[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Notices]
[Pages 39136-39140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18607]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6400-8]
Draft Modification of the National Pollutant Discharge
Elimination System (NPDES) General Permit for Storm Water Discharges
From Construction Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of draft modification of the NPDES general permit
reissuance for storm water discharges from construction activities.
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SUMMARY: The EPA, Region 4, general permit for the discharge of storm
water from construction activities, issued on March 31, 1998, is being
modified. This modification will include monitoring and reporting
requirements for facilities discharging storm water from construction
activities to waters of the U.S. that are on the 303(d) list for
impairment due to sediment and/or silt. In addition, several
typographical errors will be corrected, and, the eligibility
requirements of part I.B.3. will be renumbered to be consistent with
the National general permit for the discharge of storm water from
construction activities, which was issued on February 17, 1998, and the
Notice of Intent (NOI, form 3510-9).
The following provides notice for a draft modification of the NPDES
general permit and fact sheets for storm water discharges from
construction activities in the following areas of, EPA, Region 4:
Indian Country Lands within the State of Alabama
The State of Florida
Indian Country Lands within the State of Florida
Indian Country Lands within the State of Mississippi
Indian Country Lands within the State of North Carolina
DATES: This general permit became effective on April 3, 1998. Deadlines
for submittal of NOIs which are provided in Part II.A. of the permit
are not changed. Comments on the proposed modifications must be
received or postmarked by midnight no later than February 28, 1999.
This modification will be effective 60 days from its final publication
in the Federal Register.
ADDRESSES: Notices of Intent (NOIs) submitted in accordance with this
permit to receive coverage under this permit must be sent to Storm
Water Notice of Intent (4203), 401 M Street, SW, Washington, DC 20460.
The complete administrative record is available from the U.S.
Environmental Protection Agency, Region 4, Freedom of Information
Officer, 61 Forsyth St. S.W., Atlanta, GA 30303. A reasonable fee may
be charged for copying.
FOR FURTHER INFORMATION CONTACT: Mr. Floyd Wellborn, telephone number
(404) 562-9296, or Mr. Mike Mitchell, telephone number (404) 562-9303,
or at the following address: United States Environmental Protection
Agency, Region 4, Water Management Division, Surface Water Permits
Section, Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, GA
30303.
PUBLIC COMMENT PERIOD: Public comments are being invited only for those
specific modifications discussed within the proposal for the general
permit for storm water discharges from construction activities issued
by EPA, Region 4, on March 31, 1998. The public should send their
comments to the Surface Water Permits Section, Water Management
Division, U.S. EPA, 61 Forsyth Street, SW, Atlanta, GA 30303. To ensure
that EPA can read, understand , and therefore properly respond to
comments, the Agency requests commenters to type or print in ink any
comments. Each comment should cite the page number and, where possible,
the section(s) and/or paragraph(s) in the proposed permitting actions
to which the comment relates. Commenters should use a separate
paragraph for each issue discussed.
State Certification
EPA is providing copies of the proposed permit modification to the
State of Florida and Indian Tribes where the proposed actions would be
effective. The State of Florida and Tribes will review the proposed
actions to ensure that they will not result in violations of water
quality criteria. EPA will work with The State and Tribes to obtain
their certification in accordance with section 401 of the Clean Water
Act. EPA will prepare certifications for Indian lands where there is no
approved Tribe or any Tribes which have not established water quality
standards.
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. The Federal Consistency
Act requires that all NPDES permit be reviewed for consistency with the
Endangered Species Act and the National Historic Preservation Act. EPA
has also initiated these reviews.
