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                                                                                           June 24, 2002

                                                                                           Part III

                                                                                           Protection Agency
                                                                                           40 CFR Parts 122 and 450
                                                                                           Effluent Limitation Guidelines and New
                                                                                           Source Performance Standards for the
                                                                                           Construction and Development Category;
                                                                                           Proposed Rule

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     42644                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     ENVIRONMENTAL PROTECTION                                enclosures (including references).                    FOR FURTHER INFORMATION CONTACT: For
     AGENCY                                                  Commenters who want EPA to                            technical information concerning
                                                             acknowledge receipt of their comments                 today’s proposed rule, contact Mr. Jesse
     40 CFR Parts 122 and 450                                should enclose a self-addressed,                      Pritts at 202–566–1038 or Mr. Eric
     [FRL–7217–1]                                            stamped envelope. No facsimiles (faxes)               Strassler at 202–566–1026. For
                                                             will be accepted. Comments may also be                economic information contact Mr.
     RIN 2040–AD42                                           sent via e-mail to                 George Denning at 202–566–1067.
                                                             For additional information on how to                  SUPPLEMENTARY INFORMATION:
     Effluent Limitation Guidelines and New                  submit electronic comments see
     Source Performance Standards for the                                                                          Regulated Entities
                                                             ‘‘SUPPLEMENTARY INFORMATION, How to
     Construction and Development                            Submit Comments.’’                                      Entities potentially regulated by this
     Category; Proposed Rule                                                                                       action include:
                                                                EPA will be holding public meetings
     AGENCY: Environmental Protection                        on today’s proposal on five separate
     Agency (EPA).                                                                                                                                       North Amer-
                                                             dates. The first three meetings are listed                                                   ican Indus-
     ACTION: Proposed rule.                                  below; EPA will announce the                                                                  try Classi-
                                                                                                                                     Examples of regu-
                                                             remaining meetings in a subsequent                     Category           lated entities    fication Sys-
     SUMMARY:    EPA is proposing a range of                 Federal Register document and on its                                                              tem
     options to address storm water                                                                                                                         (NAICS)
                                                             website at                                                                   code
     discharges from construction sites. As                  waterscience/guide/construction/. No
     one option, EPA is proposing                            registration is required for these                    Industry ..   Construction site operators dis-
     technology-based effluent limitation                    meetings. Seating will be provided on a                               turbing 1 or more acres of land
     guidelines and standards (ELGs) for                     first-come, first-served basis.                                       and performing the following ac-
     storm water discharges from                                                                                                   tivities:
     construction sites required to obtain                   • Tuesday, July 9, 2002, 9 a.m.–noon,                               Building, Devel-              233
     National Pollutant Discharge                               Hyatt Regency Hotel—San Francisco                                  oping and Gen-
     Elimination System (NPDES) permits.                        Airport, 1333 Bayshore Highway,                                    eral Contracting.
     As another option, EPA is proposing not                    Burlingame, CA, Phone 650–347–                                   Heavy Construction            234
     to establish ELGs for storm water                          1234.
                                                             • Tuesday, July 23, 2002, 9 a.m.–noon,                EPA does not intend the preceding table
     discharges from those sites, but to allow                                                                     to be exhaustive, but provides it as a
     technology-based permit requirements                       Wyndham Garden Hotel—Dallas Park
                                                                Central, 8051 LBJ Freeway (I–635),                 guide for readers regarding entities
     to continue to be established based                                                                           likely to be regulated by this action.
     upon the best professional judgment of                     Dallas, TX, Phone 972–680–3000.
                                                                                                                   This table lists the types of entities that
     the permit authority A third option                     • Tuesday, July 30, 2002, 9 a.m.–noon,
                                                                                                                   EPA is now aware could potentially be
     would establish inspection and                             Holiday Inn Chicago—Elmhurst, 624
                                                                                                                   regulated by this action. Other types of
     certification requirements that would be                   N. York Rd., Elmhurst, IL, Phone 630–
                                                                                                                   entities not listed in the table could also
     incorporated into the storm water                          279–1100.
                                                                                                                   be regulated. To determine whether
     permits issued by EPA and States, with                  Meeting Access: If you need special                   your facility is regulated by this action,
     other permit requirements based on the                  accommodations at this meeting,                       you should carefully examine the
     best professional judgment of the permit                including wheelchair access, you                      applicability criteria in § 450.10 of
     authority. This proposal, if                            should contact the Eastern Research                   today’s proposed rule and the definition
     implemented, is expected to                             Group Conference Registration Line at                 of ‘‘construction activity’’ and ‘‘small
     significantly reduce the amount of                      781–674–7374, at least five business                  construction activity’’ in existing EPA
     sediment discharged from construction                   days before the meeting so that                       regulations at 40 CFR 122.26(b)(14)(x)
     sites. The deposition of sediment from                  appropriate arrangements can be made.                 and 122.26(b)(15), respectively. If you
     construction site runoff has contributed                See ‘‘Public Meeting Information’’                    have questions regarding the
     to the loss of capacity in small streams,               below for additional meeting details.                 applicability of this action to a
     lakes, and reservoirs, leading to the                      EPA established the public record for              particular entity, consult one of the
     necessity for mitigation efforts such as                this proposed rulemaking under docket                 persons listed for technical information
     dredging or replacement. Today’s                        number W–02–06. The record is                         in the preceding FOR FURTHER
     document also requests comment and                      currently located in the Water Docket,                INFORMATION CONTACT section.
     information on several variations on                    Room EB 57, Waterside Mall, 401 M
     these options and several other                         Street, SW., Washington, DC. The record               How To Submit Comments
     significant aspects of the proposal, such               is available for inspection from 9 a.m. to              The public may submit comments in
     as technologies, costs, and economics.                  4 p.m., Monday through Friday,                        written or electronic form. (See the
     DATES: EPA must receive comments on                     excluding legal holidays. For access to               ADDRESSES section above.) Electronic
     the proposal by October 22, 2002. EPA                   the docket materials, call 202–260–3027               comments must be identified by the
     will conduct public meetings for this                   to schedule an appointment. You may                   docket number W–02–06 and must be
     proposed rule on July 9, 2002; July 23,                 have to pay a reasonable fee for copying.             submitted as a WordPerfect, MS Word
     2002; July 30, 2002 and additional dates                Please note that several of the support               or ASCII text file, avoiding the use of
     to be announced later.                                  documents are available at no charge on               special characters and any form of
     ADDRESSES: Submit written comments                      EPA’s website; see ‘‘Supporting                       encryption. EPA requests that any
     to: Comment Clerk, Water Docket                         Documentation’’ below. The Water                      graphics included in electronic
     (4101), US EPA, 1200 Pennsylvania                       Docket will be moving to a new office                 comments also be provided in hard-
     Ave., NW., Washington, DC 20460. (See                   location in August 2002. For hand                     copy form. EPA also will accept
     next paragraph regarding addresses for                  deliveries of comments through August,                comments and data on disks in the
     hand deliveries.) Please refer to Docket                submit to the above address. Please call              aforementioned file formats. Electronic
     No. W–02–06. EPA requests an original                   the above number for details on the new               comments received on this notice may
     and three copies of your comments and                   location.                                             be filed online at many Federal

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                             42645

     Depository Libraries. No confidential                   the legal authority of these rules; a                   2. Subcategorization by Industry
     business information (CBI) should be                    summary of the proposal; background                     3. Subcategorization by Builder/Developer
     sent by e-mail.                                         information; and the technical and                         Size
                                                                                                                     4. Subcategorization Based on Hydrology,
                                                             economic methodologies used by the
     Public Meeting Information                                                                                         Soil Loss Potential or Other Geographic
                                                             Agency to develop these regulations.                       Factors
        See the ADDRESSES section of this                    This preamble also solicits comment                     5. Subcategorization Based on Past Land
     document for dates and locations of                     and data on specific areas of interest.                    Use
     public meetings. During the meetings,                                                                           B. Regulatory Options Considered
     EPA will present information on the                     Table of Contents                                       1. Overview of Regulatory Options: Erosion
     applicability of the proposed regulation,               I. Legal Authority                                         and Sediment Controls and Other
     the technology options selected as the                  II. Purpose & Summary of Proposed Rule                     Temporary BMPs
     basis for the proposed limitations and                  III. Background                                         2. Overview of Regulatory Options:
     standards, and the compliance costs and                    A. Clean Water Act                                      Certification and Inspection
                                                                B. NPDES Storm Water Permit Program                  3. Overview of Regulatory Options:
     pollutant reductions. EPA will also                                                                                Continued Reliance on State and Local
                                                                1. Storm Water Permits for Construction:
     allow time for questions and answers                          General and Individual                               ESC Programs
     during these sessions. These meetings                      a. General Permits                                   4. Overview of Regulatory Options
     are not public hearings for the purpose                    b. EPA Construction General Permit                      Considered: Long-term Storm Water
     of obtaining comment on the proposal.                      c. State Construction General Permits                   Management
     EPA will not generate a transcript of the                  d. Individual Permits                              X. Determination of Best Practicable Control
     meetings. The public may submit                            2. Municipal Storm Water Permits and                    Technology Currently Available (BPT),
     comments in writing or electronically as                      Local Government Regulation of                       Best Conventional Pollutant Control
                                                                   Construction Activity                                Technology (BCT), Best Available
     described above.
                                                                a. NPDES Requirements                                   Technology Economically Achievable
     Supporting Documentation                                   b. EPA Guidance to Municipalities                       (BAT), and New Source Performance
                                                                C. Other State and Local Storm Water                    Standards (NSPS)
        Several key documents support the                          Requirements                                      A. Rationale for Selected BPT Option
     proposed regulations:                                      D. Effluent Guidelines and Standards                 B. BCT Determination
        1. ‘‘Development Document for                              Program                                           1. July 9, 1986 BCT Methodology
     Proposed Effluent Guidelines and                           1. Best Practicable Control Technology               2. Consideration of BCT Option
     Standards for the Construction and                            Currently Available (BPT)                         C. BAT and NSPS
     Development Category,’’ EPA–821–R–                         2. Best Available Technology Economically            D. Summary of Provisions in Today’s
     02–007. (‘‘Development Document’’)                            Achievable (BAT)                                     Proposed Rule
     This document presents EPA’s                               3. Best Conventional Pollutant Control               1. General Provisions and SWPPP
     methodology and technical conclusions                         Technology (BCT)                                     Preparation
                                                                4. New Source Performance Standards                  2. Design and Installation of Erosion and
     concerning the C&D category.                                  (NSPS)                                               Sediment Controls
        2. ‘‘Economic Analysis of Proposed                      5. Pretreatment Standards                            3. Inspection and Certification Provisions
     Effluent Guidelines and Standards for                      6. Effluent Guidelines Plan and Consent              4. Maintenance
     the Construction and Development                              Decree                                          XI. Methodology for Estimating Costs
     Category,’’ EPA–EPA–821–R–02–008.                          E. Pollution Prevention Act                          A. Costs to the Construction and
     (‘‘Economic Analysis’’) This document                   IV. Scope of Proposal                                      Development Category
     presents the methodology employed to                    V. Summary of Data Collection Activities                B. Costs to Permit Authorities
     assess economic and environmental                          A. Existing Data Sources                           XII. Economic Impact and Social Cost
     impacts of the proposed rule and the                       B. Storm Water Discharge Sampling and                   Analysis
                                                                   Site Visits                                       A. Introduction
     results of the analysis.
                                                                C. Industry-Supplied Data                            B. Description of Economic Activity
        3. ‘‘Environmental Assessment for
                                                                D. Summary of Public Participation                   C. Method for Estimating Economic
     Proposed Effluent Guidelines and                        VI. Industry Profile                                       Impacts
     Standards for the Construction and                         A. Affected Industry Sectors                         1. Model Project Analysis
     Development Category,’’ EPA–EPA–                           B. Construction and Development                      2. Model Firm Analysis
     821–R–02–009. (‘‘Environmental                                Activities Affecting Water Quality                3. Housing Market Impacts
     Assessment’’)                                              1. Planning and Site Design                          4. Impacts on the National Economy
        Major supporting documents are                          2. Clearing, Excavating and Grading                  D. Results
     available in hard copy from the National                   3. Erosion and Sediment Control                      1. Firm-Level Impacts
     Service Center for Environmental                           4. Control of Other Pollutants                       2. Impacts on Governments
     Publications (NSCEP), U.S. EPA/NSCEP,                      5. Final Stabilization and Long-Term Storm           3. Community-Level Impacts
                                                                   Water Management                                  4. Foreign Trade Impacts
     P.O. Box 42419, Cincinnati, Ohio, USA                   VII. Storm Water Discharge Characteristics              5. Impacts on New Facilities
     45242–2419, telephone 800–490–9198,                     VIII. Description of Available Technologies             6. Social Costs You                          A. Introduction                                      7. Small Business Impacts
     can obtain electronic copies of this                       B. Erosion and Sediment Controls and               XIII. Cost-Effectiveness Analysis
     preamble and proposed rule as well as                         Other Site Management Practices                 XIV. Non-Water Quality Environmental
     the technical and economic support                         1. Goals                                                Impacts
     documents for today’s proposal at EPA’s                    2. Major Categories of Best Management               A. Air Pollution
     website for the C&D rule, http://                             Practices                                         B. Solid Waste                            C. Long-Term Storm Water Management                  C. Energy Usage
                                                                   Control                                           D. By-Products from BMPs
     construction.                                              1. Goals                                           XV. Environmental Assessment
     Overview                                                   2. Major Categories of Best Management               A. Introduction
                                                                   Practices                                         B. Methodology for Estimating
       The preamble describes the terms,                     IX. Development of Effluent Limitation                     Environmental Impacts and Pollutant
     acronyms, and abbreviations used in                           Guidelines and Standards                             Reductions
     this notice; the background documents                      A. Industry Subcategorization                        C. Potential Loading Reductions of
     that support these proposed regulations;                   1. Subcategorization by Site Size                       Proposed Options

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     42646                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     XVI. Benefit Analysis                                   primary pathway for introducing                       local governments, however,
       A. Benefits Categories Estimated                      pollutants from construction sites into               enforcement efforts are reported to be
       B. Quantification of Benefits                         aquatic systems.                                      uneven nationwide, largely due to
     XVII. Benefit-Cost Comparison                              A primary concern at most
     XVIII. Regulatory Implementation                                                                              limited enforcement resources at the
                                                             construction sites is the erosion and                 Federal, State and local levels. The
       A. Compliance Dates
       B. Relationship of Effluent Guidelines to             transport process related to fine                     inspection and certification
          NPDES Permits                                      sediment because rain splash, rills                   requirements in today’s proposed rule
       C. Upset and Bypass Provisions                        (small channels typically less than one               could strengthen the current permit
       D. Variances and Waivers                              foot deep) and sheetwash (thin sheets of              program.
       1. Fundamentally Different Factors                    water flowing across a surface)
          Variance                                           encourage the detachment and transport                  Under another alternative (Option 3),
       2. Low Soil Loss Potential Waiver                     of this material to water bodies.                     no new requirements would be
       E. Other Clean Water Act Requirements                 Although streams and rivers naturally                 established under this option. Both the
     XIX. Related Acts of Congress, Executive                                                                      control requirements and the
                                                             carry sediment loads, erosion from
          Orders, and Agency Initiatives
                                                             construction sites and runoff from                    certification requirements would be left
       A. Paperwork Reduction Act
       B. Unfunded Mandates Reform Act                       developed areas can elevate these loads               to the best professional judgement of the
          (UMRA)                                             to levels above those in undisturbed                  permitting authority in order to allow
       C. Regulatory Flexibility Act (RFA) as                watersheds.                                           them to be better tailored to local
          amended by the Small Business                         Existing national storm water                      conditions. These proposed options are
          Regulatory Enforcement Fairness Act of             regulations require construction site                 discussed in more detail in sections IX
          1996 (SBREFA)                                      operators to implement controls to                    and X of today’s notice. At this time,
       1. Introduction                                       manage construction site runoff, but do
       2. Summary of Panel Recommendations                                                                         EPA is co-proposing all three options
                                                             not require any specific level of control.            because it sees advantages to each.
       D. Executive Order 12866: Regulatory
          Planning and Review
                                                             One of today’s proposed approaches
                                                             (Option 2) would establish effluent                   III. Background
       E. Executive Order 13132: Federalism
       F. Executive Order 13045: Protection of               limitation guidelines in the form of
                                                                                                                   A. Clean Water Act
          Children from Environmental Health                 minimum standards for design and
          Risks and Safety Risks                             implementation of erosion and sediment                   Congress adopted the Clean Water Act
       G. Executive Order 13175: Consultation                controls used during the active phase of              (CWA) to ‘‘restore and maintain the
          and Coordination With Indian Tribal                construction. This approach would                     chemical, physical, and biological
          Governments                                        cover sites with five or more acres of
       H. National Technology Transfer and                                                                         integrity of the nation’s waters’’ (Section
                                                             disturbed land, and would establish                   101(a), 33 U.S.C. 1251(a)). To achieve
          Advancement Act                                    minimum requirements for conducting
       I. Plain Language Directive                                                                                 this goal, the CWA prohibits the
       J. Executive Order 13211 (Energy Effects)
                                                             site inspections and providing                        discharge of pollutants into navigable
     XX. Solicitation of Data and Comments                   certification as to the design and                    waters except in compliance with the
       A. Specific Solicitation of Comments and              completion of various aspects of those
                                                                                                                   statute. CWA section 402 requires
          Data                                               controls.
                                                                EPA acknowledges that many State                   ‘‘point source’’ discharges to obtain a
       B. General Solicitation of Comment
                                                             and local governments have existing                   permit under the National Pollutant
     I. Legal Authority                                      standards for temporary controls.                     Discharge Elimination System (NPDES).
        EPA is proposing this regulation                     Today’s proposed effluent guidelines                  These permits are issued by EPA
     under the authorities of sections 301,                  are intended to work in concert with                  regional offices or authorized State
     304, 306, 308, 402 and 501 of the Clean                 existing requirements where equivalent,               agencies.
     Water Act (CWA), 33 U.S.C. 1311, 1314,                  and would not supercede more stringent                   Following enactment of the Federal
     1316, 1318, 1342 and 1361 and pursuant                  requirements.                                         Water Pollution Control Amendments of
     to the Pollution Prevention Act of 1990,                   In addition, EPA is proposing two                  1972 (Public Law 92–500, October 18,
     42 U.S.C. 13101 et seq.                                 alternatives that would not set national              1972), EPA and the States issued NPDES
                                                             standards for control of storm water                  permits to thousands of dischargers,
     II. Purpose and Summary of Proposed                     discharges from construction sites
     Rule                                                                                                          both industrial (e.g. manufacturing,
                                                             subject to permit requirements under                  energy and mining facilities) and
        Construction and development (C&D)                   section 402 of the CWA. Both of these                 municipal (sewage treatment plants). As
     activity affecting water quality typically              approaches would rely instead on a                    required under Title III of the Act, EPA
     involves site selection and planning,                   combination of existing State and local               promulgated effluent limitation
     and land-disturbing tasks during                        requirements and additional                           guidelines and standards for many
     construction such as clearing,                          requirements based on the best                        industrial categories, and these
     excavating and grading. Disturbed soil,                 professional judgement (BPJ) of the
                                                                                                                   requirements are incorporated into the
     if not managed properly, can be easily                  permitting authority. Under one of these
     washed off-site during storm events.                    alternatives (Option 1), the proposal
     Storm water discharges generated                        would establish minimum requirements                     The Water Quality Act of 1987 (Public
     during construction activities can cause                for conducting site inspections and                   Law 100–4, February 4, 1987) amended
     an array of physical, chemical and                      providing certification as to design and              the CWA. The NPDES program was
     biological impacts. Water quality                       completion of controls required by the                expanded by defining municipal and
     impairment may result, in part, because                 permit authority in its NPDES permit.                 industrial storm water discharges as
     a number of pollutants are preferentially               These requirements are similar to the                 point sources. Industrial storm water
     absorbed onto mineral or organic                        inspection and certification                          dischargers, municipal separate storm
     particles found in fine sediment. The                   requirements in Option 2. Existing                    sewer systems and other storm water
     interconnected process of erosion                       compliance determination practices for                dischargers designated by EPA must
     (detachment of the soil particles),                     construction site storm water controls                obtain NPDES permits pursuant to
     sediment transport, and delivery is the                 rely principally on site inspections by               section 402(p) (33 U.S.C. 1342(p)).

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                                    42647

     B. NPDES Storm Water Permit Program                     project—submits a Notice of Intent                     inspection procedures and reports. A
        EPA’s initial storm water regulations,               (NOI) to the permit authority. The NOI                 copy of the plan must be kept on the
     promulgated in 1990, identified                         takes the place of a lengthier application             construction site from the date of project
     construction as one of several types of                 package that generally would be used                   initiation to the date of final
     industrial activity requiring an NPDES                  for an individual NPDES permit. By                     stabilization. Permittees do not
     permit. These ‘‘Phase I’’ storm water                   submitting the NOI, the permittee agrees               routinely submit plans to the permit
     regulations require operators of large                  to the conditions in the published                     authority, but a copy must be readily
     construction sites to apply for permits                 permit. The permittee may begin land                   available to authorized inspectors
     (40 CFR 122.26(b)(14)(x)). A large-site                 disturbance after a specified interval                 during normal business hours. EPA’s
                                                             (typically 48 hours) following NOI                     construction general permit does not
     construction activity is one that:
        • Will disturb five acres or greater; or             submission unless otherwise notified or                require that specific BMPs be contained
        • Will disturb less than five acres but              specified by the permit authority.                     in the SWPPP, except that temporary
                                                                b. EPA Construction General Permit.                 sediment basins shall be used on sites
     is part of a larger common plan of
                                                             EPA’s Construction General Permit                      with 10 or more acres disturbed at one
     development or sale whose total land
                                                             (CGP) covers construction activities in                time. Rather, the permit describes the
     disturbing activities total five acres or
                                                             six states, the District of Columbia,                  general areas the plan must address
     greater (or is designated by the NPDES
                                                             Puerto Rico, U.S. territories, and                     (e.g., minimization of erosion,
     permitting authority); and
                                                             specifically designated portions of other              containment of sediment on the site,
        • Will discharge storm water runoff
                                                             states such as Indian Country and                      proper handling of chemicals and
     from the construction site through a
                                                             Federal facilities. The ‘‘national’’ CGP,              debris, etc.) and leaves it to the operator
     municipal separate storm sewer system
                                                             covering all the EPA Regions except                    to develop appropriate site-specific
     (MS4) or otherwise to waters of the
                                                             Regions 4, 5 and 6, was published on                   measures to accomplish these purposes.
     United States.
                                                             February 17, 1998 (63 FR 7898). EPA
     The Phase II storm water rule,                                                                                    EPA encourages multiple operators at
                                                             has placed a copy of the ‘‘national’’ CGP
     promulgated in 1999, generally extends                  in the docket for today’s proposal.                    a construction site to develop a
     permit coverage to sites one acre or                    Slightly different versions of the permit              comprehensive SWPPP. Other
     greater (40 CFR 122.26(b)(15)).                         for Regions 4 and 6 were published on                  requirements in the CGP include
        In addition to requiring permits for                 April 28, 2000 (65 FR 25122) and July                  conducting regular inspections and
     construction site discharges, the NPDES                 6, 1998 (63 FR 36490) respectively.                    reporting releases of reportable
     regulations require permits for certain                 (EPA does not issue NPDES permits for                  quantities of hazardous substances.
     MS4s. The local governments                             states within Region 5.) EPA intends to                   To discontinue permit coverage, an
     responsible for the MS4s must operate                   issue a revised CGP later in 2002 to                   operator must complete final
     a storm water management program.                       incorporate requirements promulgated                   stabilization of the site, transfer
     The local programs regulate a variety of                in the Phase II rule.                                  responsibility to another party (e.g., a
     business activities that affect storm                      The principal requirement in the CGP                developer transferring land to a home
     water runoff, including construction,                   is the preparation of a storm water                    builder), or for a residential property,
     and the components of these programs                    pollution prevention plan (SWPPP)                      complete temporary stabilization and
     are described in section III.B.2 of today’s             before submission of the NOI. EPA’s                    transfer to the homeowner. The
     document.                                               guidance manual, ‘‘Storm Water                         permittee submits a Notice of
     1. Storm Water Permits for                              Management for Construction Activities:                Termination (NOT) Form to the permit
     Construction: General and Individual                    Developing Pollution Prevention Plans                  authority upon satisfying the
                                                             and Best Management Practices,’’ (EPA                  appropriate permit conditions described
        Pursuant to the NPDES Phase I storm                  832/R–92–005, October 1, 1992;                         in the CGP.
     water regulations at 40 CFR 122.26, EPA                 available on EPA’s website at http://                     c. State Construction General Permits.
     and the States began issuing permits for                                For the most part, the state general
     storm water discharges from large                       describes the SWPPP process in detail.                 permits have followed EPA’s format.
     construction sites in 1992. The Phase II                The plan must include a description of                 Some states have modified requirements
     rule requires that permits for smaller                  the site, with maps showing drainage,                  in their permits. For example, California
     sites be obtained starting in 2003. A                   discharge points, and location of runoff               has added discharge monitoring
     general description of the basic                        controls; a description of the ‘‘best                  requirements for sites where the
     requirements for the Phase I and Phase                  management practices’’ (BMPs) 1 used;                  receiving water body is listed as
     II regulations follows.
                                                                                                                    impaired (water quality-limited) for
        a. General Permits. The vast majority                  1 The term ‘‘best management practices’’ (BMP) is
                                                                                                                    sedimentation. (California State Water
     of construction sites are covered by                    mentioned in a few sections of the Clean Water Act,
                                                             and is used extensively in EPA regulations,            Resources Control Board, Resolution
     general permits. EPA and States use
                                                             guidance documents, state and local government         No. 2001–046, April 26, 2001; http://
     general permits to cover a group of                     documents, and many other technical publications.
     similar dischargers under one permit.                   The term has a variety of meanings within the water
                                                             quality literature, and is used in situations          01res.html) and Georgia has added
     See 40 CFR 122.28. General permits
                                                             involving both point sources and nonpoint sources.     monitoring requirements for all sites
     simplify the application process for the                BMPs can be procedures for operation and               (Georgia Department of Natural
     industry, provide uniform requirements                  maintenance of municipal or industrial treatment       Resources, Environmental Protection
     across covered sites, and reduce                        plants, training courses for plant employees, public
                                                             notification procedures, or agricultural waste         Division, General NPDES Permit For
     administrative workload for the permit
                                                             handling practices, as well as both structural and     Storm Water Discharges From
     authorities. EPA and the States have                    non-structural techniques for controlling storm        Construction Activities, No.
     published documents containing the                      water discharges from any source. Within the storm     GAR100000, June 12, 2000; http://
     construction general permits, along with                water field, some publications use the term ‘‘BMPs’’
     forms and related procedures. To obtain                 when referring to erosion and sediment controls. To
                                                             avoid confusion, in today’s document EPA is using      the period of land disturbance, and ‘‘storm water
     coverage under a general permit, the                    the terms ‘‘erosion and sediment controls’’ (ESC)      management BMPs’’ to refer to the techniques and
     permittee—either the developer, builder                 and ‘‘temporary BMPs’’ to describe the temporary       technologies designed and installed by operators for
     or contractor for a construction                        controls used by construction site operators during    long-term control of storm water discharges.

