility company is covered by an area
wide permit for installation of services, it is not required to submit
NOTs for each project.
E. Notice of Intent Requirements
NPDES general permits for storm water discharges associated with
industrial activity require that dischargers submit a Notice of Intent
(NOI) to be covered by the permit prior to the authorization of their
discharges under such permit (see 40 CFR 122.28(b)(2), (April 2, 1992,
(57 FR 11394)). Consistent with these regulatory requirements, today's
permit establishes NOI requirements. Dischargers that submit a complete
and accurate NOI are not required to submit an individual permit
application for such discharge, unless the Director specifically
notifies the discharger that an individual permit application must be
submitted.
Dischargers who want to obtain coverage under this permit must
submit an NOI using the form provided by EPA (or a photocopy thereof).
Proposed NOI forms are in Addendum C of the proposed permit. Each
entity which meets either of the two criteria in Part IX (Definitions)
of the permit for an ``operator'' must submit an NOI. An ``operator''
is any party associated with a construction project which has
operational control over project specifications (including the ability
to make modifications in specifications) or has day-to-day operational
control of those activities at a project site which are necessary to
ensure compliance with the permit. The criteria for an operator
[[Page 29793]]
in the permit are the same as EPA intended for the existing permits.
However, a definition for the term operator has been added to the
permit for clarification.
The rationale for the criteria for an operator was discussed in
Appendix A--Summary of Responses to Public Comment which accompanied
the issuance of the expiring permit (September 9, 1992, (57 FR 41190)).
To ensure effective implementation of the requirements of the permit,
the permit must directly regulate each entity with control over the
critical functions identified above in the definition of an operator.
Control over project specifications is necessary to ensure that a
project design includes appropriate sediment and erosion control
measures and post construction storm water management measures. Day to
day operational control is necessary to ensure effective implementation
of permit requirements at a project site.
The entities who are considered operators will commonly consist of
the owner or developer of a project (the party with control of project
specifications) and the general contractor (the party with day to day
operational control of the activities at project site which are
necessary to ensure compliance with the permit). Contractors and
subcontractors who are under the general supervision of the general
contractor are not considered operators and would not need to submit
NOIs. However, they must certify that they understand the terms and
conditions of the proposed permit in accordance with Part IV. E of the
permit.
Utility companies (e.g., telephone, electric, gas, cable TV, etc.)
are a special class of operator. They typically disturb only a very
small portion of the construction site during installation of above
ground or underground utility lines. Main service lines are typically
installed before construction of buildings, with stubs left for later
connections to individual houses or buildings as they are completed.
All this utility installation is typically done by utility company
personnel or contractors hired directly by the utility company. All
installation is typically completed long before final site
stabilization is even possible, so utility companies will seldom, if
ever, have responsibility for final stabilization (except for areas
disturbed by utility companies only during the construction process).
While the owner of the project specifies what level of service is
desired and safety codes dictate minimum specifications (e.g., size and
type of electric wire, depth of trenches, etc.), the utility company
retains the ultimate decision on specifications (e.g., could choose to
install bigger lines to serve future demand in adjacent areas) and
retains ownership of the utility lines after they are installed in the
utility easements. The utility company's long term ownership of utility
lines is significant, in that developers and construction companies
typically transfer the completed project to the ultimate owner and have
no future interest in the site. Utility contractors hired by a utility
company or other site operators and not meeting the definition of
``operator'' are considered subcontractors for the purpose of the
permit and are covered by the subcontractor certification requirements
of Part IV.E.
In some ways utility companies operate akin to subcontractors, but
often without a contract since State/Tribal laws typically require the
utility company to provide service to anyone who pays the appropriate
installation charges. At times, only one utility company may exist for
a particular service within a service area. A site owner often has no
choice about which utility company to use and even where there is a
choice it is usually between a limited number of ``authorized'' utility
companies. Once a utility company is selected, the site operator
typically must allow the utility company to do the installation and
cannot choose to install the lines itself . This adds up to a very
limited, if any, direct control a site operator actually has over
utility company operations on a site other than identifying where
easements and structures will be located and coordination on timing of
installation. In addition, during enforcement actions there have been
complaints from the construction industry that there have been
instances where lack of coordination and clear definition of
responsibilities have led to damage to storm water control measures
without the operator of such measures even being aware that another
party was on site.
Recognizing the special case utility companies present, today's
permit proposes to establish special NOI and permit requirements for
the limited construction activities by utility companies and to allow
coverage for the entire permit area with the submittal of a single NOI.
Area-wide coverage would only be available provided the site owner/
operator has previously obtained coverage for the more comprehensive
construction activities at the site and the pollution prevention plan
addresses utilities installation and assigns responsibilities for
control measures.
As envisioned, the site owner/operator could develop measures
specifically for the utility and include them in a ``master'' pollution
prevention plan, or the utility company could provide appropriate
control measures for its activities on site to the site owner/operator
for attachment to the ``master'' pollution prevention plan. Given the
limited activities of utility companies, the site inspection and other
permit conditions of a more comprehensive nature would default to the
site owner/operator for implementation. This conditional permit
coverage reduces the administrative and financial burden of requiring
separate NOIs for each utility company operating at every construction
site.
Some of the other options considered for addressing utilities
installation included: requiring a full NOI and pollution prevention
plan for each utility company project or allowing the utility company
to submit a single NOI for area wide permit coverage, but requiring a
pollution prevention plan for each project (or providing an addendum
for the site operator's plan). While either alternative could satisfy
the requirements of the Clean Water Act, the Agency prefers to
implement a process with fewer administrative burdens and economic
impacts. A requirement for a separate NOI from each utility company at
a site would add two to six additional NOIs per project. This would
increase the administrative burden on the regulated community, the
States, Tribes and EPA. A requirement for NOIs and full pollution
prevention plans from each utility company at a site would add
unnecessary cost to the relatively routine process of installing
utilities (as opposed to the more complicated aspects of managing
runoff from an entire construction project). This added cost would
eventually be passed on to the owner/buyer of the completed project.
While utility companies do have a role in preventing pollution of storm
water at construction sites, the Agency has attempted to include
utility company accountability in the permit in the most practicable
manner possible. The Agency requests comments on these and any
alternative methods to insure accountability and equity for all
operators at construction sites.
Dischargers operating under approved State, Tribal or local
sediment and erosion plans, grading plans, or storm water management
plans, must, in addition to filing copies of the NOI with EPA, submit
signed copies of the NOI to the State or local agency approving such
plans by the deadlines stated below.
[[Page 29794]]
1. Deadlines for Submitting NOIs
Deadlines for submittal of NOIs to be authorized to discharge under
this permit are as follows:
Parties with operational control over project
specifications, (the owners and/or developers), must submit an NOI at
least two days prior to commencement of the construction activity.
Other parties with day to day operational control of
activities at a project site must submit an NOI two days prior to their
commencing work at the site.
For storm water discharges from construction sites where
the operator changes, (including projects where an operator is added
after an NOI has been submitted), an NOI shall be submitted at least
two days prior to when the operator commences work at the site.
Utility companies (telephone, gas, electric, water, sewer
and cable etc.) whose involvement in an individual construction project
is limited to installation of underground or above ground service lines
and associated equipment to provide connections from a main
transmission line to individual customers, may file a single NOI to
obtain coverage for all such activities in the defined areas of permit
coverage. A utility company should file for coverage at least two days
prior to beginning work. Coverage obtained by utility companies in this
manner is limited to the utility company's activities on sites where an
operator of the individual construction project has obtained coverage
under this permit; an alternate general permit or an individual permit.
The pollution prevention plan for the construction site must identify
control measures for the installation of the utilities and the parties
responsible for those measures.
When a utility company is constructing a project for itself , it
must obtain permit coverage on a case by case basis in the manner
described for operators with control over project specifications (i.e.;
two days prior to beginning work). Permittees with construction
projects authorized to discharge under the previous general permit
issued in 1992 must:
Submit a new NOI within thirty (30) days of the effective
date of this permit in order to continue authorization to discharge
after July 2, 1997. If the permittee will be eligible to submit a
Notice of Termination (NOT) (e.g., construction finished and final
stabilization complete) before the 30th day, no NOI is required.
During the time between the effective date of this permit
and July 2, 1997, comply with the terms and conditions of the 1992
baseline general permit they were previously authorized under and
submitted an NOI for extended coverage as described under the
Administrative Procedures Act before termination of the 1992 baseline
general permit.
Update their current pollution prevention plan to comply
with the requirements of Part IV no later than July 2, 1997.
EPA will accept an NOI at a later date for any unpermitted
activities that may have occurred between the time construction
commenced and the time authorization is received. Late NOIs can only
provide coverage for future discharges and do not retro-actively apply
to any unpermitted discharges that may have occurred in the past.
Options Considered: Several options for NOI deadlines were
considered. As described above, the Agency requests comment on an
alternative NOI submittal time frame of 30-days. Commenters should give
consideration to the criteria that could be used to establish the final
permit's NOI deadlines, such as: recognizing the time lapse between
submission of the NOI and receipt of actual discharge authorization and
minimizing the impact this time lapse could have on the construction
industry, providing a mechanism for considering each project's
potential impacts on the environment, endangered species or historic
properties and thus their eligibility for general permit coverage,
providing a realistic time for at least one operator (typically the
owner) at a construction project to receive confirmation of permit
coverage, providing a common link between the various permittees at a
construction site, and minimizing, where possible, the total number of
NOIs that would be necessary at each construction project.
The proposed option contained in this proposed permit is to retain
the two day NOI deadline used in the 1992 permits. The advantage of
this approach is the short turn-around in obtaining permit coverage.
While there are certain problems regarding coverage that have arisen
with a short time frame, including inadvertently granted coverage and
incomplete NOIs, EPA believes that such deficiencies have been resolved
without adverse impacts on the environment. EPA is continuing this
option as the preferred option due to the flexibility to provide permit
coverage for these activities in a timely fashion without adverse
impact on the environment.
The option EPA is requesting comment on would require a longer lead
time for NOI submittal by the owner or developer of the site that would
allow enough time for that permittee to receive confirmation of permit
authorization, including an assigned permit number. This initial NOI
would include an assessment of the permit eligibility of the site as a
whole, including addressing any endangered species or historic
preservation concerns early on in the process. Subsequent applicants,
such as the contractors hired by the owner/developer, could then rely
on this initial assessment and be eligible to file an NOI only two days
prior to commencing work. This option could possibly reduce the cost to
implement a pollution prevention plan, in that subsequent contractors
would be able to identify any owner/develop applicants that may have
already developed a pollution prevention plan that covers all
construction activities on the site. Subsequent applicants could
thereby avoid duplicate cost to complete their own plan specific to
their portion of the site activity.
A third option was to require all operators to submit NOIs 14 days
in advance of commencing construction. While this approach allowed
additional time for review of NOIs, experience in processing of NOIs
suggests that two weeks is not enough time for determining completeness
of the NOI and returning a response to the applicant. While electronic
filing of NOIs could help, the Agency currently does not have the
capability to accept electronic applications and some operators may not
have the ability to file NOIs electronically.
A fourth option was to require an NOI for each construction project
from the operator(s) with control over site specifications (e.g.,
developer or owner). Operators with day to day control over
implementation of storm water controls (e.g. general contractor) would
be allowed to submit a single NOI for all their company's activities
within the permit area. This option had the obvious advantage of
reducing the total number of NOIs that would need to be submitted.
However, the operators implementing a more complex pollution prevention
plan covering all of the site-dependent activities at a wide range of
different construction sites (as opposed to the relatively small and
consistent activities of a utility company) would require a higher
level of permit controls to provide environmental accountability.
Uncertainty over the time needed to develop the appropriate permit
conditions for such an approach lead to abandoning this approach in
favor of concentrating on ensuring that
[[Page 29795]]
a replacement construction general permit was available for new
construction projects before the current permit expires.
The Agency requests comments on the 30-day advance notice option
and welcomes any suggestions on streamlining obtaining permit coverage
while still ensuring compliance with the Agency's responsibilities
under the Clean Water Act, the Endangered Species Act, and the National
Historic Preservation Act. The Agency notes that it is currently
undergoing consultation under section 7 of the Endangered Species Act
and plans to initiate consultation under sections 106 and 110 of the
National Historic Preservation Act on the issuance of this permit.
These consultations may result in additional permit conditions to
protect endangered and threatened species, critical habitat, and
historic properties.
2. Contents of the NOI.
An NOI (a draft copy of a proposed new form is found in Addendum C
of today's notice (or a photocopy)) must be completed and submitted to
EPA's NOI Center address to obtain authorization to discharge under
today's permit. The NOI contained in this proposed permit is a revised
NOI. EPA is requesting much of the same information as in the previous
form, but has also added additional questions concerning endangered
species, historic preservation, and pollution prevention plan status.
EPA is concurrently providing this NOI to the Office of Management and
Budget for review under the Paperwork Reduction Act. The NOI form
requires the following information:
The street address (description of location if no street
address is available), county, and the latitude and longitude of the
approximated center of the construction site/project for which the
notification is submitted;
The name, address, and telephone number of the operator(s)
filing the NOI for permit coverage and operator status as a Federal,
State, Tribal, private, or public entity;
Whether or not the construction project is located on an
Indian lands;
The name of the receiving water(s), or if the discharge is
through a municipal separate storm sewer, the name of the municipal
operator of the storm sewer and the receiving water(s);
The permit number of other operator at the site, to the
extent available;
An estimate of project start date and completion date,
estimate of the number of acres of the site on which soil will be
disturbed,
Acreage may be determined by dividing square footage by 43,560, as
demonstrated in the following example.
Convert 54,450 ft \2\ to acres
Divide 54,450 ft \2\ by 43,560 square feet per acre: 54,450 ft
\2\43,560 ft \2\/acre=1.25 acres;
An estimation of the frequency of discharge;
The location of where the pollution prevention plan can be
viewed if different from the project address.
A certification that a storm water pollution prevention
plan, including both construction and post construction controls, has
been prepared for the site in accordance with the permit and that such
plan complies with approved State, Tribal and/or local sediment and
erosion plans or permits and/or storm water management plans or
permits. A copy of the plans or permits should not be included with the
NOI submission, and should not be submitted unless requested by EPA;
Whether any species identified in Addendum A of the permit
are in proximity to the storm water discharges to be covered by this
permit or to the BMPs to be used to comply with this permit. Addendum A
of the permit contains instructions for making this determination;
That there will be no effect on any properties listed or
eligible for listing on the National Register of Historic Places under
the National Historic Preservation Act that are located on the
construction site; and
The applicant must also sign a certification statement
indicating an understanding of the terms and conditions of the permit.
Notice of Intent Requirements for Utility Companies seeking Area
Wide Coverage (these requirements apply only when the utility companies
are installing service):
The name, address and telephone number of the utility
company filing the NOI for permit coverage and operator status as a
Federal, State, Tribal, private, public or public entity;
The State, Tribal or other area of which coverage is being
requested, and whether or not any construction projects will be located
on Indian Reservation lands;
The name, address, and telephone number of the utility
company's point of contact for the utility company's compliance with
the area wider coverage;
A certification that a storm water pollution prevention
plan with standard operating procedures of the limited utility company
construction activities related to installation of service connections
has been prepared in accordance with the requirements of this permit
and that the plan provides compliance with approved state and/or local
sediment and erosion plans or permits and storm water management plans
or permits; and
Certification of eligibility and compliance with the
Endangered Species Act and The National Historic Preservation Act.
The NOI must be signed in accordance with the signatory
requirements of 40 CFR 122.22. A complete description of these
signatory requirements is provided in the Standard Permits Section of
the general permit.
3. Where To Submit
Completed NOI forms are to be submitted to the address indicated on
the NOI form. The following items should be posted at the construction
site in a prominent place for public viewing: a copy of the Director's
acknowledgment of coverage and the assigned permit number; a local
contact telephone number and address for public access to view the
pollution prevention plan at reasonable times during regular business
hours (advance notice by the public of the desire to view the plan may
be required, not to exceed two working days). The permit does not
require that free copies of the plan be provided to interested members
of the public, only that they have reasonable access to view the
document and copy it at their own expense; and a brief description of
the project.
F. Special Conditions Management Practices, and Other Non-Numeric
Limitations
1. Prohibition on Non-Storm Water Discharges
Today's proposed permits would not authorize non-storm water
discharges that are mixed with storm water discharges except for the
specific classes of non-storm water discharges described in the permit.
Non-storm water discharges that would be authorized under today's
proposed permits would include discharges from firefighting activities;
fire hydrant flushings; waters used to wash vehicles or control dust in
accordance with permit requirements; potable water sources including
waterline flushings; routine external building wash down that does not
use detergents; pavement washwaters where spills or leaks of toxic or
hazardous materials have not occurred (unless all spilled material has
been removed) and where detergents are not used; air conditioning
condensate; springs;
[[Page 29796]]
uncontaminated ground water; and foundation or footing drains where
flows are not contaminated with process materials such as
solvents.13 Discharges of material other than storm water
which are in compliance with another NPDES permit issued for that
discharge may be mixed with the storm water discharges authorized by
this permit.
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\13\ These discharges are consistent with the allowable classes
of non-storm water discharges to municipal separate storm sewer
systems (40 CFR 122.26(d)(iv)(D)). This permit would authorize such
discharges consistent with the terms and conditions of the permit.
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To be authorized under today's proposed permits, these sources of
non-storm water (except flows from firefighting activities) must be
specifically identified in the storm water pollution prevention plan
prepared for the facility. (Plan requirements are discussed in more
detail below).
Today's proposed permits would not require pollution prevention
measures to be identified and implemented for non-storm water flows
from firefighting activities since these flows will usually occur as
unplanned emergency situations where it is necessary to take immediate
action to protect the public.
The general prohibition on non-storm water discharges in today's
permit ensures that non-storm water discharges (except for those
classes of non-storm water discharges that are authorized subject to
compliance with certain conditions) are not inadvertently authorized by
this permit. Where a storm water discharge is mixed with process
wastewaters or other sources of non-storm water prior to discharge, and
the discharge is currently not authorized by an NPDES permit, the
discharge cannot be covered by today's permit and the discharger should
submit the appropriate application forms (Forms 1 and 2C) to obtain
permit coverage or discontinue the discharge.
2. Releases of Reportable Quantities of Hazardous Substances or Oil
Today's proposed permits would provide that the discharge of
hazardous substances or oil from a facility must be prevented or
minimized in accordance with the storm water pollution plan developed
for the facility. Where a permitted storm water discharge contains a
hazardous substance or oil in an amount equal to or in excess of a
reporting quantity established under 40 CFR 110, 40 CFR 117, or 40 CFR
302, during a 24-hour period, today's permits would require the
following actions:
The permittee must notify the National Response Center
(NRC) (800-424-8802; in the Washington, D.C. metropolitan area 202-426-
2675) in accordance with the requirements of 40 CFR 110, 40 CFR 117,
and 40 CFR 302, as soon as they have knowledge of the discharge;
The permittee must modify the storm water pollution
prevention plan for the facility within 14 calendar days of knowledge
of the release to provide a description of the release, the date of the
release and the circumstances leading to the release. In addition, the
permittee must modify the plan, as appropriate, to identify measures to
prevent the reoccurrence of such releases and to respond to such
releases.
Within 14 calendar days of the knowledge of the release,
the permittee must submit to EPA a written description of the release
(including the type and estimated amount of material released), the
date that such release occurred, the circumstances leading to the
release, and (4) any steps to be taken to minimize the chance of future
occurrences.