SUPPLEMENTARY INFORMATION:
Table of Contents
The following is an outline of the organization of the proposed
modification actions:
I. Introduction
II. Coverage of General Permit
III. Proposed Modification Summary and Justification
IV. Cost Estimates
V. Economic Impact
VI. Unfunded Mandates Reform Act
VII. Paperwork Reduction Act
VIII. Regulatory Flexibility Act
IX. Official Signatures
I. Introduction
In 1972, the Federal Water Pollution Control Act (also referred to
as the Clean Water Act (CWA)) was amended to provide that the discharge
of any pollutants to waters of the United States from any point source
is unlawful, except if the discharge is in compliance with a National
Pollutant Discharge Elimination System (NPDES) permit. In 1987, section
402(p) was added to the CWA to establish a comprehensive framework for
addressing storm water discharges under the NPDES program. Section
402(p)(4) of the CWA clarifies the requirements for EPA to issue NPDES
permits for storm water discharges associated with industrial activity.
On November 16, 1990 (55 FR 47990), EPA published final regulations
which define the term ``storm water discharge associated with
industrial activity.''
In 1992, EPA issued a general permit for discharges of storm water
from construction activities ``associated with industrial activity'' to
reduce the administrative burden of issuing an individual NPDES permit
to each construction activity. On March 31, 1998 EPA, Region 4, issued
a renewal of the 1992 permit.
Section 303(d) of the CWA requires States to identify waters for
which technology based effluent limitations are not stringent enough to
implement any applicable water quality standard. The statue also
requires the States to establish a priority ranking for such waters,
taking into account the severity of pollution and the uses to be made
of the waters. Title 40 of the Code of Federal Regulation (CFR) section
130.7 defines the section 303(d) waters to be those waters in each
State which are water quality limited segments which still require
total maximum daily loads.
[[Page 39137]]
40 CFR 122.4(d) and (i) prohibit EPA from authorizing discharges
which will cause or contribute to the impaired use of waters of the
U.S. Currently, facilities discharging to 303(d) listed waters would
most likely be required to apply for individual permit coverage which
is resource intensive for both the applicant and the issuing authority.
Therefore, EPA Region 4 has concluded that additional permitting
measures in the existing storm water general permit are necessary to
assure that storm water discharges from construction activities to
303(d) waters, listed for silt or sediment, do not cause or contribute
to the impaired designated use of a water body.
II. Coverage of General Permit
Section 402(p) of the Clean Water Act (CWA) clarifies 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''
to include 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
areas that are part of a larger common plan of development or sale (40
CFR 122.26(b)(14)(x)) .1 The term ``storm water discharge
from construction activities'' will be used in this document to refer
to storm water discharges from construction sites that meet the
definition of a storm water discharge associated with industrial
activity.
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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).
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The proposed permit modification does not change the March 31,
1998, issued permit's coverage area. The modification only adds
monitoring requirement in part III of the permit for dischargers to
303(d) listed waters, listed for silt or sediment, and it renumbers the
eligibility requirements of part I.B.3.
III. Proposed Modification Summary and Justification
Monthly monitoring only requirements for Settleable Solids (ml/l),
Total Suspended Solids (TSS), Turbidity (NTUs) and Volume of Flow will
be added to the general permit to provide data to more reasonably
evaluate if the discharge is contributing to the impairment of the
water body. The permit language will require monitoring of a qualifying
storm event or discharges of a previously collected qualifying storm
event(s), by grab sample within the first 30 minutes of the event or
the discharge of a previously collected event. EPA defines the
discharge of a previously collected event as the discharge from any
impoundment which would detain or retain the storm water runoff from a
site such that the runoff does not flow directly off the surface of the
area under construction to a receiving water. A qualifying event will
be 0.5 inch rain event over a 24 hour period. In addition to the
effluent monitoring, upstream monitoring, where there is flow, will be
required. These monitoring requirements are based on section 308(a) of
the Clean Water Act and are intended to demonstrate that the BMPs on
site are preventing the discharges of storm water from the construction
activities from causing or contributing to the impairment in the
receiving water. This demonstration will be accomplished by comparing
the upstream data and the downstream data. Also, in accordance with
section 308(a) of the CWA, the permittee will be required to report,
monthly, the results of the monitoring for Settleable Solids, Turbidity
and Volume of Flow. The permittee will be required to report the soil
type and average slope of the drainage area of each outfall and the
name of the receiving water.