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     www.DNR.State.Ga.US/dnr/environ/                        impacts of storm water discharges from                1. Best Practicable Control Technology
     techguide_files/techguide.htm).                         construction activities and long-term                 Currently Available (BPT)
       d. Individual Permits. A permit                       runoff.                                                  In guidelines for a point source
     authority may require any site to apply                    • Measurable Goals Guidance (http://               category, EPA may define BPT effluent
     for an individual permit rather than           water/                        limits for conventional, toxic,2 and non-
     using the general permit. The individual                measurablegoals). This document                       conventional pollutants. In specifying
     permit is most often used for complex                   assists small MS4s in defining                        BPT, EPA looks at a number of factors.
     projects and/or projects located in                     performance targets for each of the six               EPA first considers the cost of achieving
     sensitive watersheds. State storm water                 minimum measures described above.                     effluent reductions in relation to the
     permit coordinators have informed EPA                   Included in the guidance are examples                 effluent reduction benefits. The Agency
     that this provision has been rarely used                of goals for BMPs to control storm water              also considers the age of the equipment
     for construction activities.                            discharges from construction activities               and facilities, the processes employed
                                                             and urban runoff.                                     and any required process changes,
     2. Municipal Storm Water Permits and                       • Storm Water Phase II Compliance
     Local Government Regulation of                                                                                engineering aspects of the control
                                                             Assistance Guide (EPA 833–R–00–002,
     Construction Activity                                                                                         technologies, non-water quality
                                                             March 2000,
        Many local governments, as MS4                                                                             environmental impacts (including
     permittees, have a role in the co-                                                                            energy requirements), and such other
                                                             smms4.cfm?program_id=6). The guide
     regulation of construction industries                                                                         factors as the Agency deems appropriate
                                                             provides an overview of compliance
     along with States and EPA, and are                                                                            (CWA section 304(b)(1)(B)).
                                                             responsibilities for MS4s, small
     responsible for overseeing long-term                                                                          Traditionally, EPA establishes BPT
                                                             construction sites, and certain other
     maintenance of storm water                                                                                    effluent limitations based on the average
                                                             industrial storm water discharges                     of the best performance of facilities
     management facilities. This section                     affected by the Phase II rule.                        within the category of various ages,
     describes regulatory programs operated                     • Fact Sheets on various storm water
     by MS4s.                                                                                                      sizes, processes or other common
                                                             control technologies, including
        a. NPDES Requirements. The NPDES                                                                           characteristics. Where existing
                                                             hydrodynamic separators (EPA 832–F–
     storm water regulations require that                                                                          performance is uniformly inadequate,
                                                             99–017), infiltrative practices (EPA 832–
     MS4s apply for permits. In general, the                                                                       EPA may require higher levels of control
                                                             F–99–018 and EPA 832–F–99–019),
     Phase I rule covers MS4s serving                                                                              than currently in place in a category if
                                                             modular treatment systems (EPA 832–
     populations of 100,000 or more. The                                                                           the Agency determines that the
                                                             F–99–044), porous pavement (EPA 832–                  technology can be practically applied.
     Phase II rule extends coverage to most                  F–99–023), sand filters (EPA 832–F–99–
     other MS4s in urbanized areas, and                                                                            See ‘‘A Legislative History of the
                                                             007), turf reinforcement mats (EPA 832–               Federal Water Pollution Control Act
     NPDES agencies may designate                            F–99–002), vegetative covers (EPA 832–
     additional MS4s outside of urbanized                                                                          Amendments of 1972,’’ U.S. Senate
                                                             F–99–027) and swales (EPA 832–F–99–                   Committee of Public Works, Serial No.
     areas for permit coverage based on                      006), wet detention ponds (EPA 832–F–
     State-specific criteria.                                                                                      93–1, January 1973, p. 1468.
                                                             99–048). (All fact sheets published                      In addition, the Act requires a cost-
        The regulations contemplate that each                1999. Available at                reasonableness assessment for BPT
     MS4 generally will operate a local storm                npdes/stormwater/ ; click on                          limitations. In determining the BPT
     water management program in order to                    ‘‘Publications.’’)                                    limits, EPA considers the total cost of
     properly control discharges into, and
                                                             C. Other State and Local Storm Water                  treatment technologies in relation to the
     hence out of, its MS4. The Phase II MS4
                                                             Requirements                                          effluent reduction benefits achieved.
     regulations specifically anticipate a
                                                                                                                   This inquiry does not limit EPA’s broad
     local program for regulating storm water                  States and municipalities may have                  discretion to adopt BPT limitations that
     discharges from construction activity                   other requirements for flood control,                 are achievable with available technology
     and managing ‘‘post-construction’’                      erosion and sediment (E&S) control, and               unless the required additional
     (long-term) runoff. Permits for Phase I                 in many cases, storm water quality.                   reductions are ‘‘wholly out of
     MS4s, while not specifically required by                Many of these provisions were enacted                 proportion to the costs of achieving
     the regulations to do so, typically                     before the promulgation of the EPA                    such marginal level of reduction.’’ See
     administer such programs as well. See                   Phase I storm water rule. All states have             Legislative History, op. cit., p. 170.
     40 CFR 122.26(d) for Phase I MS4s and                   laws for E&S control, and these are often             Moreover, the inquiry does not require
     40 CFR 122.34(a) for Phase II MS4s. EPA                 implemented by MS4’s. A summary of                    the Agency to quantify benefits in
     has provided guidance to the NPDES                      existing state and local requirements is              monetary terms. See, for example,
     agencies and MS4s that recommends                       provided in the Development                           American Iron and Steel Institute v.
     components and activities for a well-                   Document.                                             EPA, 526 F. 2d 1027 (3rd Cir., 1975).
     operated local storm water management                                                                            In balancing costs against the benefits
                                                             D. Effluent Guidelines and Standards
     program.                                                                                                      of effluent reduction, EPA considers the
        b. EPA Guidance to Municipalities.                   Program
                                                                                                                   volume and nature of expected
     EPA has issued several guidance                            Effluent limitation guidelines and                 discharges after application of BPT, the
     documents to municipalities to                          standards (hereinafter referred to as
     implement the NPDES Phase II rule.                      ‘‘effluent guidelines’’ or ‘‘ELGs’’) are                 2 In the initial stages of EPA CWA regulation, EPA
        • National Menu of BMPs (http://                     technology-based requirements for                     efforts emphasized the achievement of BPT                           categories of point source dischargers.               limitations for control of the ‘‘classical’’ pollutants
     menu.htm). This document provides                       These limitations are subsequently                    (e.g., TSS, pH, BOD5). However, nothing on the face
                                                                                                                   of the statute explicitly restricted BPT limitation to
     guidance to regulated small MS4s as to                  incorporated into NPDES permits. The                  such pollutants. Following passage of the Clean
     the types of practices they could use to                effluent guidelines are based on the                  Water Act of 1977 (Public Law 95–217, December
     develop and implement their storm                       degree of control that can be achieved                27, 1977) with its requirement for point sources to
                                                                                                                   achieve best available technology limitations to
     water management programs. The menu                     using various levels of pollution control             control discharges of toxic pollutants, EPA shifted
     includes descriptions of BMPs that local                technology, as defined in Title III of the            its focus to developing BAT limitations for the
     programs can implement to reduce                        CWA and outlined below.                               listed priority toxic pollutants.

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     general environmental effects of                        Technology (BAT) for control of                       as primary clarification, and EPA has no
     pollutants, and the cost and economic                   conventional pollutants. In addition to               evidence of interference, pollutant pass-
     impacts of the required level of                        other factors specified in section                    through or sludge contamination.
     pollution control. In past effluent                     304(b)(4)(B), the CWA requires that EPA
                                                                                                                   6. Effluent Guidelines Plan and Consent
     limitation guidelines and standards,                    establish BCT limitations after
     BPT cost-reasonableness removal figures                 consideration of a two-part ‘‘cost-
     have ranged from $0.21 to $33.71 per                    reasonableness’’ test. EPA explained its                 Clean Water Act section 304(m)
     pound removed in year 2000 dollars. In                  methodology for the development of                    requires EPA to publish a plan every
     developing guidelines, the Act does not                 BCT limitations in July 1986 (51 FR                   two years that consists of three
     require consideration of water quality                  24974).                                               elements. First, under section
     problems attributable to particular point                  Section 304(a)(4) designates the                   304(m)(1)(A), EPA is required to
     sources, or water quality improvements                  following as conventional pollutants:                 establish a schedule for the annual
     in particular bodies of water.                          Biochemical oxygen demand (BOD5),                     review and revision of existing effluent
     Accordingly, EPA has not considered                     total suspended solids (TSS), fecal                   guidelines in accordance with section
     these factors in developing the                         coliform, pH, and any additional                      304(b). Section 304(b) applies to ELGs
     limitations being proposed today. See                   pollutants defined by the Administrator               for direct dischargers and requires EPA
     Weyerhaeuser Company v. Costle, 590                     as conventional. The Administrator                    to revise such regulations as
     F. 2d 1011 (D.C. Cir. 1978).                            designated oil and grease as an                       appropriate. Second, under section
                                                             additional conventional pollutant on                  304(m)(1)(B), EPA must identify
     2. Best Available Technology                            July 30, 1979 (44 FR 44501). A primary                categories of sources discharging toxic
     Economically Achievable (BAT)                           pollutant of concern at construction                  or nonconventional pollutants for which
        In general, BAT effluent guidelines                  sites, sediment, is measured as TSS.                  EPA has not published BAT ELGs under
     (CWA section 304(b)(2)) represent the                                                                         section 304(b)(2) or new source
     best existing economically achievable                   4. New Source Performance Standards                   performance standards under section
     performance of direct discharging plants                (NSPS)                                                306. Finally, under section 304(m)(1)(C),
     in the subcategory or category. The                        NSPS reflect effluent reductions that              EPA must establish a schedule for the
     factors considered in assessing BAT                     are achievable based on the best                      promulgation of BAT and NSPS for the
     include the cost of achieving BAT                       available demonstrated control                        categories identified under
     effluent reductions, the age of                         technology. New facilities have the                   subparagraph (B) not later than three
     equipment and facilities involved, the                  opportunity to install the best and most              years after being identified in the
     processes employed, engineering                         efficient production processes and                    304(m) plan. Section 304(m) does not
     aspects of the control technology,                      wastewater treatment technologies. As a               apply to pretreatment standards for
     potential process changes, non-water                    result, NSPS should represent the                     indirect dischargers, which EPA
     quality environmental impacts                           greatest degree of effluent reduction                 promulgates pursuant to section 307(b)
     (including energy requirements), and                    attainable through the application of the             and 307(c) of the Act.
     such factors as the Administrator deems                 best available demonstrated control                      On October 30, 1989, Natural
     appropriate. The Agency retains                         technology for all pollutants (i.e.,                  Resources Defense Council, Inc.
     considerable discretion in assigning the                conventional, non-conventional, and                   (NRDC), and Public Citizen, Inc., filed
     weight to be accorded to these factors.                 priority pollutants). In establishing                 an action against EPA in which they
     An additional statutory factor                          NSPS, CWA section 306 directs EPA to                  alleged, among other things, that EPA
     considered in setting BAT is ‘‘economic                 take into consideration the cost of                   had failed to comply with section
     achievability.’’ Generally, EPA                         achieving the effluent reduction and any              304(m). Plaintiffs and EPA agreed to a
     determines the economic achievability                   non-water quality environmental                       settlement of that action in a consent
     on the basis of the total cost to the                   impacts and energy requirements.                      decree entered on January 31, 1992.
     subcategory and the overall effect of the                                                                     (Natural Resources Defense Council et
                                                             5. Pretreatment Standards                             al v. Whitman, D.D.C. Civil Action No.
     rule on the industry’s financial health.
     The Agency may base BAT limitations                        The CWA also defines standards for                 89–2980). The consent decree, which
     upon effluent reductions attainable                     indirect discharges, i.e. discharges into             has been modified several times,
     through changes in a facility’s processes               publicly owned treatment works                        established a schedule by which EPA is
     and operations. As with BPT, where                      (POTWs). These are Pretreatment                       to propose and take final action for
     existing performance is uniformly                       Standards for Existing Sources (PSES)                 eleven point source categories identified
     inadequate, EPA may base BAT upon                       and Pretreatment Standards for New                    by name in the decree and for eight
     technology transferred from a different                 Sources (PSNS) under section 307(b).                  other point source categories identified
     subcategory or from another category. In                Because EPA has identified no                         only as new or revised rules, numbered
     addition, the Agency may base BAT                       deliberate discharges directly to                     5 through 12. EPA selected the
     upon manufacturing process changes or                   POTWs, EPA is not proposing PSES or                   Construction and Development category
     internal controls, even when these                      PSNS for the Construction and                         as the subject for New or Revised Rule
     technologies are not common industry                    Development Category. The information                 #10. The decree, as modified, calls for
     practice.                                               reviewed by the Agency indicates that                 the Administrator to sign a proposed
                                                             the vast majority of construction sites               ELG for the C&D category no later than
     3. Best Conventional Pollutant Control                  discharge either directly to waters of the            May 15, 2002, and to take final action
     Technology (BCT)                                        U.S. or through MS4s. In some urban                   on that proposal no later than March 31,
        The 1977 amendments to the CWA                       areas, construction sites discharge to                2004. A settlement agreement between
     required EPA to identify effluent                       combined sewer systems (i.e., sewers                  the parties, signed on June 28, 2000,
     reduction levels for conventional                       carrying both storm water and domestic                requires that EPA develop regulatory
     pollutants associated with BCT                          sewage through a single pipe) which                   options applicable to discharges from
     technology for discharges from existing                 lead to POTWs. Sediment is susceptible                construction, development and
     point sources. BCT is not an additional                 to treatment in POTWs, using                          redevelopment, covering site sizes
     limitation, but replaces Best Available                 technologies commonly employed such                   included in the Phase I and Phase II

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     NPDES storm water rules (i.e. one acre                  prior to out-of-process recycling,                    draft of the document is included in the
     or greater). EPA is required to develop                 treatment, or disposal.                               rulemaking record of this proposal.
     options including numeric effluent                         Although the PPA does not explicitly                  EPA is also considering a variation on
     limitations for sedimentation and                       address storm water discharges or                     this option that would establish C&D
     turbidity; control of construction site                 discharges from construction sites, the               effluent guidelines that would apply to
     pollutants other than sedimentation and                 principles of the PPA are implicit in                 construction site operators at sites with
     turbidity (e.g. discarded building                      many of the practices used to reduce                  five acres or more of disturbed area.
     materials, concrete truck washout,                      pollutant discharges from construction                Under this variation an operator would
     trash); BMPs for controlling post-                      sites. These include controls that                    be required to:
     construction runoff; BMPs for                           minimize the potential for erosion such                  • Design, install and maintain erosion
     construction sites; and requirements to                 as proper phasing of construction,                    and sediment controls; and
     design storm water controls to maintain                 retention of on-site vegetation and                      • Prepare a storm water pollution
     pre-development runoff conditions                       stabilization of disturbed areas as soon              prevention plan.
     where practicable. The settlement also                  as practicable. These controls and                    Under this variation Federal inspection
     requires EPA to issue guidance to MS4s                  practices are described in section IX.A               and certification requirements would
     and other permittees on maintenance of                  of today’s document.                                  not be established; those provisions
     post-construction BMPs identified in                    IV. Scope of Proposal                                 could be addressed at the local level.
     the proposed ELGs. Further discussion                                                                            Another proposed option (Option 1)
     of approaches not pursued by EPA at                        EPA is proposing three options, and                would not establish C&D effluent
     this time may be found in the docket for                soliciting comment on variations on                   guidelines, but rather would amend the
     today’s proposal.                                       these options, for further control of the             NPDES storm water requirements for
                                                             discharge of pollutants in storm water                construction site operators subject to
     E. Pollution Prevention Act                             associated with construction and                      NPDES storm water requirements, i.e.,
        The Pollution Prevention Act of 1990                 development activities.                               operators of construction sites with one
     (PPA) (42 U.S.C. 13101 et seq., Public                     One proposed option (Option 2)                     acre or more of disturbed area. (See
     Law 101–508, November 5, 1990) makes                    would establish C&D effluent guidelines
                                                                                                                   section III.B of today’s document for a
     pollution prevention the national policy                that would apply to construction site
                                                                                                                   summary of current permit
     of the United States. The PPA identifies                operators at sites with 5 acres or more
                                                                                                                   requirements.) Under this option, an
     an environmental management                             of disturbed area. Under this option, an
                                                                                                                   operator would be required to:
     hierarchy in which pollution ‘‘should be                operator would be required to:                           • Inspect the site throughout the
     prevented or reduced whenever feasible;                    • Design, install and maintain erosion
                                                                                                                   land-disturbance period; and
     pollution that cannot be prevented                      and sediment controls;
                                                                                                                      • Certify that the controls meet the
     should be recycled in an                                   • Prepare a storm water pollution
                                                                                                                   regulatory design criteria established by
     environmentally safe manner, whenever                   prevention plan;
                                                                • Inspect the site throughout the                  the Federal, Tribal, State or local
     feasible; pollution that cannot be                                                                            government.
     prevented or recycled should be treated                 land-disturbance period; and
     in an environmentally safe manner                          • Certify that the controls meet the               These provisions are explained in
                                                             regulatory design criteria or permit                  section X.D of today’s document.
     whenever feasible; and disposal or                                                                               The final proposed option (Option 3)
     release into the environment should be                  conditions, as applicable.
                                                                These provisions are explained in                  would not establish C&D effluent
     employed only as a last resort * * *’’                                                                        guidelines or amend the NPDES storm
     (42 U.S.C. 13103). In short, preventing                 section X.D. of today’s document.
                                                             Today’s proposal does not include                     water requirements for construction site
     pollution before it is created is                                                                             operators. Rather, this option would
     preferable to trying to manage, treat or                requirements regarding the selection or
                                                             implementation of long-term storm                     continue to rely on control practices and
     dispose of it after it is created.
                                                             water controls at the sites using                     any certification and inspection
     According to the PPA, source reduction
                                                             permanent BMPs. Under the NPDES                       requirements tailored to local
     reduces the generation and release of
                                                             storm water permit program, State and                 conditions that established by the
     hazardous substances, pollutants,
                                                             local governments are responsible for                 permitting authority on a BPJ basis.
     wastes, contaminants or residuals at the
     source, usually within a process. The                   establishing requirements for permanent               V. Summary of Data Collection
     term source reduction ‘‘* * * includes                  storm water controls, and for the                     Activities
     equipment or technology modifications,                  maintenance of those permanent storm
                                                             water controls. Today’s proposed rule                 A. Existing Data Sources
     process or procedure modifications,
     reformulation or redesign of products,                  would not alter that responsibility. EPA                 In developing today’s proposal, EPA
     substitution of raw materials, and                      has collected a significant body of                   collected and reviewed existing data
     improvements in housekeeping,                           technical information on the design and               from a variety of sources, including
     maintenance, training, or inventory                     effectiveness of various permanent                    technical and professional literature; the
     control. The term ’source reduction’                    storm water controls that may assist                  National Storm Water Best Management
     does not include any practice which                     State and local governments as they                   Practices Database developed by the
     alters the physical, chemical, or                       establish their requirements for                      American Society of Civil Engineers
     biological characteristics or the volume                construction and development activity.                (ASCE); the Agency’s economic analysis
     of a hazardous substance, pollutant, or                 EPA anticipates releasing this document               for the Phase II NPDES storm water rule;
     contaminant through a process or                        sometime after this proposal. EPA is                  State storm water and erosion and
     activity which itself is not integral to or             also preparing a guidance manual on                   sediment control manuals and
     necessary for the production of a                       storm water BMP maintenance                           handbooks; EPA and State databases on
     product or the providing of a service.’’                procedures to assist State and local                  construction general permits; the United
     In effect, source reduction means                       governments and property owners. EPA                  States Department of Agriculture
     reducing the amount of a pollutant that                 anticipates releasing a final version of              (USDA) National Resources Inventory;
     enters a waste stream or that is                        this document at the time of final action             the Census of Construction; and the U.S.
     otherwise released into the environment                 on this proposal in March of 2004. A                  Army Corps of Engineers evaluation of