Where a discharge of a hazardous substance or oil in excess of
reporting quantities is caused by a non-storm water discharge (e.g., a
spill of oil into a separate storm sewer), the spill would not be
authorized by this proposed permit. The discharger must report the
spill as required under 40 CFR 110. In the event of a spill, the
requirements of Section 311 of the CWA and otherwise applicable
provisions of Sections 301 and 402 of the CWA continue to apply.
This approach is consistent with the requirements for reporting
releases of hazardous substances and oil-requirements that make a clear
distinction between hazardous substances typically found in storm water
discharges and those associated with spills that are not considered
part of a normal storm water discharge (see 40 CFR 117.12(d)(2)(i)).
3. Compliance With Water Quality Standards
The previous permit did not specifically address water quality
standards. Today's proposed permit would require as an eligibility
condition that dischargers seeking coverage under this permit not be
causing or have the reasonable potential to cause or contribute to a
violation of a water quality standard. If a discharge is known to be
doing such, prior to or at the time of application, then the operator
may not seek coverage under this general permit but must seek coverage
under an alternative permit. Where a discharge is already authorized
under this permit and is later discovered to cause or have the
reasonable potential to cause or contribute to the violation of an
applicable State, Tribal or Federal Water Quality Standard, the
permitting authority will notify the operator of such violation(s) and
the permittee shall take all necessary actions to ensure future
discharges do not cause or contribute to the violation of a water
quality standard and document these actions in the pollution prevention
plan. If violations remain or reoccur, then coverage under this permit
will be terminated by the permitting authority and an alternative
permit may be issued. Compliance with this requirement does not
preclude any enforcement activity as provided by the Clean Water Act
for the underlying violation.
4. Operator Responsibility
The proposed permits outline the expected responsibilities of the
various operators which may be working at the constructions site.
Permittees with operational control of the project specifications must
ensure that these specifications meet the minimum requirements of the
pollution prevention plan; the pollution prevention plan indicates
which area of the projects they have operational control over; and
ensure that the plan indicates who has day to day operational control
including names and permit numbers. If a person with day to day
operational control is not identified at the time the pollution
prevention plan is developed, the permittee with operational control of
the project specifications will be responsible.
Permittees with day to day operational control of a construction
site must ensure the pollution prevention plan meets minimum
requirements; ensure that the plan clearly identifies which areas of
the project they have control over; and ensure that the pollution
prevention plan indicates the name and permit number of the person with
operational control of the project specifications.
The permit also identifies partial site operators. These are
operators with operational control over only a portion of a larger
construction site. These operators are only responsible for permit
compliance and pollution prevention plan compliance as it relates to
their activities on site. They must also ensure that their activity
does not cause another party's pollution controls to be less effective.
Partial site operators must either implement their portions of a common
pollution prevention plan or develop and implement their own pollution
prevention plan.
[[Page 29797]]
G. Pollution Prevention Plan Requirements
The pollution prevention plans required by today's permit focus on
two major tasks: (1) Providing a site description that identifies
sources of pollution to storm water discharges associated with
industrial activity from the facility; and (2) identifying and
implementing appropriate measures to reduce pollutants in storm water
discharges to ensure compliance with the terms and conditions of this
permit. All storm water pollution prevention plans shall be developed
in accordance with good engineering practices.
In developing this permit, the Agency reviewed a significant number
of existing State and local sediment and erosion control and storm
water management requirements. State and local data were reviewed for a
wide range of climates and varying types of construction activities.
1. Deadlines for Plan Preparation
Today's proposed permits would require that the storm water
pollution prevention plan must be completed prior to the submittal of
an NOI to be covered under this permit and updated as appropriate,
including certifications;
2. Signature and Plan Review
Signature and plan review requirements are as follows:
The plan must be signed by all permittees for a site in
accordance with the signatory requirements in the Standard Permit
Conditions section of the permit, and must be retained on site at the
facility that generates the storm water discharge. If the site is
inactive or does not have an onsite location adequate to store the
pollution prevention plan, the location of the plan, and the phone
number of a contact person shall be posted on site indicating where the
plan can be viewed at reasonable times during regular business hours
(advance notice by the public of the desire to view the plan may be
required, not to exceed two working days). The permit does not require
that free copies of the plan be provided to interested members of the
public, only that they have reasonable access to view the document and
copy it at their own expense. A brief description of the project shall
also be posted at the construction site in a prominent and safe place
for public viewing during regular business hours (alongside the
building permit if the building permit is required to be displayed).
EPA may notify the permittee at any time that the plan
does not meet one or more of the minimum requirements. The notification
shall identify those provisions of the permit which are not being met
by the plan , and identify which provisions of the plan require
modification in order to meet the requirements of the permit. Within
seven calendar days of receipt of such notification from EPA (or as
otherwise requested by EPA), the permittee must make the required
changes to the plan and submit to EPA a written certification that the
requested changes have been made.
3. Making Plans Available
The permittee must make plans available, upon request, to EPA,
State, Tribal or local agencies approving sediment and erosion plans,
grading plans, or storm water management plans; interested members of
the public; local government officials; or to the operator of the
municipal separate storm sewer which receives the discharge.
4. Keeping Plans Current
The permittee must amend the plan whenever there is a change in
design, construction, operation, or maintenance, that has a significant
effect on the potential for the discharge of pollutants to waters of
the United States or to municipal separate storm sewer systems. The
plan must also be amended if inspections or investigations by site
operators, local, State, Tribal, or Federal officials indicate the
storm water pollution prevention plan is proving to be ineffective in
eliminating or significantly minimizing pollutants in the storm water
discharges from the construction activity. In addition, the plan shall
be amended to identify any new contractor and/or subcontractor that
will implement a measure of the storm water pollution prevention plan.
5. Contents of the Plan
Storm water pollution prevention plans must include a site
description; a description of controls that will be used at the site
(e.g., erosion and sediment controls, storm water management measures);
a description of maintenance and inspection procedures; and a
description of pollution prevention measures for any non-storm water
discharges that exist.
a. Site Description: Storm water pollution prevention plans must be
based on an accurate understanding of the pollution potential of the
site. The first part of the plan requires an evaluation of the sources
of pollution at a specific construction site. The plan must identify
potential sources of pollution that may reasonably be expected to
affect the quality of storm water discharges from the construction
site. In addition, the source identification components for pollution
prevention plans must provide a description of the site and the
construction activities. This information is intended to provide a
better understanding of site runoff and major pollutant sources. At a
minimum, plans must include the following:
A description of the nature of the construction activity.
This would typically include a description of the ultimate use of the
project (e.g., low-density residential, shopping mall, highway);
A description of the intended sequence of major activities
that disturb soils for major portions of the site (e.g., grubbing,
excavation, grading);
Estimates of the total area of the site and the total area
of the site that is expected to be disturbed by excavation, grading, or
other activities. Where the construction activity is to be staged, it
may be appropriate to describe areas of the site that will be disturbed
at different stages of the construction process;
Estimates of the runoff coefficient of the site after
construction activities are completed as well as existing data
describing the quality of any discharge from the site or the soil. The
runoff coefficient is defined as the fraction of total rainfall that
will appear at the conveyance as runoff. Runoff coefficients can be
estimated from site plan maps, which provide estimates of the area of
impervious structures planned for the site and estimates of areas where
vegetation will be precluded or incorporated. Runoff coefficients are
one tool for evaluating the volume of runoff that will occur from a
site when construction is completed. These coefficients assist in
evaluating pollutant loadings, potential hydraulic impacts to receiving
waters, and flooding impacts. They are also used for sizing of post-
construction storm water management measures;
A site map indicating drainage patterns and approximate
slopes anticipated after major grading activities, areas of soil
disturbance; an outline of areas that will not be disturbed; the
location of major structural and nonstructural controls identified in
the plan; the location of areas where stabilization practices are
expected to occur; the location of surface waters (including wetlands);
and locations where storm water is discharged to a surface water. Site
maps should also include other major features and potential pollutant
sources, such as the location of impervious structures
[[Page 29798]]
and the location of soil piles during the construction process;
A description of any discharge associated with industrial
activity other than construction (including storm water discharges from
dedicated asphalt plants and dedicated concrete plants) and the
location of that activity on the construction site;
The name of the receiving water(s), and areal extent of
wetland acreage at the site;
Information on endangered and threatened species including
whether any endangered species are in proximity to the storm water
discharges and BMPs to be constructed to control storm water runoff;
and
Information on any properties listed or eligible for
listing on the National Register of Historic Places under the National
Historic Preservation Act that are located on the construction site.
b. Controls to Reduce Pollutants: The storm water pollution
prevention plan must describe and ensure the implementation of
practices that will be used to reduce the pollutants in storm water
discharges from the site and assure compliance with the terms and
conditions of the permit. Permittees are required to develop a
description of four classes of controls appropriate for inclusion in
the facility's plan, and implement controls identified in the plan in
accordance with the plan. The description of controls must address
erosion and sediment controls, storm water management, a specified set
of other controls, and any applicable procedures and requirements of
State, Tribal and local sediment and erosion plans or storm water
management plans.
The pollution prevention plan must clearly describe the intended
sequence of major activities and when, in relation to the construction
process, the control will be implemented. Good site planning and
preservation of mature vegetation are primary control techniques for
controlling sediment in storm water discharges during construction
activities as well as for developing a strategy for storm water
management that controls pollutants in storm water discharges after the
completion of construction activities. Properly staging major earth
disturbing activities can also dramatically decrease the costs of
sediment and erosion controls. The description of the intended sequence
of major activities will typically describe the intended staging of
activities on different parts of the site.
Permittees must develop and implement four classes of controls in
the pollution prevention plan, each of which is discussed below.
i. Erosion and Sediment Controls: The requirements for erosion and
sediment controls for construction activities in this permit have long
and short term goals and criteria. This includes the following:
Construction phase erosion and sediment controls should be
designed with the objective to retain sediment on site;
All control measures must be properly selected and
installed in accordance with good engineering practices and
manufacturers specifications;
Off site accumulations of sediment must be removed at a
frequency to minimize impacts;
Sediment should be removed from sediment traps when the
design capacity has been reduced by 50 percent;
Litter shall be picked up prior to storm events or
otherwise prevented from entering a receiving water; and
Offsite material storage areas must be addressed in the
pollution prevention plan. Erosion and sediment controls include both
stabilization practices and structural practices.
ii. Stabilization Practices. Pollution prevention plans must
include a description of interim and permanent stabilization practices,
including site-specific scheduling of the implementation of the
practices. The plans should ensure that existing vegetation is
preserved where attainable and that disturbed portions of the site are
stabilized as quickly as possible. Stabilization practices are the
first line of defense for preventing erosion; they include temporary
seeding, permanent seeding, mulching, geotextiles, sod stabilization,
vegetative buffer strips, protection of trees, preservation of mature
vegetative buffer strips, and other appropriate measures. Temporary
stabilization practices can be the single most important factor in
reducing erosion at construction sites.
Stabilization also involves preserving and protecting selected
trees that were on the site prior to development. Mature trees have
extensive canopy and root systems, which help to hold soil in place.
Shade trees also keep soil from drying rapidly and becoming susceptible
to erosion. Measures taken to protect trees can vary significantly,
from simple measures such as installing tree fencing around the drip
line and installing tree armoring, to more complex measures such as
building retaining walls and tree wells.
Since stabilization practices play such an important role in
preventing erosion, it is critical that they are rapidly employed in
appropriate areas. This permit provides that, except in three
situations, stabilization measures be initiated on disturbed areas as
soon as practicable, but no more than 14 days after construction
activity on a particular portion of the site has temporarily or
permanently ceased. The three exceptions to this requirement are the
following:
Where construction activities will resume on a portion of
the site within 21 days from when the construction activities ceased;
Where the initiation of stabilization measures is
precluded by snow cover or frozen ground, in which case, stabilization
measures must be initiated as soon as practicable; and
In arid areas (areas with an average annual rainfall of 0
to 10 inches), semi-arid area (areas with an average annual rainfall of
10 to 20 inches), and areas experiencing droughts, where the initiation
of stabilization measures is precluded by seasonal arid conditions, in
which case, stabilization measures must be initiated as soon as
practicable.
iii. Structural Practices. The pollution prevention plan must
include a description of structural practices to the degree
economically attainable, to divert flows from exposed soils, store
flows, or otherwise limit runoff and the discharge of pollutants from
exposed areas of the site. Structural controls are necessary because
vegetative controls cannot be employed at areas of the site that are
continually disturbed and because a finite time period is required
before vegetative practices are fully effective. Options for such
controls include silt fences, earth dikes, drainage swales, check dams,
subsurface drains, pipe slope drains, level spreaders, storm drain
inlet protection, rock outlet protection, sediment traps, reinforced
soil retaining systems, gabions, and temporary or permanent sediment
basins. Structural measures should be placed on upland soils to the
degree possible. Placement of structural controls in flood plains
should be avoided.
For sites with more than 10 disturbed acres at one time that are
served by a common drainage location, a temporary or permanent sediment
basin providing 3,600 cubic feet of storage per acre drained, or
equivalent control measures (such as suitably sized dry wells or
infiltration structures), must be provided where attainable until final
stabilization of the site has been accomplished. Flows from offsite
areas and flows from onsite areas that are either undisturbed or have
undergone final stabilization may be diverted around both the sediment
basin and the disturbed area. The requirement to
[[Page 29799]]
provide 3,600 cubic feet of storage area per acre drained does not
apply to such diverted flows.
For the drainage locations which serve more than 10 disturbed acres
at one time and where a sediment basin providing storage or equivalent
controls for 3,600 cubic feet per acre drained is not attainable,
smaller sediment basins or sediment traps should be used. At a minimum,
silt fences, or equivalent sediment controls are required for all
downslope and appropriate sideslope boundaries of the construction
area. Diversion structures should be used on upland boundaries of
disturbed areas to prevent runon from entering disturbed areas.
For drainage locations serving 10 or less acres, smaller sediment
basins or sediment traps should be used and at a minimum, silt fences,
or equivalent sediment controls are required for all downslope and
appropriate sideslope boundaries of the construction area.
Alternatively, the permittee may provide a sediment basin providing
storage for 3,600 cubic feet of storage per acre drained. Diversion
structures should be used on upland boundaries of disturbed areas to
prevent runon from entering disturbed areas.
iv. Storm Water Management. The plan must include a description of
``storm water management'' measures.14 This permit addresses
only the installation of storm water management measures and not the
ultimate operation and maintenance of such structures after the
construction activities have been completed and the site has undergone
final stabilization. Permittees are responsible only for the
installation and maintenance of storm water management measures prior
to final stabilization of the site and are not responsible for
maintenance after storm water discharges associated with construction
activities have been eliminated from the site. However, discharges of
pollutants from storm water management structures after construction
ceases may in themselves, need to be authorized under an NPDES permit.
The owner/operator of such discharges after construction may inquire
with EPA if this requirement applies.
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\14\ For the purpose of the special requirements for
construction activities, the term ``storm water management''
measures refers to controls that will primarily reduce the discharge
of pollutants in storm water from sites after completion of
construction activities.
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Land development can significantly increase storm water discharge
volumes and peak velocities where appropriate storm water management
measures are not implemented. In addition, storm water discharges will
typically contain higher levels of pollutants, including total
suspended solids (TSS), heavy metals, nutrients, and oxygen demanding
constituents.15
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\15\ See ``Nationwide Urban Runoff Program,'' EPA, 1984.
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Storm water management measures that are installed during the
construction process can control the volume of storm water discharged
and peak discharge velocities, as well as reduce the amount of
pollutants discharged after the construction operations have been
completed. Reductions in peak discharge velocities and volumes can also
reduce pollutant loads, as well as reduce physical impacts such as
stream bank erosion and stream bed scour. Storm water management
measures that mitigate changes to predevelopment runoff characteristics
assist in protecting and maintaining the physical and biological
characteristics of receiving streams and wetlands.
Structural measures should be placed on upland soils to the degree
attainable. The installation of such devices may be subject to section
404 of the CWA if the devices are placed in wetlands (or other waters
of the United States).
Options for storm water management measures that are to be
evaluated in the development of plans include infiltration of runoff on
site; flow attenuation by use of open vegetated swales and natural
depressions; storm water retention structures and storm water detention
structures (including wet ponds); and sequential systems that combine
several practices.
The pollution prevention plan must include an explanation of the
technical basis used to select the practices to control pollution where
flows exceed predevelopment levels. The explanation of the technical
basis for selecting practices should address how a number of factors
were evaluated, including the pollutant removal efficiencies of the
measures, the costs of the measure, site specific factors that will
affect the application of the measures, whether the measure is
economically achievable at a particular site, and other relevant
factors.
Although not a limitation or performance standard in the permit,
EPA anticipates that storm water management measures at many sites will
be able to provide for the removal of at least 80 percent of total
suspended solids (TSS).16 A number of storm water management
measures can be used to achieve this level of control, including
properly designed and installed wet ponds, infiltration trenches,
infiltration basins, sand filter system, manmade storm water wetlands,
and multiple pond systems. The pollutant removal efficiencies of
various storm water management measures can be estimated from a number
of sources, including ``Storm Water Management for Construction
Activities: Developing Pollution Prevention Plans and Best Management
Practices,'' U.S. EPA, 1992, and ``A Current Assessment of Urban Best
Management Practice,'' prepared for U.S. EPA by Metropolitan Washington
Council of Governments, March 1992. Proper selection of a technology
depends on site factors and other conditions.
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\16\ TSS can be used as an indicator parameter to characterize
the control of other pollutants, including heavy metals, oxygen
demanding pollutants, and nutrients, commonly found in storm water
discharges.
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In selecting storm water management measures, the permittee should
consider the impacts of each method on other water resources, such as
ground water. Although storm water pollution prevention plans primarily
focus on storm water management, EPA encourages facilities to avoid
creating ground water pollution problems. For example, if the water
table is unusually high in an area or soils are especially sandy and
porous, an infiltration pond may contaminate a ground water source
unless special preventive measures are taken. Under EPA's July 1991
Ground Water Protection Strategy, States are encouraged to develop
Comprehensive State Ground Water Protection Programs (CSGWPP). Efforts
to control storm water should be compatible with State/Tribal ground
water objectives as reflected in CSGWPPs.
The evaluation of whether the pollutant loadings and the hydrologic
conditions (the volume of discharge) of flows exceed predevelopment
levels can be based on hydrologic models which consider conditions such
as the natural vegetation which is typical for the area.
Increased discharge velocities can greatly accelerate erosion near
the outlet of onsite structural measures. To mitigate these effects,
these permits would require that velocity dissipation devices be placed
at discharge locations and along the length of any outfall channel as
necessary to provide a non-erosive velocity flow from the structure to
a water course. Velocity dissipation devices maintain and protect the
natural physical and biological characteristics and functions of the
watercourse, e.g., hydrologic conditions, such as the hydroperiod and
hydrodynamics, that were present prior to the initiation of
construction activities.
v. Other Controls. Other controls to be addressed in storm water
pollution
[[Page 29800]]
prevention plans for construction activities require that nonsolid
materials, including building material wastes shall not be discharged
at the site, except as authorized by a Section 404 permit.