The final version of this fact sheet for the General Permit
modification will include lists of the 303(d) waters in the coverage
areas of the permit that are impaired because of silt/sediment. The
fact sheet will include instructions directing the applicant to
determine if their facility will be discharging to these waters on the
303(d) lists. The instructions will direct the applicant to make this
determination by referencing the lists and contacting the State agency
which generated the list, since the lists may change from time to time.
An internet site is being considered for accessing these lists for the
coverage areas. The permit will reference this list and require the
permittee, in addition to the above referenced monitoring and reporting
requirements, to notify EPA-Region 4 if they discharge to waters that
are on the 303(d) list. The permit will also require a discussion
within the pollution prevention plan, by all potential permittees, to
explain how the determination was made of whether or not the facility
discharges to 303(d) listed waters.
Finally, a typographical error in appendix C will be corrected to
delete the reference to addendum H and replace it with a reference to
appendix C. Part I.B.3.e.(1) in the permit is being renumbered to part
I.B.3.e.(2); and part I.B.3.g. in the permit is being renumbered to
part I.B.3.f. These two changes make the permit consistent with the
Notice of Intent (NOI) used to apply for coverage under the general
permit and with the national NPDES general permit for discharges of
storm water from construction activity, issued on February 17, 1998.
IV. Cost Estimates
The two major costs associated with pollution prevention plans for
construction activities include the costs of sediment and erosion
controls and the costs of storm water management measures. The proposed
modification does not change from the costs described in the permit
issued in the Federal Register on March 31, 1998 (63 FR 15621).
Typically, most construction sites will employ several types of
sediment and erosion controls and storm water management controls.
Costs are presented in 1992 dollars and were reviewed by the Office
of Management and Budget during the September 25, 1992 issuance of the
general permit. 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.
V. Economic Impact
Under Executive Order 1286 (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
recipients thereof; or raise novel legal or
[[Page 39138]]
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 modified general permit is not a
``significant regulatory action'' under the terms Executive Order 12866
and is therefore not subject to formal OMB review prior to proposal.
VI. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under UMRA section 202, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, UMRA section 205 generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of UMRA section 205
do not apply when they are inconsistent with applicable law. Moreover,
UMRA section 205 allows EPA to adopt an alternative other than the
least costly, most cost-effective or least burdensome alternative if
the Administrator publishes an explanation with the final rule why the
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed under UMRA section 203 a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating and advising small governments on
compliance with the regulatory requirements.
A. UMRA Section 202 and the Construction General Permit
UMRA section 202 requires a written statement containing certain
assessments, estimates and analyses prior to the promulgation of
certain general notices of proposed rulemaking (2 U.S.C. 1532). UMRA
section 421(10) defines ``rule'' based on the definition of rule in the
Regulatory Flexibility Act. Section 601 of the Regulatory Flexibility
Act defines ``rule'' to mean any rule for which an agency publishes a
general notice of proposed rulemaking pursuant to section 553 of the
Administrative Procedure Act. EPA does not propose to issue NPDES
general permits based on APA section 553. Instead, EPA relies on
publication of general permits in the Federal Register in order to
provide ``an opportunity for a hearing'' under CWA section 402(a), 33
U.S.C. 1342(a). Nonetheless, EPA has evaluated permitting alternatives
for regulation of storm water discharges associated with construction
activity. The general permit modification that EPA proposes to issue
would be virtually the same NPDES general permit for construction that
many construction operators have used over the past five years.
Furthermore, general permits provide a more cost and time efficient
alternative for the regulated community to obtain NPDES permit coverage
than that provided through individually drafted permits.
B. UMRA Section 203 and the Construction General Permit
Agencies are required to prepare small government agency plans
under UMRA section 203 prior to establishing any regulatory requirement
that might significantly or uniquely affect small governments.
