2010-28034. Proposed Rule Staying Numeric Limitation for the Construction and Development Point Source Category

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to stay the numeric effluent limitation of 280 NTU and associated monitoring requirements for the Construction and Development Point Source Category. This action is necessary so that EPA can reconsider the record basis for calculating the numeric effluent limitation. EPA plans to take final action to recalculate the numeric effluent limitation by June 29, 2011. EPA proposes to stay the 280 NTU limit and associated monitoring requirements until it takes final action to recalculate the numeric limitation.

DATES:

Comments must be received on or before December 6, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2010-0884, by one of the following methods:

• http://www.regulations.gov: This is EPA's preferred approach, although you may use the alternatives presented below. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Mail: USEPA Docket Center, Environmental Protection Agency, Docket Number EPA-HQ-OW-2010-0884, Mailcode 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
• Hand Delivery: USEPA Docket Center, Public Reading Room, 1301 Constitution Ave., NW., Room 3334, EPA West Building, Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-0884. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the USEPA Docket Center, Public Reading Room, Room 3334, EPA West Building, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the EPA Docket Center is [phone].

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Regulated Entities

Entities potentially regulated by this action include:

Category	Examples of regulated entities	North American industry classification system (NAICS) code
Industry	Construction activities required to obtain 236 NPDES permit coverage and performing the following activities: Construction of buildings, including building, developing and general contracting.	236
	Heavy and civil engineering construction, including land subdivision.	237

EPA does not intend the preceding table to be exhaustive, but provides it as a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in 40 CFR 450.10 (74 FR 62995) and the definition of “storm water discharges associated with industrial activity” and “storm water discharges associated with small construction activity” in existing EPA regulations at 40 CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have questions regarding the applicability of this action to a particular site, consult the person listed for technical information in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Discussion of Direct Final Rulemaking

EPA is proposing to stay the provisions of 40 CFR 450.22(a) and (b) that contain the numeric limitation and associated monitoring requirements for the Construction and Development Point Source category. This stay is necessary to reconsider the record underlying the calculation of the 280 NTU numeric limitation. After the numeric limitation was promulgated, and based on EPA's examination of the dataset underlying the 280 NTU limit, EPA concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support the 280 NTU effluent limitation. EPA intends to expeditiously conduct a separate rulemaking to correct the numeric effluent limitation. Until the new rulemaking is effective, it is proposed that the stay will remain in place. EPA expects to complete a notice and comment rulemaking to correct the data error by May 30, 2011 so that the revised numeric limitation will be effective by June 29, 2011. An effective date of June 29, 2011 for the corrected numeric limit will enable EPA to incorporate the revised numeric limit and associated monitoring requirements in EPA's Construction General Permit. In the “Rules and Regulations” section of today's Federal Register, we are issuing this stay as a direct final rule without prior proposal because we view this stay as noncontroversial and anticipate no adverse comment. We have described the justification for the stay in the direct final rule. If EPA receives no adverse comment on either of these two actions, the Agency will not take further action on this proposed rule. If EPA receives adverse comment on either of these two actions, the Agency will publish a timely withdrawal of the direct final rule in the Federal Register. We would then address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

For the various statutes and Executive Orders that require findings for each rulemaking, EPA incorporates the findings from the direct final rulemaking into this companion notice for the purpose of providing public notice and opportunity for comment.

List of Subjects in 40 CFR Part 450

• Environmental protection
• Construction industry
• Land development
• Erosion
• Sediment
• Stormwater
• Water pollution control

Dated: November 1, 2010.

Lisa P. Jackson,

Administrator.