This proposed permit requires that offsite vehicle tracking of
sediments and the generation of dust be minimized. For example, this
may be accomplished by measures such as providing gravel or paving at
access entrance and exit drives, parking areas, and unpaved roads on
the site carrying significant amounts of traffic (e.g., more than 25
vehicles per day); providing entrance wash racks or stations for
trucks; and/or providing street sweeping.
In addition, this permit requires that the plan shall ensure and
demonstrate compliance with applicable State/Tribal and/or local
sanitary sewer, septic system, and waste disposal regulations to the
extent they apply to the permitted activity.17 The plan must
also include a narrative description of practices to reduce pollutants
from construction related materials which are stored onsite. Including
an inventory of construction materials, storage practices, and spill
prevention and response. The plan should include a description of
pollutant sources from areas other than construction and a description
of controls and measures which will be implemented in those areas.
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\17\ In rural and suburban areas that are served by septic
systems, malfunctioning septic systems can contribute pollutants to
storm water discharges. Malfunctioning septic tanks may be a more
significant surface runoff pollution problem than a ground water
problem. This is because a malfunctioning septic system is less
likely to cause ground water contamination where a bacterial mat in
the soil retards the downward movement of wastewater. Surface
malfunctions are caused by clogged or impermeable soils, or when
stopped up or collapsed pipes force untreated wastewater to the
surface. Surface malfunctions can vary in degree from occasional
damp patches on the surface to constant pooling or runoff of
wastewater. These discharges have high bacteria, nitrate, and
nutrient levels and can contain a variety of household chemicals.
This permit does not establish new criteria for septic systems, but
rather addresses existing State or local criteria.
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The plan must also include measures to protect listed endangered
and threatened species and/or critical habitat (if applicable)
including any terms or conditions that are imposed under the
eligibility requirements of Part I.B.3.e and Addendum A of this permit
to protect such species and/or critical habitat from storm water
discharges or BMPs to control storm water runoff. Failure to include
these measures will result in the storm water discharges from the
construction activities being ineligible for coverage under this
permit.
The plan must also include measures to protect properties that are
listed or eligible for listing under the National Historic Register
including any measures agreed to through written agreements with the
SHPO or THPO. Failure to include these measures will result in the
storm water discharges from the construction activities being
ineligible for coverage under this permit.
vi. State/Tribal and Local Controls. Many municipalities, States
and Tribes have developed sediment and erosion control requirements for
construction activities. A significant number of municipalities and
States/Tribes have also developed storm water management controls. This
general permit requires that storm water pollution prevention plans for
facilities that discharge storm water associated with industrial
activity from construction activities include procedures and
requirements of State/Tribal and local sediment and erosion control
plans or storm water management plans. Permittees are required to
provide a certification that their storm water pollution prevention
plan reflects requirements related to protecting water resources that
are specified in State/Tribal or local sediment and erosion plans or
storm water management plans.18 In addition, permittees are
required to amend their storm water pollution prevention plans to
reflect any change in a sediment and erosion site plan or site permit
or storm water management site plan or site permit approved by State/
Tribal or local officials for which the permittee receives written
notice. Where such amendments are made, the permittee must provide a
recertification that the storm water pollution prevention plan has been
modified. This provision does not apply to provisions of master plans,
comprehensive plans, nonenforceable guidelines, or technical guidance
documents, but rather to site-specific State/Tribal or local permits or
plans.
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\18\ Operators of storm water discharges from construction
activities which, based on an evaluation of site specific
conditions, believe that State/Tribal and local plans do not
adequately represent BAT and BCT requirements for the facility may
request to be excluded from the coverage of the general permit by
submitting to the Director an individual application with a detailed
explanation of the reasons supporting the request, including any
supporting documentation showing that certain permit conditions are
not appropriate.
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c. Maintenance: Erosion and sediment controls can become
ineffective if they are damaged or not properly maintained. Maintenance
of controls has been identified as a major part of effective erosion
and sediment programs. Plans must contain a description of prompt and
timely maintenance and repair procedures addressing all erosion and
sediment control measures (e.g., sediment basins, traps, silt fences),
vegetation, and other measures identified in the site plan to ensure
that such measures are kept in good and effective operating condition.
d. Inspections: Procedures in a plan must provide that specified
areas on the site are inspected by qualified personnel provided by the
discharger a minimum of once every fourteen calendar days, before
anticipated storm events (or series of storm events such as
intermittent showers over one or more days) expected to cause a
significant amount of runoff and within 24 hours after any storm event
of greater than 0.5 inches. Areas of the site that must be observed
during such inspections include disturbed areas, areas used for storage
of materials that are exposed to precipitation, structural control
measures, and locations where vehicles enter or exit the site. Where
sites have been temporarily or finally stabilized, or during seasonal
arid periods in arid areas (areas with an average annual rainfall of 0
to 10 inches) and semi-arid areas (with an average annual rainfall of
10 to 20 inches) the inspection must be conducted at least once every
month.
Disturbed areas and areas used for storage of materials that are
exposed to precipitation must be inspected for evidence of, or the
potential for, pollutants entering the runoff from the site. Erosion
and sediment control measures identified in the plan must be observed
to ensure that they are operating correctly. Observations can be made
during wet or dry weather conditions. Where discharge locations or
points are accessible, they must be inspected to ascertain whether
erosion control measures are effective in preventing significant
impacts to receiving waters. This can be done by inspecting receiving
waters to see whether any signs of erosion or sediment are associated
with the discharge location. Locations where vehicles enter or exit the
site must be inspected for evidence of offsite sediment tracking.
Based on the results of the inspection, the site description and
the pollution prevention measures identified in the plan must be
revised as soon as possible after an inspection that reveals
inadequacies. The inspection and plan review process must provide for
timely implementation of any changes to the plan within seven calendar
days following the inspection.
An inspection report that summarizes the scope of the inspection,
name(s) and qualifications of personnel conducting
[[Page 29801]]
the inspection, the dates of the inspection, major observations
relating to the implementation of the storm water pollution prevention
plan, and actions taken must be retained as part of the storm water
pollution prevention plan for at least three years after the date that
the site is finally stabilized. The report shall identify incidents of
non-compliance. When the report does not contain an incident of non-
compliance, the report shall contain a certification that the facility
is in compliance with the pollution prevention plan and this permit.
The report must be signed in accordance with the signatory requirements
in the Standard Conditions section of this permit.
Diligent inspections are necessary to ensure adequate
implementation of onsite sediment and erosion controls, particularly in
the later stages of construction when the volume of runoff is greatest
and the storage capacity of the sediment basins has been
reduced.19
---------------------------------------------------------------------------
\19\ ``Performance of Current Sediment Control Measures at
Maryland Construction Sites,'' January 1990, Metropolitan Washington
Council of Governments.
---------------------------------------------------------------------------
e. Non-Storm Water Discharges: The plan must identify and ensure
the implementation of appropriate pollution prevention measures for
each of the non-storm water component(s) of the discharge.20
Such discharges include discharges from firefighting activities, fire
hydrant flushings, waters used to wash vehicles or control dust in
accordance with efforts to minimize offsite sediment tracking, potable
water sources including waterline flushings, irrigation drainage from
watering vegetation, routine exterior building wash down that does not
use detergents, pavement washwaters where spills or leaks of toxic or
hazardous materials have not occurred (unless all spilled material has
been removed) and where detergents are not used, air conditioning
condensate, springs, uncontaminated ground water (including dewatering
ground water infiltration), and foundation or footing drains where
flows are not contaminated with process materials such as solvents,
provided the non-storm water component of the discharge is specifically
identified in the pollution prevention plan.
---------------------------------------------------------------------------
\20\ This is consistent with the allowable types of non-storm
water discharges to municipal separate storm sewer systems (40 CFR
122.26(d)(2)(iv)(A)). These discharges are still subject to NPDES
requirements.
---------------------------------------------------------------------------
EPA believes that where these classes of non-storm water discharges
are identified in a pollution prevention plan and where appropriate
pollution prevention measures are evaluated, identified, and
implemented, they generally pose low risks to the environment. The
Agency also notes that it can request individual permit applications
for such discharges where appropriate. The Agency is not requiring that
flows from fire-fighting activities be identified in plans because of
the emergency nature of such discharges coupled with their low
probability and the unpredictability of their occurrence.
6. Additional Requirements
These proposed permits would authorize a storm water discharge
associated with industrial activity from a construction site that is
mixed with a storm water discharge from an industrial source other than
construction, only under the following conditions:
The industrial source other than construction is located
on the same site as the construction activity; and
Storm water discharges from where the construction
activities are occurring are in compliance with the terms of this
permit.
7. Contractors/Subcontractors
The storm water pollution prevention plan must clearly identify for
each measure identified in the plan, the contractor(s) and/or
subcontractor(s) that will implement the measure. All contractors and
subcontractors identified in the plan must sign a copy of the
certification statement contained in the proposed permit (Part IV.F)
before conducting any professional service at the site identified in
the pollution prevention plan:
All certifications must be included in the storm water pollution
prevention plan. The certification must also include the name and title
of the person providing the signature, the name address and telephone
number of the contracting firm; the name and address of the site; and
the date of certification.
The permittee must insure that contractors and subcontractors who
do not meet the definition of ``operator,'' but will be conducting
activities which may impact the effectiveness of any control measure
identified in the plan sign a certification statement before conducting
any professional service on site. The certification must include the
name and title of the person providing the signature; the name, address
and telephone number of the contracting firm; the address identifying
the site, and the date the certification is made.
H. Retention of Records
The permittee is required to retain records or copies of all
reports required by this permit, including storm water pollution
prevention plans and records of all data used to complete the NOI to be
covered by the permit, for a period of at least three years from the
date of final stabilization. This period may be extended by request of
the Director.
The permittee shall retain a copy of the storm water pollution
prevention plan required by the permit at the construction site from
the date of project initiation to the date of final stabilization. All
permittees with day to day operational control of the plan's
implementation shall have a copy of the plan available for their use
when they are on the construction site. The copy of the plan may be a
single plan kept at a central location for all of the operators on
site. Where no location is available at the construction site to store
the plan when no personnel are on site, notice of the location of the
plan must be posted at the construction site. A copy of the plan must
be readily available to inspectors during normal business hours.
I. Notice of Termination Requirements
A discharger must submit a Notice of Termination (NOT) to EPA in
two sets of circumstances: after a site has undergone final
stabilization and the facility no longer discharges storm water
associated with industrial activity from a construction site or when
the permittee has transferred operational control to another permittee
and is no longer an operator for the site. A permittee cannot submit an
NOT without final stabilization unless another party has agreed to
assume responsibility for final stabilization of the site. NOTs must be
submitted using the form provided by the Director (or a photocopy
thereof). A copy of the NOT form is in Addendum C and can be
photocopied for use. NOTs will assist EPA in tracking the status of the
discharger.
Today's proposed permits would define final stabilization for the
purpose of submitting an NOT as occurring when all soil disturbing
activities are completed and a uniform perennial vegetative cover with
a density of 70 percent for the unpaved areas and areas not covered by
permanent structures has been established or equivalent stabilization
measures have been employed. Equivalent stabilization measures include
permanent measures other than establishing vegetation, such as the use
of rip-rap, gabions, and/or geotextiles. In some parts of the country,
background native vegetation will cover less than 100% of the ground
(e.g. arid areas). Establishing at least 70% of the natural cover of
native vegetation meets the vegetative cover criteria for final
[[Page 29802]]
stabilization. For example, if the native vegetation covers 50% of the
ground, 70% of 50% would require 35% total cover for final
stabilization.
A copy of the NOT, and instructions for completing the NOT, are
provided in Addendum C of today's notice. The NOT form requires the
following information:
The street (description of location if not street address
is available) address of the construction site for which the
notification is submitted;
The name, address, and telephone number of the permittee
submitting the NOT.
The NPDES permit for the storm water discharge identified
by the NOT.
An indication of whether the storm water discharges
associated with construction activity have been eliminated or the
operator of the discharge has changed;
For changes in operators, the name, address, and phone
number of the new operator; and
The following certification: ``I certify under penalty of
law that either (a) all storm water discharges associated with
construction activity from the portion of the identified facility where
I was an operator have ceased or have been eliminated or (b) I am no
longer an operator at the construction site and a new operator has
assumed operational control for those portions of the construction site
where I previously had operational control. I understand that by
submitting this notice of termination, I am no longer authorized to
discharge storm water associated with construction activity under this
general permit, and that discharging pollutants in storm water
associated with construction activity to waters of the United States is
unlawful under the Clean Water Act where the discharge is not
authorized by a NPDES permit. I also understand that the submittal of
this notice of termination does not release an operator from liability
for any violations of this permit form the Clean Water Act.''
Notices of Termination are to be sent to the address specified on
the form.
The NOT must be signed by the appropriate individual in accordance
with the signatory requirements of the permit. A description of these
signatory requirements is provided in the instructions accompanying the
NOT, and this permit.
Submittal of a NOT, by itself, does not relieve permittees from the
obligations of the permit, such as the requirement to stabilize the
site. Appropriate enforcement actions may still be taken for permit
violations where a permittee submits a NOT but the permittee has not
transferred operational control to another permittee or the site has
not undergone final stabilization.
J. Regional Offices
For questions or further information regarding this proposed
permit, please contact the EPA Storm Water Coordinator at the locations
below. Other submittals of information required under these permits or
individual permit applications or other written correspondence
concerning discharges in any State, Indian land, or from any Federal
Facility covered, should also be sent to the appropriate EPA Regional
Office listed below:
CT, MA, ME, NH, RI, VT
United States EPA, Region I, Office of Ecosystem Protection, John
F. Kennedy Federal Building, CMU, Boston, MA 02203, Storm water
coordinator--Thelma Hamilton (617) 565-3569, or Beverly Guertin (617)
565-3600
NJ, NY, PR, VI
United States EPA, Region II, Division of Environmental Planning
and Protection, (2DEPP-WPB), Water Programs Branch, 290 Broadway, New
York, NY 10007-1866, Storm Water Coordinator--Sergio Bosques (212) 637-
3717, or Jose Rivera (809) 729-6951
DE, DC, MD, PA, VA, WV
United States EPA, Region III, Water Protection Division, (3WP13),
Storm Water Staff, 841 Chestnut Building, Philadelphia, PA 19107, Storm
Water Coordinator--Elaine Harbold (215) 566-5744
AR, LA, NM (except see Region IX for Navajo lands and see Region VIII
for Ute Mountain Ute Reservation land), OK, TX
United States EPA, Region VI, Storm Water Staff, Enforcement and
Compliance Assurance Division (GEN-WC), EPA SW Construction GP, P.O.
Box 50625, Dallas, TX 75205, Storm Water Coordinator--Brent Larsen
(214) 665-7523
IA, KS, MO, NE
United States EPA, Region VII, Water, Wetlands, and Pesticides
Division, NPDES and Facilities Management Branch, Storm Water Staff,
726 Minnesota Avenue, Kansas City, KS 66101, Storm Water Coordinator--
Ralph Summers (913) 551-7418
CO, MT, ND, SD, WY, UT (except see Region IX for Goshute Reservation
and Navajo Reservation lands)
United States EPA, Region VIII, Office of Ecosystems Protection and
Remediation (8EPR-EP), Storm Water Staff, 999 18th Street, Denver, CO
80202-2466, Storm Water Coordinator--Vern Berry (303) 312-6234
Note--For Montana Indian Lands, please use the following
address:
United States EPA, Region VIII, Montana Operations Office, Federal
Office Building, Drawer 10096, 301 South Park, Helena, MT 59626-0096,
Storm Water Coordinator--Vern Berry (303) 312-6234
AZ, CA, HI, NV, American Samoa, Guam, Commonwealth of the Northern
Mariana Islands, the Goshute Reservation in UT and NV, the Navajo
Reservation in UT, NM, and AZ, the Duck Valley Reservation in ID, Fort
McDermitt Reservation in OR, Johnston Atoll, Midway and Wake Island
United States EPA, Region IX, Water Management Division, (WTR-5),
Storm Water Staff, 75 Hawthorne Street, San Francisco, CA 94105, Storm
Water Coordinator--Eugene Bromley (415) 744-1906,
AK, ID (except see Region IX for Duck Valley Reservation lands), OR, WA
United States EPA, Region X, Office of Water OW-130, Storm Water
Staff, 1200 6th Avenue, Seattle, WA 90101, Storm Water Coordinator--Joe
Wallace (206) 553-8399.
Part V--Cost Estimates
The two major costs associated with pollution prevention plans for
construction activities include the costs of sediment and erosion
controls (see Table 1) and the costs of storm water management measures
(see Table 2). Today's permits would provide flexibility in developing
controls for construction activities. Typically, most construction
sites will employ several types of sediment and erosion controls and
storm water management controls, but not all the controls listed in
Tables 1 and 2. In general, sites that disturb a large area will incur
higher pollution prevention costs.
Table 1.--Sediment and Erosion Control Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
Temporary seeding......................... $1.00 per square foot.
Permanent seeding......................... $1.00 per square foot.
Mulching.................................. $1.25 per square foot.
Sod stabilization......................... $4.00 per square foot.
Vegetative buffer strips.................. $1.00 per square foot.
Protection of trees....................... $30.00 to $200.00 per tree
set.
Earth dikes............................... $5.50 per linear foot.
Silt fences............................... $6.00 per linear foot.
Ddrainage swales-grass.................... $3.00 per square yard.
Drainage swales-sod....................... $4.00 per square yard.
Ddrainage swales-riprap................... $45.00 per square yard.
[[Page 29803]]
Drainage swales-asphalt................... $35.00 per square yard.
Drainage swales-concrete.................. $65.00 per square yard.
Check dams-rock........................... $100 per dam.
Check dams-covered straw bales............ $50 per dam.
Level spreader-earthen.................... $4.00 per square yard.
Level spreader-concrete................... $65.00 per square yard.
Subsurface drain.......................... $2.25 per linear foot.
Pipe slope drain.......................... $5.00 per linear foot.
Temporary storm drain diversion........... Variable.
Storm drain inlet protection.............. $300 per inlet.
Rock outlet protection.................... $45 per square yard.
Sediment traps............................ $500 to $7,000 per trap.
Temporary sediment basins................. $5,000 to $50,000 per basin.
Sump pit.................................. $500 to $7,000.
Entrance stabilization.................... $1,500 to $5,000 per
entrance.
Entrance wash rack........................ $2,000 per rack.
Temporary waterway crossing............... $500 to $1,500.
Wind breaks............................... $2.50 per linear foot.
------------------------------------------------------------------------
Practices such as sod stabilization and tree protection increase
property values and satisfy consumer aesthetic needs.
Sources: ``Means Site Work Cost Data,'' 9th edition, 1990, R.S. Means
Company. ``Sediment and Erosion Control, An Inventory of Current
Practices,'' prepared by Kamber Engineering for U.S. EPA, April 1990.
Table 2.--Annualized Costs of Several Storm Water Management Options for
Construction Sites
------------------------------------------------------------------------
Annualized Annualized
cost for 9- cost for
acre 20-acre
developed developed
area area
------------------------------------------------------------------------
Wet Ponds....................................... $5,872 $9,820
Dry Ponds....................................... 3,240 5,907
Dry Ponds with Extended Detention............... 3,110 5,413
Infiltration Trenches........................... 4,134 6,359
------------------------------------------------------------------------
Estimates based on methodology presented in ``Cost of Urban Runoff
Quality Controls,'' Wiegand, C., Schueler, T., Chittenden, W., and
Jellick, D., Urban Runoff Quality-Impact and Quality Enhancement
Technology, Proceedings of an Engineering Foundation Conference, ASCE,
1986, edited by B. Urbonas and L.A. Roesner.
