[Federal Register: December 22, 2004 (Volume 69, Number 245)]
[Notices]
[Page 76743-76749]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de04-51]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7851-6]
Final 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 general permit modification.
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SUMMARY: Today's action provides notice of 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 revisions clarify that
only sites covered by this permit can be subject to noncompliance with
the permit. In addition, this modification includes correction of a
typographical error in the permit and a corresponding error in the fact
sheet.
DATES: This permit modification is effective on January 21, 2005. In
accordance with 40 CFR 23.2, this action is considered issued for
purposes of judicial review as of 1 p.m. eastern standard time (e.s.t.)
on January 5, 2005. Under section 509(b)(1) of the Clean Water Act
(CWA), judicial review of the Agency's actions relating to the issuance
or denial of an NPDES permit is available in the United States Court of
Appeals within 120 days after the decision is final for the purposes of
judicial review. Under CWA section 509(b)(2), the modifications issued
today may not be challenged later in civil or criminal proceedings
brought by EPA to enforce these requirements.
FOR FURTHER INFORMATION CONTACT: Jack Faulk: telephone 202-564-0768 or
e-mail faulk.jack@epa.gov.
SUPPLEMENTARY INFORMATION:
[[Page 76744]]
I. General Information
A. How Can I Get Copies of This Document and Other Related Materials?
1. Docket. EPA has established an official public docket for the
Construction General Permit under Docket ID Number OW-2002-0055. The
official public docket consists of the documents specifically
referenced in the Construction General Permit, any public comments
received, the proposed modification, and other information related to
the permit. 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 Ave.,
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/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to 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. 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.1. Once in the system, select ``search,'' then key in the
appropriate docket identification number.
B. Who Are the EPA Regional Contacts for This Permit?
For EPA Region 1, contact Thelma Murphy: telephone number (617)
918-1615 or e-mail murphy.thelma@epa.gov.
For EPA Region 2, contact Stephen Venezia: telephone number (212)
637-3856 or e-mail venezia.stephen@epa.gov or, for Puerto Rico, Sergio
Bosques: telephone number (787) 977-5838 or e-mail
bosques.sergio@epa.gov.
For EPA Region 3, contact Paula Estornell: telephone number (215)
814-5632 or e-mail estornell.paula@epa.gov.
For EPA Region 5, contact Brian Bell: telephone (312) 886-0981 or
e-mail bell.brianc@epa.gov.
For EPA Region 6, contact Brent Larsen: telephone (214) 665-7523 or
e-mail larsen.brent@epa.gov.
For EPA Region 7, contact Mark Matthews: telephone (913) 551-7635
or e-mail matthews.mark@epa.gov.
For EPA Region 8, contact Greg Davis: telephone (303) 312-6082 or
e-mail davis.gregory@epa.gov.
For EPA Region 9, contact Eugene Bromley: telephone (415) 972-3510
or e-mail bromley.eugene@epa.gov.
For EPA Region 10, contact Misha Vakoc: telephone (206) 553-6650 or
e-mail vakoc.misha@epa.gov.
II. Background
A. Why Is This Information Being Published in the Federal Register?
EPA issues NPDES permits under the authority of Clean Water Act
(CWA) section 402, 33 U.S.C. section 1342. Consistent with that
authority, EPA Regions 1-3 and 5-10 issued their final NPDES
construction general permits (commonly referred to collectively as the
CGP) for discharges from large (five acres or more) and small (one to
five acres) construction activities on July 1, 2003 (68 FR 39087) and
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 and small construction sites in areas where EPA
is the NPDES permitting authority may be eligible to obtain coverage
under the CGP for allowable storm water and non-storm water discharges.
See Section II.B.
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.
As discussed in more detail below, the modifications EPA is making
through this notice are due in part to a settlement agreement with
certain petitioners that filed suit in response to EPA's July 1, 2003
issuance of the CGP.
Where EPA decides to modify a permit under 40 CFR 122.62, a draft
permit, incorporating the proposed changes, is generally prepared and
subjected to public notice and an opportunity for public comment
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.
EPA provided public notice in the Federal Register of its proposed
modifications to the CGP. (69 FR 55818, September 16, 2004). Comments
on the proposed modifications were due to EPA no later than October 18,
2004. EPA did not receive a request for public hearing.
Pursuant to 40 CFR 124.5(c)(2), when a permit is modified, only
those 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 reviewed and considered comments
submitted in response to the modifications proposed in the September
16, 2004 Federal Register notice.