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     BMPs for small construction sites. Other                employment and payroll; financial                     renovation of existing construction.
     information sources included Federal                    information (such as revenues and                     Since renovation and remodeling
     agencies such as the Securities and                     expenses); specialization by type of                  activities generally do not disturb one
     Exchange Commission and Small                           construction; and amount and type of                  acre or more of land per site, renovation
     Business Administration (SBA);                          work subcontracted out. EPA relied on                 and remodeling contractors would not
     industry and trade association                          additional Census Bureau programs for                 be subject to the requirements being
     publications; university and nonprofit                  data on market conditions in the                      proposed today. To estimate the number
     organization research centers;                          industry. The Building Permits Program                of such contractors, EPA used data from
     interviews with State and local officials;              provided monthly data on the number                   a recent study completed by the Joint
     and interviews with industry                            of building permits issued for new                    Center for Housing Studies at Harvard
     representatives and consultants. EPA                    residential construction. The annual                  University. This report classified
     did not conduct any questionnaire                       Survey of Construction provided data                  establishments that derive at least half
     surveys of the construction and                         on number of housing starts,                          of their revenues from remodeling
     development industry in preparing                       completions, and units sold;                          activities as remodelers. Based on this
     today’s proposal.                                       characteristics of new homes (including               definition, the Agency concluded that a
        EPA drew heavily on the mass of data                 size of home and building lot size); and              substantial portion of the single-family
     related to erosion and sediment control,                value of construction put in place.                   and multifamily housing construction
     and storm water technology and BMP                         While the Census Bureau programs                   sector may not be affected by today’s
     applicability and efficiency contained in               provide substantial data on business                  proposal. EPA requests comment on its
     the technical and scientific literature in              establishment characteristics and                     assumption that firms which derive at
     order to develop today’s proposal. Data                 industry output, there is a noticeable                least half their revenues from
     sources collected and evaluated include                 lack of information linking                           remodeling will not be affected by
     published papers and journal articles,                  establishment data to output measures.                today’s proposal.
     ASCE and International Erosion Control                  For example, the Census of Construction                  EPA obtained information on home
     Association (IECA) conference                           provides average and median revenues                  ownership rates, mortgage affordability,
     proceedings, research reports from state                and value of construction for all                     and interest rates from sources such as
     and federal agencies such as USDA, U.S.                 establishments and for establishments                 Fannie Mae and the Federal Housing
     Department of Transportation, State                     by employment size class, but does not                Finance Board. Data on average costs of
     Departments of Transportation, and the                  provide a distribution of establishments              construction for various types of
     Transportation Research Board. EPA                      by number of housing units started or                 projects were obtained from R.S. Means
     conducted a detailed assessment of                      completed, number of construction                     Co. publications and the National
     these data sources, the results of which                permits issued, or number of acres                    Association of Home Builders (NAHB).
     are summarized in the Development                       developed. For EPA’s economic analysis                   EPA obtained data on the amount of
     Document for the Construction and                       this was a significant data gap, since the            land converted from undeveloped to
     Development Effluent Guidelines (see                    proposed regulations would be                         developed status from the National
     ‘‘Supporting Documentation’’). The                      implemented at the project level and the              Resources Inventory (NRI). This is a
     document summarizes efficiency data                     Agency developed its compliance cost                  statistical sampling program conducted
     for most of the erosion and sediment                    estimates on a per-acre basis. This led               by USDA every five years that defines
     controls in common usage. This                          EPA to develop a method for estimating                geographic sampling points in terms of
     literature and data summary was the                     the number of acres disturbed per                     their land use status. The most recent
     main source of data used to evaluate                    establishment.                                        NRI indicates that during the period
     BMP efficiency and applicability for                       EPA was able to partially fill these               1992 to 1997, each year over 2.2 million
     today’s proposal.                                       data gaps using information contained                 acres of land previously classified as
        EPA also augmented these data                        in a special Census Bureau report                     undeveloped were converted to
     sources with data contained in the                      (‘‘1997 Economic Census; Construction                 developed status. For developed land,
     National Storm Water BMP Database.                      Sector Special Study Housing Starts                   the NRI does not specify the type of use
     This database is a comprehensive data                   Statistics; A Profile of the Homebuilding             (i.e., single family homes, roadways,
     storage and evaluation system                           Industry,’’ July 2000). This report                   commercial or industrial sites). In order
     developed by ASCE in cooperation with                   contains estimates of the number of                   to estimate the number of acres
     EPA. The database contains monitoring                   homebuilding establishments by                        converted by type of development, EPA
     studies on storm water BMPs in a                        number of housing units built each year.              used actual data or estimates of the
     consistent and transferrable format in                  EPA combined this information with                    number of projects permitted and the
     order to allow for a comprehensive                      data on the average lot size for new                  average size of projects, by type. For
     evaluation and comparison of various                    homes to estimate a distribution of                   example, to determine the number of
     BMP designs. Representative                             establishments by number of acres                     acres converted to residential housing
     information provided for each BMP                       disturbed. EPA also used data from this               development EPA multiplied the
     includes test site location, researcher                 report to determine the number of small               number of new homes permitted for
     contact data, watershed characteristics,                builders who are likely to disturb less               construction each year by the average
     regional climate statistics, BMP design                 than one acre of land per year and who                lot size for new construction. For non-
     parameters, monitoring equipment                        therefore are not covered by the storm                residential construction, EPA had to fill
     types, and monitoring data such as                      water permit program.                                 a data gap created when the Census
     precipitation, flow and water quality.                     Another data source was important                  Bureau ceased, in 1995, collecting
     The database can be accessed at                         for further clarifying the size of the                information on the number of                             industry that is covered by the storm                 nonresidential building permits issued.
        The U.S. Census Bureau conducted                     water permit program. The single-family               The Agency used historical (pre-1995)
     the most recent Census of Construction                  and multi-family housing construction                 data on nonresidential starts to establish
     in 1997. The Census provides data on                    industries (NAICS 23321 and 23322)                    a relationship between residential and
     the number, size, and geographic                        include establishments that are engaged               nonresidential starts from which current
     distribution of establishments;                         in new construction as well as                        nonresidential activity could be

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     estimated. To stratify the aggregate                    operational and business practices, and               commercial/shopping centers, office
     amount of land converted to developed                   business trends in greater detail.                    and industrial parks, and other products
     status by size of development project,                    In 2001 EPA conducted a Small                       for the final consumer. In some
     EPA used data on construction project                   Business Advocacy Review panel                        situations home builders will construct
     size collected from 14 municipalities in                pursuant to the Small Business                        speculatively without a contract. In
     support of the NPDES Phase II storm                     Regulatory Enforcement Fairness Act                   other cases the home buyer will contract
     water regulations (Economic Analysis of                 (SBREFA). A discussion of this process                with a builder for a specific house. The
     the Phase II Storm Water Rule, Final                    and findings are discussed in section                 builder hires subcontractors for
     Report, October 1999.)                                  XIX.C of today’s document.                            carpentry, plumbing, electrical, and
                                                                                                                   other services.
     B. Storm Water Discharge Sampling and                   VI. Industry Profile                                     Some of the operating characteristics
     Site Visits                                                                                                   of the heavy construction subsector
                                                             A. Affected Industry Sectors
       At the time of this proposal, EPA is                                                                        include: (1) Usually government agency
                                                                The construction and development
     planning to conduct sampling and                                                                              clients rather than private customers, (2)
                                                             category covers establishments
     analysis of discharges at a number of                                                                         public sector clients typically issue
                                                             classified by the Census Bureau into two
     construction sites in order to better                                                                         specifications to cover many projects
     characterize the pollutants commonly                                                                          (e.g., a highway agency publishes road
                                                                • The Building, Developing and
     found in construction site runoff. EPA                                                                        construction standards for all projects in
                                                             General Contracting subsector (NAICS
     has also funded several cooperative                                                                           its jurisdiction), and (3) frequent use of
                                                             233) includes land subdivision and
     agreements evaluating construction site                                                                       unit price contracts (e.g., a local public
                                                             development, and building construction
     pollutant loadings, erosion and                                                                               works agency contracts for installation
                                                             (residential and nonresidential). Land
     sediment control effectiveness, and                                                                           of a quantity of sewer pipeline). The
                                                             developers select construction sites,
     receiving water impacts of land                                                                               relationship between the heavy
                                                             conduct site planning and design
     development activities.                                                                                       construction firm and the public
                                                             activities, and carry out other tasks such
     C. Industry-Supplied Data                               as financing and marketing. General                   customer is typically established
                                                             contractors build residential, industrial,            through a competitive bid process.
       EPA has reviewed reference                                                                                  Private sector customers may initiate
     publications and data prepared by                       commercial and other buildings.
                                                                • Heavy Construction contractors                   projects through negotiated contracts.
     industry organizations including NAHB,                                                                           EPA understands that in typical
     the Construction Financial Management                   (NAICS 234) build sewers and other
                                                             utilities, roads, highways, bridges and               construction projects the firms
     Association and the Urban Land                                                                                identifying themselves as ‘‘operators’’
     Institute. The Agency received cost data                tunnels.
                                                                                                                   under a construction general permit are
     and comments from several                               A single construction project may
                                                                                                                   general building contractors and/or
     construction and development                            involve many firms from both
                                                                                                                   developers.3 While such projects may
     businesses during the Small Business                    subsectors. The number of firms
                                                                                                                   use the services of specialty contractors
     Advocacy Review conducted in 2001.                      involved and their financial and
                                                                                                                   such as excavation companies, these
     (This review is described in section                    operational relationships may vary
                                                                                                                   firms are typically subcontractors to the
     XIX.C of today’s document.)                             greatly from project to project.
                                                                                                                   general building contractor and are not
       NAHB submitted a report that                             The residential building industries
                                                                                                                   identified as operators in the storm
     presents an independent evaluation of                   have their own variety of operational
                                                                                                                   water permit. Other classes of
     the data contained in the initial release               relationships. Many home building
                                                                                                                   subcontractors such as carpentry,
     of the National Stormwater BMP                          projects are initiated and managed by a
                                                                                                                   painting, plumbing and electrical
     Database. (National Association of                      developer, using one or more general
                                                                                                                   services typically do not apply for, nor
     Home Builders, ‘‘Erosion and Sediment                   contractors to supervise and/or carry out
                                                                                                                   receive, NPDES permits and EPA is not
     Control Best Management Practices                       the physical construction activities.
                                                                                                                   including these businesses in its
     Research Project.’’ Washington, DC,                     Other projects are operated by
                                                                                                                   population estimates for the purpose of
     2000). The report is included in the                    ‘‘merchant’’ builders. A merchant
                                                                                                                   today’s proposed rule. EPA is also
     rulemaking record.                                      builder is a firm that develops property,
                                                                                                                   excluding businesses classified by the
                                                             constructs homes, and markets the final
     D. Summary of Public Participation                                                                            Census Bureau as ‘‘non-employer’’
                                                             product within the same company.
                                                                                                                   establishments. These establishments
       EPA conducted an introductory                         Although these functions may be
                                                                                                                   tend to be proprietorships with the
     public meeting in April 1999 describing                 conducted by different entities, the
                                                                                                                   owner providing individual
     the effluent guidelines development                     merchant builder conducts all of these
                                                                                                                   construction services to the industry,
     process and the regulatory issues being                 activities within the same firm. In the
                                                                                                                   and they are primarily engaged in
     considered for the C&D rule. In the                     past, industry members used the term
                                                                                                                   activities, such as remodeling, that
     Summer of 2001 EPA conducted two                        ‘‘operative builder’’ to refer to a firm
                                                                                                                   disturb little if any land.
     additional meetings to provide an                       that conducts these activities within the
     update of progress on the rule                          same firm. The merchant builder is                    B. Construction and Development
     development.                                            organized into divisions or departments               Activities Affecting Water Quality
       Since the beginning of the rule project               within the firm and each division or
                                                                                                                   1. Planning and Site Design
     in 1998, EPA has held meetings with                     department is responsible for different
     industry associations, State and local                  functions, e.g. land development,                        Land development tasks that can
     government officials, professional                      construction, marketing.                              affect pollutant discharges typically
     organizations and citizen groups on the                    Most builders and developers are                   include the following activities:
     C&D rule. In 2000–01, EPA conducted                     separate entities. Typically, the
                                                                                                                     3 Under the CGP, a property owner who is not a
     interviews and group discussions with                   developer acquires property and moves
                                                                                                                   developer or contractor, e.g., a corporation erecting
     builders and developers to learn about                  the project from raw land to finished                 an office building for its own use, may be
     the land development process, builder-                  lots. The lots are usually sold to                    designated as a co-permittee if it retains control
     developer organizational structures,                    builders who construct houses,                        over site plans.

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        • Site selection and analysis;                       and identifying highly infiltrative soil              the functions to be performed and on
        • Design of subdivision and lot sizes                areas for preservation. (See ‘‘Growing                specific site conditions.
     in residential and mixed-use projects;                  Green,’’ Natural Lands Trust, Inc.,                      Shaping and compacting the earth is
        • Design of infrastructure (roads,                   Media, PA. Available at http://                       an important part of site preparation.
     sewers, utility lines, etc.).                                             Earthwork activities might require that
        In many cases, particularly on smaller               planning.html.) The site design is                    fill material be used on the site. In such
     projects, a land owner may manage                       subject to local government approval,                 cases, the fill must be spread in
     these tasks directly without the                        and multiple agencies may be involved,                uniform, thick layers and compacted to
     involvement of a real estate developer.                 depending on the size and complexity
     In larger projects, real estate developers                                                                    a specific density. An optimum
                                                             of the site and the requirements of                   moisture content must also be reached.
     usually manage the project, especially                  master planning or zoning agencies.
     when local government requirements                                                                            Graders and bulldozers are the most
                                                             Once the appropriate government                       common earth-spreading machines.
     and approval processes are complex.                     approvals have been obtained, the
     This is often the case for residential                                                                        Compaction is most often accomplished
                                                             permittee may proceed with ground                     with various types of rollers.
     developments, mixed-use projects                        breaking activities. (D. Linda Kone,
     (involving housing, commercial and/or                   ‘‘Land Development,’’ Washington, DC:                    For removal of rock from the site, the
     other land uses), shopping centers and                  Home Builders Press, 2000).                           contractor must first loosen and break
     large office buildings and complexes.                                                                         the rock into small pieces. This can be
        A real estate developer initiating a                 2. Clearing, Excavating and Grading                   accomplished by drilling or blasting.
     project will typically have a particular                   Construction on any size parcel of                 Drilling equipment includes
     kind of project in mind (such as                        land almost always calls for a                        jackhammers, wagon drills, drifters,
     residential or commercial), but may not                 remodeling of the earth. Therefore,                   churn rills, and rotary drills. Dynamite
     have identified a particular site. The                  actual site construction typically begins             and other explosives can be used to
     developer may formulate a conceptual                    with site clearing and grading.                       loosen rock.
     plan for the project and then search for                Earthwork activities are important in                    Once materials have been excavated
     sites that could accommodate such a                     site preparation because they ensure                  and removed and the ground has been
     plan. During the site selection process                 that a sufficient layer of organic                    cleared and graded, the site is ready for
     many factors are taken into                             material—ground cover and other                       construction of buildings, roads, and/or
     consideration by the developer, and                     vegetation, especially roots—is                       other structures.
     included among these may be the                         removed. The size of the site, extent of
     presence of water bodies on or near the                 water present, the types of soils,                    3. Erosion and Sediment Control
     site. For example, the developer may                    topography and weather determine the                     During the land disturbance period,
     consider on-site water features to be an                types of equipment that will be needed                affected land is generally exposed after
     amenity that can add value to the site.                 during site clearing and grading.
     On-site water body characteristics may                                                                        removal of grass, rocks, pavement and
                                                             Material that will not be used on the site            other protective ground covers. Where
     dictate how structures can be located on                must be hauled away by tractor-pulled
     the site to avoid flooding. Some                                                                              the soil surface is unprotected, soil and
                                                             wagons, dump trucks or articulated
     properties may have limitations if on-                                                                        sand particles may be easily picked up
     site or adjacent water bodies have                         Clearing activities involve the                    by wind and/or washed away by rain or
     regulatory designations such as riparian                movement of materials from one area of                snow melt. This process is called
     buffers, flood plains and wetlands.                     the site to another or complete removal               erosion. The water carrying these
        Once a site has been selected and                    from the site. Equipment used for lifting             particles eventually reaches a water
     control of the property is obtained                     excavated and cleared materials include               body. The particles are deposited in the
     (through purchase, lease, option to                     aerial-work platforms, forwarders                     water body, a process called
     purchase, etc.), the developer can                      cranes, rough-terrain forklifts, and                  sedimentation. Descriptions of the
     proceed with site analysis, design and                  truck-mounted cranes. Truck loaders are               environmental impacts of construction
     initial proposals for local government                  used for digging and dumping earth.                   site runoff are provided in section XV of
     approval. Site analysis includes                           Excavation and grading may be                      today’s document.
     examination of topography, soils, and                   performed by several different types of                  Contractors use erosion and sediment
     hydrology. Site design tasks depend on                  machines. They can also be done by                    controls (ESCs) to mitigate these
     the planned uses for the land                           hand, but this is generally more labor-               impacts. Erosion controls include
     (residential, commercial, institutional,                intensive and more expensive. When                    mulching, vegetative filter strips,
     etc.) and may involve subdivision of the                grading a site, builders typically take               diversion berms and conveyance
     site into individual home lots; locating                measures to ensure that new grades are                channels, slope drains, bonded fiber
     commercial, institutional or industrial                 as close to the original grade as possible,           matrices, and rolled products such as
     buildings; locating streets, sidewalks                  so as not to create a dis-equilibrium,                turf reinforcement mats. These materials
     and/or parking areas; and placement of                  especially to avoid erosion and storm                 and methods are intended to reduce
     utilities, including storm drainage                     water runoff. Proper grade also ensures               erosion where soil particles can be
     systems. Planning for storm water                       a flat surface for development and is                 initially dislodged on a construction
     management during the early stages of                   designed to attain proper drainage away               site, either from rainfall, snow melt or
     project formulation allows for                          from the constructed buildings.                       up-slope runoff. Erosion controls may
     consideration of site designs that can                     Equipment used during excavation                   not be completely effective, and
     reduce the overall water quality impacts                and grading include backhoes,                         sediment controls are typically
     of the site. One such planning strategy,                bulldozers, loaders, directional drilling             employed in addition. Sediment
     ‘‘Conservation Design,’’ includes                       rigs, hydraulic excavators, motor                     controls include sediment basins,
     avoiding natural wetland areas,                         graders, scrapers, skid-steer loaders, soil           ponds, and traps; and barrier methods
     preserving existing trees and vegetation,               stabilizers, tool carriers, trenchers,                such as silt fences, straw bales and rock
     maintaining stream buffers, limiting the                wheel loaders and pipeliners. The type                barriers. ESCs are further described in
     extent of clearing and grading activities,              of equipment used generally depends on                section VIII of today’s document.

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     4. Control of Other Pollutants                          with predictable effluent quality and                 control post-construction runoff. For
        Construction activity generates a                    quantity that occur in both wet and dry               example, site plans may provide for the
     variety of waste materials. These                       weather conditions.                                   conversion of short-term sediment
                                                                Construction disturbance activities                control practices such as sediment
     materials may include concrete truck
                                                             can generate a broad range of                         basins into extended detention wet
     rinsate, trash, and other pollutants.
                                                             environmental impacts by altering the                 ponds or other long-term structural
     Construction site operators utilize
                                                             physical characteristics of the affected              BMPs.
     various practices to manage these
                                                             land area. Construction activities                      A discussion of technologies and
     wastes and minimize discharges to
                                                             typically involve the clearing, surface               BMPs is contained in the following
     surface waters, including:
                                                             stripping, grading, and excavation of                 sections of today’s document. Some
        • Neat and orderly storage of
                                                             existing vegetation followed by the                   states and local governments have also
     chemicals, pesticides, fertilizers, and
                                                             active construction period when the                   published detailed manuals for ESC and
     fuels that are being stored on the site;
                                                             affected land is usually left denuded                 or storm water management controls.
        • Regular collection and disposal of
                                                             and the soil compacted, often leading to              Links to on-line publications are
     trash and sanitary waste;
                                                             an increase in storm water runoff and                 available on EPA’s website at http://
        • Prompt cleanup of spills of liquid
                                                             higher rates of erosion. The most                     www.epa/gov/OST/guide/construction.
     or dry materials.
                                                             significant pollutant associated with
        These procedures are described in                    construction activity at most sites is                B. Erosion and Sediment Controls and
     EPA’s 1992 guidance, ‘‘Storm Water                      sediment. Total suspended solids (TSS)                Other Site Management Practices
     Management for Construction Activities:                 concentrations from uncontrolled                      1. Goals
     Developing Pollution Prevention Plans                   construction sites have been found to be
     and Best Management Practices’’ (op.                    up to 150 times greater than                             Construction site activities should be
     cit.), State and local government                       concentrations from undeveloped land.4                managed to reduce erosion, and to the
     documents pertaining to construction                                                                          extent practical, retain sediment on the
                                                             If the denuded and exposed areas
     sites, and in section VIII of today’s                                                                         site. Erosion and sedimentation are two
                                                             contain contaminants, such as nutrients,
     document.                                                                                                     separate processes and the practices to
                                                             pathogens, metals or organic
                                                                                                                   control them differ. ‘‘Erosion is the
     5. Final Stabilization and Long-Term                    compounds, they are likely to be carried
                                                                                                                   process of wearing away of the land
     Storm Water Management                                  at increased rates to surrounding water
                                                                                                                   surface by water, wind, ice, gravity, or
                                                             bodies via storm water runoff. The
        Construction activities on previously                                                                      other geologic agents. Sedimentation is
                                                             denuded construction site is only a
     undeveloped land areas can                                                                                    the deposition of soil particles, both
                                                             temporary state, often less than six
     significantly alter the hydrology of a                                                                        mineral and organic, that have been
                                                             months. When the land is restored with
     site. In order to avoid flooding on the                                                                       transported by water, wind, air, gravity
                                                             the replanting of vegetation after
     site and protect the newly constructed                                                                        or ice’’ (adapted from North Carolina
                                                             construction is completed, the
     structures, the builder must design                                                                           Erosion and Sediment Control Planning
                                                             hydrology of the site may be altered. For
     drainage facilities. The builder’s site                                                                       and Design Manual, September 1, 1988).
                                                             example, the completed construction
     plans, as approved by the local                                                                                  Erosion can be prevented or
                                                             site may have a greater proportion of
     government, specify the location of                                                                           minimized by various methods and
                                                             impervious surface than prior to site
     buildings and other structures, and                                                                           practices. The main strategies used to
                                                             development, leading to changes in the
     typically indicate the site’s drainage                                                                        reduce erosion include minimizing the
                                                             volume and velocity, and in some cases
     patterns and facilities for long-term                                                                         time bare soil is exposed, preventing the
                                                             temperature, of storm water runoff.
     storm water management. The plans                                                                             detachment of soil and reducing the
     may specify permanent storm water                       VIII. Description of Available                        mobilization and transportation of soil
     management facilities (or BMPs) to be                   Technologies                                          particles off-site.
     constructed on the site, to control                                                                              Decreasing the amount of land
                                                             A. Introduction
     flooding, and in some cases, to protect                                                                       disturbed can significantly reduce
     receiving water quality. No single BMP                     Construction and development                       sediment detachment and mobilization
     type can address all storm water                        activities have the potential to discharge            and overall erosion and sediment
     problems. Each type has certain                         pollutants to surface waters due to poor              control costs. After land has been
     limitations based on the drainage area                  or inadequate site design, planning and               disturbed, exposed soils should be
     served, available land space, cost,                     BMP implementation. These impacts                     covered as soon as possible and runoff
     pollutant removal efficiency, as well as                can be mitigated by the application of                should be actively managed to prevent
     a variety of site-specific factors such as              design techniques to preserve or avoid                run-on flows from off-site areas and
     soil types, slope and depth of                          areas prone to erosion and through the                uncontrolled runoff from the disturbed
     groundwater table. Storm water                          use of erosion and sediment controls.                 area(s). In addition, runoff should be
     management BMPs are further described                   The use of good site design and                       managed to prevent high runoff
     in section VIII of today’s document.                    planning techniques also can reduce                   velocities and concentrated flows that
                                                             pollution control costs and improve the               are erosive. The continued effectiveness
     VII. Storm Water Discharge                              effectiveness of pollution control                    of erosion controls also is dependent on
     Characteristics                                         strategies and practices. Good site                   frequent inspections of erosion control
       Since 1972, EPA and the States have                   design can also integrate, to the extent              practices to identify maintenance needs.
     made good progress in issuing discharge                 appropriate, practices to control erosion                The control of sediment detached and
     permits for a wide range of point                       and sedimentation at active                           mobilized through erosional processes
     sources dischargers. These permits have                 construction sites with practices to                  requires a separate set of management
     made dramatic improvements in water                                                                           practices. Several mechanisms can be
                                                               4 TSS is an ‘‘indicator’’ parameter used to
     quality conditions and are largely                                                                            used to remove suspended sediments in
                                                             measure sediment discharges. The analytical test
     responsible for much of the success in                  procedure for TSS is called ‘‘Residue-
                                                                                                                   runoff. They include: filtration, settling
     reducing water pollution. Most of these                 Nonfilterable.’’ EPA-approved analytical methods      and chemical precipitation. These
     permits are for continuous discharges                   for TSS are listed in 40 CFR part 136, Table I.B.     mechanisms are used to trap, filter or

