performance level on a consistent basis because sites using well-
designed and operated treatment systems have demonstrated that this can
be done. Sites that are designed and operated to achieve the long-term
average effluent levels used in developing the limitation should be
capable of compliance with the limitation at all times, because the
limitation incorporates an allowance for variability in effluent levels
about the long-term average. The allowance for variability is based on
control of treatment variability demonstrated in normal operations.
    EPA recognizes that, as a result of the requirements in 40 CFR part
450, some dischargers may need to improve treatment systems, process
controls, and/or treatment system operations in order to consistently
meet the new effluent limitation and/or standard. As noted previously,
however, given the fact that the promulgated limitation reflects an
allowance for variability and the demonstrated ability of sites to
achieve the LTA, the limitation is achievable.

XIX. Regulatory Implementation

A. Monitoring Requirements

    EPA is requiring the monitoring of turbidity in stormwater
discharges from C&D sites subject to the numeric limitation in order to
determine whether the numeric limitation is being met. The NRC report
highlighted that one of the weakest areas of the stormwater program is
the lack of monitoring. NRC at 329. Until today, EPA has not required
any monitoring requirements beyond visual inspections for discharges
associated with construction activity, although some NPDES-authorized
states (e.g., California, Georgia, Oregon, Vermont, and Washington)
have imposed monitoring requirements on construction operators in their
permits. See relevant state permit requirements in the rulemaking
record (DCNs 42104, 42108-42111). Now that EPA is adopting a numeric
effluent limitation for turbidity for certain construction sites,
permits authorizing discharges associated with construction activity
from those sites are required to include monitoring requirements in
NPDES permits for discharges associated with construction activity.
Pursuant to the NPDES regulations, the permit must specify the type,
interval, and frequency of sampling ``sufficient to yield data which
are representative of the monitored activity'' and must require
monitoring for specific pollutants that are limited in the permit. 40
CFR 122.48(b); see also 122.44(j)(1)(i). While the final rule does not
enumerate the specific requirements (i.e., frequency, location, etc.)
regarding the monitoring of turbidity in discharges from construction
sites EPA emphasizes that compliance monitoring is required of
permittees and that pursuant to EPA's NPDES regulations permitting
authorities must specify requirements and procedures in their NPDES
permits for representative sampling to ensure effective monitoring.
    While monitoring is routine in industrial discharge permits, EPA
acknowledges that for most permitting authorities, including EPA, the
inclusion of monitoring requirements in individual or general
construction permits is new. EPA also recognizes that while it is
appropriate to provide sufficient flexibility for permitting
authorities to design monitoring protocols that are appropriate for
their specific permits, given the particular circumstances in their
jurisdiction, it will be important for EPA to provide additional
guidance on monitoring of stormwater discharges from construction sites
so that permitting authorities have a general sense of how to structure
requirements that are consistent with today's rule. For that reason,
EPA intends to provide monitoring guidance prior to the issuance of the
next EPA CGP to provide a technical resource guide to permit writers in
establishing monitoring requirements in their construction permits.
    The following is a discussion of a number of significant issues
implicated by the numeric turbidity limitation and the requirement to
monitor discharges from certain construction activities:
    Applicability of Numeric Turbidity Limitation and Monitoring
Requirements: The turbidity limitation and monitoring requirements
apply to construction activities that disturb 10 or more acres of total
land area at one time. The 10-acre disturbance threshold includes non-
contiguous land disturbances that take place at the same time and are
part of a larger common plan of development or sale. Smaller
construction activities occurring at the same time, but in separate and
distinct areas of a project site, which together disturb 10 or more
acres of land, are also required to meet the sampling requirements.
This clarification is consistent with EPA's NPDES stormwater
regulations, which require permits for smaller scale disturbances that
are part of a common plan of development or sale. See definition of
large and small construction activities at 40 CFR 122.26(b)(14)(x) and
(15), respectively.
    The numeric limitation and monitoring requirements only apply when
the total disturbed area is 10 or more acres. Therefore, when
stabilization of disturbed areas reduces the amount of total
disturbances to less than 10 acres, the numeric limitation no longer
applies and monitoring of discharges is no longer required. This
provision creates an incentive for large sites to stabilize disturbed
areas as quickly as possible, thereby reducing the turbidity in
stormwater discharges from the site. This is also an incentive to phase
construction activities so that less than 10 acres are disturbed at any
one time. EPA recognizes that as construction activity progresses, less
area of the construction site will consist of disturbed land. At
present under the