B. Who Is Covered Under This Modified Permit?
The CGP is available only in those areas where EPA is the NPDES
permitting authority. Coverage is obtained by meeting all eligibility
criteria and submission of a complete and accurate Notice of Intent
(NOI) to EPA as detailed in the CGP. Specifically, operators of large
and small construction activities within the areas listed below may be
eligible to obtain coverage under this permit for allowable storm water
and non-storm water discharges and as such may be affected by this
notice:
EPA Region 1: The States of Massachusetts and New Hampshire; Indian
Country in the States of Connecticut, Massachusetts, and Rhode Island;
and Federal facilities in Vermont.
EPA Region 2: The Commonwealth of Puerto Rico and Indian Country in
the State of New York.
EPA Region 3: District of Columbia; and Federal facilities in the
State of Delaware.
EPA Region 5: Indian Country in the States of Michigan, Minnesota,
and Wisconsin, except the Sokaogon Chippewa (Mole Lake) Community.
EPA Region 6: The State of New Mexico; Indian Country in the States
of Louisiana, Oklahoma, Texas, and New Mexico (except Navajo
Reservation Lands [see EPA Region 9] and Ute Mountain Reservation Lands
(see EPA Region 8)); discharges in the State of Oklahoma that are not
under the authority of the Oklahoma Department of Environmental
Quality, including activities associated with oil and gas exploration,
drilling, operations, and pipelines (includes SIC Groups 13 and 46, and
SIC codes 492 and 5171), and point source discharges associated with
[[Page 76745]]
agricultural production, services, and silviculture (includes SIC
Groups 01, 02, 07, 08, 09); and discharges in the State of Texas that
are not under the authority of the Texas Commission on Environmental
Quality (formerly the Texas Natural Resource Conservation Commission),
including activities associated with the exploration, development, or
production of oil or gas or geothermal resources, including
transportation of crude oil or natural gas by pipeline.
EPA Region 7: Indian Country in the States of Iowa, Kansas, and
Nebraska (except Pine Ridge Reservation Lands (see EPA Region 8)).
EPA Region 8: Federal facilities in Colorado; Indian Country in
Colorado (as well as the portion of the Ute Mountain Reservation
located in New Mexico), Montana, North Dakota (as well as that portion
of the Standing Rock Reservation located in South Dakota and excluding
the portion of the lands within the former boundaries of the Lake
Traverse Reservation, which is covered under the permit for areas of
South Dakota), South Dakota (as well as the portion of the Pine Ridge
Reservation located in Nebraska and the portion of the lands within the
former boundaries of the Lake Traverse Reservation located in North
Dakota and excluding the Standing Rock Reservation which is covered
under the permit for areas of North Dakota), Utah (except Goshute and
Navajo Reservation lands (see EPA Region 9)), and Wyoming.
EPA Region 9: The Islands of American Samoa and Guam, Johnston
Atoll, Midway/Wake Islands and Commonwealth of the Northern Mariana
Islands; Indian Country in Arizona (as well as Navajo Reservation lands
in New Mexico and Utah), California, and Nevada (as well as the Duck
Valley Reservation in Idaho, the Fort McDermitt Reservation in Oregon,
and the Goshute Reservation in Utah).
EPA Region 10: The States of Alaska and Idaho; Indian Country in
Alaska, Idaho (except Duck Valley Reservation (see EPA Region 9)),
Washington, and Oregon (except for Fort McDermitt Reservation (see EPA
Region 9)); and Federal facilities in Washington.
III. Today's Action
A. What Are the Final Permit (and Fact Sheet) Modifications?
EPA has considered all comments received and is modifying the
permit and fact sheet consistent with the changes proposed in the
Federal Register at 69 FR 55818 (September 16, 2004). Modifications
described in III.A.1, III.A.2, and III.A.3 are identical to those
proposed. As originally issued on July 1, 2003, the CGP suggested that
construction site operators could be said to be violating the permit
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). As discussed in III.B., EPA is modifying
this permit language to be consistent with the Agency's intent and its
goals regarding protection of water quality. Two technical corrections,
identified in III.A.4. and III.A.5., are modified as proposed. EPA
received no comments on those two corrections. Accordingly, EPA hereby
notices the following modifications:
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 of the CGP, 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.''
