[Federal Register: September 16, 2004 (Volume 69, Number 179)]
[Notices]
[Page 55818-55821]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se04-58]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7813-8]
Proposed Modification of National Pollutant Discharge Elimination
System (NPDES) General Permit for Storm Water Discharges From
Construction Activities; Notice
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed general permit modification.
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SUMMARY: Today's action proposes modification of permit conditions
specific to construction activities covered under EPA's National
Pollutant Discharge Elimination System (NPDES) General Permit for Storm
Water Discharges From Construction Activities. The general permit is
available for use where EPA is the NPDES permitting authority in EPA
Regions 1-3 and 5-10. Coverage under the general permit authorizes the
discharge of storm water from construction activities consistent with
the terms of the permit. The proposed revisions clarify that permit
noncompliance only applies to sites with permit coverage. In addition,
this proposed modification includes correction of a typographical error
in the permit and a corresponding error in the fact sheet.
DATES: Comments on today's proposed modifications must be received no
later than October 18, 2004.
FOR FURTHER INFORMATION CONTACT: Jack Faulk, (202) 564-0768;
faulk.jack@epa.gov.
SUPPLEMENTARY INFORMATION:
A. How Can I Get Copies of the Proposed Permit Modification and Related
Materials?
1. Docket. EPA has established an official public docket for the
Construction General Permit: Docket ID No. OW-2002-0055.
The official public docket consists of the documents specifically
referenced in the Construction General Permit, any public comments
received, proposed modifications, and other information related to the
permit. Although a part of the official docket, the public docket does
not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is the collection of materials that is available for
public viewing at the Water Docket in the EPA Docket Center, (EPA/DC)
EPA West, Room B135, 1301 Constitution Avenue, NW., Washington, DC. The
EPA Docket Center 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 (202) 566-1744, and the telephone
number for the Water Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/ You may use EPA Dockets at http://www.epa.gov/edocket/. to submit or
view public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Once in the system, select
``search,'' then key in the docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI, and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in section I.A. EPA intends to work
towards providing electronic access to all of the publicly available
docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered in paper to the
Docket will be scanned and placed in EPA's electronic public docket.
Where practical, physical objects will be photographed, and the
photograph will be placed in EPA's electronic public docket along with
a brief description written by the docket staff.
For additional information about EPA's electronic public docket,
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
[[Page 55819]]
required to consider these late comments in formulating a final
decision. If you wish to submit CBI or information that is otherwise
protected by statute, please contact the person listed in FOR FURTHER
INFORMATION CONTACT. Do not use EPA Dockets or e-mail to submit CBI or
information protected by statute.
1. Electronically. If you submit an electronic comment as described
below, EPA recommends that you include your name, mailing address, and
an e-mail address or other contact information in the body of your
comment. Also include this contact information on the outside of any
disk or CD ROM you submit, and in any cover letter accompanying the
disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in the appropriate
Docket ID No. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to:
ow-docket@epa.gov, Attention Docket ID No. (please use appropriate
Docket ID number). In contrast to EPA's electronic public docket, EPA's
e-mail system is not an ``anonymous access'' system. If you send an e-
mail comment directly to the Docket without going through EPA's
electronic public docket, EPA's e-mail system automatically captures
your e-mail address. E-mail addresses that are automatically captured
by EPA's e-mail system are included as part of the comment that is
placed in the official public docket, and made available in EPA's
electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section I.B.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send four copies of your comments (disk or paper
copies) to: Water Docket, Environmental Protection Agency, Mail code:
4101T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
Attention Docket ID No. (please use appropriate Docket ID number).
3. By Hand Delivery or Courier. Deliver four sets of your comments
to: EPA Docket Center, EPA West, Room B102, 1301 Constitution Avenue,
NW., Washington, DC, Attention Docket ID No. (please use appropriate
Docket ID number). Such deliveries are only accepted during the
Docket's normal hours of operation as identified in section I.A.1.
C. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
D. What Authority Does EPA Have To Take This Action?
EPA issues NPDES permits under the authority of Clean Water Act
(CWA) section 402, 33 U.S.C. 1342. The NPDES regulations, at 40 CFR
124.5(a) specify that permits may be modified at the request of any
interested person (including the permittee) or upon the Director's (in
this instance, EPA's) initiative; however, permits may only be modified
for reasons specified in 40 CFR 122.62. Correction of technical
mistakes such as errors in calculation, or mistaken interpretations of
law are among the acceptable reasons for permit modification. 40 CFR
122.62(a)(15). The proposed permit and fact sheet modifications being
proposed are consistent with this criterion.
E. Why Is This Information Being Published in the Federal Register?
Where EPA decides to modify a permit under 40 CFR 122.62, a draft
permit, incorporating the proposed changes, must be prepared and public
noticed consistent with 40 CFR 124.10. During the public comment
period, any interested person may submit written comments on the draft
permit and may request a public hearing. Any request for public hearing
shall be in writing and shall state the nature of the issues proposed
to be raised in the hearing. All comments will be considered in making
the final decision with responses documented in the administrative
record and available to the public. This Federal Register notice
soliciting comments is being published consistent with the 40 CFR
124.10 requirements.
F. Which Permit Is Proposed for Modification?
On July 1, 2003, EPA noticed in the Federal Register (68 FR 29087)
issuance of the final NPDES General Permit for Storm Water Discharges
Associated with Construction Activities (hereinafter called the
``construction general permit'' or ``CGP'') for activities located in
EPA Regions 1-3 and 5-10. (All references in this notice to the CGP
also include the construction general permit issued in the State of
Massachusetts on August 4, 2003. 68 FR 45817.) The CGP and accompanying
fact sheet are available on EPA's Internet Web site at: http://www.epa.gov/npdes/cgp.
Operators of both large (> 5 acres) and small
(1-5 acres) construction sites may be eligible to obtain coverage under
the CGP for allowable storm water and non-storm water discharges. The
CGP is available only in those areas where EPA is the NPDES permitting
authority. A number of parties filed suit in response to EPA's July 1,
2003 issuance of the CGP. This proposed modification is, in part, the
result of a settlement agreement with certain petitioners in that suit.
To that end, the July 1, 2003 CGP is the permit for which modifications
are being proposed herein.
[[Page 55820]]
G. What Permit Modifications Are Being Proposed?
The following modifications are proposed:
1. On page 7, in section 2.3.D of the CGP, Late Notifications,
third sentence, strike the phrase ``or permit noncompliance'' so that
section 2.3.D now reads: ``Late Notifications: Operators are not
prohibited from submitting NOIs after initiating clearing, grading,
excavation activities, or other construction activities. When a late
NOI is submitted, authorization for discharges occurs consistent with
Subpart 2.1. The Agency reserves the right to take enforcement action
for any unpermitted discharges that occur between the commencement of
construction and discharge authorization.''
2. On page D-3 in Appendix D of the CGP, section D.3, second
sentence, strike the phrase ``or permit noncompliance'' so that section
D.3 of Appendix D now reads: ``Late Notifications: Operators are not
prohibited from submitting waiver certifications after initiating
clearing, grading, excavation activities, or other construction
activities. The Agency reserves the right to take enforcement for any
unpermitted discharges that occur between the time construction
commenced and waiver authorization is granted.''
3. On page D-3 in Appendix D of the CGP, in the paragraph following
section D.3, third sentence, strike the phrase ``or permit
noncompliance'' so that section D.3 of Appendix D now reads:
``Submittal of a waiver certification is an optional alternative to
obtaining permit coverage for discharges of storm water associated with
small construction activity, provided you qualify for the waiver. Any
discharge of storm water associated with small construction activity
not covered by either a permit or a waiver may be considered an
unpermitted discharge under the Clean Water Act. As mentioned above,
EPA reserves the right to take enforcement for any unpermitted
discharges that occur between the time construction commenced and
either discharge authorization is granted or a complete and accurate
waiver certification is submitted. EPA may notify any operator covered
by a waiver that they must apply for a permit. EPA may notify any
operator who has been in non-compliance with a waiver that they may no
longer use the waiver for future projects. Any member of the public may
petition EPA to take action under this provision by submitting written
notice along with supporting justification.''