Costs are presented in 1992 dollars. Annualized costs are based on a 10
year period and 10 percent discount rate. Estimates include a
contingency cost of 25 percent of the construction cost and operation
and maintenance costs of 5 percent of the construction cost. Land
costs are not included.
Part VI--Economic Impact (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 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; create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or raise novel legal or policy issues arising out
of legal mandates, the President's priorities, or the principles set
forth in the Executive Order.
EPA has determined that this re-issued general permit is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to formal OMB review prior to
proposal.
Part VII--Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, generally requires 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 section 658 of Title 2 of the
U.S. Code, 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.
Nevertheless, EPA has considered the draft general permit in light
of UMRA's requirements. As noted elsewhere in today's notice, the draft
general permit is virtually the same as the NPDES general permits for
construction that many construction operators have used over the past
five years. EPA has determined that the draft permit would not contain
a Federal requirement 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.
The Agency also believes that the draft general permit would not
significantly nor uniquely affect small governments. For UMRA purposes,
``small governments'' is defined by reference to the definition of
``small governmental jurisdiction'' under the RFA. (See UMRA section
102(1), referencing 2 U.S.C. section 658, which references section
601(5) of the RFA.) ``Small governmental jurisdiction'' means
governments of cities, counties, towns, etc., with a population of less
than 50,000, unless the agency establishes an alternative definition.
Under existing regulations, a permit application is not required
until August 7, 2001, for a storm water discharge associated with
construction activity where the construction site is owned or operated
by a municipality with a population of less than 100,000. 40 CFR
122.26(e)(1)(ii)&(g). In any event, the requirements of the draft
general permit would not significantly affect small governments because
most State laws already provide for the control of sedimentation and
erosion in a similar manner as today's proposed general permit. The
draft permit's requirements also would not uniquely affect small
governments because compliance with the proposed permit conditions
affects small governments in the same manner as any other entities
seeking coverage under the permit.
Part VIII--Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
in this proposed general permit under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq. In a separate Federal Register notice, EPA
is proposing a
[[Page 29804]]
revision to the current Information Collection Request (ICR) document
for today's permit (Approved by the Office of Management and Budget
(OMB) OMB No. 2040-0086, expiration date of August 31, 1998) to account
for the increased information requirements proposed in the new Notice
of Intent (NOI) for the construction general permit. EPA will publish
the proposed ICR revisions in a separate Federal Register notice EPA
and will submit the revision to OMB for approval prior to issuance of
the final permit. EPA estimates a slight increase in the burden
associated with filling out the Notice of Intent (NOI) form for
coverage under this permit due to the added requirements under the
Endangered Species Act and the National Historic Preservation Act. EPA
also anticipates a small increase in the time due to the requirement to
submit a notice of termination (NOT) upon completion of construction
activities.
Part IX--Section 401 and Coastal Zone Management Act Certifications
Section 401 of the CWA provides that no Federal license or permit,
including NPDES permits, to conduct any activity that may result in any
discharge into navigable waters shall be granted until the State/Tribal
in which the discharge originates certifies that the discharge will
comply with the applicable provisions of sections 301, 302, 303, 306,
and 307 of the CWA. The section 401 certification process has been
initiated for all States, Indian lands and Federal facilities covered
by today's general permits. Any additional State/Tribal permit
conditions will be contained in the final permit.
The Coastal Zone Management Act (CZMA) requires that all Federal
licensing and permitting actions be reviewed for consistency with each
approved State coastal zone management plan. EPA has also initiated
this review.
Part X--Regulatory Flexibility Act
Section 603(a) of the Regulatory Flexibility Act (RFA), 5 U.S.C.
603(a), provides that ``[w]henever an agency is required by section 553
[of the Administrative Procedures Act (APA)], or any other law, to
publish general notice of proposed rulemaking for any proposed rule,''
the agency must conduct an initial regulatory flexibility analysis for
the proposed rule. Section 605(b) of the RFA provides an exemption from
this requirement for a proposed rule that the agency head certifies
``will not, if promulgated, have a significant economic impact on a
substantial number of small entities.''
The Agency takes the position that NPDES general permits are not
subject to rulemaking requirements under APA section 553 or any other
law. The requirements of APA section 553 apply only to the issuance of
``rules,'' which the APA defines in a manner that excludes permits. See
APA section 551 (4), (6) and (8). The CWA also does not require
publication of a general notice of proposed rulemaking for general
permits. EPA issues draft NPDES general permits for public comment in
the Federal Register in order to meet the applicable CWA procedural
requirement to provide ``an opportunity for a hearing.'' See CWA
section 402(a), 33 U.S.C. 1342(a).
Nevertheless, the Agency has considered and addressed the potential
impact of the draft general permit on small entities in a manner that
meets the requirements of the RFA. EPA took such action based on the
likelihood that a large number of small entities may seek coverage
under the general permit if finalized as proposed. Specifically, EPA
has analyzed the potential impact of the draft general permit on small
entities and determined that the permit will not have a significant
economic impact on a substantial number of small entities. Like the
existing general permit it will replace, the draft general permit would
make available to many small entities, particularly operators of
construction sites, a streamlined process for obtaining authorization
to discharge. Of the possible permitting mechanisms available to
dischargers subject to the CWA, NPDES general permits are designed to
reduce the reporting and monitoring burden associated with NPDES permit
authorization, especially for small entities with discharges having
comparatively less potential for environmental degradation than
discharges regulated under individual NPDES permits. Thus, general
permits like the existing and draft permit at issue here provide small
entities with a permitting application option that is much less
burdensome than NPDES individual permit applications.
Beyond that, the draft general permit is virtually identical to the
existing general permit for construction that under which many
construction operators have operated over the past five years.
Moreover, there are other, new provisions of the proposed permit were
designed to minimize burdens on small entities, including provisions in
the proposal related to subcontractor obligations related to pollution
prevention plans required by the permit. Under the prior general permit
for construction site discharges, affected subcontractors expressed
concern to EPA about the need to prepare their own pollution prevention
plan to address discharges related to subcontractor activities at a
construction site. The subcontractors perceived this obligation to be
redundant, particularly if a general contractor had prepared a
pollution prevention plan that addressed the activities of
subcontractors. Today's proposed permit would address this by allowing
subcontractors to certify that they have reviewed and comply with the
pollution prevention plan prepared by the general contractor (where the
general contractor's pollution prevention plan addresses activities of
subcontractors). EPA believes this modification from the prior permit
should reduce adverse economic impacts on subcontractors who, in many
instances, are small entities. In view of the foregoing, the Regional
Administrators find that the proposed general permit will not have a
significant economic impact on a substantial number of small entities.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 22, 1997.
John DeVillars,
Regional Administrator, Region I.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 21, 1997.
Jeanne M. Fox,
Regional Administrator, Region 2.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
[[Page 29805]]
Dated: May 22, 1997.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 21, 1997.
Myron O. Knudsen, P.E.,
Acting Regional Administrator, Region 6.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 21, 1997.
U. Gale Hutton,
Acting Regional Administrator, Region 7.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 20, 1997.
Patricia D. Hull,
Acting Regional Administrator, Region VIII.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 20, 1997.
Alexis Strauss,
Acting Regional Administrator, Region 9.
Part XI--Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this proposed permit will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 20, 1997.
Jane S. Moore,
Acting Regional Administrator, Region X.
Storm Water General Permit for Construction Activities
Cover Page
Permit No. [See Part I.A.]
Authorization to Discharge Under the National Pollutant Discharge
Elimination System
In compliance with the provisions of the Clean Water Act, as
amended, (33 U.S.C. 1251 et. seq. the Act), except as provided in Part
I.B.3 of this permit, operators of storm water discharges from
construction activities, located in an area specified in Part I.A., are
authorized to discharge in accordance with the conditions and
requirements set forth herein.
Only those operators of storm water discharges from construction
activities in the general permit area who submit a Notice of Intent in
accordance with Part II of this permit are authorized under this
general permit.
This permit shall become effective on [insert the date of
publication of the final permit in the Federal Register].
This permit and the authorization to discharge shall expire at
midnight, [insert the date five years after the date of publication of
the final permit in the Federal Register].
Signed and issued this day of , 1997.
----------------------------------------------------------------------
(Signature of Water Management Director or Regional Administrator)
This signature is for the permit conditions in Parts I through IX
and for any additional conditions in Part X which apply to facilities
located in the corresponding State, Reservation, or other area.
NPDES General Permits for Storm Water Discharges From Construction
Activities
Table of Contents
Part I. Coverage Under this Permit
A. Permit Area
B. Eligibility
C. Obtaining Authorization
D. Terminating Coverage
Part II. Notice of Intent Requirements
A. Deadlines for Notification
B. Contents of Notice of Intent
C. Where to Submit
Part III. Special Conditions, Management Practices, and Other Non-
Numeric Limitations
A. Prohibition on Non-Storm Water Discharges
B. Releases in Excess of Reportable Quantities
C. Spills
D. Discharge Compliance with Water Quality Standards
E. Responsibilities of Operators
Part IV. Storm Water Pollution Prevention Plans
A. Deadlines for Plan Preparation and Compliance
B. Signature, Plan Review and Making Plans Available
C. Keeping Plans Current
D. Contents of Plan
E. Contractor and Subcontractor Certifications
Part V. Retention of Records
A. Documents
B. Accessibility
E. Addresses
Part VI. Standard Permit Conditions
A. Duty to Comply
B. Continuation of the Expired General Permit
C. Need to Halt or Reduce Activity not a Defense
D. Duty to Mitigate
E. Duty to Provide Information.
F. Other Information
G. Signatory Requirements
H. Penalties for Falsification of Reports
I. Oil and Hazardous Substance Liability
J. Property Rights
K. Severability
L. Requiring an Individual Permit or an Alternative General
Permit
M. State/Tribal Environmental Laws
N. Proper Operation and Maintenance
O. Inspection and Entry
P. Permit Actions
Part VII. Reopener Clause
Part VIII. Termination of Coverage
A. Notice of Termination
B. Addresses
Part IX. Definitions
Part X. State/Tribal Specific Conditions
Addenda
A. Endangered Species Guidance
B. Notice of Intent (NOI) Form
C. Notice of Termination (NOT) Form
Part I. Coverage Under This Permit
A. Permit Area
The permit language is structured as if it were a single permit,
with area-specific conditions specified in Part XI. Permit coverage is
actually provided by legally separate and distinctly numbered permits
covering each of the following areas:
Region 1:
CTR10*#I: Indian Country Lands in the State of Connecticut
MAR10*###I: Commonwealth of Massachusetts, except Indian Country Lands
MAR10*##I: Indian Country Lands in the Commonwealth of Massachusetts
MER10*###I: State of Maine, except Indian Country Lands
MER10*##I: Indian Country Lands in the State of Maine
NHR10*###I: State of New Hampshire, except Indian Country Lands
[[Page 29806]]
NHR10*##I: Indian Country Lands in the State of New Hampshire
RIR10*##I: Indian Country Lands in the State of Rhode Island
VTR10*##I: Indian Country Lands in the State of Vermont
VTR10*##F: Federal Facilities in the State of Vermont
Region 2:
NYR10*##I: Indian Country Lands in the State of New York
PRR10*###I: The Commonwealth of Puerto Rico
Region 3:
DCR10*###I: The District of Columbia
DER10*##F: Federal Facilities in the State of Delaware
Region 4:
Coverage Not Available. Construction activities in Region 4 must
obtain permit coverage under an alternative permit.
Region 5:
Coverage Not Available.
Region 6:
LAR10*##I: Indian Country Lands in the State of Louisiana
NMR10*###: The State of New Mexico, except Indian Country Lands
NMR10*##I: Indian Country Lands in the State of New Mexico, except
Navajo Reservation lands (see Region 9) and Ute Mountain Ute
Reservation lands (see Region 8)
OKR10*##I: Indian Country Lands in the State of Oklahoma
TXR10*###: The State of Texas, except Indian Country Lands
TXR10*##I: Indian Country Lands in the State of Texas
Region 7:
IAR10*##I: Indian Country Lands in the State of Iowa
KSR10*##I: Indian Country Lands in the State of Kansas
NER10*##I: Indian Country Lands in the State of Nebraska, except Pine
Ridge Reservation lands (see Region 8)
Region 8:
COR10*##F: Federal Facilities in the State of Colorado
COR10*##I: Indian Country Lands in the State of Colorado, including the
portion of the Ute Mountain Ute Reservation located in New Mexico
MTR10*##I: Indian Country Lands in the State of Montana
NDR10*##I: Indian Country Lands in the State of North Dakota, including
that portion of the Standing Rock Reservation located in South Dakota
(except for the Lake Traverse Reservation which is covered under the
permit areas for South Dakota).
SDR10*##I: Indian Country Lands in the State of South Dakota, including
the portion of the Pine Ridge Reservation located in Nebraska and the
portion of the Lake Traverse Reservation located in North Dakota
(except for the Standing Rock Reservation which is covered under the
permit areas for North Dakota).
UTR10*##I: Indian Country Lands in the State of Utah, except Goshute
and Navajo reservation lands (see Region 9)
WYR10*##I: Indian Country Lands in the State of Wyoming
Region 9:
ASR10*###: The Island of American Samoa
AZR10*###: The State of Arizona, except Indian Country Lands
AZR10*##I: Indian Country Lands in the State of Arizona, including
Navajo Reservation lands in New Mexico and Utah
CAR10*##I: Indian Country Lands in the State of California
GUR10*###: The Island of Guam
JAR10*###: Johnston Atoll
MWR10*###: Midway Island and Wake Island
NIR10*###: Commonwealth of the Northern Mariana Islands
NVR10*##I: Indian Country Lands in the State of Nevada, including the
Duck Valley Reservation in Idaho, the Fort McDermitt Reservation in
Oregon and the Goshute Reservation in Utah
Region 10
AKR10*###: The State of Alaska, except Indian Country Lands
AKR10*##I: Indian Country Lands in Alaska
IDR10*###: The State of Idaho, except Indian Country Lands
IDR10*##I: Indian Country Lands in the State of Idaho, except Duck
Valley Reservation lands (see Region 9)
ORR10*##I: Indian Country Lands in the State of Oregon except Fort
McDermitt Reservation lands (see Region 9)
WAR10*##F: Federal Facilities in the State of Washington
WAR10*##I: Indian Country Lands in the State of Washington
B. Eligibility
1. This permit authorizes discharges of storm water from
construction activities as defined in 40 CFR 122.26(b)(14)(x) and those
construction site discharges designated by the Director as needing a
storm water permit under 122.26(a)(1)(v) or under 122.26(a)(9) and
122.26(g)(1)(i), except for discharges identified under paragraph
I.B.3. Any discharge authorized by a different NPDES permit may be
commingled with discharges authorized by this permit.
2. This permit also authorizes storm water discharges from support
activities related to a construction site (e.g. concrete or asphalt
batch plants, equipment staging yards, material storage areas, etc.)
from which there otherwise is a storm water discharge from a
construction activity provided:
a. The support activity is not a commercial operation serving
multiple unrelated construction projects, and does not operate beyond
the completion of the construction activity; and
b. Appropriate controls and measures are identified in the storm
water pollution prevention plan for the discharges from the support
activity areas.
3. Limitations on Coverage
The following storm water discharges from construction sites are
not authorized by this permit:
a. Post Construction Discharges. Storm water discharges that
originate from the site after construction activities have been
completed and the site has undergone final stabilization.
b. Discharges Mixed with Non-storm Water. Discharges that are mixed
with sources of non-storm water other than discharges which are
identified in Part III.A.2. of this permit and which are in compliance
with Part IV.D.5 (non-storm water discharges) of this permit. Any
discharge authorized by a different NPDES permit may be commingled with
discharges authorized by this permit.
c. Discharges Covered by Another Permit. Storm water discharges
associated with construction activity that have been issued an
individual permit or required to obtain coverage under an alternative
general permit in accordance with paragraph VI.L;
d. Discharges Threatening Water Quality. Storm water discharges
from construction sites that the Director (EPA) determines will cause,
or have the reasonable potential to cause, excursions above water
quality standards. (Where such determinations have been made, the
discharger will be notified by the Director that an individual permit
application is necessary.);
e. Discharges that are not Protective of Endangered and Threatened
Species.
(1) A discharge of storm water associated with construction
activity is covered under this permit only if the applicant certifies
that it meets at least one of the following criteria. Failure to
[[Page 29807]]
continue to meet one of these criteria during the term of the permit
will result in the storm water discharges associated with construction
being ineligible for coverage under this permit.
(a) The storm water discharge(s), and the construction and
implementation of Best Management Practices (BMPs) to control storm
water runoff, are not likely to adversely affect species identified in
Addendum A of this permit or critical habitat for a listed species; or
(b) The applicant's activity has received previous authorization
under section 7 or section 10 of the Endangered Species Act (ESA) and
that authorization addressed storm water discharges and/or BMPS to
control storm water runoff (e.g., developer included impact of entire
project in consultation over a wetlands dredge and fill permit under
Section 7 of the Endangered Species Act); or
(c) The applicant's activity was considered as part of a larger,
more comprehensive assessment of impacts on endangered and threatened
species under section 7 or section 10 of the Endangered Species Act
that which accounts for storm water discharges and BMPs to control
storm water runoff (e.g., where an area-wide habitat conservation plan
and section 10 permit is issued which addresses impacts from
construction activities including those from storm water, or a National
Environmental Policy Act (NEPA) review is conducted which incorporates
ESA section 7 procedures); or
(d) Consultation under section 7 of the Endangered Species Act is
conducted for the applicant's activity which results in either a no
jeopardy opinion or a written concurrence on a finding of no likelihood
of adverse effects; or
(e) The applicant's activity was considered as part of a larger,
more comprehensive site-specific assessment of impacts on endangered
and threatened species by the owner or other operator of the site and
that permittee certified eligibility under item (a), (b), (c), or (d)
above (e.g. owner was able to certify no adverse impacts for the
project as a whole under item (a), so the contractor can then certify
under item (e)). Utility companies applying for permit coverage for the
entire permit area of coverage as defined under Part I.A. may certify
under item (e) since authorization to discharge is contingent on a
principal operator of a construction project having been granted
coverage under this, or an alternative NPDES permit for the areas of
the site where utilities installation activities will occur.
(2) All applicants must follow the procedures provided at Addendum
A of this permit when applying for permit coverage.
(3) The applicant must comply with any terms and conditions imposed
under the eligibility requirements of paragraphs (1)(a), (b), (c), (d),
or (e) above to ensure that storm water discharges or BMPs to control
storm water runoff are protective of listed endangered and threatened
species and/or critical habitat. Such terms and conditions must be
incorporated in the applicant's storm water pollution prevention plan.
(4) For the purposes of conducting consultation to meet the
eligibility requirements of paragraph (1)(d) above, applicants are
designated as non-Federal representatives. See 50 CFR 402.08. However,
applicants who choose to conduct consultation as a non-Federal
representative must notify EPA and the appropriate Service office in
writing of that decision.
(5) This permit does not authorize any ``take'' (as defined under
section 9 of the Endangered Species Act) of endangered or threatened
species unless such takes are authorized under sections 7 or 10 the
Endangered Species Act.