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     settle soil particles so they do not enter              maintaining erosion controls on a                     2. Major Categories of Best Management
     surface waters.                                         periodic basis, e.g., after each storm                Practices
       More detailed descriptions of                         event. Vegetative stabilization using
     sediment and erosion controls can be                    annual grasses is the most common                        Planning and site design are
     found in the Development Document.                      practice used to control erosion.                     important to ensure the selection of site
                                                             Polymers, physical barriers such as                   designs that will meet the needs of the
     2. Major Categories of Best Management                                                                        owner and be compatible with local
     Practices                                               geotextiles, straw, and mulch are other
                                                             common methods of controlling erosion.                infrastructure. State and local
        Planning is the most critical element                                                                      governments have a primary role in
     in designing an effective strategy to                      Despite the proper use of erosion                  ensuring proper planning and the
     control erosion and sedimentation on                    controls, some sediment detachment                    design of structural storm water runoff
     construction sites. The protection of                   and movement is inevitable. Sediment                  conveyance and treatment systems.
     areas prone to erosion, the selection and               controls are used to control (direct) and
                                                                                                                      Under any design approach, runoff
     siting of erosion and sediment control                  trap sediment that is entrained in
                                                                                                                   flow paths are designed to route the
     practices and the continued                             runoff. Typical sediment controls
                                                                                                                   runoff though functional landscaped
     effectiveness of these systems will                     include perimeter controls such as silt
                                                                                                                   areas or structural BMPs that store,
     depend on a well defined plan.                          fences constructed with filter fabric,                infiltrate, evaporate, and slow the
        Erosion and sediment control (ESC)                   straw bale dikes, berms or swales.                    velocity of the runoff. Storage basins,
     plans and site plans provide the                        Trapping devices such as sediment traps               swales, bioretention cells (highly
     blueprints for the protective activities                and basins and inlet protectors are                   permeable engineered soils planted with
     that will occur on the construction site.               examples of in-line sediment controls.                vegetation), grading to alter topography,
     The ESC and site plans may also contain                 Sediment traps and basins are the                     increase infiltration and decrease
     descriptions of temporary practices such                primary method used to treat and settle               erosion, and depression storage are the
     as sediment basins that will be                         out sediment for small and large                      most typical practices used to manage
     converted into long-term storm water                    disturbed areas.                                      runoff and reduce pollutant loadings.
     management practices.                                      Construction site operators manage                 More innovative practices include
        Several general objectives should be                 building materials and waste to reduce                rooftop storage, ‘‘green’’ roofs
     addressed in an effective ESC plan:                     and eliminate potential water quality                 (landscaped roof systems designed to
        • Minimize clearing and grading                      impacts. Construction materials and                   store and treat storm water), re-
     activities;                                             chemicals should be handled, stored                   vegetation, rainwater capture and reuse,
        • Protect waterways and stabilize                    and disposed of properly to avoid                     street filters (systems for treatment of
     drainage ways;                                                                                                street and highway runoff), and soil
                                                             contamination of runoff. Site
        • Phase construction to limit soil
                                                             management plans typically include                    amendments.5
        • Stabilize soils as soon as                         elements such as spill prevention and                    Pollution prevention practices are
     practicable;                                            remediation plans, nutrient                           often called source reduction practices
        • Protect steep slopes and cuts;                     management plans for vegetative                       or ‘‘non-structural’’ BMPs. Education,
        • Install perimeter controls to filter               stabilization efforts, and provisions for             training as well as proper inspections
     sediment;                                               human waste disposal, e.g., portable                  and maintenance are the primary
        • Employ sediment settling controls.                 toilets.                                              methods to achieving pollution
        To ensure that builders and                          C. Long-Term Storm Water Management                   prevention objectives. Information
     contractors implement effective ESC                     Control                                               dissemination via outreach efforts,
     plans, MS4s may employ several other                                                                          professional training, licensing and
     program elements. These elements                        1. Goals                                              certification combined with effective
     include an ESC plan review process;                                                                           voluntary incentives, enforcement and
     contractor education; training, licensing                  After completion of construction, a                compliance efforts are essential to good
     and certification programs, and an                      variety of measures have been adopted                 practice. Product substitution or the use
     inspection and enforcement process.                     to prevent flooding and achieve local                 of alternative methods and practices are
     See EPA’s MS4 ‘‘Menu of BMPs’’                          resource protection goals, such as                    also considered facets of pollution
     website at                    groundwater recharge or maintaining                   prevention.
     menuofbmps/menu.htm for descriptions                    stream stability. For example, BMPs are
     of these activities.                                    often integrated into the overall site                   5 Low Impact Development (LID) is a site design

        The use of erosion controls is widely                design, and generally approved by the                 approach that incorporates conservation techniques
     recognized as being the most cost-                      local government. A number of States                  along with an integrated set of small site-level
                                                             have developed storm water BMP                        landscape runoff treatment and control features that
     effective way of managing sediment on                                                                         are uniformly distributed throughout the site in
     construction sites. Typical practices                   selection and design criteria for use in              order to prevent runoff pollution and reduce the
     used to prevent and reduce soil                         their state. In addition, the Water                   impacts of development and redevelopment
     movement include: reducing the overall                  Environment Federation (WEF) and the                  activities on water resources. (‘‘Low Impact
                                                             American Society of Civil Engineers                   Development Design Strategies: An Integrated
     area of disturbed land, minimizing the                                                                        Design Approach,’’ EPA 841–B–00–003, January
     time soils are exposed to precipitation,                (ASCE) have developed a methodology                   2000. Available on EPA’s website at http://
     scheduling clearing and grading events                  for storm water BMP design. (Water           Approaches
     to reduce the probability that bare soils               Environment Federation and the                        similar to LID, although sometimes using different
                                                             American Society of Civil Engineers,                  terminology, include ‘‘Better Site Design’’
     will be exposed to rainfall, preventing                                                                       (‘‘Introduction to Better Site Design.’’ Article no. 45
     off-site and on-site runoff from eroding                ‘‘Urban Runoff Quality Management.’’                  in The Practice of Watershed Protection. Center for
     soils through the use of berms,                         1998. WEF Manual of Practice No. 23                   Watershed Protection, Ellicott City, MD, 2000.
     conveyances or energy dissipation                       and ASCE Manual and Report on                and ‘‘Infiltration
                                                                                                                   Approach’’ (‘‘Start at the Source: Design Guidance
     devices, covering soils or stockpiles,                  Engineering Practice No. 87. Available                Manual for Stormwater Quality Protection,’’ Bay
     stabilizing exposed soils as soon as                    for purchase at and                Area Stormwater Management Agencies
     possible, and inspecting and                                                   Association, Oakland, CA, 1999).

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     IX. Development of Effluent Limitation                  sediment basins where attainable for                  3. Subcategorization by Builder/
     Guidelines and Standards                                sites disturbing 10 acres or more, while              Developer Size
     A. Industry Subcategorization                           leaving greater flexibility in the choice                EPA is not, at this time, proposing
                                                             of sediment controls for sites disturbing             subcategorization by builder, developer
        EPA may divide a point source                        less than 10 acres. EPA requests
     category into groupings called                                                                                or contractor firm size (in terms of
                                                             comment on this proposed                              annual construction output, revenue, or
     ‘‘subcategories’’ to provide a method for               subcategorization.
     addressing variations between products,                                                                       acreage disturbed). Since the dollar
     processes, and other factors which                         Under today’s proposal, Option 2,                  value of a project or revenue of a builder
     result in distinctly different effluent                 which includes both control                           or developer is not necessarily related to
     characteristics. Regulation of a category               requirements and certification and                    site size or disturbed area (due, in part,
     by using formal subcategories provides                  inspection requirements, would apply                  to differences in various markets), EPA
     that each subcategory has a uniform set                 to sites disturbing 5 or more acres, while            has not found a direct correlation
     of effluent limitations that take into                  Option 1, which includes certification                between any of these factors and the
     account technological achievability and                 and inspection requirements only,                     amount of pollutants in storm water
     economic impacts unique to that                         would apply to sites disturbing 1 acre or             discharges to receiving waters.
     subcategory. In some cases, effluent                    more. EPA is not proposing control                    4. Subcategorization Based on
     limitations within a subcategory may be                 requirements for sites less than 5 acres              Hydrology, Soil Loss Potential or Other
     different based on consideration of these               at this time in order to allow the                    Geographic Factors
     same factors which are identified in                    maximum flexibility to the States in
     section 304(b)(2)(B) of the CWA, 33                                                                              EPA also considered subcategorizing
                                                             balancing the costs, availability, and                the industry based on hydrology and
     U.S.C. 1314(b)(2)(B). The CWA requires                  effectiveness of erosion and sediment
     EPA, in developing effluent limitation                                                                        potential for soil loss, but determined
                                                             controls and to provide time for the                  that the existing soil loss waiver
     guidelines and pretreatment standards,                  States to demonstrate the effectiveness
     to consider a number of different                                                                             included in the NPDES Phase II
                                                             of permits to control discharge of                    regulations (40 CFR 122.26(b)(15)(i)(A))
     factors, which are also relevant for                    pollutants associated with construction
     subcategorization. The statute also                                                                           is sufficient for exempting sites with
                                                             activity disturbing one to 5 acres under              low expected soil loss.
     authorizes EPA to take into account
                                                             Phase II. EPA recognizes that this same                  Geographic factors that may be
     other factors that the Agency deems
     appropriate. One potential benefit of                   logic may apply to the certification and              appropriate for subcategorizing the
     grouping similar facilities into                        inspection requirements and requests                  industry are based on low expected
     subcategories is the increased likelihood               comment on adopting Option 1, but                     rainfall, defined periods of dry and wet
     that the regulations will be practicable,               with a cutoff of 5 acres rather than 1                weather, and/or construction during
     and it diminishes the need to address                   acre. More generally, EPA requests                    cold weather where the ground is
     variations between facilities through a                 comment on the appropriate acreage                    frozen. On sites with these
     variance process (Weyerhaeuser Co. v.                   cutoff for both Options 1 and 2.                      characteristics, the Agency expects soil
     Costle, 590 F.2d 1011, 1053 (D.C. Cir.                                                                        erosion to be minimal. Option 2 in
                                                             2. Subcategorization by Industry                      today’s proposal would continue the
        In preparing today’s proposal, EPA                      EPA is not, at this time, proposing                provision in EPA’s current CGP for
     considered several ways of                              subcategorization by industry or                      delaying implementation of site
     subcategorizing the construction and                    industry group (i.e. residential building,            stabilization due to these geographic
     development industry. Methods                           non-residential building, heavy                       factors. See § 450.21(h).
     considered by the Agency include                        construction). EPA recognizes that there              5. Subcategorization Based on Past Land
     subcategorization by site size (such as                 are profit differentials between industry             Use
     disturbed acreage), development type                    groups that could affect their economic
     (such as residential, commercial,                                                                                EPA considered subcategorization of
                                                             and financial status. Based upon EPA’s                the industry based on past land use,
     industrial and transportation), re-                     current cost estimates for the options
     development vs. ‘‘greenfield’’                                                                                such as classifying redevelopment sites
                                                             being proposed today, EPA has found                   differently from ‘‘greenfield’’ projects.
     development (development on rural or                    these options to be economically
     agricultural land), geography and                                                                             Redevelopment projects present some
                                                             achievable for all industry groups. EPA               significant challenges in terms of
     hydrology (such as average annual
                                                             is concerned about the practical                      erosion and sediment control due to the
     rainfall and soil erosivity), as well as
                                                             difficulty in defining an appropriate                 potential for site constraints and
     builder or developer size (in terms of
                                                             industry portion to be subject to                     conflicts such as size, location,
     annual revenue, annual units
                                                             alternative standards, or an appropriate              proximity to existing development, pre-
     constructed, annual land disturbance,
                                                             industry portion for whom the controls                development site contamination issues,
                                                             being employed today would be                         land costs, as well as the nature of
     1. Subcategorization by Site Size                       technically or economically infeasible.               surrounding development. In addition,
        EPA is not proposing to subcategorize                Since a large number of development                   redevelopment projects are commonly
     site sizes of 10 acres or more. EPA is                  projects (especially larger projects) can             perceived to be preferable to greenfield
     concerned, however, that as site sizes                  consist of mixed land uses (such as a                 development, due to the proximity of
     decrease below 10 acres the choice of                   large residential subdivision built along             redevelopment sites to existing
     controls within site design parameters                  with a commercial/retail center), a                   infrastructure, the need to revitalize
     may become more limited. For this                       subcategorization by industry may also                older neighborhoods, and the potential
     reason, EPA is proposing in Option 2 to                 present implementation challenges. EPA                for providing significant economic
     establish slightly modified requirements                requests comment on possible industry                 stimulus to existing neighborhoods. As
     that provide greater flexibility for sites              subcategorization and how to address                  a result, many communities offer
     disturbing less than 10 acres.                          the implementation issues associated                  incentives in order to encourage
     Specifically, EPA is proposing to require               with such subcategorization.                          redevelopment projects and to make the

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     economics of the project viable.                        rural or urban areas. During the                      always appropriate for smaller sites.
     Imposition of expensive storm water                     construction process, vegetation or                   Other factors also affect the availability
     and erosion control requirements in                     surface cover is typically removed and                of certain control practices. As the site
     such cases, in light of the constraints                 soils become more available for                       size decreases, the proportion of sites
     present, may inflict costs that render                  transport and discharge from                          that are ‘‘in-fill’’ projects constructed
     some projects to be economically                        construction sites. Today’s proposal                  between currently-developed properties,
     unattractive to a developer. EPA does                   provides regulatory tools to improve                  or redevelopment of existing properties,
     not believe that the level of controls                  management and control on                             likely increases. These projects present
     being proposed in Option 2 today will                   construction sites to reduce and                      some significant challenges in terms of
     be a significant disincentive to                        minimize soil, storm water, and                       erosion and sediment control due to the
     redevelopment. Much of the                              pollutant transport and discharge from                potential for site constraints, land
     redevelopment occurring in urban areas                  construction sites.                                   availability and costs, proximity to
     involves sites of less than 5 acres in                     EPA initially considered a range of                existing development, as well as the
     disturbed land. For the redevelopment                   options that incorporate varying levels               nature of surrounding development.
     that exceeds that site size, EPA believes               of management and various control                     EPA is proposing not to establish
     that it is appropriate to require a                     strategies for sites of 1 acre or more.               effluent limitation guidelines for sites
     comparable level of erosion and                         During the Agency’s outreach activities               smaller than 5 acres at this time in order
     sediment control as is provided at                      in advance of proposal, small entity                  to allow the maximum flexibility to the
     greenfield sites. The design and                        representatives expressed concern over                States in balancing the costs,
     implementation of those controls, while                 the complexity of overlapping and                     availability, and effectiveness of erosion
     comparable, may be very different for a                 potentially inconsistent Federal, State,              and sediment controls and to provide
     site that has the advantage of existing                 and local storm water regulations. These              time for the States to demonstrate the
     stormwater management infrastructure                    individuals questioned whether it was                 effectiveness of permits to control
     than for other sites. In either case, EPA               appropriate to be considering additional              discharge of pollutants associated with
     believes that the requirements being                    Federal storm water regulations at such               construction activity disturbing one to 5
     proposed provide sufficient flexibility to              an early stage in implementation of the               acres under Phase II. The following
     allow affordable choices for both                       existing storm water program. They                    discussion presents the options that
     greenfield development and                              further questioned EPA’s assumptions                  EPA considered for erosion and
     redevelopment activities.                               regarding the level of control that would             sediment controls and other temporary
                                                             be achieved by sites less than 5 acres                BMPs.
     B. Regulatory Options Considered                        under the NPDES Phase II requirements,
       In developing today’s proposal, EPA                   pointing out that the compliance                      • Codify the EPA Construction General
     initially evaluated several regulatory                  deadline for those sites has not yet                  Permit
     options for both erosion and sediment                   passed.                                                  EPA considered an option (a variation
     control and other temporary BMPs,                          As EPA evaluated the options for                   on Option 2 being proposed today) that
     storm water management, and options                     erosion and sediment controls and other               would essentially codify the provisions
     that would not establish effluent                       temporary BMPs, the Agency examined                   contained in EPA’s construction general
     limitation guidelines regulations. The                  the merit of excluding sites less than 5              permit (CGP) as minimum national
     erosion and sediment control (ESC)                      acres at this time. EPA estimates that                standards for erosion and sediment
     options represent the controls that are                 while only 30 percent of sites developed              control (i.e., for all states, not only those
     typically temporary and are used during                 each year are 5 acres or more, these sites            with EPA as permitting authority). The
     the land-disturbing activities. The storm               represent over 80 percent of the                      CGP requirements that would be
     water management options represent the                  disturbed acreage. The Agency believes                codified include preparing a Storm
     long-term (permanent) storm water                       that the phased approach to issuing                   Water Pollution Prevention Plan
     controls that are designed and installed                permits for construction and                          (SWPPP) or equivalent, provisions for
     by the C&D industry at the time of                      development has allowed, and will                     installing and sizing sediment basins on
     construction but are intended to reduce                 continue to allow, EPA and States to                  sites with more than 10 acres of
     long-term storm water impacts.                          improve coordination, communication,                  disturbed land, requirements for
       The following sections of today’s                     and implementation of requirements in                 providing cover on exposed soil areas
     document discuss the regulatory options                 a more strategic way. By focusing first               within 14 days after construction
     that EPA considered for today’s                         on the larger sites, EPA and the States               activity has ceased, and installation and
     proposal. Section X describes the                       are focusing resources on the universe                maintenance of other erosion and
     specific options contained in today’s                   of sites that have the greatest potential             sediment control practices and other
     proposal.                                               for reducing discharge of pollutants to               temporary BMPs on all construction
                                                             surface waters. These sites generally                 sites.
     1. Overview of Regulatory Options:                      have more control alternatives than
     Erosion and Sediment Controls and                       smaller sites, and greater flexibility in             • Codify the EPA Construction General
     Other Temporary BMPs                                    designing erosion and sediment controls               Permit, Require Self-Inspection and
        For erosion and sediment control and                 that work within overall site parameters.             Certification
     other temporary BMPs, EPA considered                    Implementation of erosion and sediment                  EPA considered an option (being
     a series of regulatory options. These                   controls under the NPDES Phase I storm                proposed today as Option 2) that would
     options are designed to control the                     water rule has demonstrated that even                 essentially codify the provisions
     discharge of sediment, storm water and                  though controls may be more limited for               contained in EPA’s construction general
     other pollutants from sites when                        sites as small as 5 acres, sufficient                 permit (CGP) as minimum national
     construction is taking place.                           alternatives are available to provide                 standards for erosion and sediment
     Construction and development activity                   significant control. Indeed, while many               control and add inspection and
     involves land disturbed from previous                   of the erosion and sediment control                   certification requirements to improve
     uses such as agriculture or forest lands,               practices are not dependent on site size,             operator accountability. The CGP
     or occurs as redevelopment of existing                  others (such as sediment basins) are not              requirements that would be codified are

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     42658                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     the same as in the previous option. In                  turbidity, nutrients, metals and other                term environmental effects associated
     addition, EPA incorporated mandatory                    priority pollutants. EPA considered a                 with this option.
     site inspection, maintenance and                        regulatory option that would establish                   EPA also evaluated the inclusion of
     reporting provisions by site owners and                 numerical removal criteria for sediment,              separate requirements for controlling
     operators in order to improve                           or an associated indicator parameter                  priority toxic pollutants, pesticides and
     confidence in the implementation and                    such as total suspended solids (TSS),                 pathogens in construction site runoff. If
     performance of construction site erosion                suspended sediment concentration,                     these pollutants are present as a result
     and sediment controls in this option.                   settleable solids, or turbidity. This                 of construction activities themselves,
     These certification provisions may be                   option could be expressed as either a                 the most appropriate means of control is
     accomplished either through self-                       percent removal through sediment                      typically through the use of source
     inspection by a qualified employee of                   controls (such as sediment basins or                  control and pollution prevention BMPs,
     the owner and operator (such as a                       traps), or as a total site reduction                  which are already addressed in the
     professional engineer or person trained                 (incorporating consideration of sheet                 existing NPDES regulations through the
     in erosion and sediment control                         flow and diffuse runoff in addition to                MS4 permit requirements. The Agency
     techniques) or inspection by a third-                   discrete conveyances). However, EPA                   has been unable to identify any
     party (such as a consulting firm). The                  did not consider this approach to be a                additional BMPs that are technically
     certification provisions would consist of               viable regulatory option due to several               and economically feasible for use at
     a checklist-type certification form that                factors. The stochastic nature of rainfall            construction sites that would remove
     the permittee would be required to                      and runoff makes verification of the                  these pollutants once they are in the
     complete at various stages of the project               design standards difficult. In some                   water column. Therefore EPA does not
     to certify that the provisions contained                cases, the nature of local rainfall and               present costs, pollutant removals, or
     in the permittee’s SWPPP are being                      runoff characteristics make it difficult to           economic impacts associated with such
     implemented. Permittees would be                        even design BMPs to a specified                       a separate option. Hence, EPA proposes
     required to conduct periodic                            performance level. In addition, site-                 to control the discharge of any such
     inspections in order to confirm that the                specific soil conditions greatly influence            pollutants that may be associated with
     permittee is conducting the                             the amount of sediment mobilized                      construction activity only to the extent
     maintenance necessary to maintain the                   during runoff events, and the soil                    that control of TSS will also control
     functionality of BMPs. The specific                     settling characteristics greatly influence            these pollutants. EPA is, however,
     activities requiring certification include:             the performance of sediment controls.                 planning to conduct additional
     SWPPP preparation; installation of                      Designing an entire suite of erosion and              sampling activities to evaluate the
     perimeter controls and sediment                         sediment controls for a site to perform               frequency of occurrence and levels of
     controls; site inspections every 14 days;               to a specified level would likely require             these pollutants and their sources in
     final stabilization of exposed soils and                the use of a computer model, which                    construction site runoff for the final
     removal of temporary erosion &                          could add significant costs with little               rule. EPA solicits data and comments on
     sediment controls. The certification and                assurance of increased effectiveness.                 the frequency of occurrence and levels
     inspection forms would be retained on                   Similarly, monitoring to verify                       of pollutants found in construction site
     the site, and made available to the                     attainment of numerical requirements                  runoff, as well as BMPs that can cost-
     permitting authority and the public                     can also be very difficult (see                       effectively remove these pollutants from
     upon request. This option is being                                                                            runoff when present.
                                                             ‘‘Discharge Monitoring,’’ below) with
     proposed as Option 2 in today’s                         little demonstrated benefits. As a result,            • Discharge Monitoring
     document (see section X).                               EPA did not consider numeric pollutant                   EPA considered the inclusion of
     • Numerical Design Requirements                         control requirements a viable option.                 monitoring requirements for evaluating
       EPA considered an option that would                      In addition to establishing numerical              the effectiveness of erosion and
     establish numerical requirements for the                requirements for the control of                       sediment controls. Monitoring of storm
     design of sediment basins and traps that                sediment, EPA preliminarily considered                water discharges from construction sites
     would vary based on local or regional                   establishing requirements for removing                could be used to evaluate the
     rainfall patterns and site-specific soil                fine-grained and slowly-or non-                       effectiveness of individual sediment
     types. However, EPA determined that                     settleable particles contained in                     controls (such as sediment basins), or
     there were insufficient data available to               construction-site runoff (such as                     monitoring the receiving water above
     establish national criteria of this type,               turbidity). This option would likely                  and below construction sites could be
     and therefore did not include this                      have relied primarily on chemical                     used to monitor the effects of an entire
     requirement in today’s proposed rule. In                treatment of soils or construction site               site on ambient water quality.
     addition, this approach would be a                      runoff using polymers or coagulants                   Monitoring requirements could be
     significant departure from the current                  such as alum in order to prevent the                  incorporated with any of the previously
     CGP sizing requirements, which                          non-settleable fractions of solids from               discussed regulatory options
     establishes a requirement a calculated                  being transported off-site. EPA did not               considered. Since EPA’s preferred
     volume of runoff from a 2-year, 2-hour                  pursue this option due to the concern                 approach for addressing construction
     storm, or for 3,600 cubic feet of storage               over possible adverse environmental                   site storm water does not rely on the
     per acre, for all sites of 10 or more acres.            effects of widespread usage of chemical               performance of individual sediment
                                                             or polymer treatment of soils and,                    controls but rather on the combined
     • Numerical Pollutant Removal                           therefore, does not present costs,                    performance of a suite of erosion and
     Requirements                                            pollutant removals, or economic                       sediment controls, monitoring the
       EPA considered options that would                     impacts associated with such an option.               effectiveness of individual controls is
     contain numerical requirements for the                  However, EPA recognizes that at some                  not appropriate. Monitoring the
     removal of specific pollutants from                     sites use of chemical treatment may be                effectiveness of the overall erosion and
     construction site runoff. EPA initially                 appropriate based on a site-specific                  sediment control requirements specified
     considered targeting a variety of                       determination. The Agency solicits                    in today’s proposal would be very
     pollutants including sediment, TSS,                     comment and data on the possible long-                difficult at the majority of construction