EPA CGP, the Agency regulates stormwater discharges associated with
construction activity until the owners or operators file a Notice of
Termination to cease permit coverage. Often owners or operators must
stabilize the construction site before a Notice of Termination is
submitted to terminate permit coverage. Therefore, EPA is applying the
numeric limitation to sites that disturb 10 or more acres at one time
until such time as the site has stabilized disturbed areas bringing the
total disturbance below 10 acres, recognizing that discharges may
continue after this time. The non-numeric effluent limitations, at 40
CFR 450.21, of this rule would still apply to any continuing
discharges. With this threshold, EPA expects that the turbidity
limitation may not apply at some sites during some periods of
construction activity when less than 10 acres are disturbed at one
time. EPA has made this determination for various reasons (see section
X.G) while still controlling the discharge of pollutants from C&D sites
during the majority of land disturbing activities.
    EPA emphasizes that the applicability of the turbidity limitation
is tied to acres disturbed at one time, not to the ultimate amount of
land disturbance on a site. Thus, the applicability of the numeric
effluent limitation and monitoring based on a size threshold of
disturbed land differs from the applicability provisions of the NPDES
regulations at 40 CFR 122.26(b)(14) and (15) that determine whether
discharges associated with construction activity need NPDES permit
coverage. Under the 40 CFR 122.26 permit coverage is required for any
site that will result in land disturbance of equal to or greater than
one acre or will result in disturbance of less than one acre of total
land area that is part of a larger common plan of development or sale
if the larger common plan will ultimately disturb equal to or greater
than one acre. For example, a construction site that ultimately
disturbs over 1 acre at any point during the construction activity must
obtain NPDES permit coverage, even if at all points during construction
activity the total disturbed land area at one time is less than 1 acre.
However, for purposes of the applicability of the numeric effluent
limitation and monitoring requirement in the final rule a construction
site could ultimately disturb 10 or more acres, but as long as that
site does not disturb 10 or more acres at one time, monitoring and
compliance with the turbidity limitation would not be required.
    An example may help to illustrate how EPA will implement the 10-
acre threshold trigger for requiring sampling.
    Examples of when individual disturbances of less than 10 acres are
required to sample:
     If construction activities as part of a large residential
subdivision that disturb 5 acres of land in one lot, and, at the same
time, 5 acres of land in another lot, and the two lots are not adjacent
to one another, samples of the discharges from these sites would be
required pursuant to 40 CFR 450.22(a). Sampling is required under this
scenario because together the two land disturbances measure 10 or more
acres, and they are considered part of the same common plan of
development or sale. However, no discharge sampling would be required
if the two construction projects under this same scenario disturb less
than 10 acres of land total at the same time.
     Alternatively, if one of the 5-acre projects occurs at a
different time than the other, such that at no time are 10 or more
acres being disturbed at the same time, then sampling is not required
for these activities. In the same way, if one of the 5-acre projects
has achieved final stabilization in accordance with 40 CFR 450.21(b) by
the time the other 5-acre project commences, then no sampling is
required because the combined acreage of ground disturbance at one time
is less than 10 acres.
    Daily Maximum Limitation: EPA's numeric effluent limitation is a
daily maximum limitation; meaning that permittees may sample the
turbidity in their discharges multiple times over the course of a day
and the average of all measurements may not exceed the limitation.
During any given day, samples may be averaged to determine the average
turbidity for the day. It is this average daily value that must be
below the limitation specified in the rule. If one or more individual
samples are above the limitation, but the average turbidity for the day
is below the limitation, then discharges for that day are deemed to be
in compliance with the limitation. This takes into consideration the
variability of the discharge and allows higher levels of turbidity to
be discharged temporarily, such as may occur during an intense period
of rainfall. As explained previously, if a site has difficulty
complying with the limitation on an ongoing basis, then the site should
improve its controls, operations, and/or maintenance.
    If the permitting authority samples the discharge, those samples
may be averaged with the measurements taken by the permittee for the
same discharge event. For example, if the permittee takes three samples
and the permitting authority takes one sample, then these four samples
may be averaged to determine the daily value. As another example, if
the permitting authority takes a sample or samples, but the discharger
did not sample, then the permitting authority can use its sample or
samples for determining compliance.
    Sampling Frequency: EPA is leaving the specific monitoring
requirements to the discretion of each permitting authority, including
such issues as the sampling frequency during any one discharge event
and the number of discharge events that must be sampled. EPA would,
however, discourage the practice of allowing the number of monitoring
samples to vary arbitrarily merely to allow a site to achieve a desired
average concentration, i.e., a value below the limitation that day.
Additionally, as discussed above, EPA's NPDES regulations state that
the permit must specify the type, interval, and frequency of sampling
sufficient to yield data which are representative of the monitored
activity. EPA expects that enforcement authorities would prefer, or
even require, monitoring samples at some regular, pre-determined
frequency. In general, EPA expects that, at a minimum, three samples
per day will need to be collected at each discharge point while a
discharge is occurring. In reviewing its data used as a basis for the
limitation, EPA notes that 95 percent of daily values are based upon
three or more samples per day which demonstrates the need for multiple
samples. The recently-issued California Construction General Permit
offers one method of ensuring that at least three samples are collected
from the discharge event by requiring that turbidity samples be
collected three times per day for the duration of the discharge event.
See State Water Resources Control Board NPDES General Permit for Storm
Water Discharges Associated with Construction Activities, Attachment E,
p. 12. Permitting authorities may require more frequent monitoring than
three samples per day in order to obtain representative sampling, and
permittees may elect to perform more frequent monitoring. For example,
the permit could specify that sampling must begin within one hour of
the start of the discharge, and must continue until the discharge ends
or until the end of the working day. The permit could also include
exceptions to the minimum sampling frequency for circumstances such as
adverse weather conditions (such as high winds or lightning) or intense
rainfall, which would cause a reasonable person to believe that the
safety of the sample collection personnel would be in jeopardy. In such

instances, the permit might specify that sampling be conducted as soon
as it is deemed safe by the sampling personnel. If, at the start of the
next working day, there continues to be a discharge, then sampling
should resume until the discharge ends or until the end of the working
day.
    NPDES permitting authorities will also need to determine the
minimum number of discharge events during which monitoring is required.
It is EPA's general view that any storm event or snowmelt that
generates a discharge from the construction site should be monitored
since this is the surest way to determine the effectiveness of the
site's passive controls during all phases of active construction.
    Testing Methodology: The permitting authority must specify in NPDES
permits the requirements concerning the proper use, maintenance, and
installation, when appropriate, of monitoring equipment or methods
used. 40 CFR 122.48(a). Thus, permittees may elect to use automated
samplers and/or turbidity meters with data loggers, if approved by the
permitting authority. Each sample must be analyzed for turbidity using
methods approved by the permitting authority, but EPA expects that the
use of a properly calibrated field turbidimeter is sufficient. EPA is
also leaving up to the permitting authority the applicable reporting
requirements on the permitees sampling of their discharges from C&D
sites.
    Monitoring from Linear Construction Activities: EPA believes that
the permitting authority should exercise discretion when determining
the monitoring locations and monitoring frequency for linear
construction projects. For instance, the permitting authority might
choose, for example, to utilize representative sampling at certain
discharge locations that are representative of the discharge
characteristics of other locations. EPA views the use of representative
sampling points as being acceptable for linear projects due to the
potential unique nature of these projects. Because of the size of
linear projects, there may be dozens or more discharge points spaced
over a large geographic area. In addition, accessing certain areas of
the project during a storm event (such as areas that have recently been
stabilized) may not be possible without significant disruption of the
stabilization measures in place (such as might occur if it would be
necessary to drive a vehicle over an area that has been recently
stabilized in order to access the discharge point). EPA would generally
recommend that permitting authorities concentrate on those areas of
linear projects that are actively being constructed and not concentrate
on areas that have been completed and stabilized. An example, for a
project such as a pipeline or underground utilities, would be those
areas where trenching activities are occurring.
    Exception for Larger Storm Events: The numeric limitation applies
to all discharges from the site except on days when total precipitation
during that day exceeds the local 2-year, 24-hour storm event. Even
when total precipitation during the day exceeds the local 2-year, 24-
hour storm permittees must comply with the non-numeric effluent
limitations Sec.  450.22(c) through Sec.  450.22(h). If the total
precipitation on a day exceeds this amount, then the turbidity
limitation would not apply to discharges for that day. However, the
numeric effluent limitation is applicable to all discharges from the
site on subsequent days if there is no local 2-year, 24-hour storm
event during those days. Although the limitation would not apply on
days with precipitation greater than the 2-year, 24-hour event,
permittees would still be expected to monitor discharges during that
day. Permitting authorities may extend the standard to larger or less
frequent storm events if it is determined that the 2-year, 24-hour
storm is not adequate for a particular project or larger geographic
area. Controls would then need to be designed to handle these less
frequent storm events and the corresponding larger volumes of
stormwater.
    Although the numeric limitation would not apply on days where
precipitation exceeds the 2-year, 24-hour event, permittees must still
complywith the non-numeric effluent limitations Sec.  450.22(c) through
Sec.  450.22(h). Also, permittees would still be required to manage the
discharges from the site, and if passive treatment techniques are being
utilized, permittees would still be expected to utilize those
techniques. So for example, if a polymer dosing system is being
utilized, permittees would be expected to continue dosing polymer and
to continue managing the stormwater after the point at which the 2-
year, 24-hour storm precipitation amount was exceeded. The limited
short-term exemption from the numeric effluent limitation is not an
exemption from the requirement to manage discharges. In addition, it
would be inappropriate for permittees to intentionally discharge large
volumes of stormwater on these days, or to bypass treatment in addition
to likely not being in compliance with the non-numeric effluent
limitations in 40 CFR 450.21 and thus their NPDES permit. If a basin is
being utilized, it is expected that the primary outlet would be
utilized for the discharge (unless overflow occurs). Intentionally
bypassing the primary outlet would be inconsistent with the non-numeric
effluent limitations of the rule.
    EPA selected the 2-year, 24-hour storm event as the limiting event
for determining compliance in recognition of the fact that passive
controls can only be expected to consistently meet a numeric limitation
to the level that they are designed to function. Typically,
construction site controls are designed to manage stormwater up to a
certain design storm event. For larger storm events, basins will likely
overflow. Likewise, channels and conveyances will overtop and may begin
to erode unless they are armored with materials such as flexible
channel liners. EPA considered basing compliance on a 1-year storm, a
2-year storm and a 5-year storm. A 1-year storm has a 100% chance of
occurring in any given 12 month period, a 2-year storm has a 50% chance
of occurring in any 12 month period and a 5-year storm has a 20% chance
of occurring in any 12 month period. To EPA's knowledge, designing for
a 5-year storm is not common practice on construction sites, with the
exception of emergency spillways on basins. However, many states
require that basins and other controls be designed to manage a 2-year
storm. Given that designing controls to manage runoff from a 2-year 24-
hour storm provides a reasonable compromise between designing for a
larger storm (at more expense) and allowing multiple discharges per
year to potentially exceed the limitation (as would be the case with a
smaller storm) EPA selected the 2-year storm as the maximum compliance
storm event.
    Monitoring Locations: The numeric limitation applies to all
discharges from C&D sites. However, diffuse stormwater, such as non-
channelized flow through a silt fence or other perimeter control that
infiltrates into a vegetated area, and does not then discharge to
surface waters, would not generally require sampling. EPA is
encouraging (although not requiring) permittees to utilize dispersion
of stormwater to vegetated areas and infiltration of stormwater instead
of discharging it from the site. EPA encourages increased usage of such
techniques, where appropriate. This is consistent with the concept of
Low Impact Development (LID) techniques as well as the zero discharge
goal of the Clean Water Act. Some projects present unique monitoring
challenges, such as projects that are adjacent to or actually within
waterbodies. Examples include