(6) This permit does not authorize any storm water discharges nor
require any BMPs to control storm water runoff that are likely to
jeopardize the continued existence of any species that are listed as
endangered or threatened under the Endangered Species Act or result in
the adverse modification or destruction of habitat that is designated
as critical under the Endangered Species Act.
f. Discharges Adversely Affecting Properties Eligible for
Protection Under the National Historic Preservation Act.
(1) To be eligible for coverage under this permit, all applicants
must determine whether their storm water discharges or BMPs to control
storm water runoff would affect a property that is listed or is
eligible for listing in the National Historic Register maintained by
the Secretary of Interior (also known as ``historic properties'' in the
NHPA regulations at 36 CFR 800.2). Applicants must comply with all
requirements in this permit (including those pertaining to the
development of storm water pollution prevention plans and submission of
NOIs) to protect historic properties. Coverage under this permit is
available only if:
(a) The storm water discharges or BMPs to control storm water run
off do not affect a property that is listed or is eligible for listing
in the National Historic Register maintained be the Secretary of
Interior; or,
(b) The applicant consults with the State Historic Preservation
Officer (SHPO) or the Tribal Historic Preservation Officer (THPO) on
the potential for adverse effects which results in a no effect finding;
or
(c) The applicant has obtained and is in compliance with a written
agreement between the applicant and the SHPO/THPO that outlines all
measures to be undertaken by the applicant to mitigate or prevent
adverse effects to the historic property; or
(d) The applicant agrees to implement and comply with the terms of
a written agreement between another owner/operator (e.g., subdivision
developer, property owner, etc.) and the SHPO/THPO that outlines all
measures to be undertaken by operators on the site to mitigate or
prevent adverse effects to the historic property; or
(e) The applicant's activity was considered as part of a larger,
more comprehensive site-specific assessment of effects on historic
properties by the owner or other operator of the site and that
permittee certified eligibility under items (a), (b), (c), or (d)
above. Utility companies applying for permit coverage for the entire
construction site may certify under item (d) since authorization to
discharge is contingent on a principal operator of a construction
project having been granted coverage under this, or an alternative
NPDES permit for the areas of the site where utilities installation
activities will occur.
(2) This permit does not authorize any storm water discharges or
BMPs to control storm water runoff which are not in compliance with any
applicable State or local historic preservation laws.
C. Obtaining Authorization
1. In order for storm water discharges from construction activities
to be authorized to discharge under this general permit, a discharger
must:
(a) First develop a Pollution Prevention Plan (covering either the
entire site or all portions of the site for which they are operators--
see definition in Part IX) according to the requirements in Part IV
(preparation and implementation of the Plan may be a cooperative effort
where there is more than one operator at a site), and then
(b) Submit a Notice of Intent (NOI) in accordance with the
requirements of Part II, using an NOI form provided by the Director (or
a photocopy thereof). The Pollution Prevention Plan must be implemented
upon commencement of construction activities.
2. For construction sites where the operator changes, or where a
new operator is added after the submittal of
[[Page 29808]]
an NOI under Part II, a new NOI must be submitted in accordance with
Part II.
3. Unless notified by the Director to the contrary, dischargers who
submit an NOI in accordance with the requirements of this permit are
authorized to discharge storm water from construction activities under
the terms and conditions of this permit two (2) days after the date
that the NOI is postmarked. The Director may deny coverage under this
permit and require submittal of an application for an individual NPDES
permit based on a review of the NOI or other information (see Part VI.L
of this permit).
D. Terminating Coverage
1. Operators wishing to terminate coverage under this permit must
submit a notice of termination (NOT) in accordance with Part VIII of
this permit.
2. All permittees must submit a NOT within thirty (30) days after
completion of their construction activities and final stabilization of
their portion of the site, or another operator taking over all of their
responsibilities at the site. A permittee cannot submit an NOT without
final stabilization unless another party has agreed to assume
responsibility for final stabilization of the site. Appropriate
enforcement actions may be taken for permit violations where a
permittee submits a NOT but the permittee has not transferred
operational control to another permittee or the site has not undergone
final stabilization. Project-by-project NOTs are not required to be
submitted by utility company operators for installation of utilities at
construction sites if the utility company operator has been authorized
to discharge in the full area of coverage for a given permit as defined
in Part I.A. of this permit.
Part II. Notice of Intent Requirements
A. Deadlines for Notification
1. Except as provided in Parts II.A.3, II.A.4, II.A.5, or II.A.6,
parties with operational control over project specifications, (e.g.,
owner or developer), must submit an initial Notice of Intent (NOI) in
accordance with the requirements of this Part at least two (2) days
prior to the commencement of construction activities (i.e., the initial
disturbance of soils associated with clearing, grading, excavation
activities, or other construction activities);
2. Except as provided in Parts II.A.3, II.A.4., or Part II.A.5,
parties defined as operators solely due to their day-to-day operational
control over those activities at a project site which are necessary to
ensure compliance with the storm water pollution prevention plan or
other permit conditions (e.g., general contractor, erosion control
contractor, etc.) must submit an NOI at least two (2) days prior to
commencing work at the site.
3. For storm water discharges from construction sites where the
operator changes, (including projects where an operator is added after
an NOI has been submitted under Parts II.A.1 or II.A.2) an NOI in
accordance with the requirements of this Part shall be submitted at
least 2 days prior to when the new operator assumes operational control
over site specifications or commences work at the site.
4. Utility Companies (i.e., telephone, electric, gas, water, sewer,
cable TV, etc. companies that provide service to the public) whose
involvement in an individual construction project is limited to
installation of underground or above-ground service lines and
associated equipment to provide connections from a main transmission
line to individual customers (e.g., homes, apartments, businesses,
etc.) or a location where the site operator's utility subcontractor
will tap in (e.g., public water utility installs a stub with a tap into
the main trunk line and developer's utility contractors run the
distribution lines), may file a single NOI to obtain coverage for all
such activities in the permit areas defined in Part I.A. Permit
coverage obtained in this manner is limited to the utility company's
activities on sites where:
a. An operator of the individual construction project has obtained
permit coverage under this or an alternative general permit or under an
individual permit;
b. The pollution prevention plan for the site identifies control
measures for utilities installation activities; and
c. The party responsible for implementation of each control measure
for utilities installation is clearly identified.
Where a utility company is constructing a main transmission line,
or other project for themselves, the utility company must obtain permit
coverage on a site-by-site basis.
Note: Utility contractors hired by a utility company or other
site operator and not meeting the definition of ``operator'' are
considered subcontractors and are covered by the subcontractor
certification requirements of Part IV.F.
5. Dischargers are not prohibited from submitting late NOIs. When a
late NOI is submitted, authorization is only for future discharges. The
Agency reserves the right to bring appropriate enforcement actions for
any unpermitted activities that may have occurred between the time
construction commenced and authorization of future discharges.
6. Permittees with construction projects authorized to discharge
under the previous general permit issued in 1992 and now replaced by
this permit must:
a. Submit a new NOI within thirty (30) days of the effective date
of this permit in order to continue authorization to discharge after
[insert date 30 days after effective date of permit]. If the permittee
will be eligible to submit a Notice of Termination (NOT) (e.g.,
construction finished and final stabilization complete) before the 30th
day, no NOI is required.
b. During the time between the effective date of this permit and
[insert date 30 days from the effective date of the permit], comply
with the terms and conditions of the 1992 baseline general permit they
were previously authorized under and submitted an NOI for extended
coverage as described under the Administrative Procedures Act before
termination of the 1992 baseline general permit.
c. Update their current pollution prevention plan to comply with
the requirements of Part IV no later than [insert date 30 days from the
effective date of the permit].
B. Contents of Notice of Intent
1. Notice of Intent for Individual Construction Projects
The Notice(s) of Intent shall be signed in accordance with Part
VI.G of this permit and shall include the following information:
a. The street address (description of location if no street address
is available), county, and the latitude and longitude of the
approximate center of the construction site/project for which the
notification is submitted;
b. The name, address, and telephone number of the operator(s)
filing the NOI for permit coverage and operator status as a Federal,
State, Tribal, private, or other public entity;
c. Whether or not the construction project is located on Indian
Lands;
d. The name, address, and telephone number of the construction site
owner and owner's status as a Federal, State, Tribal, private, or other
public entity;
e. The name of the receiving water(s), or if the discharge is
through a municipal separate storm sewer, the name of the municipal
operator of the storm sewer and the receiving water(s);
f. The permit number of any NPDES permit(s) for any discharge(s)
(including
[[Page 29809]]
any storm water discharges or any non-storm water discharges) from the
site, to the extent available.
g. An estimate of project start date and completion dates,
estimates of the number of acres of the site on which soil will be
disturbed, and
h. A certification that a storm water pollution prevention plan,
including both construction and post-construction controls, has been
prepared for the site in accordance with Part IV of this permit, and
such plan provides compliance with approved State/Tribal and/or local
sediment and erosion plans or permits and/or storm water management
plans or permits in accordance with Part IV.D.2.d of this permit. (A
copy of the plans or permits should not be included with the NOI
submission).
i. Whether, based on the instruction in Addendum A, any species
identified in Addendum A are in proximity to the storm water discharges
covered by this permit or the BMPs to be used to comply with permit
conditions.
j. Under which section(s) of Part I.B.3.e.(1)(Endangered Species)
and Part I.B.3.f. (Historical Preservation) the applicant is certifying
eligibility.
k. The following certifications shall be signed in accordance with
Part VI.G.
I certify under penalty of law that I have read and understand
the Part I.B. eligibility requirements for coverage under the
general permit for storm water discharges from construction
activities, including those requirements relating to the protection
of endangered species identified in Addendum A.
I further certify that I have followed the procedures found in
Addendum A to protect listed endangered and threatened species and
designated critical habitat and that the discharges covered under
this permit and BMPs to control storm water runoff meet one of the
eligibility requirements of Part I.B.3.e.(1) of this permit. Check
the box(es) corresponding to that part of Part I.B.3.e.(1) under
which you claim compliance with the eligibility requirements of the
permit--(a), (b), (c), (d), or (e).
I further certify, to the best of my knowledge, that such
discharges, and implementation of BMPs to control storm water
runoff, do not have an effect on properties listed or eligible for
listing on the National Register of Historic Places under the
National Historic Preservation Act, or are otherwise eligible for
coverage, in accordance with Part I.B.3.f. of the permit, due to a
previous agreement under the National Historic Preservation Act.
I understand that continued coverage under this storm water
general permit is contingent upon maintaining eligibility as
provided for in Part I.B.
2. Notice of Intent for Permit Issuance Area-wide Coverage of Utility
Companies While Installing Utility Service
The Notice(s) of Intent for utility companies filing for area-wide
coverage in accordance with Part II.A.4. shall be signed in accordance
with Part VI.G of this permit and shall include the following
information:
a. The name, address, and telephone number of the utility company
filing the NOI for permit coverage and operator status as a Federal,
State, Tribal, private, or other public entity;
b. The State or other area for which coverage is being requested
and whether or not any construction projects will be located on an
Indian reservation;
c. The name, address, and telephone number of the utility company's
point of contact for the utility company's compliance with the area-
wide coverage granted by the permit;
d. A certification that a storm water pollution prevention plan
with standard operating procedures for the limited utility company
construction activities related to installation of service connections
has been prepared in accordance with Part IV of this permit, and such
plan provides compliance with approved State/Tribal and/or local
sediment and erosion plans or permits and/or storm water management
plans or permits in accordance with Part IV.D.2.d of this permit. (A
copy of the plans or permits should not be included with the NOI
submission.)
e. Under which sections of Part I.B.3.e.1. (Endangered Species) and
Part I.B.3.f. (Historical Preservation) the applicant is certifying
eligibility.
f. The following certifications shall be signed in accordance with
Part VI.G.
I certify under penalty of law that I have read and understand
the Part I.B. eligibility requirements for coverage under the
general permit for storm water discharges from construction
activities, including those requirements relating to the protection
of endangered species identified Part I.B.3.e.
I further certify that I understand that authorization to
discharge is contingent on a principal operator of a construction
project having been granted coverage under this, or an alternative
NPDES permit for the areas of the site where utilities installation
activities will occur and that a pollution prevention plan including
appropriate control measures for activities related to installation
of utility service has been prepared and will be implemented.
I further certify that I have followed the procedures found in
Addendum A to protect listed endangered and threatened species and
designated critical habitat and that the discharges covered under
this permit and BMPs to control storm water runoff meet one of the
eligibility requirements of Part I.B.3.e.(1) of this permit. Check
the boxe(s) corresponding to that part of Part I.B.3.e.(1) under
which you claim compliance with the eligibility requirements of the
permit-(a), (b), (c), (d), or (e).
I further certify, to the best of my knowledge, that such
discharges, and implementation of BMPs to control storm water
runoff, do not have an effect on properties listed or eligible for
listing on the National Register of Historic Places under the
National Historic Preservation Act, or are otherwise eligible for
coverage, in accordance with Part I.B.3.f. of the permit, due to a
previous agreement under the National Historic Preservation Act.
I understand that continued coverage under this storm water
general permit is contingent upon maintaining eligibility as
provided for in Part I.B.
C. Where to Submit
1. NOIs, signed in accordance with Part VI.G of this permit, are to
be submitted to the Director at the address: Storm Water Notice of
Intent (4203), U.S. EPA 401 M Street, SW., Washington, DC 20460.
2. A copy of the Director's acknowledgment of coverage under the
general permit and assignment of a permit number; a local contact
telephone number/address for public access to view the pollution
prevention plan at reasonable times during regular business hours
(advance notice by the public of the desire to view the plan may be
required, not to exceed two working days). The permit does not require
that free copies of the plan be provided to interested members of the
public, only that they have reasonable access to view the document and
copy it at their own expense. A brief description of the project shall
also be posted at the construction site in a prominent and safe place
for public viewing during regular business hours (alongside the
building permit if the building permit is required to be displayed).
Part III. Special Conditions, Management Practices, and Other Non-
Numeric Limitations
A. Prohibition on Non-Storm Water Discharges
1. Except as provided in paragraph I.B.2 or 3 and III.A.2, all
discharges covered by this permit shall be composed entirely of storm
water.
2. Discharges of material other than storm water that are in
compliance with a NPDES permit (other than this permit) issued for that
discharge may be mixed with discharges authorized by this permit.
3. The following non-storm water discharges are authorized by this
permit provided the non-storm water
[[Page 29810]]
component of the discharge is in compliance with paragraph IV.D.5:
discharges from fire fighting activities; fire hydrant flushings;
waters used to wash vehicles or control dust in accordance with Part
IV.D.2.c.(2); potable water sources including waterline flushings;
routine external building washdown which does not use detergents;
pavement washwaters where spills or leaks of toxic or hazardous
materials have not occurred (unless all spilled material has been
removed) and where detergents are not used; air conditioning
condensate; springs; uncontaminated ground water; and foundation or
footing drains where flows are not contaminated with process materials
such as solvents.
B. Releases in Excess of Reportable Quantities
The discharge of hazardous substances or oil in the storm water
discharge(s) from a facility shall be prevented or minimized in
accordance with the applicable storm water pollution prevention plan
for the facility. This permit does not relieve the permittee of the
reporting requirements of 40 CFR 117 and 40 CFR 302. Where a release
containing a hazardous substance in an amount equal to or in excess of
a reporting quantity established under either 40 CFR 117 or 40 CFR 302,
occurs during a 24 hour period:
1. The permittee is required to notify the National Response Center
(NRC) (800-424-8802; in the Washington, DC metropolitan area 202-426-
2675) in accordance with the requirements of 40 CFR 117 and 40 CFR 302
as soon as he or she has knowledge of the discharge;
2. The permittee shall submit within 14 calendar days of knowledge
of the release a written description of: the release (including the
type and estimate of the amount of material released), the date that
such release occurred, the circumstances leading to the release, and
steps to be taken to minimize the chance of future occurrences to the
appropriate EPA Regional Office at the address provided in Part V.C
(addresses) of this permit; and
3. The storm water pollution prevention plan required under Part IV
of this permit must be modified within 14 calendar days of knowledge of
the release to: provide a description of the release, the circumstances
leading to the release, and the date of the release. In addition, the
plan must be reviewed to identify measures to prevent the reoccurrence
of such releases and to respond to such releases, and the plan must be
modified where appropriate.
C. Spills
This permit does not authorize the discharge of hazardous
substances or oil resulting from an on-site spill.
D. Discharge Compliance With Water Quality Standards
Dischargers seeking coverage under this permit shall not be causing
or have the reasonable potential to cause or contribute to a violation
of a water quality standard. Where a discharge is already authorized
under this permit and is later determined to cause or have the
reasonable potential to cause or contribute to the violation of an
applicable State, Tribal or Federal Water Quality Standard, the
permitting authority will notify the operator of such violation(s) and
the permittee shall take all necessary actions to ensure future
discharges do not cause or contribute to the violation of a water
quality standard and document these actions in the pollution prevention
plan. If violations remain or re-occur, then coverage under this permit
will be terminated by the permitting authority and an alternative
permit may be issued. Compliance with this requirement does not
preclude any enforcement activity as provided by the Clean Water Act
for the underlying violation.
E. Responsibilities of Operators
1. Developer/Owner Operator--The permittee(s) with operational
control over project specifications (including the ability to make
modifications in specifications) (e.g. developer or owner) must:
a. Ensure the project specifications for the portion of the site
for which they are operators meet the minimum requirements of Part IV
(Pollution Prevention Plan Development) and all other applicable
conditions;
b. Ensure that the pollution prevention plan indicates which areas
of the project they have operational control over and ensure that if
modifications are made to the pollution prevention plan, where other
operators are implementing portions of the plan, that these other
operators be immediately notified of such modifications.
c. Ensure that the pollution prevention plan for the portion of the
site for which they are operators indicates the name and NPDES permit
number for parties with day to day operational control of those
activities necessary to ensure compliance with the storm water
pollution prevention plan or other permit conditions. If these parties
have not been identified at the time the pollution prevention plan is
initially developed, the permittee with operational control over
project specifications shall be considered to be the responsible party
until such time as the authority is transferred to another party (e.g.
general contractor hired) and the plan updated;
d. Ensure that the pollution prevention plan complies with measures
to identify and protect listed threatened and endangered species and/or
critical habitat as specified in Part I.B.3.e., Addendum A of this
permit and as may be required as a result of consultation; and
e. Ensure that the pollution prevention plan complies with measures
to protect properties eligible for protection under the National
Historic Preservation Act as specified in Part I.B.3.f. of this permit.
2. Full Site Operator--The permittee(s) with day-to-day operational
control of those activities at a project site which are necessary to
ensure compliance with the storm water pollution prevention plan or
other permit conditions (e.g. general contractor) must:
a. Ensure the pollution prevention plan for the portion of the site
for which they are operators meets the minimum requirements of Part IV
(Pollution Prevention Plan Development) and identifies the parties
responsible for implementation of control measures identified in the
plan;
b. Ensure that the pollution prevention plan indicates which areas
of the project they have operational control over and ensure that if
modifications are made to the pollution prevention plan, where other
operators are implementing portions of the plan, that these other
operators be immediately notified of such modifications;
c. Ensure that the pollution prevention plan for the portion of the
site for which they are operators indicates the name and NPDES permit
number of the party with operational control over project
specifications (including the ability to make modifications in
specifications);
d. Ensure that the pollution prevention plan complies with measures
to identify and protect listed threatened and endangered species and/or
critical habitat as specified in Part I.B.3.e., Addendum A of this
permit and as may be required as a result of consultation; and
e. Ensure that the pollution prevention plan complies with measures
to protect properties eligible for protection under the National
Historic Preservation Act as specified in Part I.B.3.f. of this permit.