4. On page 11, in section 3.11.B, strike the phrase ``the
discharges'' so that section 3.11.B now reads: ``The SWPPP must be
amended if during inspections or investigations by site staff, or by
local, State, tribal, or Federal officials, it is determined that the
SWPPP is ineffective in eliminating or significantly minimizing
pollutants in storm water discharges from the construction site.''
H. What Fact Sheet Modifications Are Being Proposed?
The following editorial correction is proposed for the accompanying
CGP fact sheet: In the second paragraph of section 3.11, strike the
phrase ``discharges are'' and replace it with ``SWPPP is'' so that the
sentence now reads: ``The plan must also be amended if inspections or
investigations by site staff, or by local, State, tribal, or Federal
officials determine that the SWPPP is ineffective in eliminating or
significantly minimizing pollutants in storm water discharges from the
construction site.''
I. What Is the Rationale for the Proposed Changes?
Proposed changes described in G.1, G.2, and G.3 above are identical
in scope. As written, the CGP suggests that construction site operators
may be liable for permit noncompliance even in those instances when the
operator is not covered, or not yet covered, by that permit (e.g.,
before the operator submits a Notice of Intent (NOI) to be covered).
Under the CGP, permit coverage commences at the time of discharge
authorization. In the case of the CGP, this is typically after a seven-
day waiting period subsequent to an operator's submission of an NOI to
EPA. As established in the CGP, to obtain permit coverage, operators
are required to meet certain eligibility criteria (e.g., development of
a site-specific storm water pollution prevention plan). However,
failure of the operator to take necessary actions to be eligible for
permit coverage does not constitute permit noncompliance. Rather, an
operator that fails to meet all applicable eligibility provisions is
not authorized for permit coverage. Thus, failure to meet certain
eligibility provisions may be indicative of other types of
noncompliance (e.g., violation of CWA section 402 for discharging
without a permit or violation of 40 CFR 122.21(c)(1) for failure to
submit a permit application at least 90 days before the date on which
construction is to commence). The permit requirements do not apply
prior to submission of an NOI and prior to the operator's obtaining
authorization to discharge storm water. In addition, any operator is
free to apply for coverage under an individual permit.
Proposed changes described in G.4 and H above are purely editorial.
EPA identified these two changes as part of a routine review of the
permit and fact sheet. EPA considers these edits logical revisions of
existing language, simply correcting the use of incorrect terminology.
J. What Are the Limitations on Commenting on the Draft Permit?
Pursuant to 40 CFR 124.5(c)(2), when a permit is modified, only the
conditions subject to modification are reopened. All other aspects of
the existing permit shall remain in effect for the duration of the
unmodified permit. As such, EPA will review and consider comments
submitted in response to the modifications proposed in this Federal
Register notice but is not obligated to respond to comments on other,
unrelated permit conditions or fact sheet language. All comments are
due to EPA by October 18, 2004.
Signed and issued this 8th day of September, 2004.
Joanna Jerison,
Acting Director, Office of Ecosystem Protection, Region I.
Signed and issued this 8th day of September, 2004.
Walter Mugdan,
Director, Division of Environmental Planning and Protection, Region
II.
Signed and issued this 8th day of September, 2004.
Carl Soderberg,
Director, Caribbean Environmental Protection Division, Region II.
Signed and issued this 7th day of September, 2004.
Jon M. Capacasa,
Director, Water Protection Division, Region III.
Signed and issued this 8th day of September, 2004.
Jo Lynn Traub,
Director, Water Division, Region V.
Signed and issued this 8th day of September, 2004.
William K. Honker,
Acting Director, Water Quality Protection Division, Region VI.
Signed and issued this 8th day of September, 2004.
Leo J. Alderman,
Director, Water, Wetlands, and Pesticides Division, Region VII.
Signed and issued this 7th day of September, 2004.
Judy Wong,
Director, Water Program, Region VIII.
Signed and issued this 7th day of September, 2004.
Alexis Strauss,
Director, Water Division, Region IX.
[[Page 55821]]
Signed and issued this 8th day of September, 2004.
Robert R. Robichaud,
Associate Director, Office of Water, Region X.
[FR Doc. 04-20896 Filed 9-15-04; 8:45 am]
BILLING CODE 6560-50-P