locks, dams, piers, and stream stabilization activities. For these
types of projects, permitting authorities may need to exercise
discretion when considering appropriate monitoring locations for
discharges.
    Sampling Times: Although EPA has left the issue of when sampling is
required during any given discharge event to the discretion of the
permitting authority, it is EPA's general view that sampling should be
conducted, at a minimum, during normal business hours at a project.
This can generally be considered to be between the hours of 6 a.m. and
6 p.m., or when workers are normally present on the construction site.
The exception would be if unsafe conditions, such as heavy rain or
lightning, would cause a reasonable person to determine that sampling
would be dangerous.
    Notification to Permitting Authorities: Although not a requirement
in today's rule, permitting authorities may want to consider
requirements in their permits and consider mechanisms by which
permittees would notify the permitting authority when they have
exceeded the 10 acre disturbed land threshold and monitoring would be
required at a particular project.

B. Implementation

    While pursuant to the CRA this entire rule is effective February 1,
2010 the numeric effluent limitation and the associated monitoring
requirements for sites with 20 or more acres of land disturbed at one
time will become applicable to discharges associated with construction
activity 18 months following the effective date of this final rule on
August 2, 2010. The numeric effluent limitation and the associated
monitoring requirements for sites with 10 or more acres of land
disturbed at one time will become applicable to discharges associated
with construction activity four years following the effective date of
this final rule on February 2, 2014. The non-numeric effluent
limitations in Option 4 will become applicable when the rule is
effective or 60 days after the final rule is published in the Federal
Register on February 1, 2010.
    Once EPA has promulgated effluent limitations and standards under
CWA sections 301 and 306, and those limitations and standards become
effective, the permitting authority must incorporate those limitations
into NPDES permits as effluent limitations. 40 CFR 122.43-44. For
discharges associated with construction activity, once the ELGs and
NSPSs become effective the permitting authority must include permit
limitations at least as stringent as those promulgated in this
regulation in any individual NPDES permits or in the next construction
general permit issued after the effective date of this regulation. EPA
anticipates that the permitting authorities, particularly those whose
construction general permits will expire within the next 18 months,
would like time to develop guidance on the new requirements given the
change in focus from past construction permits of non-numeric effluent
limitations and BMPs to numeric limitations and monitoring
requirements. EPA is aware of at least 10 states whose construction
general permits are scheduled to expire within the first 18 months
after the effective date of this final rule, in addition to the 4
states and other jurisdictions who are permitted by the EPA CGP,
proposed to expire on June 30, 2011. In order to provide permitting
authorities time to develop guidance on the requirements of this rule,
including monitoring requirements, EPA is providing a 18 month lead
time for the permitting authorities between the effective date of this
final rule and when the numeric limitation and monitoring requirements
are applicable to stormwater discharges associated with construction
activity. The C&D ELG, including the numeric limitations and monitoring
requirements, will be effective February 1, 2010, even though the
numeric limit will not be applicable to discharges for 18 months from
the effective date of this rule for sites with 20 or more acres of land
disturbed at one time and four years after the effective date for sites
with 10 or more acres of land disturbed at one time. Thus, the
permitting authorities whose construction general permits will expire
after the effective date of the C&D ELG must still incorporate the
numeric limitation and monitoring requirements into their newly issued
CGPs even though it will not be applicable until 18 months from the
effective date for sites with 20 or more acres of land disturbed at one
time and four years after the effective date for sites with 10 or more
acres of land disturbed at one time. After the effective date of this
rule, permitting authorities must incorporate the requirements into
newly issued permits. Without an 18 month lead time in the
applicability of the numeric limitation and monitoring requirements
permitting authorities and the permittees in those states would have,
what EPA believes, an unreasonably short time period to digest these
new requirements and plan accordingly. While it is impossible to
determine exactly how much time is necessary for permitting authorities
and permittees, EPA weighed the need to provide enough time, for the
reasons stated below, against the desire to apply these important
numeric limitations and monitoring requirements in a timely manner in
order to achieve important reductions in pollutant discharges from C&D
sites and determined that 18 months for sites with 20 or more acres of
land disturbed at one time and four years for sites with 10 or more
acres of land disturbed at one time are reasonable periods of time.
    In this rule EPA has determined that passive treatment technologies
and a numeric effluent limitation with monitoring requirements is BAT
and NSPS. As discussed above, it is clear that passive technologies are
technologically available, as they are used widely throughout the U.S.,
however before this rule there were no nationwide numeric limitations
or monitoring requirements connected with the construction industry,
and particularly with the use of passive treatment technology at C&D
sites. Monitoring requirements are a critical part of any numeric
limitation. Given the sea change to the regulated industry there may be
implementation issues associated with incorporation of monitoring
requirements into permits, for example, permitting authorities may
specify the frequency of monitoring; the location of monitoring; The
duration of monitoring in relation to storm events; the samples that
will be representative of the flow and characteristics of the
discharges from the C&D site; whether it will approve the use of
automated samplers and/or turbidity meters with data loggers; and
establish procedures for analyzing the sample for turbidity and
appropriate quality assurance/quality control procedures. The 18 month
period will also allow permitting authorities to develop any necessary
training or certification programs. An important factor in the
effective implementation and compliance with this rule will be the
permitting authority being able to digest the numeric limitation and
monitoring requirements and developing guidance and outreach to the
regulated community to provide assistance so the requirements are
understood and can be effectively met by owners and operators of C&D
sites. This will provide the regulated industry with the guidance,
knowledge and tools necessary in order to effectively monitor their
discharges in order to ensure they are meeting the numeric limitation.
    In addition to the reasons stated above regarding the permitting
authority having the time to develop guidance to assist C&D site
operators, for this industry, it is necessary to allow it a