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                            42659

     sites. In order to demonstrate that the                 government officials are the primary                    EPA believes that one way to implement
     erosion and sediment control provisions                 mechanism for ensuring that controls                    this recommendation is by increasing
     at the site are achieving a stated overall              are installed and maintained. As a                      site accountability for implementation
     percent reduction in sediment discharge                 result, according to this view, the                     to ensure that corrective steps are taken
     would likely require monitoring of                      effectiveness of the program hinges on                  as appropriate to ensure that practices
     every discharge point on the site, or                   the amount of attention and oversight                   perform as designed. For example,
     monitoring the receiving water above                    provided by the operator, and the                       inspection of perimeter silt fences can
     and below the construction site. The                    knowledge and training that the                         identify sections in need of repair or
     high degree of variability in site                      operator has received.                                  replacement to ensure sediment
     parameters, regional and site-specific                     As a result of these comments, EPA                   containment. Because this option is not
     rainfall, and erosion and sediment                      considered an option that would not                     linked to specific levels of performance,
     control effectiveness would, in all                     establish ELGs at this time, but would                  but applicable to any requirements that
     likelihood, make specification of                       rather require site inspection,                         are established by the permit writer,
     standard storm water monitoring                         maintenance and reporting by site                       EPA believes that it may be appropriate
     requirements impractical for a national                 owners and operators in order to                        for sites between one and five acres as
     regulation. The constantly-changing                     improve confidence in the                               well as for sites of five acres or more.
     state of construction sites due to the                  implementation and performance of                       This option is proposed today for all
     action of construction equipment would                  construction site erosion and sediment                  sites of one acre or more as Option 1,
     present significant challenges in terms                 controls. This option would include a                   and would amend the NPDES permit
     of monitoring equipment set-up and                      maintenance record of site activities,                  regulations at 40 CFR 122.44. See
     maintenance. The stochastic nature of                   including certification that plans                      section X for a description of the
     storm events would likely require a                     required by the permit meet all erosion                 options proposed. EPA also recognizes
     dedicated staffing effort on the part of                and sediment control requirements,                      that this option may impose
     the construction site operator in order to              certification that inspection,                          disproportionate costs on small
     ensure preparedness of the sampling                     stabilization and maintenance                           operators who may have to rely on
     equipment for capturing runoff events.                  requirements have been satisfied, and                   outside consultants to perform
     In addition, many sites discharge to an                 certification by a qualified professional               certifications and inspections. One way
     existing storm drain system, making                     that BMPs have been adequately                          to reduce overall burden, including
     monitoring of the receiving water                       designed, sized and installed. This                     burden on small operators, while
     infeasible. All of these factors would                  option would also include a                             covering the majority of disturbed
     add significant expense to the                          requirement that the operator or                        acreage would be to limit the scope of
     construction process, with little or no                 designated agent conduct regular                        this option to sites of 5 acres or more.
     added assurance in the effectiveness of                 inspections to ensure that erosion and                  This would establish certification and
     control measures or expected                            sediment control BMPs are maintained                    inspection requirements for 80 percent
     environmental benefits. As a result, EPA                in working order. The certification and                 of the disturbed acres. EPA thus solicits
     is not including discharge monitoring                   inspection forms would be retained on                   comment on limiting the scope of this
     with today’s proposal. Permitting                       the site, and made available to the                     option to sites of five acres and above.
     authorities may include discharge                       permitting authority upon request. (See                 Under this approach, sites below 5 acres
     monitoring requirements in permits,                     section XVIII of today’s document for                   would continue to be governed by
     where it may be practical to specify                    more information on compliance                          certification and/or inspection
     sampling and monitoring procedures                      paperwork and implementation.)                          requirements based on the BPJ of the
     that are appropriate for local conditions.                 EPA developed this option as a                       permitting authority.
                                                             mechanism that might improve
     2. Overview of Regulatory Options:                      implementation of existing                              3. Overview of Regulatory Options:
     Certification and Inspection                            requirements. During Agency outreach                    Continued Reliance on State and Local
        During the Agency’s outreach                         conducted in advance of today’s                         ESC Programs
     activities, EPA received many                           proposal, some small entity                                EPA is also proposing an option
     comments that an effluent guideline was                 representatives commented that the                      under which no additional national
     unnecessary for sites covered by the                    problem with existing erosion and                       regulations would be established at this
     NPDES Phase I storm water regulations,                  sediment control requirements is not the                time. Rather, EPA would continue to
     and untimely for sites that would be                    lack of standards, but rather the lack of               rely on existing State and local
     covered by the Phase II requirements.                   adequate implementation and                             programs to establish appropriate
     These commenters believed that the                      enforcement, including education, bid                   sediment and erosion control
     erosion and sediment control                            solicitation and evaluation, proper                     requirements for permitted construction
     requirements currently being                            design, installation, and maintenance of                sites, either on a BPJ basis or in
     established through best professional                   BMPs, and inspection. One small entity                  accordance with applicable regulations,
     judgement by the permitting authorities                 representative cited a recent article,6                 ordinances, land use plans, etc. Under
     are appropriate in that they can be more                which found that contractors are not                    this option, EPA could provide
     effectively tailored to regional and local              following good installation and                         additional support for training and
     conditions and respect traditional State                maintenance practices, and                              education of construction and
     and local authority over land use                       recommended more inspection and                         development operators, municipalities
     management. Some of the commenters                      education be instituted to remedy the                   and State regulators, in order to improve
     stated, however, that implementation of                 problems, instead of additional                         the effectiveness of existing programs.
     these State and local requirements is not               substantive regulatory requirements.                    This would build on the existing
     uniform. These commenters expressed                                                                             regulatory framework by preserving
     concern that State and local government                   6 Robert G. Paterson, ‘‘Construction Practices: The
                                                                                                                     State and local flexibility to tailor
     resources are insufficient to provide                   Good, The Bad and the Ugly.’’ Article no. 60 in The     specific requirements to regional and
                                                             Practice of Watershed Protection. Center for
     compliance monitoring on a timely                       Watershed Protection, Ellicott City, MD, 2000.          local conditions while at the same time
     basis, particularly where inspections by                Available at           benefitting from enhanced technical

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     assistance and the latest information                   traditional reliance on State and local               inspection and certification as the basis
     about emerging ESC technologies and                     programs to control long-term storm                   for BPT (Option 2). EPA’s decision to
     their effectiveness. This option is being               water management. At the same time,                   co-propose BPT limitations based on
     proposed as Option 3.                                   EPA is concerned that States and                      this option reflects the following
                                                             municipalities be provided the tools to               primary factors: (1) The degree of
     4. Overview of Regulatory Options
                                                             assess the variety of practices that are              effluent reductions attainable, (2) the
     Considered: Long-Term Storm Water
                                                             available today for long-term storm                   total cost of the proposed option in
                                                             water management. Much of the                         relation to the effluent reductions
        EPA evaluated several regulatory                     technical data that EPA collected in                  achieved, and (3) the maturity of the
     options for control of long-term storm                  evaluating these options will be made                 NPDES program as it pertains to
     water discharges from development                       available in the rulemaking record.                   construction activity at sites of 5 acres
     projects. These options are designed to                                                                       or greater. EPA estimates that this
     control the discharge of sediment, storm                X. Determination of Best Practicable
                                                                                                                   option will reduce pollutant discharges
     water and other pollutants from sites                   Control Technology Currently
                                                                                                                   to waters of the United States by 22
     after construction is completed. EPA                    Available (BPT), Best Conventional
                                                                                                                   billion pounds per year at a cost of $505
     specifically considered numerical                       Pollutant Control Technology (BCT),
                                                                                                                   million. EPA believes this option does
     design standards for the removal of                     Best Available Technology
                                                                                                                   not create unacceptable deleterious non-
     specific pollutants (e.g., 80 percent TSS               Economically Achievable (BAT), and
                                                                                                                   water quality environmental impacts.
     removal), limitations on post-                          New Source Performance Standards                         EPA has not identified a basis for
     development flows (e.g., maintain peak                  (NSPS)                                                formulating different BPT limitations
     flows at pre-development levels), and                      As discussed in section III.D of                   based on facility age, process or other
     BMPs to address thermal loadings to                     today’s document, in the guidelines for               engineering factors. The most pertinent
     sensitive cold water streams. EPA is not                an industry category, EPA defines BPT                 factors for establishing the limitations
     proposing any of these options today.                   effluent limits for conventional, toxic               are costs of the controls, the level of
     The choice of such controls, whether at                 (priority), and non-conventional                      effluent reduction benefits obtainable,
     a specific site or through regional storm               pollutants for direct discharging                     and the current state of the NPDES
     water management infrastructure, has                    facilities. For the BPT cost-                         program.
     historically been left to State and local               reasonableness assessment in today’s                     As described in section IX of today’s
     governments. These governments use a                    proposal, EPA used the total pounds of                document, EPA is proposing this option
     variety of regulatory and non-regulatory                TSS removed.                                          for sites of five acres or more. EPA is not
     programs (such as land use planning) to                                                                       proposing to establish effluent
                                                             A. Rationale for Selected BPT Option
     address post-construction storm water                                                                         limitation guidelines for sites of less
     flows in order to protect infrastructure                   EPA estimates that construction sites              than five acres at this time for the
     and achieve local resource goals. A                     annually discharge 80 million tons of                 reasons described in section IX.
     summary of existing State programs is                   TSS into the surface waters of the                       EPA is also considering the option
     included in the rulemaking record.                      United States. As a result of the quantity            (discussed in section IX) that would
     Some States and municipalities rely on                  of pollutants currently discharged                    codify the CGP without adding the
     traditional approaches, such as                         directly to the nation’s waters and the               inspection and certification
     retention ponds and infiltration basins.                adverse environmental effects of these                requirements. Although EPA believes
     Other States and municipalities are                     discharges (see section VIII.B of today’s             that inspection and certification
     pursuing approaches that will                           document), EPA determined that there                  requirements will help ensure the
     encourage regional planning, lower                      may be a need for BPT regulation for the              proper design, installation, and
     impact development, and other                           construction and development category.                maintenance of erosion and sediment
     progressive programs to reduce not only                    At the same time, EPA recognizes that              controls, EPA recognizes that including
     the pollutant run-off from the site, but                many States are examining the permit                  specific certification and inspection
     to protect receiving streams from the                   requirements they are establishing in                 requirements in national regulations is
     intensity of runoff that has accompanied                light of their experience with the storm              not the only way to accomplish this
     urbanization. Many of these approaches                  water program to date. EPA’s estimates                objective. EPA could instead leave the
     do not lend themselves to uniform                       of pollutant discharges today are                     establishment of such requirements to
     standards, but require integration with                 significantly lower than estimates at the             the BPJ of the permitting authority,
     land use decisions and site design. EPA                 time EPA issued the CGP. EPA is                       consistent with State and local program
     supports these approaches, and does not                 therefore co-proposing not to establish               requirements. Including specific
     want to limit the flexibility that can be               BPT requirements for the C&D category,                certification and inspection
     afforded at the local level while                       but to allow and encourage fuller                     requirements in co-proposed Option 2
     advances are being made. Moreover, the                  implementation of the current storm                   accounts for $65 million per year of the
     options EPA explored for a national ELG                 water program. This co-proposal takes                 $505 million per year cost of this
     would have been very expensive if                       two forms, one in which EPA essentially               option. EPA is interested in minimizing
     calculated on a total industry cost basis.              codifies the inspection and certification             recordkeeping and reporting burdens to
     Given the variety of approaches being                   provisions discussed in section IX                    the extent that substantive performance
     attempted across the country and the                    (hereinafter called Option 1), and one in             is not jeopardized. EPA solicits
     expense of imposing uniform post-                       which EPA does not amend the national                 comments on less costly means of
     construction controls, EPA considers it                 storm water regulations at this time, but             ensuring the performance of erosion and
     inappropriate to propose an ELG for                     instead continues to rely on BPJ                      sediment controls and the merits of
     long-term storm water management at                     requirements tailored to regional and                 leaving the establishment of specific
     this time. Instead, EPA has decided to                  local conditions as determined by the                 certification and inspection
     confine the proposed ELG to controls on                 permitting authority (hereinafter called              requirements to the BPJ of the
     discharge of pollutants associated with                 Option 3).                                            permitting authority. EPA solicits
     construction activity during the active                    As one option, the Agency is                       comment on the option of codifying the
     construction phase, and to maintain the                 proposing codification of the CGP with                CGP without adding specific national

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     certification and inspection                            C. BAT and NSPS                                       that results in the disturbance of at least
     requirements. Under this option,                           EPA generally considers the following              five acres total land area that itself will
     §§ 450.21(f) and (g) would be removed                   factors in establishing the best available            produce an industrial source from
     from the proposed rule language, except                 technology economically achievable                    which there may be a discharge of
     the first sentence of § 450.21(g)(1) which              (BAT) level of control: The age of                    pollutants regulated by some other new
     would be retained.                                      process equipment and facilities, the                 source performance standard elsewhere
                                                             processes employed, process changes,                  under subchapter N. (All new source
     B. BCT Determination                                                                                          performance standards promulgated by
                                                             the engineering aspects of applying
     1. July 9, 1986 BCT Methodology                         various types of control techniques, the              EPA for categories of point sources are
                                                             costs of applying the control technology,             codified in subchapter N.)
        The BCT methodology, promulgated                                                                              The definition of new source
     in 1986 (51 FR 24974), discusses the                    economic impacts imposed by the
                                                                                                                   proposed today for purposes of part 450
     Agency’s consideration of costs in                      regulation, non-water quality
                                                                                                                   would mean that the land-disturbing
     establishing BCT effluent limitation                    environmental impacts such as energy                  activity associated with constructing a
     guidelines. EPA evaluates the                           requirements, air pollution and solid                 particular facility would not itself
     reasonableness of BCT candidate                         waste generation, and other such factors              constitute a ‘‘new source’’ unless the
     technologies (those that are                            as the Administrator deems appropriate                results of that construction would yield
     technologically feasible) by applying a                 (section 304(b)(2)(B) of the Act). In                 a ‘‘new source’’ regulated by other new
     two-part cost test:                                     general, the BAT technology level                     source performance standards. For
                                                             represents the best existing                          example, construction activity that is
        (1) The publicly-owned treatment                     economically achievable performance
     works (POTW) test; and                                                                                        intended to build a new pharmaceutical
                                                             among dischargers with shared                         plant covered by 40 CFR 439.15 would
        (2) The industry cost-effectiveness                  characteristics. In making the                        be subject to new source performance
     test.                                                   determination about economic                          standards under § 450.24.
        In the POTW test, EPA calculates the                 achievability, the Agency takes into                     EPA also seeks comment on whether
     cost per pound of conventional                          consideration factors such as plant                   no sources associated with C&D activity
     pollutant removed by industrial                         closures and product line closures.                   should be deemed ‘‘new sources.’’ EPA
     dischargers in upgrading from BPT to a                  Where existing wastewater treatment                   may decline to establish NSPS on the
     BCT candidate technology and then                       performance is uniformly inadequate,                  grounds that construction activity itself
     compares this cost to the cost per pound                BAT technology may be transferred                     is outside the scope of those activities
     of conventional pollutant removed in                    from a different subcategory or                       intended to be covered by CWA section
     upgrading POTWs from secondary                          industrial category. BAT may also                     306. (‘‘The term ‘new source’ means any
     treatment. The upgrade cost to industry                 include process changes or internal                   source, the construction of which is
     must be less than the POTW benchmark                    plant controls which are not common                   commenced * * *’’ 33 U.S.C.
     of $0.25 per pound (in 1976 dollars).                   industry practice.                                    1316(a)(2)(emphasis added)). Because
                                                                EPA considered the same option for                 EPA has co-proposed to set NSPS
        In the industry cost-effectiveness test,             BAT as discussed under BCT. The                       equivalent to BPT, the Agency expects
     the ratio of the incremental BPT to BCT                 Agency is unaware of any additional                   that this would not result in any
     cost divided by the BPT cost for the                    technically feasible and economically                 substantive increase or decrease in the
     industry must be less than 1.29 (i.e., the              achievable technologies for the removal               limitations imposed on any C&D
     cost increase must be less than 29                      of toxics (i.e., priority metals and                  activity.
     percent).                                               organic chemicals) and non-                              EPA’s proposed approach to defining
     2. Consideration of BCT Option                          conventional pollutants under BAT                     ‘‘new sources’’ is based largely on the
                                                             beyond those considered for BPT. As                   structure of the CWA. Under the CWA,
        For today’s proposed rule, EPA                       discussed in section IX.C of today’s                  a source may not be a ‘‘new source’’
     considered whether or not to establish                  document, EPA initially considered the                under section 306(a)(3) unless there is
     BCT effluent limitation guidelines for                  use of chemical treatment of soils or the             or may be a discharge of pollutants from
     C&D sites that would attain incremental                 addition of polymers (such as PAM) or                 the constructed facility. A discharge of
     levels of effluent reduction beyond BPT                 coagulants for the removal of toxics and              pollutants means an addition of any
     for TSS. EPA was not able to identify a                 non-conventional pollutants. However,                 pollutant to navigable waters from any
     technically feasible, discrete addition to              due to the concern over the unknown                   point source, i.e., any discernible,
     the BPT technology that would achieve                   environmental effects of widespread                   confined and discrete conveyance such
     additional TSS reductions and would be                  usage of such treatment, EPA did not                  as a pipe, ditch or channel. See CWA
     applicable nationally. For construction                 give this option further consideration.               section 502(12) & (14). Section 306(b) of
     site erosion control, additional                        EPA is co-proposing BAT limitations                   the CWA itself includes a list of
     conventional pollutant removals would                   equivalent to BPT (Option 2).                         industries for which EPA was directed
     require the use of chemical treatments                     When developing NSPS, EPA                          to address with NSPS. EPA proposes to
     such as polyacrylamide (PAM) or alum.                   generally considers that new facilities               treat all sources from which there may
     As described in section IX.C of today’s                 have the opportunity to incorporate the               be a discharge associated with
     document, the Agency recognizes that                    best available demonstrated                           construction activity disturbing five
     these treatments are used in some parts                 technologies including process changes,               acres or greater that will result in a
     of the country, but has insufficient                    in-plant controls, pollution prevention,              ‘‘new source’’ as ‘‘new sources’’
     information about the environmental                     and end-of-pipe treatment technologies.               themselves.
     effects of the treatments to recommend                     The NSPS co-proposed in today’s rule                  There may be situations when a
     requiring their use nationwide.                         would apply to new sources as defined                 newly-constructed direct discharging
     Therefore, EPA did not apply the BCT                    in § 450.11. EPA proposes to define                   point source would fall within an
     Cost Tests and is co-proposing that BCT                 ‘‘new source’’ for purposes of part 450               industrial category or subcategory for
     be set equivalent to BPT limitations (i.e.,             as any source of storm water discharge                which EPA has not promulgated NSPS;
     Option 2).                                              associated with construction activity                 In that case, the discharge associated

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     42662                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     with the construction activity would be                 SWPPP, as long as these documents                           • Section 450.21(d)(5). Description of
     subject to BPT limitations outlined in                  address all of the provisions contained                  the general timing (or sequence) in
     § 450.21. Substantively, these                          in today’s proposal.                                     relation to the construction schedule
     limitations are identical to those                         The requirements co-proposed today                    when each BMP is to be implemented.
     imposed on ‘‘new sources’’ under this                   do not preclude permitting authorities                   Although approximate dates are useful,
     proposed rule.                                          and State, County and Municipal                          they are not necessary. General
       EPA is interested in any comments on                  erosion and sediment control                             descriptions are acceptable. For
     these, or other possible definitions of                 regulations or ordinances from                           example, one might describe an
     new source in this rule and is especially               including additional or more stringent                   installation of a BMP as follows:
     interested in comments regarding EPA’s                  requirements, nor do they replace                        ‘‘sediment basins will be installed prior
     legal authority to take either of these                 existing requirements that are more
     approaches, the environmental benefits                                                                           to initial clearing and grubbing of the
     of these approaches and the potential                      Section 450.21(d) contains the                        site.’’
     implications these approaches may have                  requirements for preparing a SWPPP                          • Section 450.21(d)(6). Estimate of
     on administration of the NPDES permit                   under Option 2. Explanations are                         the pre-development and post-
     program.                                                provided below for selected provisions.                  construction runoff coefficients of the
     D. Summary of Provisions in Today’s                        • Section 450.21(d)(1). Narrative                     site. Estimates of runoff coefficients may
     Proposed Rule                                           description of the construction activity.                be determined by using a number of
                                                             Although not an explicit requirement,                    readily available resources, including
       The provisions in today’s proposed                    EPA presumes that any individual                         models such as ‘‘Urban Hydrology for
     rule are discussed programmatically                     activity on the site that will result in a               Small Watersheds, Technical Release 55
     rather than in the order of the numbered                disturbance of more than 1,000 square                    (TR–55)’’ and documents such as
     options.                                                feet of land will be treated as a                        ‘‘Hydrology, Section 4, National
     1. General Provisions and SWPPP                         ‘‘significant’’ disturbance of soils and                 Engineering Handbook (NEH–4),’’ both
     Preparation                                             will be described in the SWPPP.                          published by USDA/Natural Resources
                                                                • Section 450.21(d)(2). General                       Conservation Service (NRCS). In
        Option 2 in today’s proposal includes                location map and site map. In most
     a number of specific provisions for                                                                              addition, there are a number of
                                                             cases, a site drawing prepared along                     commercial software packages that may
     preparation of Storm Water Pollution                    with the erosion and sediment control
     Prevention Plans (SWPPPs) based                                                                                  also be used to estimate these
                                                             plan is appropriate. The site map shall
     principally on EPA’s current                                                                                     parameters.
                                                             be of sufficient scale and detail to allow
     Construction General Permit (CGP). EPA                  easy identification of individual erosion                   • Section 450.21(d)(8). Delineation of
     is also proposing some additional                       and sediment controls and storm water                    SWPPP implementation responsibilities.
     provisions for inclusion in SWPPPs.                     BMPs, as well as delineation of drainage                 The SWPPP must describe who is
        Options 1 and 3 do not include                                                                                responsible for implementation of the
                                                             pathways. In many jurisdictions, local
     specific provisions for preparation of a                                                                         controls described in the SWPPP.
                                                             agencies specify a map scale for
     SWPPP. However, under these options
                                                             preparation of site drawings.                               • Section 450.21(d)(9). Any existing
     sites would continue to be governed by                     • Section 450.21(d)(3). Description of
     existing permit requirements. All                                                                                data that describe the storm water
                                                             available data on soils present at the                   runoff characteristics of the site. Include
     individual permits, EPA-issued general                  site. This type of information may be
     permits, and most State-issued general                                                                           any existing data that describe the
                                                             obtained from soil surveys conducted                     quality of any discharges of storm water
     permits for discharges associated with                  during the initial stages of project
     construction activity five acres of greater                                                                      from the site. This does not require the
                                                             formulation, which may be needed for
     require the preparation of a SWPPP or                                                                            permittee to collect additional data.
                                                             evaluating the engineering properties of
     similar pollution prevention                            soils. Information of this type might also                  It is important to note that the above
     documentation.                                          be collected during initial investigations               requirements for SWPPP preparation are
        The CGP requires owners and                                                                                   in addition to any requirements
                                                             of a site, commonly referred to by the
     operators of construction sites subject to                                                                       contained in other Federal, State or
                                                             industry as ‘‘due diligence’’ procedures
     regulation to prepare a SWPPP that,                                                                              local regulations. Permittees should
                                                             or a ‘‘Phase I’’ or ‘‘Phase II’’
     among other things, describes the BMPs
                                                             environmental site assessment.7                          always consult permit authorities to
     to be selected to control runoff during
                                                                • Section 450.21(d)(4). Description of                obtain all requirements related to
     the land-disturbing phase (erosion and
                                                             BMPs to be used to control pollutants in                 SWPPP preparation. In addition,
     sediment controls). While the SWPPP
                                                             storm water discharges during                            § 450.21(e) would require periodic
     terminology is used in EPA-issued
                                                             construction. The operator may                           updating of the SWPPP to address
     CGPs, States need not use the SWPPP
                                                             reference a State erosion and sediment                   changes in activities that may require
     terminology. Instead, States may require
                                                             control design manual used to design                     updating of the erosion and sediment
     alternate documents that are equivalent
                                                             BMPs as an abbreviated method for a                      control provisions for the site. Examples
     to SWPPPs. Examples include erosion
                                                             fuller description of the BMPs in the                    where updates may be needed include
     and sediment control plans, storm water
                                                             SWPPP. Such references should cite                       significant changes in the construction
     management plans, or other documents.
                                                             specific BMP references and/or                           schedule or changes in the nature of
     EPA has conducted an evaluation of
                                                             specifications in the manual.                            construction activities. If periodic
     State-level erosion and sediment control
     regulations, and found that the majority                   7 The phases referred to in this instance describes
                                                                                                                      inspections indicate that the selected
     of States include provisions equivalent                 a step in an environmental site assessment (ESA)         erosion and sediment controls are not
     to those contained in the EPA CGPs. As                  process, not the NPDES ‘‘Phase I’’ of ‘‘Phase II’’       effective in controlling pollutant
     a result, the requirements co-proposed                  storm water regulations. ASTM International              discharges from the site, the revision of
                                                             (formerly known as the American Society for              the SWPPP may be necessary. It is the
     under Option 2 today can be                             Testing and Materials) has published recommended
     incorporated into SWPPPs, or alternate                  ESA procedures as standard no. E1527–96. http://         responsibility of the permittee to keep
     documents that are equivalent to a                                                         the SWPPP current.