``Regulatory requirements'' might, for example, include the
requirements of these NPDES general permits for discharges associated
with construction activity, especially if a municipality sought
coverage under one of the general permits. EPA envisions that some
municipalities--those with municipal separate storm sewer systems
serving a population over 100,000--may elect to seek coverage under
these proposed general permits. For many municipalities, however, 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. (See 40 CFR 122.26(e)(1)(ii) and (g)).
In any event, any such permit requirements would not significantly
affect small governments because most State laws already provide for
the control of sedimentation and erosion in a similar manner as the
general permit. Permit requirements also would not uniquely affect
small governments because compliance with the permit's conditions
affects small governments in the same manner as any other entity
seeking coverage under the permit. Thus, UMRA section 203 would not
apply.
VII. Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
in these final general permits under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et. seq. EPA did not prepare an Information
Collection Request (ICR) document for the proposed permit modification
because the information collection requirements in this permit have
already been approved by the Office of Management and Budget (OMB) in
submissions made for the NPDES permit program under the provisions of
the Clean Water Act.
VIII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, U.S.C. 601 et seq., EPA is
required to prepare a Regulatory Flexibility Analysis to assess the
impact of rules on small entities. No Regulatory Flexibility Analysis
is required, however, where the head of the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
The proposed permit modification does not nullify the permit
condition which provides small entities with an application option that
is less burdensome than individual applications or participating in a
group application. The other requirements have been designed to
minimize significant economic impacts of the rule on small entities and
does not have a significant impact on industry. In addition, the permit
reduces significant administrative burdens on regulated sources.
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this permit will not have a
significant impact on a substantial number of small entities.
IX. Official Signatures
Accordingly, I hereby certify pursuant to the provisions of the
Regulatory Flexibility Act, that this 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 39139]]
Dated: July 7, 1999.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
Draft NPDES General Permit Modification for Storm Water Discharges From
Construction Activities
Proposed Modification of National Pollutant Discharge Elimination
System (NPDES) General Permit for Storm Water Discharges From
Construction Activities
For reasons set forth in the preamble, Part III of the NPDES
General Permit for Storm Water Discharges From Construction
Activities is proposed to be modified as described below. A new
appendix D is proposed to be added to the general permit. These
proposed modifications and additional requirements will become
effective on the date of Federal Register publication of the final
modifications.
Appendix C
I. Instructions
* * * * *
Certify pursuant to Section I.B.3.e. of the construction
general permit that their storm water discharges, and BMPs constructed
to control storm water runoff, are not likely, and will not be likely
to adversely affect species identified in Appendix C of this permit.
* * * * *
Appendix D
Discharging to Impaired Waters Guidance
I. Instructions
For facilities in Florida:
In order to get construction general permit coverage, applicants
must determine if the facility discharges to waters listed on the
303(d) list for impairment due to either Total Suspended Solids,
Turbidity, Silt or Sediment. The 303(d) list is updated
periodically; therefore, it is incumbent upon the applicant to
contact the Florida Department of Environmental Protection (FDEP) in
Tallahassee for the most current list if you are unsure whether or
not the facility will be discharging to a 303(d) listed water for
either of the above referenced parameters. An current 303(d) list is
maintained at the following web site: www2.dep.state.fl.us/water/
Please refer to this site if you have internet access before
contacting FDEP.
For facilities in Indian Country Lands:
In order to get construction general permit coverage, applicants
must determine if the facility discharges to waters impaired for
either Total Suspended Solids, Turbidity, Silt or Sediment. It is
incumbent upon the applicant to contact the Environmental
Coordinator of the Tribe on whose lands the discharge occurs if you
are unsure whether or not the facility will be discharging to
impaired waters for either of the above referenced parameters.
What to do next:
For all facilities, if the determination is made that you will
be discharging waters impaired because of either Total Suspended
Solids, Turbidity, Silt or Sediment; then, the facility must comply
with the terms and conditions of Part III.C. of the permit.