period of time to become accustomed to monitoring discharges and
understand how different passive approaches impact the level of
turbidity in their stormwater discharges. Allowing a phase-in of the
monitoring requirements and turbidity limitation will allow the
industry time to adjust their controls to determine what the most
effective passive technology or combination of technologies are to
reduce levels of turbidity, and to train personnel on any new
techniques or technologies implemented at the site, how to sample and
analyze stormwater discharges, and how to correctly apply polymers or
treatment chemicals, if necessary, without causing environmental harm.
As noted previously, the monitoring requirements are a critical part of
the numeric limitation developed as BAT and NSPS and the establishment
of a numeric limitation and monitoring requirements for discharges
associated with the construction industry represents a sea change for
the industry and permitting authorities. This change is in line with
the technology forcing nature of the CWA; however, it may require
significant time and resources for many construction firms to adapt
their operations in light of the new stormwater control measures.
    Learning how to use what for many firms will be new control
techniques will likely require some initial period of adjustment,
modification, and revision to ensure that the selected control measures
achieve the required discharge limitation. EPA would expect that most
of the firms affected in the first phase will be relatively large firms
with in-house expertise or access to the necessary resources to
implement passive treatment technologies. Because, as noted, the final
rule requires a significant change in the controls necessary for the
discharges associated with construction activity from current practices
for many firms, there may be, at least in the near term, a limited
universe of available expertise in passive treatment in the form of
available guidance information and trained engineering personnel
specialized in these treatment measures. EPA also expects that
expertise and understanding will grow over time and that technologies
may well both improve and decrease in cost. In these circumstances,
phasing in the application of the numeric limitations provides time to
facilitate the efficient development and transfer of this expertise,
and allows the industry to explore opportunities for cost savings.
    EPA estimates that sites which disturb 20 or more acres at any one
time represent 48 percent of all sites subject to the numeric limits.
The pollutant reduction associated with these sites is estimated to
represent 69 percent of the pollutants discharged by construction
sites. Expanding the application of the numeric limit after two and a
half years to sites that disturb 10 or more acres at any one time will
achieve a 77 percent sediment reduction over baseline discharges. EPA
has determined that phasing the application of the limitation ensures
that effective progress is made towards achieving the pollutant
reductions and benefits associated with BAT and BADT while providing
the construction industry with additional time to implement the
regulation in recognition of the current economic downturn.
    EPA plans to work closely with states and industry to ensure
effective implementation of this rule. EPA will also monitor progress
with respect to a range of variables, including appropriate
technologies and their performance, costs, and overall industry
conditions, with the ability to make adjustments if warranted.

C. Upset and Bypass Provisions

    A ``bypass'' is an intentional diversion of the streams from any
portion of a treatment facility. An ``upset'' is an exceptional
incident in which there is unintentional and temporary noncompliance
with technology-based permit effluent limitations because of factors
beyond the reasonable control of the permittee. EPA's regulations
concerning bypasses and upsets for direct dischargers are set forth at
40 CFR 122.41(m) and (n).
    Because much of today's rule includes requirements for the design,
installation, and maintenance of erosion and sediment controls, EPA
considered the need for an additional bypass-type provision in regard
to large storm events. However, EPA did not specifically include such a
provision in the text of the regulation because the rule only requires
dischargers to meet a numeric turbidity limitation for discharges on
days with storm events smaller than the 2-year, 24-hour storm. Because
EPA is not establishing requirements for control of larger storm
events, specific bypass provisions were not necessary. Standard upset
and bypass provisions are generally included in all NPDES permits, and
EPA expects this will be the case for construction stormwater permits
issued after this rule becomes effective.

D. Variances and Waivers

    The CWA requires application of effluent limitation guidelines
established pursuant to section 301 to all direct dischargers. However,
the statute provides for the modification of these national
requirements in a limited number of circumstances. Moreover, the Agency
has established administrative mechanisms to provide an opportunity for
relief from the application of ELGs for categories of existing sources
for toxic, conventional, and nonconventional pollutants. ``Ability to
Pay'' and ``water quality'' waivers do not apply to conventional or
toxic pollutants (e.g., TSS, PCBs) and, therefore, do not apply to
today's rule. However, the variance for Fundamentally Different Factors
(FDFs) may apply in some circumstances.
    EPA will develop effluent limitations or standards different from
the otherwise applicable requirements if an individual discharging
facility is fundamentally different with respect to factors considered
in establishing the limitation of standards applicable to the
individual facility. Such a modification is known as a ``fundamentally
different factors'' (FDF) variance.
    Early on, EPA, by regulation provided for the FDF modifications
from the BPT and BAT limitations for toxic and nonconventional
pollutants and BPT limitations for conventional pollutants for direct
dischargers. For indirect dischargers, EPA provided for modifications
for PSES. FDF variances for toxic pollutants were challenged judicially
and ultimately sustained by the Supreme Court. Chemical Manufacturers
Assn v. NRDC, 479 U.S. 116 (1985).
    Subsequently, in the Water Quality Act of 1987, Congress added new
section 301(n) of the Act explicitly to authorize modifications of the
otherwise applicable BAT effluent limitations or categorical
pretreatment standards for existing sources if a facility is
fundamentally different with respect to the factors specified in
section 304 (other than costs) from those considered by EPA in
establishing the effluent limitations or pretreatment standard. Section
301(n) also defined the conditions under which EPA may establish
alternative requirements. Under section 301(n), an application for
approval of a FDF variance must be based solely on (1) information
submitted during rulemaking raising the factors that are fundamentally
different or (2) information the applicant did not have an opportunity
to submit. The alternate limitation or standard must be no less
stringent than justified by the difference and must not result in
markedly more adverse non-water quality environmental impacts than the
national limitation or standard.

    EPA regulations at 40 CFR part 125, subpart D, authorizing the
Regional Administrators to establish alternative limitations and
standards, further detail the substantive criteria used to evaluate FDF
variance requests for direct dischargers. Thus, 40 CFR 125.31(d)
identifies six factors (e.g., volume of process wastewater, age and
size of a discharger's facility) that may be considered in determining
if a facility is fundamentally different. The Agency must determine
whether, on the basis of one or more of these factors, the facility in
question is fundamentally different from the facilities and factors
considered by EPA in developing the nationally applicable effluent
guidelines. The regulation also lists four other factors (e.g.,
infeasibility of installation within the time allowed or a discharger's
ability to pay) that may not provide a basis for an FDF variance. In
addition, under 40 CFR 125.31(b)(3), a request for limitations less
stringent than the national limitation may be approved only if
compliance with the national limitations would result in either (a) a
removal cost wholly out of proportion to the removal cost considered
during development of the national limitations, or (b) a non-water
quality environmental impact (including energy requirements)
fundamentally more adverse than the impact considered during
development of the national limitations. EPA regulations provide for an
FDF variance for indirect dischargers at 40 CFR 403.13. The conditions
for approval of a request to modify applicable pretreatment standards
and factors considered are the same as those for direct dischargers.
    The legislative history of section 301(n) underscores the necessity
for the FDF variance applicant to establish eligibility for the
variance. EPA's regulations at 40 CFR 125.32(b)(1) are explicit in
imposing this burden upon the applicant. The applicant must show that
the factors relating to the discharge controlled by the applicant's
permit which are claimed to be fundamentally different are, in fact,
fundamentally different from those factors considered by the EPA in
establishing the applicable guidelines. An FDF variance is not
available to a new source subject to NSPS. See E.I. du Pont de Nemours
v. Train, 430 U.S. 112, 138-39 (1977).