[[Page 29811]]
3. Partial Site Operators. Permittees with operational control over
only a portion of a larger construction site (e.g., one of four
homebuilders in a particular subdivision, utility companies, etc.) are
responsible for compliance with all applicable terms and conditions of
this permit as it relates to their activities on their portion of the
construction site, including protection of endangered species,
protection of historic properties and implementation of pollution
prevention plan measures. Partial site operators shall ensure (either
directly or through coordination with another permittee) that their
activities do not render another party's pollution controls
ineffective. Partial site operators must either implement their
portions of a common pollution prevention plan developed by a full site
operator or develop and implement their own pollution prevention plan.
Part IV. Storm Water Pollution Prevention Plans
A storm water pollution prevention plan shall be developed for each
construction site covered by this permit (at least one per permit area
for utility company service connection permit coverage). For more
effective coordination of BMPs and opportunities for cost sharing, a
cooperative effort by the different operators at a site to prepare and
participate in a comprehensive pollution prevention plan is encouraged.
Individual operators at a site may, but are not required, to develop
separate pollution prevention plans that cover only their portion of
the project provided reference is made to other operators at the site.
Storm water pollution prevention plans shall be prepared in accordance
with good engineering practices. The plan shall identify potential
sources of pollution which may reasonably be expected to affect the
quality of storm water discharges from the construction site. The plan
shall describe and ensure the implementation of practices which will be
used to reduce the pollutants in storm water discharges associated with
construction activity at the construction site and to assure compliance
with the terms and conditions of this permit. When developing pollution
prevention plans, applicants must follow the procedures in Addendum A
of this permit to determine whether endangered and threatened species
would be affected by the applicant's storm water discharges or BMPs to
control storm water runoff. Any information on whether endangered and
threatened species and their critical habitat are found in proximity to
the construction site must be included in the pollution prevention
plan. Any terms or conditions that are imposed under the eligibility
requirements of Part I.B.3.e and Addendum A of this permit to protect
endangered and threatened species and/or critical habitat from storm
water discharges or BMPs to control storm water runoff must be
incorporated into the pollution prevention plan. Permittees must
implement the applicable provisions of the storm water pollution
prevention plan required under this part as a condition of this permit.
A. Deadlines for Plan Preparation and Compliance
The plan shall:
1. Be completed (including certifications required under Part IV.F)
prior to the submittal of an NOI to be covered under this permit and
updated as appropriate; and
2. The plan shall provide for compliance with the terms and
schedule of the plan beginning with the initiation of construction
activities.
B. Signature, Plan Review and Making Plans Available
1. The plan shall be signed in accordance with Part VI.G, and be
retained on-site at the facility which generates the storm water
discharge in accordance with Part V (retention of records) of this
permit. If the site is inactive or does not have an onsite location
adequate to store the pollution prevention plan, the location of the
plan, along with a contact phone number, shall be posted on site. If
the plan is located offsite, reasonable local access to the plan,
during normal working hours, must be provided as described below.
2. The permittee shall make plans available upon request to the
Director; a State, Tribal or local agency approving sediment and
erosion plans, grading plans, or storm water management plans;
interested members of the public; local government officials; or to the
operator of a municipal separate storm sewer receiving discharges from
the site. Viewing by the public shall be at reasonable times during
regular business hours (advance notice by the public of the desire to
view the plan may be required, not to exceed two working days). The
permit does not require that free copies of the plan be provided to
interested members of the public, only that they have reasonable access
to view the document and copy it at their own expense. The copy of the
plan required to be kept onsite (or locally available) must be made
available to the Director (or authorized representative) for review at
the time of an onsite inspection.
3. The Director, or authorized representative, may notify the
permittee (co-permittees) at any time that the plan does not meet one
or more of the minimum requirements of this Part. Such notification
shall identify those provisions of the permit which are not being met
by the plan, and identify which provisions of the plan require
modifications in order to meet the minimum requirements of this Part.
Within 7 calendar days of receipt of such notification from the
Director, (or as otherwise provided by the Director), or authorized
representative, the permittee shall make the required changes to the
plan and shall submit to the Director a written certification that the
requested changes have been made. The Director may take appropriate
enforcement action for the period of time the permittee was operating
under a plan that did not meet the minimum requirements of the permit.
C. Keeping Plans Current
The permittee must amend the plan whenever:
1. There is a change in design, construction, operation, or
maintenance, which has a significant effect on the discharge of
pollutants to the waters of the United States and which has not
otherwise been addressed in the plan;
2. Inspections or investigations by site operators, local, State,
Tribal or federal officials indicate the storm water pollution
prevention plan is proving ineffective in eliminating or significantly
minimizing pollutants from sources identified under Part IV.D.2 of this
permit, or is otherwise not achieving the general objectives of
controlling pollutants in storm water discharges associated with
construction activity; and
3. The plan shall be amended to identify any new contractor and/or
subcontractor that will implement a measure of the storm water
pollution prevention plan (see Part IV.F). The plan must also be
amended to address any measures necessary to protect endangered and
threatened species or historic properties. Amendments to the plan may
be reviewed by EPA in the same manner as Part IV.B above.
D. Contents of Plan
The storm water pollution prevention plan shall include the
following items:
1. Site Description
Each plan shall provide a description of pollutant sources and
other information as indicated:
[[Page 29812]]
a. A description of the nature of the construction activity;
b. A description of the intended sequence of major activities which
disturb soils for major portions of the site (e.g., grubbing,
excavation, grading, utilities and infrastructure installation, etc);
c. Estimates of the total area of the site and the total area of
the site that is expected to be disturbed by excavation, grading, or
other activities;
d. An estimate of the runoff coefficient of the site after
construction activities are completed and existing data describing the
soil or the quality of any discharge from the site;
e. A general location map (e.g. portion of a city or county map or
similar scale) and a site map indicating drainage patterns and
approximate slopes anticipated after major grading activities, areas of
soil disturbance, an outline of areas which are not to be disturbed,
the location of major structural and nonstructural controls identified
in the plan, the location of areas where stabilization practices are
expected to occur, surface waters (including wetlands), and locations
where storm water is discharged to a surface water;
f. A description of any discharge associated with industrial
activity other than construction (including storm water discharges from
dedicated asphalt plants and dedicated concrete plants) covered by the
permit; and the location of that activity;
g. The name of the receiving water(s), and areal extent of wetland
acreage at the site;
h. A copy of the permit requirements (may simply attach copy of
permit language);
i. Information on whether listed endangered or threatened species
and/or critical habitat are found in proximity to the construction
activity and whether such species are adversely affected by the
applicant's storm water discharges or BMPs to control storm water
runoff as required under Addendum A of the permit; and
J. Information on whether the storm water discharges from the
construction activities, and the construction and implementation of
BMPs, would have an affect on a property that is listed or eligible for
listing under the National Historic Register and, where effects may
occur, any written agreements with the SHPO or THPO to mitigate these
effects.
12. Controls
Each plan shall include a description of appropriate controls and
measures that will be implemented at the construction activity. The
plan must clearly describe for each major activity identified in Part
IV.D.1.b: (a) appropriate control measures and the timing during the
construction process that the measures will be implemented and (b)
which permittee is responsible for implementation (e.g., perimeter
controls for one portion of the site will be installed by Contractor A
after the clearing and grubbing necessary for installation of the
measure, but before the clearing and grubbing for the remaining
portions of the site. Perimeter controls will be actively maintained by
Contractor B until final stabilization of those portions of the site
upward of the perimeter control. Temporary perimeter controls will be
removed by Owner after final stabilization). The description and
implementation of controls shall address the following minimum
components:
a. Erosion and Sediment Controls.
(1) Short and Long Term Goals and Criteria:
(a) The construction-phase erosion and sediment controls should be
designed to retain sediment on site to the maximum extent practicable.
(b) All control measures must be properly selected, installed, and
maintained in accordance with the manufacturers specifications and good
engineering practices. If periodic inspections or other information
indicates a control has been used inappropriately, or incorrectly, the
permittee must replace or modify the control for site situations.
(c) If sediments escapes the construction site, off-site
accumulations of sediment must be removed at a frequency sufficient to
minimize offsite impacts (e.g., fugitive sediment in street could be
washed into storm sewers by the next rain and/or pose a safety hazard
to users of public streets).
(d) Sediment must be removed from sediment traps or sedimentation
ponds when design capacity has been reduced by 50%.
(e) Litter, construction debris, and construction chemicals exposed
to storm water shall be picked up prior to anticipated storm events
(e.g. forecasted by local weather reports), or otherwise prevented from
becoming a pollutant source for storm water discharges (e.g. screening
outfalls, picked up daily, etc.).
(f) Offsite material storage areas (also including overburden and
stockpiles of dirt, etc.) used solely by the permitted project are
considered a part of the project and shall be addressed in the
pollution prevention plan.
(2) Stabilization Practices:
A description of interim and permanent stabilization practices,
including site-specific scheduling of the implementation of the
practices. Site plans should ensure that existing vegetation is
preserved where attainable and that disturbed portions of the site are
stabilized. Stabilization practices may include: temporary seeding,
permanent seeding, mulching, geotextiles, sod stabilization, vegetative
buffer strips, protection of trees, preservation of mature vegetation,
and other appropriate measures. Use of impervious surfaces for
stabilization should be avoided. A record of the dates when major
grading activities occur, when construction activities temporarily or
permanently cease on a portion of the site, and when stabilization
measures are initiated shall be included in the plan. Except as
provided in paragraphs IV.D.2.(a).(1).(a), (b), and (c) below,
stabilization measures shall be initiated as soon as practicable in
portions of the site where construction activities have temporarily or
permanently ceased, but in no case more than 14 days after the
construction activity in that portion of the site has temporarily or
permanently ceased.
(a) Where the initiation of stabilization measures by the 14th day
after construction activity temporary or permanently cease is precluded
by snow cover or frozen ground conditions, stabilization measures shall
be initiated as soon as practicable.
(b) Where construction activity on a portion of the site is
temporarily ceased, and earth disturbing activities will be resumed
within 21 days, temporary stabilization measures do not have to be
initiated on that portion of site.
(c) In arid areas (areas with an average annual rainfall of 0 to 10
inches), semi-arid areas (areas with an average annual rainfall of 10
to 20 inches), and areas experiencing droughts where the initiation of
stabilization measures by the 14th day after construction activity has
temporarily or permanently ceased is precluded by seasonal arid
conditions, stabilization measures shall be initiated as soon as
practicable.
(3) Structural Practices:
A description of structural practices to divert flows from exposed
soils, store flows or otherwise limit runoff and the discharge of
pollutants from exposed areas of the site to the degree attainable.
Such practices may include silt fences, earth dikes, drainage swales,
sediment traps, check dams, subsurface drains, pipe slope drains, level
spreaders, storm drain inlet protection, rock outlet protection,
reinforced soil retaining systems, gabions, and temporary or permanent
sediment basins. Placement of Structural practices in floodplains
should be avoided to the degree attainable. The installation of these
[[Page 29813]]
devices may be subject to section 404 of the CWA.
(a) For common drainage locations that serve an area with 10 or
more acres disturbed at one time, a temporary (or permanent) sediment
basin providing 3,600 cubic feet of storage per acre drained, or
equivalent control measures, shall be provided where attainable until
final stabilization of the site. The 3,600 cubic feet of storage area
per acre drained does not apply to flows from offsite areas and flows
from onsite areas that are either undisturbed or have undergone final
stabilization where such flows are diverted around both the disturbed
area and the sediment basin. For drainage locations which serve 10 or
more disturbed acres at one time and where a temporary sediment basin
providing 3,600 cubic feet of storage per acre drained, or equivalent
controls is not attainable, smaller sediment basins and/or sediment
traps should be used. At a minimum, silt fences, vegetative buffer
strips, or equivalent sediment controls are required for all downslope
boundaries of the construction area and for those side slope boundaries
deemed appropriate as dictated by individual site conditions.
(b) For drainage locations serving less than 10 acres, sediment
basins and/or sediment traps should be used. At a minimum, silt fences,
vegetative buffer strips, or equivalent sediment controls are required
for all downslope boundaries (and those side slope boundaries deemed
appropriate as dictated by individual site conditions) of the
construction area unless a sediment basin providing storage for 3,600
cubic feet of storage per acre drained is provided.
b. Storm Water Management. A description of measures that will be
installed during the construction process to control pollutants in
storm water discharges that will occur after construction operations
have been completed. Structural measures should be placed on upland
soils to the degree attainable. The installation of these devices may
be subject to section 404 of the CWA. This permit only addresses the
installation of storm water management measures, and not the ultimate
operation and maintenance of such structures after the construction
activities have been completed and the site has undergone final
stabilization. Permittees are only responsible for the installation and
maintenance of storm water management measures prior to final
stabilization of the site, and are not responsible for maintenance
after storm water discharges associated with construction activity have
been eliminated from the site. However, post-construction storm water
BMPs that discharge pollutants from point sources once construction is
completed, may in themselves, need authorization under a separate NPDES
permit.
(1) Such practices may include: storm water detention structures
(including wet ponds); storm water retention structures; flow
attenuation by use of open vegetated swales and natural depressions;
infiltration of runoff onsite; and sequential systems (which combine
several practices). The pollution prevention plan shall include an
explanation of the technical basis used to select the practices to
control pollution where flows exceed predevelopment levels.
(2) Velocity dissipation devices shall be placed at discharge
locations and along the length of any outfall channel for the purpose
of providing a non-erosive velocity flow from the structure to a water
course so that the natural physical and biological characteristics and
functions are maintained and protected (e.g., no significant changes in
the hydrological regime of the receiving water).
c. Other Controls.
(1) No solid materials, including building materials, shall be
discharged to waters of the United States, except as authorized by a
section 404 permit.
(2) Off-site vehicle tracking of sediments and the generation of
dust shall be minimized.
(3) The plan shall ensure and demonstrate compliance with
applicable State, Tribal and/or local waste disposal, sanitary sewer or
septic system regulations to the extent these are located within the
permitted area.
(4) The plan shall include a narrative description of practices to
reduce pollutants from construction related materials which are stored
onsite including an inventory of construction materials (including
waste materials), storage practices to minimize exposure of the
materials to storm water, and spill prevention and response.
(5) A description of pollutant sources from areas other than
construction (including storm water discharges from dedicated asphalt
plants and dedicated concrete plants), and a description of controls
and measures that will be implemented at those sites.
(6) The plan shall include measures to protect listed endangered
and threatened species and/or critical habitat (if applicable)
including any terms or conditions that are imposed under the
eligibility requirements of Part I.B.3.e and Addendum A of this permit
to protect such species and/or critical habitat from storm water
discharges or BMPs to control storm water runoff. Failure to include
these measures will result in the storm water discharges from the
construction activities being ineligible for coverage under this
permit.
(7) The plan shall include measures to protect properties that are
listed or eligible for listing under the National Historic Register
including any measures agreed to through written agreements with the
SHPO or THPO. Failure to include these measures will result in the
storm water discharges from the construction activities being
ineligible for coverage under this permit.
d. Approved State, Tribal or Local Plans.
(1) Permittees which discharge storm water associated construction
activities must include in their storm water pollution prevention plan
procedures and requirements specified in applicable sediment and
erosion site plans or site permits, or storm water management site
plans or site permits approved by State or local officials. Permittees
shall provide a certification in their storm water pollution prevention
plan that their storm water pollution prevention plan reflects
requirements applicable to protecting surface water resources in
sediment and erosion site plans or site permits, or storm water
management site plans or site permits approved by State, Tribal or
local officials. Permittees shall comply with any such requirements
during the term of the permit. This provision does not apply to
provisions of master plans, comprehensive plans, non-enforceable
guidelines or technical guidance documents that are not identified in a
specific plan or permit that is issued for the construction site.
(2) Storm water pollution prevention plans must be amended to
reflect any change applicable to protecting surface water resources in
sediment and erosion site plans or site permits, or storm water
management site plans or site permits approved by State, Tribal or
local officials for which the permittee receives written notice. Where
the permittee receives such written notice of a change, the permittee
shall provide a recertification in the storm water pollution plan that
the storm water pollution prevention plan has been modified to address
such changes.
(3) Dischargers seeking alternative permit requirements shall
submit an individual permit application in accordance with Part VI.L of
the permit at the address indicated in Part V.C of this permit for the
appropriate Regional Office, along with a description of why
requirements in approved State, Tribal or local plans or permits, or
changes to
[[Page 29814]]
such plans or permits, should not be applicable as a condition of an
NPDES permit.
3. Maintenance
A description of procedures to ensure the timely maintenance of
vegetation, erosion and sediment control measures and other protective
measures identified in the site plan in good and effective operating
condition. Maintenance needs identified in inspections or by other
means shall be accomplished before the next anticipated storm event, or
as necessary to maintain the continued effectiveness of storm water
controls. If maintenance prior to the next anticipated storm event is
impracticable, maintenance must be scheduled and accomplished as soon
as practicable.
4. Inspections
Qualified personnel (provided by the permittee or cooperatively by
multiple permittees) shall inspect disturbed areas of the construction
site that have not been finally stabilized, areas used for storage of
materials that are exposed to precipitation, structural control
measures, and locations where vehicles enter or exit the site at least
once every fourteen calendar days, before anticipated storm events (or
series of storm events such as intermittent showers over one or more
days) expected to cause a significant amount of runoff and within 24
hours of the end of a storm event of 0.5 inches or greater. Where sites
have been finally or temporarily stabilized, runoff is unlikely due to
winter conditions (e.g. site covered with snow, ice, or frozen ground),
or during seasonal arid periods in arid areas (areas with an average
annual rainfall of 0 to 10 inches) and semi-arid areas (areas with an
average annual rainfall of 10 to 20 inches) such inspection shall be
conducted at least once every month.
a. Disturbed areas and areas used for storage of materials that are
exposed to precipitation shall be inspected for evidence of, or the
potential for, pollutants entering the drainage system. Erosion and
sediment control measures identified in the plan shall be observed to
ensure that they are operating correctly. Where discharge locations or
points are accessible, they shall be inspected to ascertain whether
erosion control measures are effective in preventing significant
impacts to receiving waters. Locations where vehicles enter or exit the
site shall be inspected for evidence of offsite sediment tracking.
b. Based on the results of the inspection, the site description
identified in the plan in accordance with paragraph IV.D.1 of this
permit and pollution prevention measures identified in the plan in
accordance with paragraph IV.D.2 of this permit shall be revised as
appropriate, but in no case later than 7 calendar days following the
inspection. Such modifications shall provide for timely implementation
of any changes to the plan within 7 calendar days following the
inspection.
c. A report summarizing the scope of the inspection, name(s) and
qualifications of personnel making the inspection, the date(s) of the
inspection, major observations relating to the implementation of the
storm water pollution prevention plan (including the location(s) of
discharges of sediment or other pollutants from the site and of any
control device that failed to operate as designed or proved inadequate
for a particular location), and actions taken in accordance with
paragraph IV.D.4.b of the permit shall be made and retained as part of
the storm water pollution prevention plan for at least three years from
the date that the site is finally stabilized. Such reports shall
identify any incidents of non-compliance. Where a report does not
identify any incidents of non-compliance, the report shall contain a
certification that the facility is in compliance with the storm water
pollution prevention plan and this permit. The report shall be signed
in accordance with Part VI.G of this permit.