5. In section 3.11 of the CGP fact sheet, 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.''
B. What Comments Were Received on the Proposed Modification and How Did
EPA Respond to Those Comments?
In response to the modifications proposed in the Federal Register
at 69 FR 55818 (September 16, 2004), EPA received comments from seven
parties: The Associated General Contractors of America (AGC); Centex
Homes; Lennar Corporation; National Association of Homebuilders (NAHB);
Pulte Homes, Inc.; Richmond American Homes of Colorado; and a unified
submission from the State of New York and the New York State Department
of Environmental Conservation (hereinafter, ``New York'' or ``the
State''). All commenters except New York supported the modifications as
proposed although several of these parties did comment on EPA's
rationale for the modification.
Details of comments on the proposed modification and EPA's
responses follow.
1. One Commenter Believes EPA Failed To Provide a Sound and Reasoned
Basis for the Proposed Modification
New York claims that EPA has failed to provide a sound and reasoned
basis for the proposed modification to the
[[Page 76746]]
CGP. The State argues that by allowing the late filing of NOIs and by
conditioning discharge authorization upon subjecting the operator to
potential liability for past permit violations, EPA chose the ``less
drastic alternative'' to prohibiting late NOIs and CGP coverage
altogether for the late notifier. The State further asserts that EPA
provided clear notice to late filing operators that coverage under the
CGP would come at the price of being vulnerable to liability for past
permit violations. According to the State, nothing would then prevent
those operators from opting to apply for an individual permit if the
CGP's liability conditions are considered unfair or onerous.
Against the backdrop of what the State views as EPA's valid
interest in preserving its enforcement authority for past permit
noncompliance, the State asserts that the Agency's proposed
modification is not supported by a well-founded justification. The
State appears to disagree with EPA's characterization of the SWPPP as
an eligibility criterion, and the Agency's conclusion that ``permit
requirements do not apply prior to the submission of an NOI and prior
to the operator's obtaining authorization to discharge storm water.''
See 69 FR 55820 (September 16, 2004). They first allege that Sec.
2.3.D of the CGP makes it clear that violations occurring between
commencement of construction and discharge authorization constitute
permit noncompliance. The State next cites the omission of the SWPPP
preparation requirements from the CGP eligibility sections (Sec. 1.2,
1.3, Appendices A and B, Part 3) to support the view that the
requirement to prepare a SWPPP is not an eligibility criterion, but
rather a permit condition. Lastly, the State recalls one of EPA's
specific responses to a comment that defended the importance of
retaining enforcement authority against late notifiers: ``* * *
significant discharges of sediment can occur during the initial days of
a construction project, making the need to have a SWPPP in place an[d]
operational critical for the protection of water resources.''
EPA does not disagree with the State that the Agency's choice in
allowing late filers to seek coverage under the CGP constituted a less
severe alternative than a complete ban for such operators, and that the
permit served to alert late filers that they will not be relieved of
prior Clean Water Act violations. However, EPA disagrees with the
State's contention that the Agency does not have a sound and reasoned
basis for today's modification. First, EPA disagrees with the State's
implicit suggestion that retention of the widest possible enforcement
discretion for late filers is advisable or even necessary. It was not
EPA's original intent in retaining the availability of CGP coverage for
late notifiers to retain the widest enforcement discretion possible.
Rather, EPA has attempted to strike an appropriate balance between (a)
encouraging late filers to adhere to the terms of the CGP despite their
failure to file the NOI in a timely manner, and (b) the commands of the
CWA and its implementing regulations, including the prohibition against
certain discharges without a permit, and the requirement for certain
potential dischargers to seek permit coverage. It is by this strategy
that EPA hopes to provide helpful incentives for late filers to seek
coverage under the permit and to initiate as soon as possible on-site
storm water controls critical to minimizing construction-related
runoff. It is EPA's opinion that the 2003 CGP, which suggested the
possibility of retroactive enforcement of any permit noncompliance that
occurred prior to filing the late NOI, had the potential to have the
opposite effect and may have discouraged late filers from instituting
important pollution prevention measures. In this sense, EPA
acknowledges that it did not fully account for the potential negative
effect of the CGP's original ``permit noncompliance'' language on
encouraging after-the-fact compliance with the CGP.