E. Safe Drinking Water Act Requirements

    EPA is encouraging the use of stormwater dispersion and
infiltration to manage stormwater discharges from construction
activity. By using dispersion and infiltration techniques, permittees
may be able to significantly reduce or even eliminate discharges in
certain situations. While permittees may choose to utilize infiltration
practices such as infiltration trenches and wells to manage
postconstruction stormwater discharges, EPA does not expect that
permittees will utilize these practices to any great degree during the
construction phase because sediment may cause clogging of these
practices and therefore reduce their useful life. However, it is
important to note that certain types of infiltration practices used to
manage stormwater from construction activity may be subject to
regulation under the Safe Drinking Water Act's (SDWA) Underground
Injection Control (UIC) program and EPA's implementing regulations at
40 CFR parts 144-147. SDWA established the UIC program to provide
safeguards so that injection wells do not endanger current and future
underground sources of drinking water (USDWs) (42 U.S.C. 300h). The UIC
program is implemented by Federal and state government agencies that
oversee underground injection activities in order to prevent
contamination of USDWs.
    Some infiltration practices may involve injection into a well,
which is defined as a bored, drilled, driven shaft, or dug hole that is
deeper than its widest surface dimension, or an improved sinkhole, or a
subsurface fluid distribution system (40 CFR 144.3). In those cases,
the infiltration practices would be regulated under the UIC program as
a Class V well. For example, an infiltration trench that includes an
assemblage of perforated pipes, drain tiles, or similar mechanism
intended to distribute fluids below the surface would probably be
considered a Class V injection well. Also, commercially manufactured
stormwater infiltration devices such as pre-cast or pre-built
proprietary subsurface detention vaults, chambers or other devices
designed to capture and infiltrate stormwater runoff are generally
considered Class V wells. Drywells, seepage pits, and improved
sinkholes are also generally considered to be Class V wells if water is
directed to them and their depth is greater than their widest surface
dimension or they are connected to a subsurface fluid distribution
system.
    Typically, Class V wells are authorized by rule and do not require
a permit if the owner or operator submits inventory information to the
State, if it has primary enforcement responsibility for the UIC Class V
program, or EPA, and complies with the other requirements for Class V
wells. The state or EPA regional UIC program director with primacy for
the UIC Class V program should be contacted when these types of
infiltration practices are planned to assist in determining whether
they are Class V wells.
    There are some geologic settings that are so sensitive that
contaminated stormwater may move too rapidly through the soil profile
for sufficient pollution removal. As a result, USDWs may be threatened.
The source water assessments required under the 1996 Amendments to the
Safe Drinking Water Act are good sources of information on sensitive
geologic settings for public water supplies, as is EPA's Source Water
Practices Bulletin: Managing Stormwater Runoff to Prevent Contamination
of Drinking Water (Office of Water, EPA 816-F-007, July 2009).

F. Other Clean Water Act Requirements

    Compliance with the provisions of this rule would not exempt a
discharger from any other requirements of the CWA.

XX. Related Acts of Congress, Executive Orders, and Agency Initiatives

A. Executive Order 12866: Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
    In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
Section 8.3, Comparison of Social Cost and Monetized Benefits in
Chapter 8 of the Economic Analysis. A copy of the analysis is available
in the docket for this action and the analysis is briefly summarized
here. Table XX-1 provides the results of the benefit-cost analysis.

    Table XX-1--Total Annualized Benefits and Costs of the Regulatory
                                 Options
------------------------------------------------------------------------
                                  Social costs
                                    (2008  $      Benefits \a\ (2008  $
             Option               millions  per    millions  per year)
                                      year)
------------------------------------------------------------------------
Option 1.......................          $175.8  $214.1 + (NMB)1
Option 2.......................         4,863.1  360.1 + (NMB)2
Option 3.......................         9,081.1  422.3 + (NMB)3

Option 4.......................           958.7  368.9 + (NMB)4
------------------------------------------------------------------------
\a\ NMBi are the non-monetized benefits of the i\th\ Option.
Source: Economic Analysis; Environmental Assessment.

B. Paperwork Reduction Act

    The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
    EPA is establishing mandatory monitoring requirements for
construction sites under authority of Clean Water Act (CWA) Section 308
to demonstrate compliance with effluent limitations and standards for
turbidity promulgated under today's rule. Sediment, created as a result
of construction activity and measured by turbidity, is the primary
pollutant that causes water quality impairment for streams and rivers.
It is also one of the leading causes of lake and reservoir water
quality impairment and wetland degradation. The sediment entrained in
stormwater discharges from construction activity can harm aquatic
ecosystems, increase drinking water treatment costs, and degrade
recreational uses of impacted waters. Sediment can also accumulate in
rivers, lakes, and reservoirs, leading to the need for dredging or
other mitigation. Additionally, Section 402(a)(2) of the CWA directs
EPA to prescribe permit conditions to assure compliance with
requirements ``including conditions on data and information collection,
reporting and such other requirements as [the Administrator] deems
appropriate.''
    EPA estimates a total annual burden to regulated construction sites
larger than 10 acres and regulatory authorities, as a result of the
monitoring requirements of this final rule, of 3,018,750 hours and
average annual costs of $91,978,103. These are based on the following
assumptions:
     Total number of projects ongoing at some point in a year,
but not necessarily active for the entire year: 39,361.
     Average reporting frequency: monthly.
     Average number of monitoring reports submitted per year:
7.07.
     Total number of DMR reports submitted per year: 278,251.
     Average burden hours per response: 10.85 (10.30 hours per
permittee, 0.55 hour per permitting authority).
    These estimates account for full implementation of the monitoring
requirements which will not occur for 4 years after the effective date
of this rule. EPA will submit an Information Collection Request (ICR)
to the Office of Management and Budget for approval which requests
approval for only a portion of this burden reflecting the
implementation of the rule over the next three years. Upon expiration
of that ICR, EPA will update the clearance request to reflect full
implementation of the numeric limitations in the subsequent request.
    In addition, EPA estimates annual capital costs to the industry of
$7,085,890. The capital cost to the industry is based on the use of one
turbidimeter per active site per year (28,922) and the annual purchase
of a turbidimeter calibration kit, for a total annual cost of $245 per
project. For the states, EPA estimates start-up costs of $1,564,000,
based on an average expected cost of $31,280 per state for equipment
purchases and program set-up. Annualized over 10 years, this cost is
$3,667 per state. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.