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     2. Design and Installation of Erosion and               and sediment control efficiency and to                equivalent control is attainable, silt
     Sediment Controls                                       evaluate sediment generation and                      fences, vegetative buffer strips or
        Under all three options, permits                     delivery from construction sites.                     equivalent sediment controls are
     would require, at a minimum,                            Examples include empirical models                     required. Runoff from undisturbed site
     compliance with any applicable State                    such as the Revised Universal Soil Loss               areas that is diverted around disturbed
     and local erosion and sediment control                  Equation (RUSLE) or process-based                     areas can be ignored when designing
     requirements. Under Option 2, the                       models such as SEDCAD and SEDIMOT                     sediment controls. Where attainable,
     selection, design and implementation of                 II.8                                                  sediment basins shall be designed to
                                                                Under Option 2, construction site                  provide storage for a 2 year, 24-hour
     these controls would need to also
                                                             owners and operators would be required                storm, or alternatively, 3,600 cubic feet
     comply with the national effluent
                                                             to consider the use of a range of erosion             of storage volume per acre drained. The
     guidelines in 40 CFR 450.21. Under
                                                             and sediment control BMPs when                        basin sizing is based on the area of the
     Options 1 and 3, the selection, design
                                                             preparing SWPPPs for construction                     drainage that will have vegetation
     and implementation of these controls
                                                             sites. EPA’s preferred approach is to                 removed and soils disturbed (i.e., if the
     would be governed by BPJ-based permit
                                                             first limit sediment generation and                   drainage area is 15 acres, but only 13
     conditions established by the permit
                                                             transport through the use of effective                acres of this area will have vegetation
     authority and tailored to regional or
                                                             site planning and erosion controls, and               removed and soils disturbed during the
     local conditions. In practice, many of
                                                             secondly control sediment discharges                  course of the project and the remaining
     the same control technologies may be
                                                             through the use of effective sediment                 2 acres will remain vegetated and is
     used under all three options, though the
                                                             controls. In addition, § 450.21(c) would              directed around both the disturbed area
     design and performance could vary
                                                             require implementation of pollution                   and the sediment basin, then the
     significantly in some locations.
                                                             prevention practices to prevent                       permanent storage volume can be sized
        The erosion and sediment control
                                                             contamination of storm water runoff                   based on 13 acres). EPA recommends
     provisions of Option 2 rely on
                                                             with construction materials and litter                that sediment control outlets be
     implementation of a range of BMPs, as
                                                             and debris.                                           designed to provide a detention time at
     well as a design-based standard for
                                                                Section 450.21(a) would require that               the design capacity of at least 6 hours.
     sediment basins. This standard is
                                                             construction site owners and operators                In addition, permit authorities may
     different from many traditional effluent
                                                             include descriptions of general erosion               require that the basins be designed to
     guidelines in that it does not establish
                                                             and sediment controls and BMPs in                     pass larger runoff events safely, and may
     end-of-pipe discharge limitations or                                                                          require the use of an emergency
                                                             SWPPPs to retain sediment on site (to
     performance standards for storm water                                                                         spillway, pursuant to state and/or local
                                                             the extent practicable), and to provide
     runoff from construction sites, but                                                                           authority.
                                                             interim and permanent stabilization.
     instead establishes minimum criteria for                                                                         EPA encourages permittees to utilize
                                                             Stabilization measures may include
     erosion and sediment control selection,                                                                       improved sediment basin designs that
                                                             establishment of temporary or
     design, installation and maintenance.                                                                         incorporate features such as baffles and
                                                             permanent vegetation, mulching,
     The design standard is based primarily                                                                        outlet structures such as rock or fabric
                                                             geotextiles, sod stabilization, vegetative
     on minimizing sediment generation and                                                                         filters surrounding risers, siphoning
                                                             buffer strips, and protection of trees and
     transport through the use of effective                                                                        outlets, and using surface skimmers and
                                                             mature vegetation. This section also
     erosion controls, and secondly on                                                                             floating weirs. The use of these practices
                                                             requires the SWPPP to contain a
     controlling sediment discharge through                                                                        may significantly improve the
                                                             schedule indicating when practices will
     the use of effective sediment controls.                                                                       performance of sediment basins in
                                                             be implemented. EPA recommends that
     Due to the high degree of variability in                                                                      certain cases. In addition, all basins
                                                             all controls be properly selected and
     site parameters, regional and site-                                                                           should be designed by a qualified
                                                             installed in accordance with sound
     specific rainfall, and erosion and                                                                            engineer and local regulations regarding
                                                             engineering practices and, when
     sediment control effectiveness, Option 2                                                                      impoundment design should be
                                                             feasible, manufacturer’s specifications.
     does not contain numerical discharge                       In Option 2, EPA is requiring that                 consulted.
     standards or discharge monitoring                       owners and operators implement                           Proposed § 450.21(h) would require
     requirements. Instead, this option relies               sediment controls for all drainage areas              site owners and operators to provide
     on adherence to established erosion and                 of 5 or more acres. For drainage areas of             temporary and/or permanent
     sediment control principles and                         between 5 and 10 acres, smaller                       stabilization of exposed soil areas on
     demonstration of effective design,                      sediment basins or sediment traps shall               construction sites. Exposed soil areas
     installation and maintenance through                    be used where attainable. For drainage                and slopes must be stabilized as soon as
     regular inspection and certification.                   areas of 10 or more acres, sediment                   practicable, and in no case more than 14
        Although Option 2 does not contain                                                                         days after construction activity has
                                                             basins or equivalent control measures
     monitoring provisions, permitting                                                                             temporarily or permanently ceased on
                                                             shall be installed where attainable.
     authorities may require monitoring of                                                                         any portion of the site. Where
                                                             Where neither a sediment basin or
     construction site runoff or receiving                                                                         construction activity has temporarily
     waters to gauge performance. Examples                     8 ‘‘Predicting Soil Erosion by Water: A Guide to    ceased on a portion of the site and earth-
     of indicator parameters that may be                     Conservation Planning with the Revised Universal      disturbing activities will be resumed
     evaluated in order to evaluate the                      Soil Loss Equation (RUSLE).’’ K.G. Renard, G.R.       within 21 days, stabilization is not
     quality of storm water discharged from                  Foster, G.A. Weesies, D.K. McCool, and D.C. Yoder.    required on that portion of the site.
                                                             United States Department of Agriculture, 1997.
     construction sites include TSS,                                                                               Time limits for stabilization may be
                                                               Warner, R.C. and P.J. Schwab, 1998. ‘‘SEDCAD 4
     turbidity, settleable solids, and                       for Windows 95 & NT: Design Manual and User’s         extended where compliance is
     suspended sediment concentration.                       Guide.’’ Civil Software Design, Ames, IA.             impractical due to snow cover, frozen
     (EPA-approved analytical test methods                     Wilson, B.N., B.J. Barfield, A.D. Ward, and I.D.    soil, or other factors. Temporary or
     for some of these parameters are listed                 Moore. 1984. ‘‘A Hydrology and Sedimentology          permanent erosion control measures
                                                             Watershed Model, Part I: Operational Format and
     in 40 CFR part 136.) In addition,                       Hydrologic Component.’’ Transactions of the
                                                                                                                   include planting of vegetation, sodding,
     permitting authorities may also utilize                 American Society of Agricultural Engineers            mulches, bonded fiber matrices, binders
     numerical models to evaluate erosion                    27(5):1370–1377.                                      and tackifiers, polymers, and rolled

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     erosion control products. Exceptions are                controls. The permittee or designated                 consultants who are providing
     provided for low rainfall areas and                     agent would not be required to certify as             inspection and certification services to
     where stabilization is temporarily                      to the performance of selected controls,              permittees responsible for permit
     impracticable.                                          but rather that the controls were                     violations. The site log book would be
                                                             designed and installed according to the               the official record of inspection and
     3. Inspection and Certification
     Provisions                                              provisions required in the permit and                 maintenance activities, and a copy
                                                             that regular maintenance activities are               should be maintained by the site owner
        Under all three options, permits                     occurring. In some States and                         or operator in the event of a change in
     would generally specify inspection and/                 municipalities, similar inspection                    the entity providing the inspection
     or other requirements to ensure                         systems are already being employed,                   mechanism (for example, if a developer
     compliance. Under Option 3, these                       and EPA believes that these systems                   changes subcontractors following the
     requirements would continue to be                       would generally be in conformance with                completion of initial grading).
     based on State and local ESC programs                   Options 1 and 2. The Agency requests                     The site log is intended to serve
     and the BPJ of the permitting authority.                comment on whether the proposed                       multiple purposes. The first, and most
     Both Options 1 and 2 would require a                    inspection requirements are compatible                important, is as a planning tool for the
     variety of site erosion and sediment                    with existing State and local ESC                     permittee and a means of tracking
     control inspection and certification                    inspection systems.                                   erosion and sediment control activities,
     requirements, including inspections                        EPA recommends that these                          including maintenance. The second is a
     every 14 days and a final site inspection               inspections be conducted by a Certified               tool for permitting authorities to gauge
     and certification. The provisions in each               Professional in Erosion and Sediment                  compliance with regulations and to aid
     option are roughly equivalent, although                 Control (CPESC),9 licensed Professional               enforcement activities. As such, it is in
     each would be codified differently in                   Engineer (PE), or other qualified                     the best interest of all parties involved
     the regulations. Under Option 3, any                    professional with training in erosion                 for the permittee to maintain a copy of
     inspection and certification                            and sediment control principles and                   the site log book and other documents
     requirements would be based on any                      practices. However, since there will be               required by the permit (e.g., a SWPPP)
     applicable State and local ESC programs                 a large number of inspections required                on-site, and to allow access to this
     and the BPJ of the permitting authority.                to cover all construction sites nationally            information by the permitting authority.
        In Option 1, part 122 would be                       and there is only a limited number of                 Since members of the public may also
     amended to add conditions applicable                    certified professionals available, EPA is             have an interest in the compliance
     to storm water permits for construction                 not requiring that these inspections be               related information documented in the
     activity. Section 122.44(t)(1) would
                                                             carried out by a licensed or certified                site log book, EPA recommends that a
     require a permittee (or designated agent)
                                                             professional. The individual conducting               copy be maintained in a public location
     to maintain a site log book to track the
                                                             the inspections should have adequate                  (such as a library or courthouse), or that
     implementation of erosion and sediment
                                                             training and a thorough understanding                 a copy be made available to the public
     controls and other actions required by
                                                             of the erosion and sediment control                   upon request within a reasonable
     the permit. The analogous provision in
                                                             requirements for the site, as described in            period.
     Option 2 is at § 450.21(f). Any format for
                                                             the SWPPP. EPA envisions that in most
     the site log book could be used, as long                                                                      4. Maintenance
                                                             cases, and particularly for larger
     as the specific provisions listed in the
                                                             projects, the inspection and reporting                   In Option 2, construction site owners
     regulation are addressed. EPA plans to
                                                             requirements will be carried out by the               would be required to remove
     provide guidance on a recommended
                                                             same consulting firm(s) or prime                      accumulated sediment from sediment
     format for the site log book at the time
                                                             contractor(s) that provided the initial               traps and ponds when design capacity
     of promulgation if EPA ultimately
                                                             site design, engineering drawings,                    has been reduced by 50 percent.
     promulgates inspection and certification
     requirements. EPA solicits comments on                  SWPPP preparation, and construction
                                                                                                                   XI. Methodology for Estimating Costs
     the log book format.                                    supervision for that project. However,
                                                             the permittee may make other                            In developing today’s proposed rule,
        Option 1 would also amend
                                                             arrangements to accomplish the                        EPA has taken a model approach to
     § 122.44(i)(4) to exclude construction
                                                             inspection and reporting requirements,                estimating the costs of compliance.10
     sites subject to ELGs from discharge
                                                             such as self-inspection and self-                     Costs were estimated that are expected
     monitoring requirements, for the
                                                             certification.                                        to be borne by two distinct entities: (1)
     reasons described in section IX of
                                                                It is important to note that compliance            Costs that are expected to be directly
     today’s document. Permit authorities
                                                             with the proposed inspection and                      borne by the construction and
     would retain discretion to set
                                                             reporting requirements would be the                   development category for BMP
     monitoring requirements for
                                                             responsibility of the permittee.                      installation and administrative
     construction site discharges on a case-
                                                             Although a subcontractor, consultant or               functions and the consumers of the
     by-case basis.
        Options 1 and 2 would also require                   third-party certification firm may be                 construction projects; (2) costs that are
     periodic inspection and certification of                employed by the permittee to conduct                  expected to be borne by permitting
     various provisions. This is embodied in                 the actual inspections, any                           authorities for implementing the
     proposed § 122.44(t)(2) in Option 1, and                discrepancies or violations noted would               provisions of today’s proposal. All costs
     §§ 450.21(f) and (g) under Option 2. The                be a violation of the site owner or                   presented are incremental over the costs
     certification, either by the permittee or               operator’s storm water permit and                     already being borne by these entities
     designated agent (as described below)                   corrective measures would be the                      due to existing Federal, State and local
     would be an assurance by the certifying                 responsibility of the permittee. EPA                  regulations governing erosion and
     official that the various provisions                    would not hold subcontractors or                      sediment control.
     concerning BMP design, installation and                   9 The CPESC training program is sponsored by the      10 A cost model identifies variables and uses
     maintenance are occurring on a regular                  International Erosion Control Association (http://    equations to estimate costs. The model is used to
     basis in order to assure effectiveness of      and the Soil and Water Conservation     estiamte costs before and after implementation of
     the selected erosion and sediment                       Society ( ).                       the proposed rule.

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                           42665

        In estimating costs of today’s proposal              the U.S. (Highway Statistics 1999 and                 for factors such as inspection and
     to the C&D category, EPA has                            Highway Statistics 2000, Federal                      SWPPP certification. By comparing
     categorized costs as capital costs and                  Highway Administration). This                         these costs to the baseline costs, EPA
     administrative costs. The following                     constitutes less than 2 percent of the                was able to estimate the incremental
     components were included in EPA’s                       total new developed acreage in the U.S.               costs of various regulatory options. (See
     costing analysis: (1) Capital costs,                    Because new road and highway                          Chapter 7 of the Development
     including design, installation (including               construction is such a small percentage               Document for a more detailed
     materials and labor), maintenance,                      of annual development acreage, EPA did                discussion of the construction control
     profit and overhead; and (2)                            not conduct a separate analysis of costs              model.)
     administrative costs, including SWPPP                   of the proposed rule for highway, street,
     preparation, inspections, installation                  bridge and tunnel construction. EPA                   B. Costs to Permit Authorities
     and maintenance certification, permit                   requests comment on this approach, as
     submission, and records retention. In                   well as data on the costs of the proposed                EPA identified additional
     developing cost estimates for permit                    rule for highway, street, bridge, and                 administrative costs to permit
     authorities, EPA estimated                              tunnel construction and any special                   authorities for incorporating the
     administrative costs to revise general                  implementation challenges that may be                 proposed requirements into appropriate
     permits to incorporate the effluent                     found by this sector.                                 general permits. EPA views the permit
     guidelines requirements.                                                                                      authorities (EPA regional offices and
        Using NRI and Census data, EPA                       A. Costs to the Construction and
                                                             Development Category                                  States) as the main implementors of
     estimates that the C&D category converts                                                                      effluent guidelines and NPDES
     approximately 2.2 million acres of land                    EPA used a model site approach to                  regulations. The Agency expects that
     from rural to urban use in the nation                   develop estimates of costs of the rule to             States will integrate the proposed
     each year. This is based on NRI data for                the C&D category. Using the data on                   requirements into their respective
     the years 1992 and 1997. Although the                   development trends within each
                                                                                                                   erosion and sediment control general
     use of NRI data is likely to overestimate               industry as a starting point, EPA
                                                                                                                   permits. However, many States rely on
     the amount of new acreage that is                       estimated a distribution of construction
                                                             site sizes for each of the four industries            local governments and quasi-
     actually developed (as opposed to just
                                                             based on census data and on data                      governmental agencies (e.g.,
     being included in the new urban land
     use base), EPA still chose to utilize NRI               collected during the NPDES Phase II                   conservation districts) as partners in
     data for the following reasons: (1) NRI                 rulemaking. The Phase II rulemaking                   implementing their ESC programs. EPA
     data provides a consistent and                          data identify distributions of site sizes             acknowledges that the administrative
     comprehensive picture of broad land                     within each industry based on                         costs it has estimated will likely be
     use changes for the United States; (2)                  construction permits issued in 14                     shared among a broader range of entities
     NRI data is presented at the watershed                  urbanizing municipalities. From this                  than just States. (See chapter 7 of the
     scale, allowing subsequent evaluation of                data, EPA was able to develop the                     Development Document for a more
     environmental impacts and benefits in a                 national distribution of construction                 detailed discussion of the
     consistent manner; and (3) NRI data                     activity by sector and size. Detailed                 administrative costs to permit
     allows evaluation of recent as well as                  results of this analysis can be found in              authorities.)
     historical land use changes, facilitating               Chapter four of the Development
                                                                                                                      In estimating the total costs to
     the estimation of trends.                               Document.
                                                                EPA developed a series of model                    administer today’s proposed effluent
        For all of the environmental and
                                                             construction sites for each of the size               guidelines requirements, EPA has built
     economic assessments prepared for
     today’s proposal, EPA elected to use a                  strata and identified erosion and                     on its earlier work related to the Phase
     single year’s developed acreage as the                  sediment control practices required                   II NPDES storm water rule (‘‘Economic
     basis for its estimations, and to present               under current State CGP baseline                      Analysis of the Final Phase II Storm
     all cost data on an annual basis. To help               conditions (i.e. compliance with current              Water Rule,’’ EPA–833–R–99–002,
     establish what trends exist in new                      NPDES regulations). The Agency                        October 1999) in order to estimate
     urbanizing areas, EPA evaluated                         identified costs of these controls using              incremental costs of effluent guidelines
     published sources to define what an                     unit cost references commonly used by                 implementation. EPA has also built on
     urbanized area contains in terms of                     the industry to estimate their                        regulatory program development costs
     various land uses, and used these land                  construction costs for bids (R.S. Means               identified in earlier effluent guidelines
     uses to apportion annual construction                   Co., Construction Cost Manual, 2000) as               (such as the proposed rule for
     activity into different industries based                well as data from the literature. EPA                 Concentrated Animal Feeding
     on developed land area. The Agency                      also added costs for design, O&M, as                  Operations, 66 FR 2960, January 12,
     formulated characteristics for four                     well as regional cost adjustments. EPA                2001) where they are similar in nature
     industries based on Census data: single-                then applied O&M costs, design costs,                 and scope. In estimating the baseline
     family housing construction, multi-                     and profit and overhead, using costs and              administrative costs, EPA has assumed
     family housing construction,                            frequencies based on standard industry                100 percent implementation of existing
     manufacturing and industrial building                   practice. Administrative costs for
                                                                                                                   Phase I and II NPDES storm water
     construction, and commercial and                        activities such as permit application and
                                                                                                                   regulations. Applications for permits for
     institutional building construction. A                  records retention were also estimated.
                                                                                                                   discharges of pollutants associated with
     breakdown of estimated construction                     Following development of regulatory
                                                             options, EPA estimated the increase in                construction activity disturbing at least
     acreage by sector can be found in
                                                             costs for erosion and sediment controls               one acre but less than five acres are not
     Chapter four of the Development
     Document.                                               due to factors such as increased sizing               required before March 10, 2003. Hence,
        EPA’s analysis indicates that between                (for BMPs such as sediment basins),                   although these permits are not required
     1999 and 2000 there were                                increased frequency of application (such              under Federal regulations at this time,
     approximately 42,000 acres of new                       as temporary seeding and mulching), as                they will be when EPA takes final action
     urban road and highway construction in                  well as increased administrative costs                on today’s proposal in 2004.

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     42666                            Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     XII. Economic Impact and Social Cost                                      addition to CWA requirements, EPA has                                      have been a significant and positive
     Analysis                                                                  followed OMB guidance on the                                               force in light of the economic factors
                                                                               preparation of the economic analyses for                                   impacting the economy. The most
     A. Introduction
                                                                               Federal regulations to comply with                                         recent data indicates consumer
        EPA’s Economic Analysis (see                                           Executive Order 12866. See section                                         spending for new homes remains strong.
     ‘‘Supporting Documentation’’) describes                                   XIX.D of today’s document.                                                    For the purposes of today’s proposed
     the impacts of today’s proposed rule in                                                                                                              rule, the Construction and Development
     terms of firm closures, employment                                        B. Description of Economic Activity
                                                                                                                                                          Category is comprised of industries that
     losses, and market changes, such as                                          The construction sector is a major                                      disturb land. The category contains
     housing prices. In addition, the report                                   component of the United States                                             business establishments 11 that are
     provides information on the impacts of                                    economy as measured by the gross                                           involved in building, developing and
     the proposal on sales and prices for                                      domestic product (GDP), a measure of                                       general contracting (NAICS 233) as well
     residential construction. The initial                                     the domestic output of goods and                                           as heavy construction (NAICS 234). As
     regulatory flexibility analysis (IRFA)                                    services produced in one year by the                                       a starting point, Table XII–1 shows the
     supports EPA’s compliance with the                                        U.S. economy. The construction sector                                      number of business establishments in
     Regulatory Flexibility Act (RFA), as                                      directly contributes about five percent                                    the C&D category in 1992 and 1997.
     amended by the Small Business                                             to the GDP. Moreover, one indicator of                                     Only a portion of these establishments
     Regulatory Enforcement Fairness Act                                       the economic performance in this                                           would be covered by the proposed
     (SBREFA). The report also presents                                        industry, housing starts, is also a                                        regulation, because some of these
     identified, quantified, and monetized                                     ‘‘leading economic indicator,’’ one of                                     establishments are house remodelers
     benefits of the proposal.                                                 the indicators of overall economic
        Today’s document includes related                                                                                                                 and others build on sites with less than
                                                                               performance for the U.S. economy.                                          one acre of disturbed land each year.
     sections such as the cost-effectiveness
                                                                               Several other economic indicators that                                     (The proposed rule would cover projects
     analysis in section XIII, benefits analysis
     in section XVI, and benefit-cost analysis                                 originate in the C&D industry include                                      one acre or more under Option 1, and
     in section XVII. In their entirety, these                                 construction spending, new home sales,                                     5 acres or more under Option 2 . See
     sections comprise the economic analysis                                   and home ownership.                                                        section IV, Scope of Proposal, in today’s
     (referred to collectively as the ‘‘C&D                                       During most of the 1990s, the                                           document.)
     economic analysis’’) for the proposed                                     construction sector experienced a                                             Table XII–1 shows a sharp decline in
     rule. EPA’s Environmental Assessment                                      period of relative prosperity along with                                   the number of developers between 1992
     provides the framework for the                                            the overall economy. Although cyclical,                                    and 1997. The decrease in the number
     monetized benefits analysis. See the                                      the number of housing starts increased                                     of developers may have been a response
     complete set of supporting documents                                      from about 1.2 million in 1990 to almost                                   to changes in tax laws and the Financial
     for additional information on the                                         1.6 million in 2000, with annual cycles                                    Institutions Reform, Recovery, and
     environmental impacts, social costs,                                      during this period. (U.S. Census Bureau,                                   Enforcement Act (FIRREA) of 1989
     economic impact analysis, and benefit                                     ‘‘Current Construction Reports, Series                                     (Public Law 101–73, August 9, 1989)
     analyses.                                                                 C20—Housing Starts,’’ 2000. http://                                        and the 1993 implementing regulations.
        The C&D economic analysis, covering                           At the                                          The objective of FIRREA and the
     subsectors that disturb land (NAICS 233                                   beginning of the 21st century, the                                         implementing regulations was to correct
     and 234), uses information from, and                                      economy has begun to slow relative to                                      events and policies that led to a high
     builds upon, the NPDES Phase II rule                                      previous highs in the 1990s. The United                                    rate of bankruptcies in the thrift
     economic analysis (op.cit.). In addition                                  States has been affected by global factors                                 industry in the late 1980s. The
     to building upon the work completed                                       and events, that have led to temporarily                                   regulations changed lending practices
     for the Phase II rule, the C&D economic                                   reduced consumer spending, but the                                         by financial institutions, requiring a
     analysis expands the Phase II economic                                    adverse impacts on the construction and                                    higher equity position for most projects,
     analysis with, among others, an                                           development industry appear modest at                                      with lower loan-to-value ratios, and
     environmental assessment, economic                                        this time. The Federal Reserve money                                       more documentation from developers
     achievability analysis, barrier-to-entry                                  market policies to keep interest rates                                     and builders. (Kone, ‘‘Land
     analysis, and benefit-cost analysis. In                                   low, particularly mortgage interest rates,                                 Development,’’ op. cit.)

                                                                                                                                                           1992              1997          Change
                      NAICS                                                                    Industry                                                   number            number        (percent)

     233, except 2331 ....................            Building, developing, and general contracting, except land                                             168,407           191,101           13.5
                                                        development and sub-development.
     2331 ........................................    Land development and sub-development ..............................                                     15,338              8,185        ¥46.6
     234 ..........................................   Heavy construction .................................................................                    37,180             42,557         14.5
     235 a ........................................   Special trade contracting ........................................................                      14,864             19,771         33.0

           Total .................................    .................................................................................................      235,789           261,617           11.0
        a Includes
                 NAICS 23593 (Excavation contractors) and 23594 (Wrecking and demolition contractors).
        Sources: 1992 and 1997 Census of Construction; Economic Analysis.

        11 The Census Bureau uses the term
                                                                               ‘‘Employer establishment’’ means an establishment
                                                                               with employees.
     ‘‘establishment’’ to mean a place of business.