In addition, it is EPA's expectation that the CGP will continue to
be the primary tool for covering thousands of construction discharge
sources with permits. Individual permits will of course continue to be
an option for the permit authority and the operator. Considering the
large number of sources that will need to be permitted in the coming
years, however, EPA fully anticipates that the CGP will remain the
primary permitting vehicle. Today's permit modifications represent an
important step in reducing EPA's concern that retaining the current
``permit noncompliance'' language would potentially make the CGP option
more unpalatable to late filing operators than necessary, thus, driving
late filing operators towards either individual permits or attempts to
evade regulation altogether by declining to notify EPA of their
construction activities.
In addition, if EPA had decided to retain the ``permit
noncompliance'' language, which the Agency views as pushing many late
filers towards seeking coverage under individual permits, EPA is
concerned that further delays in permit coverage and the environmental
benefits associated with implementation of the best management
practices would likely result. The NPDES regulations provide that
individual permit applications for storm water discharges associated
with construction activity be submitted 90 days or more in advance of
commencement of construction activities. Among the challenges with late
filers is the fact that construction at these sites has already
commenced and discharges may already have occurred. As such, EPA
believes it is generally in the best interest of protecting the
receiving waters to encourage operators to conduct their activities in
conformance with the CGP as expeditiously as practicable.
Second, EPA did not mean to suggest, through these modifications,
that the Agency does not take recalcitrant operators seriously. Late
notifiers, i.e., construction site operators that fail to obtain timely
permit coverage, may be liable under CWA Sections 301 (e.g.,
unpermitted discharges) and 308 (records and reporting, inspections).
As EPA indicated in the September 16, 2004 Federal Register Notice,
failure to make a timely submission for permit coverage may constitute
a violation of 40 CFR 122.21(c)(1). Although EPA would exercise its
discretion in deciding which situations warrant enforcement of this
provision, the Agency does not view filing of a late NOI as a shield
from the requirements of 40 CFR 122.21(c)(1). Moreover, the
modifications EPA is making to the CGP do not limit operator liability
to violations for discharging without a permit.
Third, EPA is not convinced by New York's arguments opposing EPA's
rationale for making the modifications discussed herein. In the
proposal, EPA explained that the Agency did not intend for operators
who fail to meet the eligibility requirements of the CGP to be subject
simultaneously to actions asserting improper failure to obtain
necessary permit coverage and for violations of the CGP itself for the
same period of time. Therefore, as EPA further clarified, the fact that
an operator fails to make itself eligible for CGP coverage should not
make it subject to potential enforcement action for noncompliance with
a permit to which it was never subject. EPA disagrees with the State's
characterization of several of the CGP's provisions and one of the
Agency's quoted response to comment as offering any real substantive or
convincing reasons to abandon today's permit modification. First, the
State interprets Sec. 2.3.D's reservation of enforcement authority for
permit noncompliance as a statement
[[Page 76747]]
supporting its belief that any violation of the permit's requirements
during this period constitute ``permit noncompliance.'' By relying on
this statement, however, the State appears to have forgotten that this
is one of the very provisions EPA proposed to modify. Regardless of the
authority EPA may have reserved for itself in the previous CGP, EPA has
decided that, for the reasons stated above, this language should be
changed. The State offers no argument suggesting that the position it
believes EPA should take is compelled by any legal authority.
EPA also disagrees with the State's characterization of the SWPPP
preparation requirement as a permit condition, and not an eligibility
criterion. The State references several sections which address permit
eligibility (i.e., CGP Sec. 1.2, 1.3, Appendices A and B). It is true
that most of these provisions do not specifically describe the
preparation of a SWPPP as an eligibility condition for coverage under
the CGP. However, the State appears to have overlooked sections
1.3.A.3.c, 1.3.C.5 and 1.3.C.6. Each of these provisions refer to
eligibility requirements that must be satisfied through the SWPPP. Nor
does the State reference Sec. 3.1.A which specifies that ``[a] SWPPP
must be prepared prior to submission of an NOI'', or Section IV of the
NOI form which asks whether ``the SWPPP has been prepared in advance of
filing this NOI.'' The failure to prepare a SWPPP prior to submission
of an NOI makes the operator ineligible for permit coverage, in the
same way that the operator's failure to abide by any of the other
requirements in Sec. 1.2, 1.3, and Appendix B prohibit coverage.