C. 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 rulemaking requirements under the Administrative
Procedure 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.
    For the purposes of assessing the impacts of today's rule on small
entities, small entity is defined as either a: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field. EPA does not anticipate any impacts on
small organizations and impacts on small governments are discussed
under the UMRA analysis section. The RFA provides that EPA generally
define small businesses according to the size standards established by
the Small Business Administration (SBA). The SBA established criteria
for identifying small businesses is based on either the number of
employees or annual revenues (13 CFR 121). These size standards vary by
NAICS (North American Industrial Classification System) code. For the
C&D industry NAICS categories (236 and 237) the small business annual
revenue threshold is set at $33.5 million. The SBA sets the small
business threshold for NAICS 2372 (Land Subdivision of NAICS 237) at $7
million. However, for the purpose of the economic analysis, EPA
allocated this sector amongst the four primary building construction
sectors: Single-family housing, multifamily housing, industrial
building, and commercial and institutional building construction. By
merging the land subdivision sector with sectors that have a higher
small business revenue threshold, there is likely to be an overestimate
of the number of these firms considered small businesses. However,
according to the 2002 Economic Census, 93 percent of firms in the land
subdivision sector made less than $5 million annually, and 98 percent
made less than $10 million. So nearly all the firms in this sector
would already be considered a small

business under $7 million threshold, and merging this sector with the
four primary building construction sectors, will not have a meaningful
affect on the estimate of small businesses for this industry.
    In order to gather more information on the potential impacts of
today's rule on small businesses, EPA used the discretion afforded to
it under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), to
convene a Small Business Advocacy Review (SBAR) Panel for this
rulemaking on September 10, 2008. EPA held an outreach meeting with
Small Entity Representative (SERs) on September 17, 2008. A list of
SERs and the outreach materials sent to SERs are included in the docket
(see DCN 41115-41133). EPA prepared a report that summarizes
information obtained from the Panel, which is also included in the
docket. (see DCN 41136).
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Overall, EPA
estimates that in a typical year there will be 82,000 in-scope firms,
and of this total, approximately 78,000, or about 96 percent, are
defined as small businesses. Under Option 4, EPA estimates that only
230 small businesses would experience costs exceeding 1 percent of
revenue and no small businesses would incur costs exceeding 3 percent
of revenue. Both numbers represent very small percentages of the in-
scope small firms. The 230 firms estimated to incur costs exceeding 1
percent of revenue represent about 0.3 percent of all estimated
potentially in-scope small businesses. Therefore, EPA does not consider
the selected option to have the potential to cause a significant
economic impact on a substantial number of small entities.
    All of the options considered for the final rule require the use of
BMPs. As the rule applies to construction projects and not directly to
firms, the most effective way for EPA to minimize impacts to small
firms was by crafting options that did not impose significant costs on
small projects. EPA's final rule does this by establishing an acreage
threshold for the numeric turbidity limitation.

D. Unfunded Mandates Reform Act (UMRA)

    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. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. EPA has determined that this rule contains a Federal mandate
that may result in expenditures of $100 million or more for State,
local, and tribal governments, in the aggregate, or the private sector
in any one year. Accordingly, EPA has prepared under section 202 of the
UMRA a written statement which is summarized below.
    Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and to adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. Moreover, section 205 allows
EPA to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Of the four options considered for the final rule option,
one was the least costly. However, EPA concluded that option one was
not technology forcing and did not reflect ; therefore, it did not meet
CWA objectives. Of the remaining three options, EPA selected the least
costly, most cost-effective or least burdensome option, satisfying
section 205 requirements.
    As part of the financial impact analysis, EPA looked specifically
at the impact on government entities resulting from both compliance
with construction site requirements and from administering the
additional monitoring reports submitted by in-scope firms. Table XX-2
shows the results of this analysis. The estimated administrative costs
are conservative, as they do not take into account that part of the
NPDES permit program is administered by the federal government. For
more information on how this analysis was performed, see Section 14-1
Assessing Costs to Government Entities in Chapter 14 of the Economic
Analysis.

             Table XX-2--Impacts of Regulatory Options on State & Local Governments (million 2008 $)
----------------------------------------------------------------------------------------------------------------
                                                                Option 1     Option 2     Option 3     Option 4
----------------------------------------------------------------------------------------------------------------
Compliance Costs:
    Federal.................................................         $3.8        $87.1       $166.9        $17.7
    State...................................................          8.1        178.1        323.0         35.3
    Local...................................................         46.2      1,022.3      1,854.0        202.4
Administrative Costs:
    Federal.................................................          0.0          0.0          0.0          0.0
    State...................................................          0.0          2.2          6.2          6.2
    Local...................................................          0.0          0.0          0.0          0.0
Total Costs:
    Federal.................................................          3.8         87.1        166.9         17.7
    State...................................................          8.1        180.3        329.2         41.5
    Local...................................................         46.2      1,022.3      1,854.0        202.4
                                                             ---------------------------------------------------
        Total...............................................         58.1      1,289.7      2,350.1        261.6
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.

    Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    After performing an assessment of the economic impacts on small
government entities, EPA determined that the rule would not
significantly or uniquely affect small governments, and therefore did
not develop a small government agency plan as specified in UMRA. This
rule does not impose any requirements uniquely on small governments.
The assessment of impacts on small governmental entities involved three
steps: (1) Identifying small government entities (i.e., those serving
populations of less than 50,000, (5 U.S.C. 601[5])), (2) estimating the
share of total government costs for the regulatory options incurred by
small governments, and (3) estimating the potential impact from these
costs based on comparison of small government compliance costs with
small government revenue and outlays. For details of this analysis see
Section 14.2 Assessing Costs and Impacts on Small Government Entities
in Chapter 14 of the Economic Analysis. Table XX-3 has the results of
the small government entity impact analysis. The table shows that under
Option 4, total small government costs are estimated to be only 0.08%
of total small government revenue, and under no option considered did
total small government costs exceed 1% of total small government
revenues.

              Table XX-3--Impacts of Regulatory Options on Small Government Units (Million 2008 $)
----------------------------------------------------------------------------------------------------------------
                                                                Option 1     Option 2     Option 3     Option 4
----------------------------------------------------------------------------------------------------------------
Compliance Costs:
    Small Government Entities...............................        $21.7       $480.5       $871.4        $95.1
Administrative Costs:
    Small Government Entities...............................          0.0          0.0          0.0          0.0
Total Costs:
    Small Government Entities...............................         21.7        480.5        871.4         95.1
Small Government Impact Analysis Concepts:
    Total Revenues..........................................      125,515      125,515      125,515      125,515
    Total Costs as % of Total Revenues......................        0.02%        0.38%        0.69%        0.08%
    Capital Outlay..........................................       13,455       13,455       13,455       13,455
    Total Costs as % of Total Capital Outlay................        0.16%        3.57%        6.48%        0.71%
    Construction Outlay Only................................        8,529        8,529        8,529        8,529
    Total Costs as % of Total Construction Outlay...........        0.25%        5.63%       10.22%        1.12%
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.

    Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA, EPA initiated consultations with the
governmental entities affected by this rule. EPA took and responded to
comments from government entities on the earlier proposed C&D rule and
on this rule. To help characterize the potential impacts to government
entities, EPA has gathered state government data regarding NOI
submissions, and from U.S. Census data and Reed Construction Data. EPA
has compiled information on how much construction activity is
undertaken by government entities. EPA has routinely consulted with EPA
regional offices who maintain direct and regular contact with state
entities. Finally, EPA met directly with and solicited data from all
the state Stormwater Coordinators who attended EPA's Annual Stormwater
Conference in 2007. During 2008 and 2009, EPA attended several
conferences and workshops to present information on the Agency's C&D
rule. These meetings were open to the public and widely attended.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), directs agencies to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
    Although EPA expects the final rule would have little effect on the
relationship between, or the distribution of power and responsibilities
among, the federal and state governments, EPA has concluded that this
final rule has federalism implications as defined by the Executive
Order. As previously noted, it is estimated to impose substantial
direct compliance costs on State and local governments combined.
Accordingly, EPA provides the following federalism summary impact
statement as required by section 6(b) of Executive Order 13132. As
noted in the UMRA section above, EPA consulted with State and local
governments early in the process of developing the proposed action to
permit them to have meaningful and timely input into its development.
While EPA did not consult with State and local elected officials, the
Agency did consult with all of the state Stormwater Coordinators in
attendance at EPA's Annual Stormwater Coordinator's conferences in 2008
and 2009. EPA also attended several conferences where governmental
officials were present, such as the International Erosion Control
Association (IECA) conference in February 2009, the MAC-IECA conference
in September 2009, and the Northwest Environmental Business Council
meeting in March of 2009. In general, the concerns EPA heard included
the costs of the regulation as related to publicly funded projects,
increased burden and the lack of dedicated funding sources for
permitting authorities to implement and enforce the new requirements
given that permitting authorities are already over-burdened.
    EPA also tried to mitigate compliance costs on State and local
governments by incorporating a disturbed acreage threshold of 10 acres
for applicability of the turbidity limitation. Although EPA does not
have comprehensive data on construction projects conducted by state and
local governments, EPA believes that a large proportion of building
projects undertaking by these entities are likely to fall below this
threshold. Building projects constructed by local governments are
typically projects such as schools, libraries, recreation centers,
parks, office buildings, etc., which EPA believes would tend to have
construction footprints smaller than 10 acres. And like private
projects, those that are bigger may be able to use sequencing to
prevent more than 10 acres from being disturbed at one time. Likewise,
many local government non-building projects are likely to have smaller
construction footprints as well. EPA expects that the majority of local
government non-building projects

would be activities such as small-scale road improvements, sewer and
water line repair projects, and other miscellaneous construction
activities with smaller amounts of land disturbance. With respect to
state government projects, highway construction projects are the one
category of construction undertaken by state governments that are
likely to be the most significantly impacted by the final rule
requirements, since many of these projects may exceed 10 acres
disturbed at one time. However, as highway projects constitute a
significant portion of construction projects nationwide, EPA has no
reasonable basis for exempting these projects from regulation. As
discussed above, EPA has included a number of provisions to facilitate
compliance with the numeric limitation, including phase-in of the
limitation, an exemption from the limitation on days when precipitation
exceeds the 2-year, 24-hour storm event, and averaging of monitoring
samples over a full day for determining compliance with the limitation.
EPA expects that many state government building projects would fall
below the 10 acres disturbed threshold.

F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
    ``Policies that have Tribal implications'' is defined in the
Executive Order to include regulations that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and the Indian Tribes, or on the distribution of
power and responsibilities between the Federal government and Indian
Tribes. This final rule does not have tribal implications. It will not
have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes as specified in Executive Order 13175.
Today's final rule contains no Federal mandates for Tribal governments
and does not impose any enforceable duties on Tribal governments. Thus,
Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to Executive Order 13045 because it
does not concern an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. This
rule is based on technology performance, not health or safety risks.

H. Executive Order 13211 (Energy Effects)

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Additional fuel may be required for construction equipment conducting
excavation and soil moving activities. EPA determined that the
additional fuel usage would be very small, relative to the total fuel
consumption at construction sites and the total annual U.S. fuel
consumption.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Pub. L. 104-113, section 12(d); 15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
    The Agency is not aware of any consensus-based technical standards
for the types of controls contained in final rule and did not receive
any comments to this effect from the public.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The final rule will reduce the negative effects of
discharges from construction sites in the nation's waters to benefit
all of society, including minority communities.

K. Congressional Review Act

    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. 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. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 1, 2010.

L. Judicial Review

    In accordance with 40 CFR 23.2, today's rule is considered
promulgated

for the purposes of judicial review as of 1 p.m. Eastern Standard Time,
December 15, 2009. Under Section 509(b)(1) of the Clean Water Act
(CWA), judicial review of today's effluent limitations guidelines and
new source performance standards may be obtained by filing a petition
in the United States Circuit Court of Appeals for review within 120
days from the date of promulgation of these guidelines and standards.
Under Section 509(b)(2) of the CWA, the requirements of this regulation
may not be challenged later in civil or criminal proceedings brought to
enforce these requirements.

List of Subjects in 40 CFR Part 450

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

    Dated: November 23, 2009.
Lisa P. Jackson,
Administrator.

0
40 CFR part 450 is added as follows:

PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY

Subpart A--General Provisions
Sec.
450.10 Applicability.
450.11 General definitions.
Subpart B--Construction and Development Effluent Guidelines
450.21 Effluent limitations reflecting the best practicable
technology currently available (BPT).
450.22 Effluent limitations reflecting the best available technology
economically achievable (BAT).
450.23 Effluent limitations reflecting the best conventional
pollutant control technology (BCT).
450.24 New source performance standards reflecting the best
available demonstrated control technology (NSPS).

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

Subpart A--General Provisions

Sec.  450.10  Applicability.

    (a) This part applies to discharges associated with construction
activity required to obtain NPDES permit coverage pursuant to 40 CFR
122.26(b)(14)(x) and (b)(15).
    (b) The provisions of Sec.  450.22(a) do not apply to discharges
associated with interstate natural gas pipeline construction activity.
    (c) The New Source Performance Standards at Sec.  450.24 apply to
all new sources and are effective February 1, 2010.
    (d) The BPT, BCT and BAT effluent limitations at Sec.  450.21
through 450.23 apply to all sources not otherwise covered by paragraph
(c) of this section and are effective February 1, 2010.

Sec.  450.11  General definitions.

    (a) New Source. New source means any source, whose discharges are
defined in 40 CFR 122.26(b)(14)(x) and (b)(15), that commences
construction activity after the effective date of this rule.
    (b) [Reserved]

Subpart B--Construction and Development Effluent Guidelines

Sec.  450.21  Effluent limitations reflecting the best practicable
technology currently available (BPT).

    Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve, at a minimum, the
following effluent limitations representing the degree of effluent
reduction attainable by application of the best practicable control
technology currently available (BPT).
    (a) Erosion and Sediment Controls. Design, install and maintain
effective erosion controls and sediment controls to minimize the
discharge of pollutants. At a minimum, such controls must be designed,
installed and maintained to:
    (1) Control stormwater volume and velocity within the site to
minimize soil erosion;
    (2) Control stormwater discharges, including both peak flowrates
and total stormwater volume, to minimize erosion at outlets and to
minimize downstream channel and streambank erosion;
    (3) Minimize the amount of soil exposed during construction
activity;
    (4) Minimize the disturbance of steep slopes;
    (5) Minimize sediment discharges from the site. The design,
installation and maintenance of erosion and sediment controls must
address factors such as the amount, frequency, intensity and duration
of precipitation, the nature of resulting stormwater runoff, and soil
characteristics, including the range of soil particle sizes expected to
be present on the site;
    (6) Provide and maintain natural buffers around surface waters,
direct stormwater to vegetated areas to increase sediment removal and
maximize stormwater infiltration, unless infeasible; and
    (7) Minimize soil compaction and, unless infeasible, preserve
topsoil.
    (b) Soil Stabilization. Stabilization of disturbed areas must, at a
minimum, be initiated immediately whenever any clearing, grading,
excavating or other earth disturbing activities have permanently ceased
on any portion of the site, or temporarily ceased on any portion of the
site and will not resume for a period exceeding 14 calendar days.
Stabilization must be completed within a period of time determined by
the permitting authority. In arid, semiarid, and drought-stricken areas
where initiating vegetative stabilization measures immediately is
infeasible, alternative stabilization measures must be employed as
specified by the permitting authority.
    (c) Dewatering. Discharges from dewatering activities, including
discharges from dewatering of trenches and excavations, are prohibited
unless managed by appropriate controls.
    (d) Pollution Prevention Measures. Design, install, implement, and
maintain effective pollution prevention measures to minimize the
discharge of pollutants. At a minimum, such measures must be designed,
installed, implemented and maintained to:
    (1) Minimize the discharge of pollutants from equipment and vehicle
washing, wheel wash water, and other wash waters. Wash waters must be
treated in a sediment basin or alternative control that provides
equivalent or better treatment prior to discharge;
    (2) Minimize the exposure of building materials, building products,
construction wastes, trash, landscape materials, fertilizers,
pesticides, herbicides, detergents, sanitary waste and other materials
present on the site to precipitation and to stormwater; and
    (3) Minimize the discharge of pollutants from spills and leaks and
implement chemical spill and leak prevention and response procedures.
    (e) Prohibited Discharges. The following discharges are prohibited:
    (1) Wastewater from washout of concrete, unless managed by an
appropriate control;
    (2) Wastewater from washout and cleanout of stucco, paint, form
release oils, curing compounds and other construction materials;
    (3) Fuels, oils, or other pollutants used in vehicle and equipment
operation and maintenance; and
    (4) Soaps or solvents used in vehicle and equipment washing.
    (f) Surface Outlets. When discharging from basins and impoundments,
utilize outlet structures that withdraw water from the surface, unless
infeasible.

Sec.  450.22  Effluent limitations reflecting the best available
technology economically achievable (BAT).

    Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve, at a

minimum, the following effluent limitations representing the degree of
effluent reduction attainable by application of the best available
technology economically achievable (BAT).
    (a) Beginning no later than August 2, 2010 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:
    (1) Except as provided by paragraph (b) of this section, the
average turbidity of any discharge for any day must not exceed the
value listed in the following table:

------------------------------------------------------------------------
                                                           Daily maximum
                        Pollutant                         value (NTU)\1\
------------------------------------------------------------------------
Turbidity...............................................            280
------------------------------------------------------------------------
\1\ Nephelometric turbidity units.

    (2) Conduct monitoring consistent with requirements established by
the permitting authority. Each sample must be analyzed for turbidity in
accordance with methods specified by the permitting authority.
    (b) If stormwater discharges in any day occur as a result of a
storm event in that same day that is larger than the local 2-year, 24-
hour storm, the effluent limitation in paragraph (a)(1) of this section
does not apply for that day.
    (c) Erosion and Sediment Controls. The limitations are described at
Sec.  450.21(a).
    (d) Soil Stabilization. The limitations are described at Sec.
450.21(b).
    (e) Dewatering. The limitations are described at Sec.  450.21(c).
    (f) Pollution Prevention Measures. The limitations are described at
Sec.  450.21(d).
    (g) Prohibited Discharges. The limitations are described at Sec.
450.21(e).
    (h) Surface Outlets. The limitations are described at Sec.
450.21(f).

Sec.  450.23  Effluent limitations reflecting the best conventional
pollutant control technology (BCT).

    Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve, at a minimum, the
following effluent limitations representing the degree of effluent
reduction attainable by application of the best conventional pollutant
control technology (BCT). The effluent limitations are described at
Sec.  450.21.

Sec.  450.24  New source performance standards reflecting the best
available demonstrated control technology (NSPS).

    Any new source subject to this subpart must achieve, at a minimum,
the following new source performance standards representing the degree
of effluent reduction attainable by application of the best available
demonstrated control technology (NSPS): The standards are described at
Sec.  450.22.

[FR Doc. E9-28446 Filed 11-30-09; 8:45 am]

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[Federal Register Volume 76, Number 228 (Monday, November 28, 2011)]
[Proposed Rules]
[Pages 72867-72868]
[FR Doc No: 2011-30537]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2011-0499; Airspace Docket No. 11-ACE-10]

Proposed Amendment of Class E Airspace; Hastings, NE

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This action proposes to amend Class E airspace at Hastings,
NE. Additional controlled airspace is necessary to accommodate new
Standard Instrument Approach Procedures (SIAP) at Hastings Municipal
Airport. The FAA is taking this action to enhance the safety and
management of Instrument Flight Rules (IFR) operations for SIAPs at the
airport.

DATES: Comments must be received on or before January 12, 2012.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You
must identify the docket number FAA-2011-0499/Airspace Docket No. 11-
ACE-10, at the beginning of your comments. You may also submit comments
through the Internet at http://www.regulations.gov. You may review the
public docket containing the proposal, any comments received, and any
final disposition in person in the Dockets Office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The Docket Office
(telephone 1-(800) 647-5527), is on the ground floor of the building at
the above address.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: (817) 321-
7716.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2011-0499/
Airspace Docket No. 11-ACE-10.'' The postcard will be date/time stamped
and returned to the commenter.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received and any final disposition in person in the Dockets
Office (see ADDRESSES section for address and phone number) between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. An
informal docket may also be examined during normal business hours at
the office of the Central Service Center, 2601 Meacham Blvd., Fort
Worth, TX 76137.
    Persons interested in being placed on a mailing list for future
NPRMs should contact the FAA's Office of Rulemaking<PHONE_NUMBER>, to
request a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    This action proposes to amend Title 14, Code of Federal Regulations
(14 CFR), part 71 by amending Class E airspace extending upward from
700 feet above the surface to accommodate new standard instrument
approach procedures at Hastings Municipal Airport, Hastings, NE.
Controlled airspace is needed for the safety and management of IFR
operations at the airport.
    Class E airspace areas are published in Paragraph 6005 of FAA Order
7400.9V, dated August 9, 2011 and effective September 15, 2011, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
subtitle VII, part A, subpart I, section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would amend controlled airspace at Hastings Municipal Airport,
Hastings, NE.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for part 71 continues to read as follows:

     Authority:  49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854,
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of FAA Order
7400.9V, Airspace Designations and Reporting Points, dated August 9,
2011, and effective September 15, 2011, is amended as follows:

Paragraph 6005 Class E Airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

ACE NE E5 Hastings, NE [Amended]

Hastings Municipal Airport, NE
    (Lat. 40[deg]36'19'' N., long. 98[deg]25'40'' W.)

    That airspace extending upward from 700 feet above the surface
within a 7.2-mile radius of Hastings Municipal Airport, and within 2
miles each side of the 150[deg] bearing from the airport extending
from the 7.2-mile radius to 10.4 miles southeast of the airport.

    Issued in Fort Worth, TX on November 9, 2011.
Gail L. Kasson,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2011-30537 Filed 11-25-11; 8:45 am]
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