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                                       Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                                                                           42667

        Building upon Table XII–1, Table XII–                                  Housing Starts Statistics,’’ op.cit.). Some                                     establishments that would be covered
     2 shows the number of establishments                                      of the sites built upon by these                                                after the adjustments that EPA has made
     that could potentially be covered under                                   establishments would be covered by                                              may also include subcontractors. Many,
     the C&D proposed regulation. From the                                     NPDES storm water permits if they are                                           if not most of these establishments also
     total of about 262,000 establishments in                                  located within a ‘‘common plan of                                               would not be covered by the proposed
     1997, EPA subtracted about 62,400                                         development’’ (i.e., a subdivision) that                                        rule, because they do not disturb land.
     establishments that are engaged in home                                   is at or above the regulatory threshold.                                        However, the Agency has insufficient
     remodeling, and would not be subject to                                   (This threshold is currently 5 acres                                            data to make any further adjustments to
     the proposed regulations. This estimate                                   under the Phase I rule, and will become                                         the population of developers and
     is based upon a study by the Harvard                                      1 acre under the Phase II rule in 2003.)
                                                                                                                                                               builders covered by the proposal. For
     University Joint Center for Housing                                       However, the Agency does not have
                                                                                                                                                               example, no adjustments have been
     Studies (‘‘Remodeling Homes for                                           information on the amount of houses
     Changing Households,’’ 2001). The                                         that are built within subdivisions, rather                                      made to account for establishments in
     elimination of remodelers is based on                                     than on discrete lots, by these                                                 the non-residential construction or
     the fact that remodeling and renovation                                   establishments. EPA requests comment                                            heavy construction industries that may
     activities generally disturb less than one                                on its methodology for removing                                                 disturb less than one acre of land. EPA
     acre of land, if any at all.                                              remodelers and firms that do not disturb                                        solicits comment on the Agency’s
        EPA also deducted 50,661                                               more than one acre of land from the                                             estimate of the number of
     establishments that build one to four                                     analysis.                                                                       establishments that would be covered
     houses. Given an average lot size of                                         Based upon these adjustments of the                                          under the proposal. For general
     about 0.3 acres per house, EPA assumes                                    total number of establishments, EPA                                             discussion, EPA will refer to the
     that a builder that builds between one                                    believes that about 150,000                                                     150,000 establishments as the covered
     and four houses per year is unlikely to                                   establishments would be covered under                                           population. As estimated from the data
     disturb one acre or more in a given year.                                 Option 1. Although it is likely that                                            sources available, the actual estimate is
     The estimate of the number of                                             fewer establishments would be covered                                           148,556 establishments. EPA requests
     establishments building one to four                                       under Option 2, EPA has not made                                                comment and any other information
     houses was based upon a study and                                         adjustments to account for                                                      available about the potentially covered
     report by the Census Bureau                                               establishments that do not disturb more                                         population.
     (‘‘Construction Sector Special Study                                      than five acres. The population of

                           NAICS                                                                            Industry sector                                                                            Percent of
                                                                                                                                                                                         Number          total

     2331 .................................................    Land development and subdivision ...........................................................                                    8,185             5.5
     23321 ...............................................     Single-family residential building construction ..........................................                                     31,615            21.3
     23322 ...............................................     Multi-family residential building construction .............................................                                    1,718             1.1
     2333 .................................................    Nonresidential construction .......................................................................                            44,710            30.1
     234 ...................................................   Heavy construction ....................................................................................                        42,557            28.7
     235 ...................................................   Special trade contracting ...........................................................................                          19,771            13.3

           Total ..........................................    ....................................................................................................................         148,556            100.0
        Source: Economic Analysis.

     C. Method for Estimating Economic                                         equilibrium that could occur as result of                                       EPA is making this report available
     Impacts                                                                   the proposed regulations. In theory,                                            along with today’s C&D effluent
       EPA has conducted economic impact                                       incremental compliance costs could                                              guidelines proposal.
     analyses to determine the economic                                        shift the market supply curve, lowering                                            For the technology-based construction
     achievability of each of the three co-                                    the supply of construction projects in                                          and development effluent guidelines,
     proposed options. An important                                            the market place. This would increase                                           EPA is required under Title III of the
     methodology used in the economic                                          the market price and lower the quantity                                         Clean Water Act to make a
     impact analysis is an assessment of how                                   of output, i.e., construction projects. If                                      determination about the available
     incremental costs would be shared by                                      the demand schedule remains                                                     technologies for BPT, BCT, BAT, and
     developers and home builders, home                                        unchanged, the new market equilibrium                                           NSPS. EPA is required by the Act to
     buyers, and society. This method is                                       would result in higher costs for housing                                        ensure that technologies selected as the
     called ‘‘cost pass-through’’ analysis or                                  and lower quantity of output. The                                               basis for BAT are economically
     CPT analysis. Details of this method                                      market analysis is an important                                                 achievable. EPA uses a different
     may be found in Chapter 4 of the                                          methodology for estimating the impacts                                          economic test for NSPS, a ‘‘barrier to
     Economic Analysis.                                                        of the provision proposed in today’s                                            entry’’ test. This test is typically applied
       The economic analysis for the C&D                                       document. The economic analysis also                                            to new sources or projects to determine
     proposal also uses another method                                         reflects comments in the October 2001                                           if the proposed regulation could pose a
     called partial equilibrium analysis that                                  final report from the Small Business                                            barrier to entry in terms of starting a
     builds upon analytical models of the                                      Advocacy Review (SBAR) Panel                                                    new project or business. The Agency
     marketplace. These models are used to                                     submitted to the EPA Administrator as                                           typically uses a methodology that
     estimate the changes in market                                            part of the requirements under SBREFA.                                          analyzes the incremental compliance

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     42668                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     costs of the rule in comparison to the                  developed model projects for four                     by EPA incorporate assumptions
     total assets required to start a new                    industries: single family residential;                concerning the costs and revenues
     project or business. If these costs are                 multi-family residential; commercial &                incurred at each stage. EPA has modeled
     excessive, then a barrier to entry could                institutional building; and                           all of the projects to reflect three
     be a problem for entrepreneurs                          manufacturing & industrial building.                  principal development stages:
     considering new business opportunities                  The models also included various                         (1) Land acquisition. The starting
     in the C&D category.                                    construction project site sizes: 1, 3, 7.5,           point is usually acquisition of a parcel
        EPA used several broad cost                          25, 70, and 200 acres. In total, EPA                  of land deemed suitable for the nature
     components to estimate the compliance                   developed 24 different model projects (4              and scale of development envisioned.
     costs in an engineering cost model (see                 types of development or land uses,                    The developer-builder puts together the
     the Technical Development Support                       multiplied by 6 project sizes) and used               necessary financing to purchase the
     Document): ‘‘hard’’ compliance costs                    these models to assess the impacts of                 parcel. When lenders are involved, they
     and ‘‘soft’’ compliance costs. Hard costs               the proposed regulations at the project               may require certain documentation,
     are the incremental construction costs                  level.                                                such as financial statements, tax returns,
     for controls such as sediment basins.                      Each model project is assumed to be                appraisals, proof of the developer’s
     Soft compliance costs are the                           undertaken in its entirety by a single                ability to obtain necessary zoning,
     incremental costs for planning, design,                 entity acting as both developer and                   evaluations of project location,
     permits, and engineering and legal                      builder. EPA recognizes that in practice              assessments of the capacity of existing
     services. Detailed information on the                   there may be several parties with a                   infrastructure, letters of intent from city/
     compliance costs is provided in the                     financial investment and role in a                    town to install infrastructure,
     Development Document.                                   particular land development and                       environmental approvals, etc. To satisfy
        EPA estimated the incremental                        construction project. For example, on                 these needs, the developer may incur
     compliance costs for the BMPs using an                  some projects a developer may acquire                 costs associated with compiling these
     engineering cost model that takes                       the land, conduct the initial engineering             data.
     account cost factors such as labor rates                and site assessments, and obtain the                     (2) Land development. The developer-
     and material costs. In most of the                      necessary approvals. The land may then                builder obtains all necessary site
     economic analyses described below,                      be sold to another developer or builder               approvals and prepares the site for the
     however, EPA has used weighted                          who will undertake the actual                         construction phase of the project. Costs
     average national costs obtained by                      construction work. Projects are also                  incurred during this stage are divided
     multiplying the regionalized costs by                   frequently undertaken by a consortium                 among ‘‘soft’’ costs for architectural and
     the share of total projects estimated to                of firms or individuals, through various              engineering services, legal work,
     take place within each region of the                    types of limited liability partnerships               permits, fees, and testing, and ‘‘hard’’
     country.                                                (LLP). While it is important to                       costs such as land clearing, installing
        EPA estimated both the incremental                   acknowledge this variation, for                       utilities and roads, and preparing
     compliance costs and the economic                       modeling purposes EPA has simplified                  foundations or pads. The result of this
     impacts of each proposed regulatory                     this aspect and assumed only a single                 phase is a legally subdivided parcel
     option at the project, establishment,                   entity is involved from beginning to                  with finished lots ready for
     firm, and industry (national) level. The                end, referred to below as a ‘‘developer-              construction.
     economic impact analysis considered                     builder.’’ EPA requests comment about                    (3) Construction. The developer-
     impacts on both the firms in the C&D                    this economic modeling approach.                      builder undertakes the actual
     industry, and on consumers who                             The model projects reflect the range of            construction of the housing units. A
     purchase the homes, and buy or rent                     development type and project scale seen               substantial portion of this work may be
     industrial buildings and commercial                     in actual industry practice. The model                subcontracted out to specialty
     and office space. In the case of public                 project characteristics were developed                subcontractors (foundation, framing,
     works projects, such as roads, schools,                 from the statistical data described in                roofing, plumbing, electrical, painting,
     and libraries, the economic impacts                     section V of today’s document,                        etc.). Marketing a development
     would accrue to the final consumers,                    information distilled from academic                   generally begins prior to the start of this
     who, in most circumstances, are the                     literature and industry publications, and             phase, hence the developer-builder may
     taxpaying residents of the community.                   information provided to EPA in                        also incur some marketing costs at this
     The sections below describe each                        meetings with industry representatives.               time. Housing units may come under
     modeling effort in turn. Detailed                       The model projects account for all of the             agreement at any time prior to, during,
     information on the data, models,                        steps in a typical land development                   or after completion of construction.
     methods, and results of the economic                    project.                                              Marketing costs are part of the baseline
     impact analyses are available in the                       Although EPA has developed regional                costs. EPA determined that no
     Economic Analysis.                                      compliance costs, there were                          incremental marketing costs would be
                                                             insufficient data available to develop                imposed by today’s proposed rule.
     1. Model Project Analysis                               model projects reflective of specific                    EPA developed estimates of the
        EPA estimated project-level costs and                geographic zones or real estate markets.              project-specific costs and revenues at
     impacts for a series of model projects.                 For this reason, EPA applied weighted                 each stage of project development in the
     The models establish the baseline                       average national costs to these models.               baseline scenario. The result is a cash
     economic and financial conditions for                   The Agency obtained some of the model                 flow analysis of the costs and revenues
     model projects and assess the                           project parameters from home builders                 associated with the project. The general
     significance of the change in cash flow                 and developers in the mid-west region,                approach used in establishing the
     that results from the incremental                       so to some extent the model projects                  baseline scenario is to assume normal
     compliance costs. EPA used the model                    may be more reflective of conditions in               returns on invested capital and normal
     project analysis to indicate whether                    this general market area.                             operating profit margins to arrive at the
     typical projects affected by the proposed                  Land development and construction                  sales price for the final product (for
     regulations would be vulnerable to                      typically occurs in a series of stages or             example, completed new single-family
     abandonment or closure. The Agency                      phases. The model projects developed                  homes in a residential development).

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                               42669

        EPA analyzed the impact of today’s                   models for residential construction                      potential economic impacts on this
     proposed rule by adding in the                          firms are based on data from the special                 industry.
     regulatory costs at the appropriate stage               Census report on the homebuilding                           To determine the annual compliance
     of the project life cycle. The regulatory               industry. This source provides the                       costs incurred by commercial and
     cost impacts on the model projects were                 average value of construction, average                   industrial construction firms, EPA first
     analyzed under two alternative                          employment, and average number of                        divided the total estimated number of
     assumptions concerning cost pass-                       housing starts for firms in various                      construction starts by the number of
     through. In the first scenario, EPA                     housing start classes. Within each                       establishments to obtain the average
     assumed that the developer-builder can                  housing starts size class, EPA                           number of starts per establishment. To
     pass through all of the incremental                     constructed balance sheets and income                    estimate the average number of acres per
     compliance costs associated with                        statements by scaling published Dun                      start, the Agency reviewed industry cost
     meeting the proposed regulations to the                 and Bradstreet (D&B) data presented for                  data (R.S. Means, 2000. ‘‘Building
     final customer (e.g., the new home                      ‘‘median’’ firms (‘‘1999—2000 Industry                   Construction Cost Data, 58th Annual
     buyer, consumers of public                              Norms and Key Business Ratios,’’ Dun                     Edition,’’ Kingston, MA) for
     transportation services). Under this                    and Bradstreet, 2000).12 The basic                       representative projects. EPA estimated
     scenario, all costs are assumed to be                   approach was to calculate the ratio of                   an average of three acres per start, and
     borne by the customer in the form of                    key components of the balance sheet                      then used this average to calculate the
     higher prices for completed                             and income statement to net sales, and                   average number of acres developed per
     construction. In the second approach,                   then scale the value of these                            establishment. The number of acres
     EPA assumed that the builder-developer                  components to the size of the model                      developed per establishment was then
     can not pass through cost increases to                  firm. For the commercial and industrial                  multiplied by the regulatory costs per
     the buyer and therefore realizes a                      building construction industries, EPA                    acre to obtain the annual regulatory
     reduced profit on the project. In general,              scaled the balance sheet and income                      costs incurred per establishment. As
     EPA believes that builders do pass                      statement elements according to                          noted above, EPA examined the impact
     through regulatory costs to customers,                  differences between incomes for these                    of these costs by examining changes in
     and this is supported by the academic                   C&D industries reported by the Census                    financial ratios for the median-sized
     literature and industry publications.                   Bureau and median incomes reported                       firm. To do this, EPA scaled the
     The analysis simulates the results under                among firms sampled by D&B. EPA                          financial data for the median firm
     two extremes in which consumers or                      analyzed one model firm for these                        drawn from the D&B data to the Census
     industry absorb all of the cost impacts.                industries since comparable data by                      median firm, using the median income
        EPA notes that under certain                         starts size class were not available.                    from each source as the scaling factor.
     conditions developers might also                           To determine the annual compliance                    EPA requests comment on the extent to
     attempt to pass regulatory costs back to                costs incurred by model residential                      which basing the analysis on the
     land sellers. For example, in a                         construction firms, EPA converted the                    median-sized firm will appropriately
     depressed market builders may argue                     costs per acre to costs per housing start                capture impacts on smaller or larger
     successfully that a regulatory cost                     using estimates of the average lot size                  firms.
     increase would make a particular                        for new home construction, and then                      3. Housing Market Impacts
     project unprofitable unless the land                    multiplied these costs by the number of
     costs can be reduced. If the land seller                housing units started. EPA was then                         EPA also developed models to assess
     is convinced that a residential                         able to assess the impact of the annual                  the potential impacts of the regulations
     subdivision project would not proceed,                  compliance costs on key business ratios                  on the national housing market. To
     they may be willing to accept a lower                   and other financial indicators.                          analyze the impacts of compliance costs
     price for raw land. The ability of                      Specifically, EPA examined impacts on                    on housing affordability, EPA estimated
     developers to pass such costs back                      the following measures: (1) the Gross                    the level of income that would be
     would likely depend on the                              Profit, (2) Current Ratio, (3) Debt to                   necessary to purchase the average
     sophistication of the land owner, their                 Equity Ratio, and (4) Return on Net                      priced new home without the proposed
     experience in land development                          Worth. Industry publications cite these                  regulation, and the change in income
     projects, knowledge of the local real                   financial ratios as particularly relevant                needed to purchase the average priced
     estate market, and, in particular, their                to the construction industry (Kone,                      new home under each of the proposed
     understanding of the regulations and                    ‘‘Land Development,’’ op.cit.; M.                        regulatory options. The Agency then
     their likely cost. While evidence of cost               Benshoof, ‘‘An Inside Look at Builders’’                 used income distribution data to
     pass-back to land owners exists for fixed               Books,’’ Housing Economics, National                     estimate the change in the number of
     and readily identifiable regulatory costs               Association of Home Builders,                            households that would qualify to
     such as development impact fees, it is                  Washington, DC, 2001). Two of the                        purchase the average priced new home
     unclear whether a builder’s claim that                  ratios examined are based on operating                   under each of the regulatory options. In
     costs would be higher due to                            income (gross profit, return on net                      this way, EPA was able to determine the
     construction site control regulations                   worth), and two are based on the                         number of households that may be
     would induce land owners to make                        balance sheet statement (current ratio,                  priced out of the new housing market,
     concessions. EPA requests comment on                    debt to equity). The impacts of the                      assuming that all prospective buyers
     the likely success of developers                        compliance costs were examined by                        were targeting the averaged priced new
     attempting to pass regulatory costs for                 calculating the values of each ratio with                home. The results of this analysis may
     incremental storm water controls back                   and without the compliance costs. For                    be found in the Economic Analysis.
     to land owners.                                         this analysis, EPA assumed zero cost                     4. Impacts on the National Economy
     2. Model Firm Analysis                                  pass-through, which is a worst-case
                                                                                                                         The market model generates an
                                                             scenario in terms of describing the
        EPA analyzed the impacts of the                                                                               estimate of the change in the total value
     regulations at the level of the firm by                   12 The D&B data are based on a sample of firms         of construction produced by the
     building financial models of                            with response ratios that are greater for larger firms   industry, i.e., industry output. Two
     representative construction firms. The                  than for small firms.                                    effects of the regulation are acting on the

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     42670                            Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     market value of construction output.                                    whole U.S. economy will respond. EPA                         the firm). However, EPA’s review of the
     First, the cost of construction increases,                              has applied the multipliers from the                         academic literature and its discussions
     leading to a price rise and an increase                                 Regional Input-Output Modeling                               with industry officials indicate that
     in market value of final projects.                                      System, version 2 (RIMS II) to the                           most, if not all costs, are passed through
     Second, the quantity of houses sold is                                  change in output estimated from the                          to the final consumer and are not
     reduced because of the higher price due                                 market model to estimate the impacts on                      absorbed by firms in the industry.
     to compliance costs. The net effect on                                  national output and employment.                                 The firm is the responsible entity for
     market value may be either positive or                                                                                               the installation of ESC BMPs and is the
     negative, depending on whether the                                      D. Results                                                   entity responsible for managing
     elasticity of demand for housing is less                                1. Firm-Level Impacts                                        financial and economic information.
     than or greater than 1. There are also                                                                                               Moreover, the firm is responsible for
     secondary impacts in other markets,                                       EPA has estimated the economic                             maintaining and monitoring financial
     caused by the shift in consumer                                         impacts of the proposal at the firm level                    accounts. For the C&D category, most of
     spending, necessitated by the increased                                 by estimating the number of firm                             the business establishments, as defined
     housing costs, from other goods to                                      closures, the number of lost jobs, and                       by the Census Bureau, are firms. A small
     housing.                                                                the decrease in firms’ profits. The                          number of establishments are entities
       As these changes pass through the                                     economic impact analysis at the firm                         within a larger firm. A small percentage
     economy, they generate shifts in                                        level assumes that none of the                               of firms have multiple establishments
     production and employment. The U.S.                                     incremental costs would be passed                            and some firms are regional or national
     Department of Commerce uses input-                                      through to the final consumer, i.e., zero                    in scope.
     output techniques to derive                                             cost pass-through. The Agency used this                         Table XII–3 presents one economic
     ‘‘multipliers’’ which indicate, for a                                   assumption for the economic impact                           indicator, firm closures, by regulatory
     given change in one industry’s output,                                  analysis, because it presents the worst-                     options and by industry (e.g., Multi-
     how output and employment in the                                        case scenario (i.e., the largest impacts to                  family Residential).

                                                                                  (Number of firms, percent of total firms)

                                                                                                                Single-Family       Multi-family res-    Commercial         Manufacturing
                                                    Option                                                       Residential            idential        and institutional   and industrial
                                                                                                                    (#/%)                 (#/%)              (#/%)             (#/%)

     1. Self-inspection, certification, 1 acre or more .......................................                           4/0.01               1/0.02             11/0.03             2/0.03
     2. Codification, self-inspection, certification, 5 acres or more .................                                 13/0.02               3/0.07             43/0.11             7/0.09
     3. No regulation .......................................................................................            0/0                  0/0                 0/0                0/0
        Source: Economic Analysis.
         EPA also estimated the number of potential jobs that could be lost as a result of the proposal. Table XII–4 provides
     the number of potential job losses by option and by industry.

                                                                                       [Number of jobs, percent of jobs]

                                                                                                                Single-Family         Multi-Family        Commercial        Manufacturing
                                                    Option                                                       Residential          Residential       and Institutional   and Industrial
                                                                                                                    (#/%)                (#/%)               (#/%)              (#/%)

     1. Self-inspection, certification; 1 acre or more .......................................                          34/0.01              12/0.03           162/0.03            43/0.03
     2. Codification, self-inspection, certification; 5 acres or more .................                                145/0.04              61/0.17           604/0.11           133/0.09
     3. No regulation .......................................................................................            0/0                  0/0                0/0                0/0
        Source: Economic Analysis.
         EPA also estimated potential decreases in firms’ profits. These results are presented in Table XII–5 by regulatory
     options and by industry. The potential changes in profits are in the range of a decrease in profits of one percent
     or less.

                                                                                                 [Percent of profits]

                                                                                                                 Single family        Multi-family         Commercial         Industrial
                                                    Option                                                           (%)                  (%)                 (%)                (%)

     1. Self-inspection, certification; 1 acre or more .......................................                              -0.23              -0.31               -0.17              -0.14
     2. Codification, self-inspection, certification; 5 acres or more .................                                     -0.52              -0.95               -0.40              -0.32
     3. No regulation .......................................................................................                0                  0                   0                  0
        Source: Economic Analysis.