5. Non-Storm Water Discharges
Except for flows from fire fighting activities, sources of non-
storm water listed in Part III.A.2 of this permit that are combined
with storm water discharges associated with construction activity must
be identified in the plan. The plan shall identify and ensure the
implementation of appropriate pollution prevention measures for the
non-storm water component(s) of the discharge.
E. Contractor and Subcontractor Certifications
1. Contractors and Subcontractors Implementing Storm Water Control
Measures
The storm water pollution prevention plan must clearly identify for
each control measure identified in the plan, the party that will
implement the measure. The Permittee(s) shall insure all contractors
and subcontractors identified in the plan as being responsible for
implementing storm water control measures sign a copy of the following
certification statement, in accordance with Part VI.G of this permit,
before performing any work in the area covered by the storm water
pollution prevention plan. All certifications must be included with the
storm water pollution prevention plan.
I certify under penalty of law that I understand the terms and
conditions of the National Pollutant Discharge Elimination System
(NPDES) general permit that authorizes storm water discharges
associated with construction activity from the construction site
identified as part of this certification.
The certification must include the name and title of the person
providing the signature in accordance with Part VI.G of this permit;
the name, address and telephone number of the contracting firm; the
address (or other identifying description) of the site; and the date
the certification is made.
2. Contractors and Subcontractors Impacting Storm Water Control
Measures
The permittee shall insure contractor(s) and/or subcontractor(s)
that will conduct activities that may impact the effectiveness of
control measures identified in the plan, but who do not meet the
definition of ``operator'' (Part IX), sign a copy of the following
certification statement, in accordance with Part VI.G of this permit,
before beginning work on site. All certifications must be included with
the storm water pollution prevention plan.
I certify under penalty of law that I will coordinate, either
through the general contractor, owner, or directly, with the
contractor(s) and/or subcontractor(s) identified in the pollution
prevention plan having responsibility for implementing storm water
control measures to minimize any impact my actions may have on the
effectiveness of these storm water controls measures.
The certification must include the name and title of the person
providing the signature in accordance with Part VI.G of this permit;
the name, address and telephone number of the contracting firm; the
address (or other identifying description) of the site; and the date
the certification is made.
3. Utility Companies
The storm water pollution prevention plan must clearly identify,
for each control measure identified in the plan relating to the
installation of utility service, the party that will implement the
measure. The Permittee(s) shall provide to the site operator(s)
responsible for maintenance of the pollution prevention plan addressing
impacts of utilities installation, a copy of the following
certification statement, signed in accordance with Part VI.G of
[[Page 29815]]
this permit, before performing any work in the area covered by the
storm water pollution prevention plan. All certifications must be
included with the storm water pollution prevention plan.
I certify under penalty of law that I understand the terms and
conditions of the National Pollutant Discharge Elimination System
(NPDES) general permit that authorizes storm water discharges
associated with construction activity from the portion of the
construction site that will be disturbed during my installation of
utility service.
The certification must include the name and title of the person
providing the signature in accordance with Part VI.G of this permit;
the name, address and telephone number of the permittee; the address
(or other identifying description) of the site; and the date the
certification is made.
Part V. Retention of Records
A. Documents
The permittee shall retain copies of storm water pollution
prevention plans and all reports required by this permit, and records
of all data used to complete the Notice of Intent to be covered by this
permit, for a period of at least three years from the date that the
site is finally stabilized. This period may be extended by request of
the Director at any time.
B. Accessibility
The permittee shall retain a copy of the storm water pollution
prevention plan required by this permit (including a copy of the permit
language) at the construction site (or other local location accessible
to the Director and the public) from the date of project initiation to
the date of final stabilization. The permittees with day to day
operational control over pollution prevention plan implementation shall
have a copy of the plan available at a central location onsite for the
use of all operators and those identified as having responsibilities
under the plan whenever they are on the construction site.
C. Addresses
Except for the submittal of NOIs (see Part II.C of this permit),
all written correspondence concerning discharges in any State, Indian
land or from any Federal Facility covered under this permit and
directed to the U.S. Environmental Protection Agency, including the
submittal of individual permit applications, shall be sent to the
address of the appropriate Regional Office listed below:
Region 1: CT, MA, ME, NH, RI, VT
United States EPA, Region I, Office of Ecosystem Protection, Municipal
Assistance Unit, John F. Kennedy Federal Building--CMU, Boston, MA
02203
Region 2: NJ, NY, PR, VI
United States EPA, Region II, Division of Environmental Planning and
Protection, (2DEPP-WPB), Water Programs Branch, 290 Broadway, New York,
NY 10007-1866
Region 3: DE, DC, MD, PA, VA, WV
United States EPA, Region III, Water Management Division, (3WM55),
Storm Water Staff, 841 Chestnut Building, Philadelphia, PA 19107
Region 6: AR, LA, NM (Except See Region IX for Navajo Lands, and See
Region VIII for Ute Mountain Ute Reservation Lands), OK, TX
United States EPA, Region VI, Storm Water Staff, Enforcement and
Compliance Assurance Division (GEN-WC), EPA SW Construction GP, P.O.
Box 50625, Dallas, TX 75205
Region 7: IA, KS, MO, NE (Except See Region VIII for Pine Ridge
Reservation Lands)
United States EPA, Region VII, Water, Wetlands, and Pesticides
Division, NPDES and Facilities Management Branch, Storm Water Staff,
726 Minnesota Avenue, Kansas City, KS 66101
Region 8: CO, MT, ND, SD, WY, UT (Except See Region IX for Goshute
Reservation and Navajo Reservation Lands)
United States EPA, Region VIII, Office of Ecosystems Protection, and
Remediation (8EPR-EP), Storm Water Staff, 999 18th Street, Denver, CO
80202-2466
Note--For Montana Indian Lands, please use the following
address: United States EPA, Region VIII, Montana Operations Office,
Federal Office Building, 301 South Park, Drawer 10096, Helena, MT
59626-0096
Region 9: AZ, CA, HI, NV, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, the Goshute Reservation in UT and NV, the
Navajo Reservation in UT, NM, and AZ, the Duck Valley Reservation in
ID, Fort McDermitt Reservation in OR
United States EPA, Region IX, Water Management Division, WTR-5, Storm
Water Staff, 75 Hawthorne Street, San Francisco, CA 94105
Regions 10: AK, ID (Except See Region IX for Duck Valley Reservation
Lands), OR (Except See Region IX for Ft. McDermitt Reservation), WA
United States EPA, Region X, Office of Water OW-130, Storm Water Staff,
1200 6th Avenue, Seattle, WA 98101
Part VI. Standard Permit Conditions
A. Duty To Comply
1. The permittee must comply with all conditions of this permit.
Any permit noncompliance constitutes a violation of CWA and is grounds
for enforcement action; for permit termination, revocation and
reissuance, or modification; or for denial of a permit renewal
application.
2. Penalties for Violations of Permit Conditions.
The Director will adjust the civil and administrative penalties
listed below in accordance with the Civil Monetary Penalty Inflation
Adjustment Rule (Federal Register: December 31, 1996, Volume 61, Number
252, pages 69359-69366, as corrected, March 20, 1997, Volume 62, Number
54, pages 13514-13517) as mandated by the Debt Collection Improvement
Act of 1996 for inflation on a periodic basis. This rule allows EPA's
penalties to keep pace with inflation. The Agency is required to review
its penalties at least once every four years thereafter and to adjust
them as necessary for inflation according to a specified formula. The
civil and administrative penalties listed below were adjusted for
inflation starting in 1996.
a. Criminal
(1) Negligent Violations. The CWA provides that any person who
negligently violates permit conditions implementing sections 301, 302,
306, 307, 308, 318, or 405 of the Act is subject to a fine of not less
than $2,500 nor more than $25,000 per day of violation, or by
imprisonment for not more than 1 year, or both.
(2) Knowing Violations. The CWA provides that any person who
knowingly violates permit conditions implementing sections 301, 302,
306, 307, 308, 318, or 405 of the Act is subject to a fine of not less
than $5,000 nor more than $50,000 per day of violation, or by
imprisonment for not more than 3 years, or both.
(3) Knowing Endangerment. The CWA provides that any person who
knowingly violates permit conditions implementing sections 301, 302,
306, 307, 308, 318, or 405 of the Act and who knows at that time that
he is placing another person in imminent danger of death or serious
bodily injury is subject
[[Page 29816]]
to a fine of not more than $250,000, or by imprisonment for not more
than 15 years, or both.
(4) False Statement. The CWA provides that any person who knowingly
makes any false material statement, representation, or certification in
any application, record, report, plan, or other document filed or
required to be maintained under the Act or who knowingly falsifies,
tampers with, or renders inaccurate, any monitoring device or method
required to be maintained under the Act, shall upon conviction, be
punished by a fine of not more than $10,000 or by imprisonment for not
more than two years, or by both. If a conviction is for a violation
committed after a first conviction of such person under this paragraph,
punishment shall be by a fine of not more than $20,000 per day of
violation, or by imprisonment of not more than four years, or by both.
(See section 309.c.4 of the Clean Water Act).
b. Civil Penalties
The CWA provides that any person who violates a permit condition
implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act
is subject to a civil penalty not to exceed $27,500 per day for each
violation.
c. Administrative Penalties
The CWA provides that any person who violates a permit condition
implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act
is subject to an administrative penalty, as follows:
(1) Class I penalty. Not to exceed $11,000 per violation nor shall
the maximum amount exceed $27,500.
(2) Class II penalty. Not to exceed $11,000 per day for each day
during which the violation continues nor shall the maximum amount
exceed $137,500.
B. Continuation of the Expired General Permit
This permit expires five years after the effective date. However,
an expired general permit may continue in force and effect. To retain
coverage under the continued permit, permittees should provide notice
of their intent to remain covered under this permit at least 2 days
prior to the expiration date. The notice must be signed in accordance
with Part VI.G.1. of this permit and must contain the following
information:
1. Name, address and telephone number of the operator.
2. The existing storm water construction permit number.
This information may be submitted on a post card or in a letter and
shall be submitted to the EPA Storm Water Notice of Intent Center at:
Storm Water Notice of Intent (4203), US EPA, 401 M Street, SW,
Washington, D.C. 20460.
C. Need To Halt or Reduce Activity Not a Defense
It shall not be a defense for a permittee in an enforcement action
that it would have been necessary to halt or reduce the permitted
activity in order to maintain compliance with the conditions of this
permit.
D. Duty to Mitigate
The permittee shall take all reasonable steps to minimize or
prevent any discharge in violation of this permit which has a
reasonable likelihood of adversely affecting human health or the
environment.
E. Duty to Provide Information
The permittee shall furnish to the Director or an authorized
representative of the Director any information which is requested to
determine compliance with this permit or other information.
F. Other Information
When the permittee becomes aware that he or she failed to submit
any relevant facts or submitted incorrect information in the Notice of
Intent or in any other report to the Director, he or she shall promptly
submit such facts or information.
G. Signatory Requirements
All Notices of Intent, storm water pollution prevention plans,
reports, certifications or information either submitted to the Director
or the operator of a large or medium municipal separate storm sewer
system, or that this permit requires be maintained by the permittee,
shall be signed as follows:
1. All Notices of Intent shall be signed as follows:
a. For a corporation: by a responsible corporate officer. For the
purpose of this section, a responsible corporate officer means: a
president, secretary, treasurer, or vice-president of the corporation
in charge of a principal business function, or any other person who
performs similar policy or decision-making functions for the
corporation; or the manager of one or more manufacturing, production or
operating facilities employing more than 250 persons or having gross
annual sales or expenditures exceeding $25,000,000 (in second-quarter
1980 dollars) if authority to sign documents has been assigned or
delegated to the manager in accordance with corporate procedures;
b. For a partnership or sole proprietorship: by a general partner
or the proprietor, respectively; or
c. For a municipality, State, Federal, or other public agency: by
either a principal executive officer or ranking elected official. For
purposes of this section, a principal executive officer of a Federal
agency includes (1) the chief executive officer of the agency, or (2) a
senior executive officer having responsibility for the overall
operations of a principal geographic unit of the agency (e.g., Regional
Administrators of EPA).
2. All reports required by the permit and other information
requested by the Director or authorized representative of the Director
shall be signed by a person described above or by a duly authorized
representative of that person. A person is a duly authorized
representative only if:
a. The authorization is made in writing by a person described above
and submitted to the Director.
b. The authorization specifies either an individual or a position
having responsibility for the overall operation of the regulated
facility or activity, such as the position of manager, operator,
superintendent, or position of equivalent responsibility or an
individual or position having overall responsibility for environmental
matters for the company. (A duly authorized representative may thus be
either a named individual or any individual occupying a named
position).
c. Changes to authorization. If an authorization under paragraph
II.B.3. is no longer accurate because a different operator has
responsibility for the overall operation of the construction site, a
new notice of intent satisfying the requirements of paragraph II.B must
be submitted to the Director prior to or together with any reports,
information, or applications to be signed by an authorized
representative.
d. Certification. Any person signing documents under paragraph VI.G
shall make the following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified personnel
properly gathered and evaluated the information submitted. Based on
my inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief,
true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
H. Penalties for Falsification of Reports
Section 309(c)(4) of the Clean Water Act provides that any person
who knowingly makes any false material
[[Page 29817]]
statement, representation, or certification in any record or other
document submitted or required to be maintained under this permit,
including reports of compliance or noncompliance shall, upon
conviction, be punished by a fine of not more than $10,000, or by
imprisonment for not more than two years, or by both.
I. Oil and Hazardous Substance Liability
Nothing in this permit shall be construed to preclude the
institution of any legal action or relieve the permittee from any
responsibilities, liabilities, or penalties to which the permittee is
or may be subject under section 311 of the CWA or section 106 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (CERCLA).
J. Property Rights
The issuance of this permit does not convey any property rights of
any sort, nor any exclusive privileges, nor does it authorize any
injury to private property nor any invasion of personal rights, nor any
infringement of Federal, State or local laws or regulations.
K. Severability
The provisions of this permit are severable, and if any provision
of this permit, or the application of any provision of this permit to
any circumstance, is held invalid, the application of such provision to
other circumstances, and the remainder of this permit shall not be
affected thereby.
L. Requiring an Individual Permit or an Alternative General Permit
1. The Director may require any person authorized by this permit to
apply for and/or obtain either an individual NPDES permit or an
alternative NPDES general permit. Any interested person may petition
the Director to take action under this paragraph. Where the Director
requires a discharger authorized to discharge under this permit to
apply for an individual NPDES permit, the Director shall notify the
discharger in writing that a permit application is required. This
notification shall include a brief statement of the reasons for this
decision, an application form, a statement setting a deadline for the
discharger to file the application, and a statement that on the
effective date of issuance or denial of the individual NPDES permit or
the alternative general permit as it applies to the individual
permittee, coverage under this general permit shall automatically
terminate. Applications shall be submitted to the appropriate Regional
Office indicated in Part V.C of this permit. The Director may grant
additional time to submit the application upon request of the
applicant. If a discharger fails to submit in a timely manner an
individual NPDES permit application as required by the Director under
this paragraph, then the applicability of this permit to the individual
NPDES permittee is automatically terminated at the end of the day
specified by the Director for application submittal.
2. Any discharger authorized by this permit may request to be
excluded from the coverage of this permit by applying for an individual
permit. In such cases, the permittee shall submit an individual
application in accordance with the requirements of 40 CFR
122.26(c)(1)(ii), with reasons supporting the request, to the Director
at the address for the appropriate Regional Office indicated in Part
V.C of this permit. The request may be granted by issuance of any
individual permit or an alternative general permit if the reasons cited
by the permittee are adequate to support the request.
3. When an individual NPDES permit is issued to a discharger
otherwise subject to this permit, or the discharger is authorized to
discharge under an alternative NPDES general permit, the applicability
of this permit to the individual NPDES permittee is automatically
terminated on the effective date of the individual permit or the date
of authorization of coverage under the alternative general permit,
whichever the case may be. When an individual NPDES permit is denied to
an owner or operator otherwise subject to this permit, or the owner or
operator is denied for coverage under an alternative NPDES general
permit, the applicability of this permit to the individual NPDES
permittee is automatically terminated on the date of such denial,
unless otherwise specified by the Director.
M. State/Tribal Environmental Laws
1. Nothing in this permit shall be construed to preclude the
institution of any legal action or relieve the permittee from any
responsibilities, liabilities, or penalties established pursuant to any
applicable State/Tribal law or regulation under authority preserved by
section 510 of the Act.
2. No condition of this permit shall release the permittee from any
responsibility or requirements under other environmental statutes or
regulations.
N. Proper Operation and Maintenance
The permittee shall at all times properly operate and maintain all
facilities and systems of treatment and control (and related
appurtenances) which are installed or used by the permittee to achieve
compliance with the conditions of this permit and with the requirements
of storm water pollution prevention plans. Proper operation and
maintenance also includes adequate laboratory controls and appropriate
quality assurance procedures. Proper operation and maintenance requires
the operation of backup or auxiliary facilities or similar systems,
installed by a permittee only when necessary to achieve compliance with
the conditions of the permit.
O. Inspection and Entry
The permittee shall allow the Director or an authorized
representative of EPA, the State/Tribe, or, in the case of a
construction site which discharges through a municipal separate storm
sewer, an authorized representative of the municipal operator or the
separate storm sewer receiving the discharge, upon the presentation of
credentials and other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated facility
or activity is located or conducted or where records must be kept under
the conditions of this permit;
2. Have access to and copy at reasonable times, any records that
must be kept under the conditions of this permit; and
3. Inspect at reasonable times any facilities or equipment
(including monitoring and control equipment).
P. Permit Actions
This permit may be modified, revoked and reissued, or terminated
for cause. The filing of a request by the permittee for a permit
modification, revocation and reissuance, or termination, or a
notification of planned changes or anticipated noncompliance does not
stay any permit condition.
Part VII. Reopener Clause
A. If there is evidence indicating that the storm water discharges
authorized by this permit cause, have the reasonable potential to cause
or contribute to, a violation of a water quality standard, the
discharger may be required to obtain individual permit or an
alternative general permit in accordance with Part I.C of this permit
or the permit may be modified to include different limitations and/or
requirements.
B. Permit modification or revocation will be conducted according to
40 CFR 122.62, 122.63, 122.64 and 124.5.
[[Page 29818]]
Part VIII. Termination of Coverage
A. Notice of Termination
Where a site has been finally stabilized and all storm water
discharges from construction activities that are authorized by this
permit are eliminated, or where the operator of all storm water
discharges at a facility changes, the permittee must submit a Notice of
Termination that is signed in accordance with Part VI.G of this permit.
The Notice of Termination shall include the following information:
1. The street (description of location if no street address is
available) address of the construction site for which the notification
is submitted;
2. The name, address and telephone number of the permittee
submitting the Notice of Termination;
3. The NPDES permit number for the storm water discharge identified
by the Notice of Termination;
4. An indication of whether the storm water discharges associated
with construction activity have been eliminated or the operator of the
discharges has changed;
5. For changes in operators, the name, address, and phone number of
the new operator, and
6. The following certification signed in accordance with Part VI.G
(signatory requirements) of this permit:
I certify under penalty of law that either: (a) all storm water
discharges associated with construction activity from the portion of
the identified facility where I was an operator have ceased or have
been eliminated or (b) I am no longer an operator at the
construction site and a new operator has assumed operational control
for those portions of the construction site where I previously had
operational control. I understand that by submitting this notice of
termination, I am no longer authorized to discharge storm water
associated with construction activity under this general permit, and
that discharging pollutants in storm water associated with
construction activity to waters of the United States is unlawful
under the Clean Water Act where the discharge is not authorized by a
NPDES permit. I also understand that the submittal of this notice of
termination does not release an operator from liability for any
violations of this permit or the Clean Water Act.