Part I. Coverage Under This Permit
* * * * *
3. Limitations on Coverage. The following storm water discharges
from construction sites are not authorized by this permit:
* * * * *
e. storm water discharges from construction sites if the
discharges may adversely affect a listed or proposed to be listed
endangered or threatened species or its critical habitat;
(1) All applicants must follow the procedures provided at
Appendix C of this permit when applying for permit coverage.
(2) A discharge of storm water associated with construction
activity may be covered under this permit only if the applicant
certifies that they meet at least one of the following criteria.
Failure to continue to meet one of these criteria during the term of
the permit will result in the storm water discharges associated with
construction 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 Appendix C 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 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 not
likely to adversely affect; or
(e) The applicant's activity was considered as part of a larger,
more comprehensive site-specific assessment of impacts on endangered
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)).
* * * * *
f. Storm water discharges that would affect a property that is
listed or is eligible for listing in the National Historic Register
maintained by the Secretary of Interior may be in violation of the
National Historic Preservation Act. A discharge of storm water
associated with construction activity may be covered under this
permit only if the applicant certifies that either:
(1) The storm water discharge(s), and the construction and
implementation of BMPs to control storm water runoff, do not affect
a property that is listed or is eligible for listing in the National
Historic Register maintained by the Secretary of Interior; or,
(2) 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
(3) The applicant has obtained and is in compliance with a
written agreement between the applicant and the SHPO or THPO that
outlines all measures to be undertaken by the applicant to mitigate
or prevent adverse effects to the historic property; or
(4) 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 or THPO
that outlines all measures to be undertaken by operators on the site
to mitigate or prevent adverse effects to the historic property; or
(5) 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 item (1), (2), (3), or (4)
above.
g. discharges of storm water associated with industrial activity
from construction sites not specifically identified in the pollution
prevention plan in accordance with Part V of this permit. Such
discharges not identified in the plan are subject to the upset and
bypass rules in Part VII of this permit.
* * * * *
C. Authorization
* * * * *
9. Under which section(s) of Part I.B.3.e.(2) (Endangered
Species) and Part I.B.3.f. (Historical Preservation) the applicant
is certifying eligibility.
* * * * *
Part III. Special Conditions, Management Practices, and Other Non-
Numeric Limitations
* * * * *
C. Discharges to Waters Impaired Due to Sedimentation or Siltation
Facilities that have coverage under this general permit prior to
its modification on [insert the effective date of the final
modification] shall be in compliance with Parts III.C.1. through 5.
within 30 days of the effective date of this modification.
Facilities that apply for coverage under the general permit
after [insert the effective date of the final modification] which
discharge storm water from construction activities directly to
waters of the United States which are listed on the 303(d) list for
sedimentation or siltation, see Appendix D, shall comply with the
following:
[[Page 39140]]
1. The permittee shall monitor, during regular working hours,
once per month within the first 30 minutes of a qualifying event or
within the first 30 minutes of the beginning of the discharge of a
previously collected qualifying event for Settleable Solids (ml/l),
Total Suspended Solids (mg/l), Turbidity (NTUs) and Flow (MGD).
2. Where the receiving water has flow upstream from the
discharge, a background sample for Settleable Solids, Total
Suspended Solids and Turbidity shall be taken instream at middepth
and immediately upstream from the influence of the discharge of
storm water from the site.
3. The soil type and average slope of the drainage area for each
outfall shall be reported with the Discharge Monitoring Report
submitted in accordance with Part III.C.5. of the permit.
4. A qualifying event for the purpose of this section is a rain
event of 0.5 inches or greater in a 24 hour period.
5. Data collected in accordance with Part III.C. of the permit
shall be submitted to EPA once per month.
This permit does not authorize the discharge of storm water,
from construction activities, which causes or contributes to the
impairment of the designated use of waters of the United States.
* * * * *
[FR Doc. 99-18607 Filed 7-20-99; 8:45 am]
BILLING CODE 6560-50-U
