[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Rules and Regulations]
[Pages 68215-68217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28033]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 450
[EPA-HQ-OW-2010-0884; FRL-9222-2]
Direct Final Rule Staying Numeric Limitation for the Construction
and Development Point Source Category
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action 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 expects to move expeditiously with
its reconsideration, and will remove the stay when such reconsideration
is completed.
DATES: This rule is effective on January 4, 2011 without further
notice, unless EPA receives adverse comment by December 6, 2010 for 40
CFR 450.22(a) and (b), which are stayed indefinitely. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that the rule will not take effect.
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: [email protected].
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 (202)
566-1744, and the telephone number for the EPA Docket Center is (202)
566-2426.
FOR FURTHER INFORMATION CONTACT: Janet Goodwin, USEPA Office of Water,
by phone at (202) 566-1060 or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
A. Does this action apply to me?
Regulated Entities
Entities potentially regulated by this action include:
------------------------------------------------------------------------
North American
industry
Category Examples of regulated classification
entities system (NAICS)
code
------------------------------------------------------------------------
Industry...................... Construction 236
activities required
to obtain NPDES
permit coverage and
performing the
following
activities:
Construction of
buildings, including
building, developing
and general
contracting.
Heavy and civil 237
engineering
construction,
including land
subdivision.
------------------------------------------------------------------------
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)
[[Page 68216]]
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.
B. Background
On December 1, 2009, EPA published in the Federal Register (74 FR
62995) effluent limitations guidelines and new source performance
standards (ELGs) for the Construction and Development Point Source
category. These ELGs control the discharge of pollutants from
construction sites and require construction site owners and operators
to implement a range of erosion and sediment control measures and
pollution prevention practices to control pollutants in discharges from
construction sites. These control measures became effective on February
1, 2010. In addition, the rule subjected discharges from certain larger
construction sites to a numeric effluent limitation of 280 NTU starting
in August of 2011 (for sites 20 acres or more) and February of 2014
(for sites 10 acres or more). These regulations are located at 40 CFR
part 450.
Subsequent to the promulgation of the construction and development
ELGs, EPA received two petitions for reconsideration of the rule. These
petitions pointed out a potential error in the calculation of the
numeric limitation. Based on EPA's examination of the dataset
underlying the 280 NTU limit, EPA has 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. EPA plans to
publish a proposed correction rule in December 2010 for public comment,
and take final action on the proposal by May 30, 2011 so that the
revised limitation will be effective by June 29, 2011. An effective
date for any revised limitation of June 29, 2011 is necessary in order
for EPA to incorporate the corrected numeric limitation in its next
Construction General Permit by June 30, 2011.
In 2010 and 2011, EPA estimates that 16 states will incorporate the
new construction and development ELG requirements, including the
numeric limitation, in their construction general permits. Since EPA
acknowledges an error in calculating the 280 NTU limit, it would be
inappropriate for states to incorporate the current numeric limitation
in construction and development permits. Consequently, EPA believes a
stay of the 280 NTU effluent limitation and associated monitoring
requirements is appropriate until EPA can correct its error in
calculating the numeric limitation. EPA plans to initiate a limited
rulemaking to correct the numeric limitation, and plans to take final
action on the proposal by May 30, 2011. This direct final rule stays
the numeric limitation in 40 CFR 450.22(a) and (b) and associated
monitoring requirements until the new rulemaking is effective. States
issuing permits between effective date of the stay and the effective
date of the new rule need not incorporate the 280 NTU numeric
limitation into their permits.
C. Description of This Action
EPA is staying Section 22(a) and (b) of 40 CFR part 450 until it
can complete a new rulemaking to correct the 280 NTU numeric
limitation. Otherwise, compliance with the 280 NTU numeric limitation
based on an inadequate administrative record would be required. This
stay provides certainty to dischargers, which would need to comply with
the numeric limitation and associated monitoring requirements, and to
permitting agencies, which would need to incorporate the numeric
limitation and associated monitoring requirements in construction
permits. This is especially critical for the 16 states that are
expected to issue new construction general permits in 2010 and 2011.
Pursuant to 5 U.S.C. 553(b), EPA has determined for the reasons stated
above that good cause exists for issuing this stay without notice and
public comment procedures because in this context, for the reasons
discussed above, such procedures are unnecessary and not in the public
interest. EPA is not staying any other provision of 40 CFR part 450.
D. Statutory and Executive Order Reviews
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
13175. 65 FR 67249 (November 9, 2000). 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 and it does not
make decisions based on environmental health or safety risks. This rule
is not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355 (May 22, 2001)) because it is not a significant
regulatory action under Executive Order 12866.
This 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. This 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
[[Page 68217]]
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 a good cause finding to forego public notice and comment
procedures. Today's stay eliminates a numeric limitation for which the
record is inadequate and any opportunity for confusion. Any additional
delay in correcting the calculation error would only increase the
potential confusion and could require states to incorporate an
incorrect numeric limitation in their construction permits. EPA sets an
effective date to make the stay effective 60 days after publication in
the Federal Register. 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: November 1, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set forth in the preamble, EPA is amending 40 CFR part
450 as follows:
PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY
0
1. The authority citation for part 450 is revised to read as follows:
Authority: 33 U.S.C. 101, 301, 304, 306, 308, 401, 402, 501 and
510.
0
2. Section 450.22(a) and (b) are stayed indefinitely.
[FR Doc. 2010-28033 Filed 11-4-10; 8:45 am]
BILLING CODE 6560-50-P