For the purposes of this certification, elimination of storm water
discharges associated with construction activity means that all
disturbed soils at the portion of the construction site where the
operator had control have been finally stabilized and temporary erosion
and sediment control measures have been removed or will be removed at
an appropriate time to insure final stabilization is maintained, or
that all storm water discharges associated with construction activities
from the identified site that are authorized by a NPDES general permit
have otherwise been eliminated from the portion of the construction
site where the operator had control.
B. Addresses
All Notices of Termination are to be sent, using the form provided
by the Director (or a photocopy thereof), to the address specified on
the NOT form.
Part IX. Definitions
``Best Management Practices'' (``BMPs'') means schedules of
activities, prohibitions of practices, maintenance procedures, and
other management practices to prevent or reduce the discharge of
pollutants to waters of the United States. BMPs also include treatment
requirements, operating procedures, and practices to control plant site
runoff, spillage or leaks, sludge or waste disposal, or drainage from
raw material storage.
``Control Measure''--As used in this permit, refers to any Best
Management Practice or other method used to prevent or reduce the
discharge of pollutants to waters of the United States.
``Commencement of Construction''--The initial disturbance of soils
associated with clearing, grading, or excavating activities or other
construction activities.
``CWA'' means the Clean Water Act or the Federal Water Pollution
Control Act, 33 U.S.C 1251 et seq.
``Director'' means the Regional Administrator of the Environmental
Protection Agency or an authorized representative.
``Discharge of Storm Water Associated with Construction
Activity''--As used in this permit, refers to storm water ``point
source'' discharges from areas where soil disturbing activities (e.g.,
clearing, grading, or excavation, etc.), construction materials or
equipment storage or maintenance (e.g., fill piles, concrete truck
washout, fueling, etc.), or other industrial storm water directly
related to the construction process (e.g., concrete or asphalt batch
plants, etc.) are located.
``Final Stabilization'' means that all soil disturbing activities
at the site have been completed, and that a uniform (e.g., evenly
distributed, without large bare areas) perennial vegetative cover with
a density of 70% of the native background vegetative cover for the area
has been established on all unpaved areas and areas not covered by
permanent structures, or equivalent permanent stabilization measures
(such as the use of riprap, gabions, or geotextiles) have been
employed. In some parts of the country, background native vegetation
will cover less than 100% of the ground (e.g. arid areas). Establishing
at least 70% of the natural cover of native vegetation meets the
vegetative cover criteria for final stabilization. For example, if the
native vegetation covers 50% of the ground, 70% of 50% would require
35% total cover for final stabilization.
``Flow-weighted composite sample'' means a composite sample
consisting of a mixture of aliquots collected at a constant time
interval, where the volume of each aliquot is proportional to the flow
rate of the discharge.
``Large and Medium municipal separate storm sewer system'' means
all municipal separate storm sewers that are either:
(i) Located in an incorporated place (city) with a population of
100,000 or more as determined by the latest Decennial Census by the
Bureau of Census (these cities are listed in Appendices F and G of 40
CFR 122); or
(ii) Located in the counties with unincorporated urbanized
populations of 100,000 or more, except municipal separate storm sewers
that are located in the incorporated places, townships or towns within
such counties (these counties are listed in Appendices H and I of 40
CFR 122); or
(iii) Owned or operated by a municipality other than those
described in paragraph (i) or (ii) and that are designated by the
Director as part of the large or medium municipal separate storm sewer
system.
``NOI'' means notice of intent to be covered by this permit (see
Part II of this permit.)
``NOT'' means notice of termination (see Part VIII of this permit).
``Operator'' means any party associated with the construction
project that meets either of the following 2 criteria: (1) The party
has operational control over project specifications (including the
ability to make modifications in specifications), or (2) the party has
day-to-day operational control of those activities at a project site
which are necessary to ensure compliance with the storm water pollution
prevention plan or other permit conditions (e.g., they are authorized
to direct workers at the site to carry out activities identified in the
storm water pollution prevention plan or comply with other permit
conditions).
``Point Source'' means any discernible, confined, and discrete
conveyance, including but not limited to, any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure,
[[Page 29819]]
container, rolling stock, concentrated animal feeding operation,
landfill leachate collection system, vessel or other floating craft
from which pollutants are or may be discharges. This term does not
include return flows from irrigated agriculture or agricultural storm
water runoff.
``Runoff coefficient'' means the fraction of total rainfall that
will appear at the conveyance as runoff.
``Storm Water'' means storm water runoff, snow melt runoff, and
surface runoff and drainage.
``Storm Water Associated with Industrial Activity'' is defined at
40 CFR 122.26(b)(14) and incorporated here by reference. Most relevant
to this permit is 40 CFR 122.26(b)(14)(x), which relates to
construction activity including clearing, grading and excavation
activities.
``Waters of the United States'' means:
(a) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(b) All interstate waters, including interstate ``wetlands'';
(c) All other waters such as interstate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers
for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes by
industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the
United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through (d)
of this definition;
(f) The territorial sea; and
(g) Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a) through (f) of this
definition.
Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of CWA (other than cooling ponds as
defined in 40 CFR 423.11(m) which also meet the criteria of this
definition) are not waters of the United States. Waters of the United
States do not include prior converted cropland. Notwithstanding the
determination of an area's status as prior converted cropland by any
other federal agency, for the purposes of the Clean Water Act, the
final authority regarding Clean Water Act jurisdiction remains with
EPA.
Part X. State/Tribal Specific Conditions
The provisions of this Part provide modifications or additions to
the applicable conditions of Parts I through IX of this permit to
reflect specific additional conditions identified as part of the State
Section 401 or CZMA certification process or as otherwise established
by the permitting authority. The additional revisions and requirements
listed below are set forth in connection with particular State, Indian
lands and Federal facilities and only apply to the States, Indian lands
and Federal facilities specifically referenced.
Other conditions to be added as result of 401/CZMA certifications:
(To be added upon completion of certification processes. Added
conditions will be specific to each State/Tribal area.)
Note on Addendum A
Proposed Addendum A is a set of instructions for applicants to
follow, including a State/County listing of endangered species that
applicants can refer to, to ensure compliance with the eligibility
terms and conditions of this proposed permit. The proposed instructions
are included in this notice, however, the State/County listing of
species of Addendum A is not included in this notice, but can be found
in Addendum H to the Multi-Sector Storm Water General Permit published
in the Federal Register on September 29, 1995 (60 FR 50804). EPA will
prepare a final Addendum A species listing to accompany the issuance of
the final permit after the public comment period. Reviewers wishing to
make comment on the species listing in Addendum A for today's proposed
permit may do so by reviewing the species listing in Addendum H of the
Multi-Sector Permit.
Addendum A--Endangered Species Guidance
I. Instructions
Below is a list of endangered and threatened species that EPA
has determined may be affected by the activities covered by the
baseline construction general permit (BCGP). These species are
listed by county. In order to get BCGP coverage, applicants must:
Indicate in box provided on the NOI whether any species
listed in this Addendum or critical habitat are in proximity to the
facility,
Certify pursuant to Section I.B.3.e that they have
followed the procedures found in Addendum A to protect listed
endangered and threatened species and designated critical habitat and
that the storm water discharges and BMPs to control storm water run off
covered under this permit meet one or more of the eligibility
requirements of Part I.B.3.e.(1) of this permit, while checking the
box(es) that correspond to paragraph (a), (b), (c), (d), or (e) of Part
I.B.3.e.(1) for which eligibility is claimed.
To do this, please follow steps 1 through 6 below when
developing the pollution prevention plan below.
Step 1: Determine if the Construction Site Is Found Within Designated
Critical Habitat for Listed Species
Some (but not all) listed species have designated critical
habitat. Exact locations of such habitat is provided in the Service
regulations at 50 CFR part 17 and part 226. To determine if their
construction site occurs within (also known as ``in proximity to'')
critical habitat, applicants should either review those regulations
or contact the nearest Fish and Wildlife Service (FWS) and National
Marine Fisheries Service (NMFS) Office. FWS has offices in every
state. NMFS has regional offices in: Gloucester, Massachusetts; St.
Petersburg, Florida; Long Beach, California; Portland, Oregon; and
Juneau, Alaska.
If the construction site is not located in designated critical
habitat, then the applicant need not consider impacts to critical
habitat when following steps 2 through 5. If the applicant's site is
located within (i.e. in proximity to) critical habitat then the
applicant most look at impacts to critical habitat when following
steps 2 through 6.
(EPA notes that many measures imposed to protect listed species
under steps 2 through 6 will also protect critical habitat. However,
obligations to ensure that an action is not likely to result in the
destruction or adverse modification of critical habitat are separate
from those of ensuring that an action is not likely to jeopardize
the existence of threatened and endangered species. Thus, meeting
the eligibility requirements of this permit may require measures to
protect critical habitat that are separate and distinct from those
to protect listed species.)
Step 2: Review the County Species List To Determine if any Species Are
Located in the County Where the Construction Activities Occurs
If no species are listed in a facility's county or if a
facility's county is not found on the list, an applicant is eligible
for BCGP coverage and may indicate in the NOI that no species are
found in proximity and certify that it is eligible for BCGP coverage
under Part I.B.3.e.(1)(a) of the permit by marking box a. in the
certification provisions of the NOI. Where a facility is located in
more than one county, the lists for all counties should be reviewed.
If species are located in the county, follow step 3 below.
[[Page 29820]]
Step 3: Determine if any Species May Be Found ``In Proximity'' to the
Construction Activity's Storm Water Discharges
A species is in proximity to a construction activity's storm
water discharge when the species is:
Located in the path or immediate area through which or
over which contaminated point source storm water flows from
construction activities to the point of discharge into the receiving
water.
Located in the immediate vicinity of, or nearby, the
point of discharge into receiving waters.
Located in the area of a site where storm water BMPs
are planned or are to be constructed.
The area in proximity to be searched/surveyed for listed species
will vary with the size and structure of the construction activity,
the nature and quantity of the storm water discharges, and the type
of receiving waters. Given the number of construction activities
potentially covered by the BCGP, no specific method to determine
whether species are in proximity is required for permit coverage
under the BCGP. Instead, applicants should use the method or methods
which best allow them to determine to the best of their knowledge
whether species are in proximity to their particular construction
activities. These methods may include:
Conducting visual inspections: This method may be
particularly suitable for construction sites that are smaller in
size or located in non-natural settings such as highly urbanized
areas or industrial parks where there is little or no natural
habitat, or for construction activities that discharge directly into
municipal storm water collection systems.
Contacting the nearest State or Tribal Wildlife Agency
or U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries
Service (NMFS) offices. Many endangered and threatened species are
found in well-defined areas or habitats. That information is
frequently known to State, Tribal, or Federal wildlife agencies.
Contacting local/regional conservation groups. These
groups inventory species and their locations and maintain lists of
sightings and habitats.
Conducting a formal biological survey. Larger
construction sites with extensive storm water discharges may choose
to conduct biological surveys as the most effective way to assess
whether species are located in proximity and whether there are
likely adverse effects.
Conducting an Environmental Assessment Under the
National Environmental Policy Act (NEPA) . Some construction
activities may require environmental assessments under NAPA. Such
assessments may indicate if listed species are in proximity. (BCGP
coverage does not trigger NAPA because it does not regulate any
dischargers subject to New Source Performance Standards under
section 306 of the Clean Water Act. See CWA Sec. 511(c). However,
some construction activities might require review under NEPA because
of Federal funding or other Federal nexus.)
If no species are in proximity, an applicant is eligible for
BCGP coverage and may indicate that in the NOI and certify that it
is eligible for BCGP coverage under Part I.B.3.E.(1)(a) of the
permit by marking box a. in the certification provisions of the NOI.
If listed species are found in proximity to a facility,
applicants must indicate the location and nature of this presence in
the Pollution Prevention Plan and follow step 4 below.
Step 4: Determine if Species or Critical Habitat Could Be Adversely
Affected by the Construction Activity's Storm Water Discharges or by
BMPS To Control Those Discharges
Scope of Adverse Effects: Potential adverse effects from storm
water include:
Hydrological. Storm water may cause siltation,
sedimentation or induce other changes in the receiving waters such
as temperature, salinity or pH. These effects will vary with the
amount of storm water discharged and the volume and condition of the
receiving water. Where a storm water discharge constitutes a minute
portion of the total volume of the receiving water, adverse
hydrological effects are less likely.
Habitat. Storm water may drain or inundate listed
species habitat.
Toxicity. In some cases, pollutants in storm water may
have toxic effects on listed species.
The scope of effects to consider will vary with each site.
Applicants must also consider the likelihood of adverse effects on
species from any BMPs to control storm water. Most adverse impacts
from BMPs are likely to occur from the construction activities.
However, it is possible that the operation of some BMPs (for
example, larger storm water retention ponds) may affect endangered
and threatened species.
If adverse effects are not likely, then the applicant should
certify that it is eligible for BCGP coverage under Part
I.B.3.e(1)(a) of the permit by marking box a. in the certification
provisions of the NOI. If adverse effects are likely, applicants
should follow step 5 below.
Step 5: Determine if Measures Can Be Implemented To Avoid any Adverse
Effects
If an applicant determines that adverse effects are likely, it
can receive coverage if appropriate measures are undertaken to avoid
or eliminate any actual or potential adverse affects prior to
applying for permit coverage. These measures may involve relatively
simple changes to construction activities such as re-routing a storm
water discharge to bypass an area where species are located,
relocating BMPs, or limiting the size of construction activity that
will be subject to storm water discharge controls.
At this stage, applicants may wish to contact the FWS and/or
NMFS to see what appropriate measures might be suitable to avoid or
eliminate adverse impacts to listed species and/or critical habitat.
(See 50 CFR 402.13(b)). This can entail the initiation of informal
consultation with the FWS and/or NMFS which is described in more
detail below at Step Six.
If applicants adopt measures to avoid or eliminate adverse
affects, they must continue to abide by them during the course of
permit coverage. These measures must be described in the pollution
prevention plan and may be enforceable as permit conditions.
If appropriate measures to avoid the likelihood of adverse
effects are not available to the applicant, the applicant should
follow Step 6 below.
Step 6: Determine if the Eligibility Requirements of Part I.B.3.E.(1)
(b)-(e) Can Be Met
Where adverse effects are likely, the applicant must contact the
EPA and FWS/NMFS. Applicants may still be eligible for BCGP coverage
if any likelihood of adverse effects are addressed through meeting
the criteria of Part I.B.3.e.(1)(b)-(e) of the permit. To do so the
applicant may:
I.B.3.e.(1)(b). The applicant's activity has received
previous authorization through an earlier section 7 consultation or
issuance of a ESA section 10 permit (incidental taking permit) and
that authorization addressed storm water discharges and/or BMPs to
control storm water runoff. (e.g., developer included impact of
entire project in consultation over a wetlands dredge and fill
permit under Section 7 of the Endangered Species Act). If the
applicant is eligible for coverage under this criteria, it should
indicate this by marking box (b) of the certification provisions.
I.B.3.e.(1)(c). The applicant's activity was considered
as part of a larger, more comprehensive assessment of impacts on
endangered and threatened species and/or critical habitat under
section 7 or section 10 of the Endangered Species Act that which
accounts for storm water discharges and BMPs to control storm water
runoff (e.g., where a area-wide habitat conservation plan and
section 10 permit is issued which addresses impacts from
construction activities including those from storm water or a NEPA
review is conducted which incorporates ESA section 7 procedures). If
the applicant is eligible for coverage under this criteria, it
should indicate this by marking box (c) of the certification
provisions.
I.B.3.e.(1)(d). Enter section 7 consultation with the
FWS and/or NMFS for the applicant's storm water discharges and BMPs
to control storm water runoff.
In such cases, EPA automatically designates the applicant as a
non-federal representative. See I.B.3.e.(4). When conducting section
7 consultation as a non-federal representative, applicants should
follow the procedures found in 50 CFR 402 the ESA regulations.
Applicants must also notify EPA and the appropriate FWS/NMFS office
of its intention to conduct consultation as a non-federal
representative.
Coverage by the BCGP is permissible under Part I.B.3.E.(1)(b) if
the consultation results in either: (1) FWS/NMFS written concurrence
with a finding of no likelihood of adverse effects (see 50 CFR
402.13) or (2) issuance of a biological opinion in which FWS and/or
NMFS finds that the action is not likely to jeopardize the continued
existence of listed endangered threatened species or result in the
adverse modification or destruction of adverse habitat (see 50 CFR
403.14(h)).
Any terms and conditions developed through consultations to
protect listed species and critical habitat must be incorporated
into the pollution prevention
[[Page 29821]]
plan. As noted above, applicants may, if they wish, initiate
consultation during Step Five above (upon becoming aware that
endangered and threatened species are in proximity to the facility).
If the applicant is eligible for coverage under this criteria,
it should indicate this by marking box (d) of the certification
provisions.
I.B.3.e.(1)(e). The applicant's activity was considered
as part of a larger, more comprehensive site-specific assessment of
impacts on endangered and threatened species by the owner or other
operator of the site when it developed a SWPPP and that permittee
certified eligibility under items I.B.3.e.(1)(a), (b), (c), or (d)
of the permit (e.g. owner was able to certify no adverse impacts for
the project as a whole under item (a), so contractor can then
certify under item (e)). Utility companies applying for area-wide
permit coverage may certify under item (e) since authorization to
discharge is contingent on a principal operator of a construction
project having been granted coverage under this, or an alternative
NPDES permit for the areas of the site where utilities installation
activities will occur.
If the applicant is eligible for coverage under this criteria,
it should indicate this by marking box (e) of the certification
provisions.
The applicant must comply with any terms and conditions imposed
under the eligibility requirements of paragraphs I.B.3.e.(1)(a),
(b), (c), (d), (e) to ensure that storm water discharges or BMPs to
control storm water runoff are protective of listed endangered and
threatened species and/or critical habitat. Such terms and
conditions must be incorporated in the applicant's storm water
pollution prevention plan.
If the eligibility requirements of Part I.B.3.e.(1)(a)-(e)
cannot be met then the applicant may not receive coverage under the
BCGP. Applicants should then consider applying to EPA for an
individual permit.
This permit does not authorize any ``taking'' (as defined under
section 9 of the Endangered Species Act) of endangered or threatened
species unless such takes are authorized under sections 7 or 10 the
Endangered Species Act. Applicants who believe their construction
activities may result in takes of listed endangered and threatened
species should be sure to get the necessary coverage for such takes
through an individual consultation or section 10 permit.
This permit does not authorize any storm water discharges or
BMPs to control storm water runoff that are likely to jeopardize the
continued existence of any species that are listed as endangered or
threatened under the Endangered Species Act or result in the adverse
modification or destruction of designated critical habitat.
II. Endangered Species County-by-County List
(See Addendum H to the Multi-Sector Storm Water General Permit
published in the Federal Register on September 29, 1995 (60 FR
50804).
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[FR Doc. 97-14191 Filed 5-30-97; 8:45 am]
BILLING CODE 6560-50-C
