2010-4823. Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category; Correction

AGENCY:

Environmental Protection Agency.

ACTION:

Correcting amendments.

SUMMARY:

The Environmental Protection Agency (EPA) is correcting a date in a final rule that appeared in the Federal Register on December 1, 2009, 74 FR 62995, due to a date calculation error. The final rule established Clean Water Act technology-based Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development point source category.

DATES:

Effective on March 8, 2010.

FOR FURTHER INFORMATION CONTACT:

Mr. Jesse W. Pritts at 202-566-1038 ([e-mail]).

SUPPLEMENTARY INFORMATION:

Correction of Final Rule

The Environmental Protection Agency is correcting a final rule that appeared in the Federal Register on Tuesday, December 1, 2009. 74 FR 62995. The final rule established Clean Water Act technology-based Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development (C&D) point source category. The final C&D rule as signed by the Administrator on November 29, 2009 and posted, pre-publication, on http://www.epa.gov set an applicable date for the numeric effluent limitation and associated monitoring requirements for sites that disturb 20 or more acres of land at one time for 20 months from the publication of the rule in the Federal Register. That date was expressed as a calculation: “20 months after the date of publication of the final rule” or (in other places) “18 months after the effective date of the rule.” The date would be the same under either calculation, because the effective date of the rule was two months after publication. That date is indicated in several locations throughout the preamble of the final rule. See e.g., 74 FR 63050. A member of the public reading the preamble and regulatory text of the final rule as sent to the Office of the Federal Register (OFR) for publication and published on EPA's Web site would easily be able to calculate the date intended by this rule and would certainly understand that compliance with the numeric effluent limitation and associated monitoring requirements would be required later than 2010.

The rule was effective on February 1, 2010. Calculated correctly, this means that August 1, 2011, is the date by which discharges from construction sites that disturb 20 or more acres of land at one time must comply with the numeric effluent limitation and monitoring requirements.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary and contrary to public interest.

Related Acts of Congress, Executive Orders and Agency Initiatives

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) Public Law 104-4. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084. 63 FR 27655 (May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. 64 FR 43255 (August 10, 1999). This rule also is not subject to Executive Order 13045, 62 FR 19885 (April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995, 15 U.S.C. 272, do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898, 59 FR 7629 (February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, 61 FR 4729 (February 7, 1996). EPA has complied with Executive Order 12630, 53 FR 8859 (March 15, 1988), by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the December 1, 2009 Federal Register notice. 74 FR 62995.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of March 8, 2010. The effective date of today's correction is earlier than 30 days after publication. EPA finds that the earlier effective date clarifies the applicability date of the numeric effluent limit and associated monitoring requirements for sites that disturb 20 or more acres of land at one time for all stakeholders. Today's amendment eliminates an inconsistency and thus, reduces the opportunity for confusion. Any additional delay in correcting the error would only increase the potential confusion. Thus, EPA sets an effective date to make the correction immediately effective. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 450

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

Dated: March 1, 2010.

Peter S. Silva,

Assistant Administrator for Water.

Accordingly, 40 CFR Part 450 is corrected by making the following correcting amendments:

PART 450—CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY

1. The authority citation for part 450 continues to read as follows:

Authority: 42 U.S.C. 101, 301, 304, 306, 308, 401, 402, 501 and 510.

2. Revise the introductory text of paragraph (a) of § 450.22 to read as follows:

§ 450.22

Effluent limitations reflecting the best available technology economically achievable (BAT).

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(a) Beginning no later than August 1, 2011 during construction activity that disturbs 20 or more acres of land at one time, including non-contiguous land disturbances that take place at the same time and are part of a larger common plan of development or sale; and no later than February 2, 2014 during construction activity that disturbs ten or more acres of land area at one time, including non-contiguous land disturbances that take place at the same time and are part of a larger common plan of development or sale, the following requirements apply:

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