Therefore, EPA considers Sec. 3.1.A to act as an eligibility
requirement for coverage under the CGP. This is not to say that EPA
would not also treat the SWPPP provisions as permit requirements after
authorization under the CGP has been obtained. The point here is that
the State's reading of the CGP terms is more cramped than EPA's
preferred reading, and the Agency declines to follow the State's
suggestion on this matter.
In addition, EPA does not agree with the State's reading of EPA's
response to comment concerning the critical importance of having a
SWPPP ``in place an[d] operational.'' The original comment sought some
``reasonable'' grace period (e.g., the commenter suggested 30 days)
during which EPA would not seek enforcement action against late
notifiers in order to avoid discouraging them from filing an NOI. EPA
responded that enforcement actions are discretionary, not mandatory for
each violation; that the Agency takes into account the ``reasonableness
of the violator's action'' when determining its response; and that the
SWPPP being in place and operational prior to discharge is critical to
the protection of water resources since ``significant discharges of
sediment can occur during the initial days of a construction project.''
CGP Comment Response Document at 42 (ID 294). This response
was intended to stand for the principle that the existence or absence
of a SWPPP is an important indicator of the reasonableness of a late
notifier's actions and will affect how and whether enforcement action
is taken. For instance, the fact that a late notifier had not yet
developed a SWPPP may result in EPA seeking a higher penalty level for
a CWA violation for failure to obtain a permit prior to discharge, as
compared to a situation where a SWPPP appears to have been developed in
good faith. Again, EPA generally views the requirement to complete the
development of a SWPPP prior to NOI submission as an eligibility
criterion for coverage under the CGP, as opposed to a potential
violation of the permit itself. The State appears to believe that this
comment response as suggesting that EPA intended to retain authority to
pursue enforcement against the failure to prepare a SWPPP as a permit
violation in addition to the failure to obtain discharge authorization.
The State has read too much into this response. Indeed, there is
nothing in this comment response that is incompatible with the action
EPA is taking today.
2. One Commenter Noted That the Proposed Modification Is the Product of
a Settlement of Litigation
New York notes in its comments that the proposed modification is
the product of a settlement between EPA and ``Construction Industry
Petitioners'' in Wisconsin Builders Ass'n v. EPA, United States Court
of Appeals for the Seventh Circuit, Case No. 03-2908 (and consolidated
cases). The commenter is correct in stating that EPA modified its
settlement agreement with these petitioners in response to objections
by the State and the Natural Resources Defense Council (NRDC). In its
original settlement agreement, EPA planned to modify the CGP consistent
with procedures for minor permit modifications [40 CFR 122.63(a)]. That
is, EPA believed that the use of the term ``permit noncompliance'' had
been included in the CGP inadvertently and inappropriately and that a
minor modification was appropriate to correct this sort of error.
Consistent with 40 CFR 122.63, minor modifications do not require
public notice.
Subsequent to the State and NRDC's objection to the settlement, EPA
opted to prepare a draft permit and public notice that permit
consistent with 40 CFR 122.62 rather than debate whether the proposed
changes were minor, as defined in 122.63.
3. Concerns Regarding ``Double Jeopardy''
Several commenters suggested that as currently worded, the CGP puts
dischargers in ``double jeopardy'' for failing to obtain a storm water
permit before commencement of construction. Commenters argue that a
facility could then be fined both for failure to obtain permit coverage
and failure to comply with permit requirements. EPA generally agrees
with the commenters' concern to the extent that the Agency did not (and
does not) intend to enforce against an operator for failure to obtain
permit coverage while at the same time asserting permit violations for
the same period during which the operator is not covered by the CGP.
EPA retains the discretion, however, to bring an enforcement action for
failure to obtain permit coverage while simultaneously bringing an
action against the same operator for any discharges that occur while
the operator lacks such permit coverage.
4. Comments Suggesting That EPA's Rationale for Violations Associated
With Failure To Obtain Permit Coverage Is Incomplete
Several commenters expressed their concern that the proposed
modification suggests that operators who fail to submit a timely NOI
under the CGP would be in 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.'' Commenters believe this rationale
is incomplete in that the CGP provides an alternative permit option,
one for which a notice of intent is due only seven days prior to
commencement of construction activity, consistent with general permit
regulations at 122.28(b)(2)(i). Commenters are generally correct in
noting that the Federal regulations provide that a notice of intent
offers an option to the individual permit application. However, an
operator who fails to submit a general permit notice of intent should
not assume that s/he will be treated as if s/he were going to be
following terms of the general permit. In fact, failure to submit a
timely notice of intent may imply instead that an operator has opted
not to be covered by that general permit.
[[Page 76748]]
Regardless, it was not EPA's intent to define every aspect of future
enforcement actions through today's permit modifications. The concerns
raised by commenters described immediately above are outside the scope
of today's action. Although EPA may provide guidance addressing these
specific concerns in the future, EPA declines to provide further
response through today's notice.
5. Comments Asserting That Entities Cannot Be in Violation of the CWA
or 40 CFR 122.21(c)(1) if They Have No Discharge of Storm Water
Various commenters asserted that operators cannot be said to be in
violation of the CWA or 40 CFR 122.21(c)(1) in the absence of an actual
discharge of storm water. These assertions are outside the scope of
today's action. Although EPA may provide guidance addressing these
specific concerns in the future, EPA declines to respond to this issue
through today's notice.
C. Can I Apply for an Individual Permit? Can I Appeal the Permit
Decision?
Yes. Persons affected by this permit action may apply for an
individual permit as specified at 40 CFR 122.21 (and authorized at 40
CFR 122.28), and then petition the Environmental Appeals Board to
review any condition of the individual permit (40 CFR 124.19).
D. 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: (1) 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; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. It has been determined
that this final rule is not a significant regulatory action under the
terms of Executive Order 12866 and is therefore not subject to OMB
review.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rule-making requirements under the Administrative
Procedures Act or any other statute unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions. Issuance of
an NPDES general permit is not a rulemaking and, accordingly, is not
subject to rulemaking requirements, under APA section 553 or any other
law. Therefore, it is thus not subject to the RFA requirements. The APA
defines two broad, mutually exclusive categories of agency action--
``rules'' and ``orders.'' Its definition of ``rule'' encompasses ``an
agency statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice requirements of an
agency * * *'' APA section 551(4). Its definition of ``order'' is
residual: ``a final disposition * * * of an agency in a matter other
than rule making but including licensing.'' APA section 551(6)
(emphasis added). The APA defines ``license'' to ``include * * * an
agency permit * * *'' APA section 551(8). The APA thus categorizes a
permit as an order, which by the APA's definition is not a rule.
Section 553 of the APA establishes ``rule making'' requirements. The
APA defines ``rule making'' as ``the agency process for formulating,
amending, or repealing a rule.'' APA section 551(5). By its terms,
then, section 553 applies only to ``rules'' and not also to ``orders,''
which include permits.
F. 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. 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 2 U.S.C. 658 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 and
modifications thereto are not ``rules'' for RFA or UMRA purposes.
G. Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
resulting from the final modification of the construction general
permit under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et
seq. The information collection requirements of the construction
general permit for small and large construction activities have already
been approved by the Office of Management and Budget (OMB) (OMB Control
Nos. 2040-0211 and 2040-0188, respectively) in previous submissions
made for the NPDES permit program under the provisions of the Clean
Water Act.
[[Page 76749]]
Signed and issued this 15th day of December, 2004.
Linda M. Murphy,
Director, Office of Ecosystem Protection, Region I.
Signed and issued this 14th day of December, 2004.
Walter Mugdan,
Director, Division of Environmental Planning and Protection, Region II.
Signed and issued this 14th day of December, 2004.
Carl Soderberg,
Director, Caribbean Environmental Protection Division, Region II.
Signed and issued this 14th day of December, 2004.
Jon M. Capacasa,
Director, Water Protection Division, Region III.
Signed and issued this 13th day of December, 2004.
Timothy C. Henry,
Acting Director, Water Division, Region V.
Signed and issued this 14th day of December, 2004.
Jane B. Watson,
Acting Director, Water Quality Protection Division, Region VI.
Signed and issued this 15th day of December, 2004.
Leo J. Alderman,
Director, Water, Wetlands, and Pesticides Division, Region VII.
Signed and issued this 14th day of December, 2004.
Judy Wong,
Director, Water Program, Region VIII.
Signed and issued this 10th day of December, 2004.
Alexis Strauss,
Director, Water Division, Region IX.
Signed and issued this 13th day of December, 2004.
Michael J. Lidgard,
Acting Director, Office of Water and Watersheds, Region X.
[FR Doc. 04-27995 Filed 12-21-04; 8:45 am]
BILLING CODE 6560-50-P