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                                   42671

       For additional information on EPA’s                   public hearings, and public notifications                     construction and development related
     analysis of the change in financial                     as appropriate. These incremental                             goods and services. A significant
     position, see Chapters 4 and 5 of the                   program elements may be in place and                          component of the U.S. construction and
     Economic Analysis for the methodology                   may not be needed by all States or local                      development category operates
     and analysis on estimating firm-level                   governments.                                                  internationally, and, in addition,
     impacts.                                                                                                              numerous foreign firms that participate
                                                             TABLE XII–6.—ANNUALIZED ONE-TIME                              in this category also operate in the U.S.
     2. Impacts on Governments
                                                               INCREMENTAL COSTS TO STATE AND                              EPA judged that the potential for U.S.
        EPA has analyzed the impacts of                                                                                    construction and development firms to
                                                               LOCAL GOVERNMENTS FOR ESTAB-
     today’s proposed rule on government                                                                                   be differentially affected by the
                                                               LISHING OR MODIFYING CONSTRUC-
     entities. This analysis includes both the                                                                             proposed rule is negligible. The
     cost to governments for compliance at                     TION STORM WATER MANAGEMENT
                                                                                                                           proposed rule will be implemented at
     government-owned construction project                     PROGRAMS                                                    the project level, not the firm level, and
     sites (construction-related) and                                                                                      will affect projects within the U.S. only.
     government costs associated with                                                                          Total
                                                                     Program element                       (year 2000 $    All firms undertaking such projects,
     implementation of storm water                                                                            million)     domestic or foreign, will be subject to
     programs (administration costs). For                                                                                  the proposed rule. U.S. firms doing
     construction-related costs EPA assumed                  General permit development                             0.30   business outside the U.S. will not be
     that 100 percent of the incremental                     Program administration ........                        0.15   differentially affected compared to
     compliance costs that contractors incur                 Education and information                                     foreign firms, nor will foreign firms
     at government-owned construction sites                    distribution .........................               0.01   doing business in the U.S.
     are passed through to the government.                   Public hearings .....................                  0.07
                                                                                                                              The proposed rule could theoretically
     Under this assumption EPA estimates                     Quarterly public notification ..                       5.80
                                                                                                                           stimulate or depress demand for some
     the following impacts:                                        Total ...............................            6.33   construction-related goods. To the
        • Under Option 1, EPA estimates that                                                                               extent that the proposed rule acts to
     State and local governments would                          The detailed analysis is available in                      depress the overall construction market,
     incur about $12 million in annual costs                 its entirety in the Economic Analysis.                        demand for conventional construction-
     and the private sector would incur                                                                                    related products may decline. This
     about $114 million in annual costs. Of                  3. Community-Level Impacts                                    decline may be offset by purchase of
     the $12 million in annual costs to State                   EPA has estimated community-level                          goods and services related to erosion
     and local governments, about $2 million                 impacts based upon the incremental                            and sediment control. Overall, EPA does
     would be incurred by small government                   costs of the proposal at the household                        not anticipate that any shifts in demand
     entities, less than 50,000 population,                  level. The household impacts are those                        for such goods and services resulting
     and about $10 million annually would                    that would affect local communities in                        from the proposal would have a
     be incurred by large government                         terms of the costs of housing. EPA’s                          significant implication for U.S. and
     entities, greater than 50,000 population.               analysis considers the impacts on the                         foreign trade.
        • Under Option 2, about $50 million                  price of housing based on the increase/
     of annual incremental costs would                                                                                5. Impacts on New Facilities
                                                             decrease in the average price per house.
     accrue to State and local governments.                  Table XII–7 shows the change by                             EPA has conducted an analysis to
        • Of the $50 million in costs accruing               selected option in the price per house.                  assess the impacts on new firms that
     to State and local government agencies,                                                                          choose to enter the C&D category. This
     about $5 million per year would be                        TABLE XII–7.—CHANGE IN HOUSING                         analysis uses a method called ‘‘barrier to
     incurred by small government agencies,                      PRICES FOR SELECTED OPTIONS                          entry’’ analysis. EPA examined the ratio
     communities with less than 50,000                                                                                of compliance costs to current and total
                                                                     [100 Percent cost pass-through]                  assets to determine if new market
     population, and about $45 million
     would accrue to large communities,                                                                               entrants could find it more difficult to
                                                                                                      Average price
     those with more than 50,000                                                                       increase per   obtain construction loans to start a
     population.                                                          Option                                      project than would existing firms. The
        A subsidy or other complementary                                                              (year 2000 $) Economic Analysis provides more
     financing of these projects with Federal                                                                         complete information on the barrier to
     or State grants or revolving funds could                1. Self-inspection, certifi-                             entry analysis. As discussed in more
                                                               cation; 1 acre or more ......                      18
     reduce the direct impact on local                                                                                detail in the Economic Analysis, this
                                                             2. Codification, self-inspec-
     taxpayers.                                                tion, certification; 5 acres                           methodology is conservative, because it
        For administration costs, the analysis                 or more ..............................             97 doesn’t account for the fact that a firm
     is based upon two elements for                          3. No regulation ....................                  0 would typically be expected to finance
     construction storm water programs: (1)                                                                           20 percent of the incremental
     Incremental costs to establish or modify                  Source: Economic Analysis.                             compliance costs from their own
     programs, and (2) incremental costs to                     The price increase per house that may financial resource to obtain the loan—
     implement the proposed options. Table                   be attributable to the proposal compared not the full amount as assumed here. In
     XII–6 provides information on the costs                 to the average price of a new house in                   addition, existing firms would more
     to establish or modify construction                     the U.S., currently about $250,900, is                   than likely need to meet the same
     storm water programs. The program                       very small. For these costs, the average                 requirement, and therefore would not
     elements to establish the proposed                      monthly mortgage payment would                           obtain a competitive advantage over
     options may include, among other                        increase by less than $5.00 per month.                   new entrants.
     program needs, those needed to revise                                                                               From the barrier to entry analysis,
     State general permits. In addition, the                 4. Foreign Trade Impacts                                 annual incremental compliance costs
     States, and to some extent local                           As part of its economic analysis, EPA                 under Option 2 would comprise a
     governments, may need to provide basic                  has evaluated the potential for changes                  maximum of 0.82 percent of the current
     program administration, education,                      in U.S. trade (imports, exports) of                      assets for the Multi-Family Residential

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     42672                            Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     Building Industry. For the Commercial                                   and permitting costs; (2) O&M costs; (3)                         purposes of assessing the economic
     and Institutional Building and                                          government costs; and (4) deadweight                             impacts of today’s rule on small entities,
     Manufacturing and Industrial Building                                   loss. When summed, these four cost                               ‘‘small entity’’ is defined by SBA size
     Industries, incremental compliance                                      categories comprise the total social costs                       standards for small businesses and RFA
     costs comprise less than 0.5 percent of                                 for each option.                                                 default definitions for small
     current assets. For the Single Family                                     For Option 2 (codify CGP, self-                                governmental jurisdictions. The small
     Housing Industry, incremental costs                                     inspection, certification, 5 acres or                            entities regulated by this proposed rule
     comprise less than 0.2 percent of                                       more), the total social costs of the                             are small land developers, small
     current assets. These costs are small as                                proposal are about $505 million                                  residential construction firms, small
     a percent of current assets. EPA believes                               annually (year 2000 $). EPA has                                  commercial, institutional, industrial and
     that these costs pose no significant                                    conducted a social cost analysis for each                        manufacturing building firms, and small
     barrier to entry for potential businesses                               option. The Economic Analysis                                    heavy construction firms.
     and projects.                                                           provides the complete social cost                                   Table XII–8 shows the impacts of the
                                                                             analysis for the proposed regulation.                            proposal using the one percent and
     6. Social Costs
                                                                                                                                              three percent revenue tests, a method
                                                                             7. Small Business Impacts
       EPA’s analysis of social costs for                                                                                                     used by EPA to estimate the impacts on
     Option 2 contains four costs                                              Section XIX.C of today’s document                              small businesses. The table presents the
     components: (1) installation, design,                                   provides EPA’s SBREFA analysis. For                              results for the proposed options.

                                                 COST PASS-THROUGH
                                                                                                                                 1% Revenue test                       3% Revenue test
                                                      Option                                                             Number of       Percent of small        Number of      Percent of small
                                                                                                                         small firms          firms              small firms         firms

     Self-inspection and certification; 1 acre or more .........................................                                   126                 <0.01               42             <0.01
     Codify CGP, self inspection, certification; 5 acres or more ........................                                          428                  0.07              140             <0.01
     No regulation ...............................................................................................                   0                  0                   0              0
        Source: Economic Analysis.

     XIII. Cost-Effectiveness Analysis                                       proposed options (including the ‘‘no                             substantial degree during land
        EPA has conducted a cost-                                            change’’ option), would significantly                            disturbance.
     reasonableness analysis that indicates                                  alter the use of heavy equipment at
                                                                                                                                              D. By-Products From BMPs
     that the cost of this proposal for option                               construction sites, nor the manner in
                                                                             which construction sites are prepared.                              EPA projects that by-products from
     2 is about $0.01 per pound for TSS. EPA
                                                                             Accordingly, the levels of exhaust                               BMPs used during the construction
     customarily performs a cost-
                                                                             emissions from diesel-powered heavy                              phase as a result of today’s rule would
     effectiveness (C–E) analysis using toxic-
                                                                             construction equipment and fugitive                              not substantially change the pollutant
     pound equivalents. The pollutant
                                                                             dust emissions generated by                                      types or quantities generated. Pollutant
     removal calculations in today’s
                                                                             construction activities would not                                sources during the construction phase
     proposed rule are all based on TSS, a
                                                                             change substantially from current                                are primarily characterized by sediment
     conventional pollutant. The Agency
                                                                             conditions.                                                      from the in-place soils (trapping and
     does not have a methodology for
                                                                                                                                              ultimate removal or repositioning on the
     converting TSS to toxic pound                                           B. Solid Waste                                                   site), various constituents in excess
     equivalents for a C–E analysis.
                                                                                Generation of solid waste would not                           concrete slurry and wash water (these
     XIV. Non-Water Quality Environmental                                    be substantially affected regardless of                          include high pH and solids, such as
     Impacts                                                                 the option selected because the majority                         sand and the fine particulate matter that
                                                                             of solid waste generated at construction                         comprise cement), and the possible
       Under sections 304(b) and 306 of the
                                                                             activities derives from wastage of                               residual effects from soil amendments
     CWA, EPA is to consider the ‘‘non water
                                                                             materials brought onto and used at                               such as polyacrylamide (PAM).
     quality’’ environmental impacts when
     setting effluent limitation guidelines                                  construction sites. Likewise, for                                XV. Environmental Assessment
     and standards. EPA used various                                         redevelopment projects, the amount of
                                                                             solid waste generated, while greater                             A. Introduction
     methods to estimate the NWQI for each
     of the options considered for today’s                                   than the amounts generated at new                                   In its Environmental Assessment (see
     proposed rule. For the purposes of                                      developments, would not vary                                     ‘‘Supporting Documentation’’), EPA
     today’s proposal, the Agency interprets                                 regardless of the option selected                                evaluated environmental impacts
     the term ‘‘non water quality’’ impacts to                               (including the ‘‘no change’’ option).                            associated with the discharge of storm
     mean environmental impacts other than                                   C. Energy Usage                                                  water from construction activities.
     those related to surface water quality,                                                                                                  Construction and land development
     and therefore is including groundwater                                    The consumption of energy as a result                          activities can generate a broad range of
     impacts in this section.                                                of today’s proposed rule is not expected                         environmental impacts by introducing
                                                                             to be measurably affected regardless of                          new sources of contamination and by
     A. Air Pollution                                                        the option selected because the                                  altering the physical characteristics of
       EPA estimates that today’s proposed                                   operations that currently consume                                the affected land area. In particular,
     rule would have no measurable effect on                                 energy (both direct fossil fuel use and                          these activities can result in both short-
     air pollution because none of the                                       electricity) will not be changing to any                         and long-term adverse impacts to

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                          42673

     surface water quality in streams, rivers,               flows, elevation of water temperature,                engineering expertise that the additional
     and lakes within the affected watershed                 and loss of fish spawning access due to               site inspection and certification
     by increasing the loads of various                      new road crossings.                                   provisions would reduce this national
     pollutants in receiving water bodies,                      The Agency was able to assess only a               loading estimate by approximately 5 to
     including sediments, metals,                            subset of all of the potential                        15 percent (a midpoint estimate of this
     polynuclear-aromatic hydrocarbons                       environmental impacts of storm water                  range was used for calculating benefits)
     (PAHs), oil, grease, pathogens, and                     discharges from construction sites.                   over the reductions attributable to
     nutrients. Groundwater can also be                      Construction activities generate initial              existing requirements. For option 2,
     adversely affected through diminished                   environmental impacts on each acre of                 EPA estimated based on its experience
     recharge capacity. Other potential                      land as the land is converted from an                 and engineering expertise that the
     impacts may include the physical                        undeveloped state (e.g., forest or rural              additional site inspection and
     alteration of existing streams and rivers               land) to a developed condition. In                    certification provisions along with the
     due to excessive flow and velocity of                   addition, environmental impacts                       technology requirements would reduce
     storm water runoff. The 1998 National                   continue long after construction                      this national loading estimate by
     Water Quality Inventory identifies                      activities are completed because                      approximately 25 percent over the
     siltation as one of the leading pollutants              developed lands are permanently and                   reductions attributable to existing
     contributing to impairments in assessed                 hydrologically altered from their pre-                requirements. EPA then further
     stream miles, and lists urban runoff and                developed state. Hydrologic changes                   subdivided these loading estimated into
     hydrologic modification as two of the                   result from alterations in storm water                two size categories, turbidity and
     leading sources of impairments.                         discharge patterns and characteristics                settleable solids, in order to estimate
        Sediment is an important and                         that can lead to ongoing environmental                specific benefits estimates using
     ubiquitous constituent in urban storm                   damages.                                              appropriate indicators. EPA estimated
     water runoff. Surface runoff and                           In its analysis of the options                     based on its experience and engineering
     raindrops detach soil from the land                     contained in this proposal, EPA only                  expertise that the sediment discharged
     surface, and this often results in                      considered the benefits that result from              would be comprised of 80 percent
     sediment transport into streams.                        reductions in sediment discharges that                particles as settleable solids and 20
     Sediment can be divided into three                      occur while land is disturbed due to                  percent of particles as turbidity, by
     distinct subgroups: turbidity, suspended                implementation of erosion and sediment                mass. The settleable solids loads are
     solids, and dissolved solids. Total                     controls and conducting site inspections              used to calculate monetized benefits for
     suspended solids (TSS) are a measure of                 and certifications. The Agency limited                water storage capacity and navigational
     the suspended material in water. The                    its analysis to this category of impacts              dredging. The turbidity producing
     measurement of TSS in urban storm                       primarily because some environmental                  solids loads are used to calculate
     water allows for estimation of sediment                 impacts are difficult to correlate with a             monetized benefits for water treatment.
     transport, which can have significant                   specific industry activity and/or assess              The annual loads were reduced to
     effects locally and in downstream                       on a national basis due to the wide                   reflect states with equivalent programs
     receiving waters. Turbidity is a function               variety of pollutants and sources of                  for Option 1 and Option 2. The
     of the suspended solids and is a                        impairment present in a water body.                   supporting documents discusses in
     measure of the ability of light to                      The technical tools and analytical                    detail this analysis.
     penetrate the water. Turbidity can                      approaches available simply do not lend                  EPA solicits data and comments on
     exhibit control over biological                         themselves to isolating impacts                       this approach, as well as the merits of
     functions, such as the ability of                       attributable to this industry from other              conducting a more detailed analysis that
     submerged aquatic vegetation to receive                 sources.                                              estimates actual BMP efficiencies and
     light and the ability of fish to breathe                   For this analysis, EPA first analyzed              associated national loadings reductions.
     dissolved oxygen through their gills.                   loadings that would occur nationwide                  EPA also solicits data and comments on
     Total dissolved solids are a measure of                 in the absence of any erosion and                     conducting an analysis that incorporates
     the dissolved constituents in water and                 sediment control requirements. EPA                    other pollutant indicators, such as
     are a primary indication of the purity of               built on an earlier analysis developed                nutrients, metals and any additional
     drinking water.                                         for the Phase II rulemaking and                       pollutants that would be attached to
        Using total suspended solids (TSS) as                described in the Phase II economic                    sediments or contained in runoff
     an indicator pollutant, EPA quantified                  analysis (op. cit.). This analysis                    discharged from construction sites.
     the impacts of construction site storm                  estimated sediment discharged from a
                                                             variety of ‘‘model construction sites’’               C. Potential Loading Reductions of
     water discharges on water quality. As
                                                             incorporating various site characteristics            Proposed Options
     detailed in the economic assessment
     and described in section XII of today’s                 (3 soil erodibility levels with 5 slopes in              EPA used TSS as the primary
     document, economic benefits were                        15 climatic regions). From this model                 indicator to evaluate loadings
     estimated to the extent reductions in                   site analysis, EPA was able to estimate               reductions and to determine potential
     water quality impacts could be                          that the total sediment discharged from               water quality benefits of the proposed
     attributed to implementation of the                     construction sites nationwide in the                  options. Reductions in TSS from
     proposed rule.                                          absence of any controls would be about                construction sites would arise from
                                                             90 million tons per year. EPA did not                 greater oversight of construction
     B. Methodology for Estimating                           calculate the total reduction in this                 activities and better implementation of
     Environmental Impacts and Pollutant                     loading that is expected to occur                     BMPs (Options 1 and 2), as well as more
     Reductions                                              following implementation of existing                  efficient BMPs in certain cases (Option
        For purposes of the environmental                    Federal, State and local requirements                 2). The estimated reductions due to
     assessment, EPA is using the term                       (the baseline condition), but rather                  implementation of EPA’s proposed
     ‘‘impact’’ broadly to refer to negative                 estimated the expected incremental                    Option 1 would be an annual reduction
     conditions related to elevated                          reduction that would result from the                  of 1.05 million tons of turbidity
     concentrations of pollutants, physical                  proposed options. For option 1, EPA                   producing solids per year and a
     destruction of habitat by excessive                     estimated based on its experience and                 reduction of 4.2 million tons of

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     settleable solids per year. The estimated               not analyze construction impacts in the               controls and construction sites can also
     reductions due to Option 2 would be 2.2                 following areas: (1) Habitat/biology, (2)             reduce these costs.
     million tons of turbidity producing                     stream temperatures, (3) flow and                       Reduced costs for water treatment,
     solids per year and a reduction of 8.9                  velocity, (4) conventional pollutants and             water storage, and navigational dredging
     million tons of settleable solids per year.             pollutant loadings, (5) human health,                 are three benefit categories that EPA is
     EPA expects that the potential for                      and (6) groundwater. EPA believes that                using to estimate the benefits of the
     considerable benefits from today’s                      these benefit categories may have                     proposed rule. The Agency believes that
     proposal exists due to decreases in                     substantial benefits. However, the                    there are many more benefits to this
     sediment discharges to water bodies.                    Agency has chosen not to analyze these                rule, but the state-of-the-art of benefit
     EPA solicits data and comments that                     benefits at this time for the proposed                analysis does not provide the tools at
     can provide information on the extent of                options because EPA is unable to                      this point to quantify and monetize
     impairments that are caused by the                      quantify and/or monetize them. EPA                    them. For example, habitat preservation
     construction and land development                       solicits comments on appropriate                      and protection is not easily quantified
     industries, and methods of quantifying                  methods to quantify these benefits                    and estimated for benefits analysis.
     the benefits of today’s proposal.                       categories.                                           However, we know that people value
     XVI. Benefit Analysis                                                                                         habitat protection, because they are
                                                             B. Quantification of Benefits
                                                                                                                   spending funds to repair streams for
       EPA has identified, quantified and                       TSS discharged from construction                   habitat preservation and protection.
     monetized certain benefits attributable                 sites have a substantial and adverse                    EPA has formulated a numeric
     to the construction co-proposal options                 impact on downstream property owners.                 estimate of the benefits of the proposed
     in today’s document. For some benefits,                 The TSS is suspended in the water                     options by determining the reduction in
     EPA has identified benefits categories,                 column that may serve as a source of                  the amount of sediment discharged from
     but is unable to quantify and/or                        drinking water for a community or                     construction sites and in turn
     monetize them at this time. Section XV,                 municipal water system. When influent                 quantifying certain environmental
     Environmental Assessment, established                   for drinking water supplies is                        benefits. In particular, the amount of
     the analytical framework for the benefits               contaminated with TSS, the system                     sediment reduced is the primary
     analysis.                                               would likely need to treat the water to               variable in the benefits analysis.
     A. Benefits Categories Estimated                        remove the TSS and provide additional                   EPA identified three potential
        As discussed in section XV, EPA has                  disinfection before distribution to                   economic methods to monetize the
     chosen TSS as the most appropriate                      system customers. These costs will lead               benefits: (1) Avoided damages, (2)
     environmental indicator for the analysis                to rate increases for drinking water                  contingent evaluation, (3) hedonic
     of environmental impacts and benefits                   system customers. Thus, the upstream                  assessments of property values. The
     analysis. The primary environmental                     actions of the construction activity                  Economic Analysis provides the details
     indicator selected was sediment                         impose both direct costs (e.g., higher                of these methods. The method that the
     entering waterways. The Agency used a                   treatment costs for utility operators) and            Agency used initially to monetize
     simplified approach for the                             indirect costs (e.g., higher water bills for          benefits is the method of avoided
     environmental assessment, because                       system customers). These costs could be               damages. EPA recognizes that avoided
     monitoring representative sites for a                   reduced by controlling construction site              damages is not the preferred approach
     cross-section of the 2.2 million acres                  runoff through the use of erosion and                 and is working to improve its methods.
     developed would not be technically and                  sediment controls and other BMPs.                     The Agency also considered contingent
     economically feasible.                                     Another impact of the discharge of                 evaluation and hedonic assessments to
        Section XV.C discusses the                           sediment from construction sites is to                validate and confirm the avoided
     anticipated amount of TSS removals as                   reduce the capacity of water storage                  damages methodology.
     a result of today’s document. The                       reservoirs. Settleable solids fall out of               The avoided damages approach is a
     Agency estimates that 11.1 million tons                 suspension and settle into water storage              method that considers the damages
     of TSS each year would be removed                       reservoirs. These accumulated solids                  avoided as a result of the proposal. EPA
     from construction site discharges with                  reduce the capacity of the reservoir to               has analyzed the magnitude of costs
     Option 2 and 5.3 million tons of TSS                    hold as much water as in the past. With               primarily using the avoided damages.
     each year would be removed with                         the reduced capacity of the water                     This method may also be referred to as
     Option 1 presented in today’s proposal.                 reservoir, the water supply system will               the avoided cost approach. This method
     EPA used its experience and                             bear the direct cost of dredging the                  uses the costs of repair to estimate the
     engineering expertise to determine the                  water supply reservoir or replacing the               benefits. These are costs that could be
     amount of TSS removal that each option                  water reservoir as it is taken out of                 avoided if construction sites did not
     would achieve.                                          service for accumulation of sediment.                 discharge sediment and storm water
        When identifying environmental                       Water system customers generally bear                 into surface waters.
     impacts to assess for this industry, the                indirect costs through rate increases.                  These costs are used to estimate the
     Agency decided against analyzing                        Again, by installing erosion and                      monetary value of the benefits of the
     impacts that are extremely difficult to                 sediment controls and other BMPs at                   proposal. EPA has also looked at
     correlate with the specific industry                    construction sites, these costs can be                academic literature for contingent
     activity and/or assess on a national                    reduced.                                              valuation studies, such those used in
     basis. Large natural variations in                         Yet another impact of construction                 the economic analysis for the NPDES
     watershed ecology (e.g., changes in                     and the discharge of TSS and storm                    Phase II storm water regulations. The
     species diversity, density of aquatic                   water is the sediment that falls out of               Agency has used those studies to
     species) and variable climatic                          suspension and into navigational and                  validate the benefits models and for
     conditions greatly complicate the task of               shipping channels. In most cases, the                 sensitivity analyses to gain a clearer
     determining cause and effect with                       public pays for the consequent dredging               picture of the benefits of the proposed
     regard to construction site storm water                 through taxes and/or higher cost of                   rule. Additional information on the
     discharges. In particular, the Agency did               products. Use of erosion and sediment                 benefits analysis may be found in the

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     Environmental Assessment and                                         The benefits analysis results are
     Economic Analysis.                                                 shown in Table XVI–1.

                                                                                                                                                        Regulatory options

                                                                                                                                                              Option 2
                                                                                                                                          Option 1
                                                       Benefit categories                                                                                  (Codification,
                                                                                                                                      (Self-inspection,                           Option 3
                                                                                                                                       certification; 1                        (No regulation)
                                                                                                                                                          certification; 5
                                                                                                                                       acre or more)      acres or more)

                                                                                         Turbidity Reduction

     Turbidity producing solids (million tons per year) .....................................................................                     1.05                   2.2                0
     Water treatment monetized benefits (year 2000 $ millions) .....................................................                              0.1                    0.2                0

                                                                                    Settleable Solids Reduction

     Settleable Solids (million tons per year) ....................................................................................               4.2                 8.9                   0
     Water storage monetized benefits (year 2000 $ millions) ........................................................                             7.6                16.0                   0
     Navigational dredging monetized benefits (year 2000 $ millions) ............................................                                 2.7                 5.8                   0

           Total Monetized Benefits (year 2000 $ millions) ................................................................                      10.4                22.0                   0
       Source: Economic Analysis; Environmental Assessment.

     XVII. Benefit-Cost Comparison                      from land disturbing construction                                                 industrial category. In specific cases, the
       EPA has conducted a benefit-cost                 activities). Because the final rule is not                                        NPDES permitting authority may elect
     analysis of the construction and                   expected within 120 days of the                                                   to establish technology-based permit
     development effluent guidelines                    proposed rule, the Agency considers the                                           limits for pollutants not covered by this
     proposed in today’s document. The                  date for compliance under NSPS to be                                              regulation. In addition, if State water
     benefit-cost analysis may be found in              when the discharge from a new source                                              quality standards or other provisions of
     the complete set of support documents.             construction site commences following                                             State or Federal law require limits on
     Sections XII, XV, and XVI of this                  promulgation of the final rule (see 40                                            pollutants not covered by this regulation
     preamble provide additional details of             CFR 122.2). See section X.D of today’s                                            (or require more stringent limits or
     the benefit-cost analysis.                         document for the discussion on defining                                           standards on covered pollutants to
       Table XVII–1 provides the results of             new sources for the C&D category.                                                 achieve compliance), the permitting
     the benefit-cost analysis.                            EPA expects to issue a renewed                                                 authority must apply those limitations
                                                        Construction General Permit (CGP) in                                              or standards.
     TABLE XVII–1.—TOTAL ANNUALIZED 2003. Following promulgation of the                                                                   C. Upset and Bypass Provisions
        BENEFITS AND COSTS OF THE PRO- C&D rule, which is expected in 2004,
                                                        the Agency plans to incorporate the                                                  A ‘‘bypass’’ is an intentional diversion
                                                        provisions of any effective ELG at the                                            of the streams from any portion of a
              [Tons of sediment, year 2000 $]           time of the next permit renewal. Based
                                                                                                                                          treatment facility. An ‘‘upset’’ is an
                                                        on the standard five-year period for
                                     Costs    Benefits                                                                                    exceptional incident in which there is
                                                        NPDES permits, that renewal would
               Option               (2000 $   (2000 $                                                                                     unintentional and temporary
                                    millions  millions  take place in 2008. However, States that
                                                                                                                                          noncompliance with technology-based
                                   per year) per year) have issued either general or individual
                                                                                                                                          permit effluent limitations because of
                                                        permits may choose a different (i.e.
     Self-inspection, cer-                                                                                                                factors beyond the reasonable control of
                                                        shorter) time period to implement the
       tification; 1 acre or                                                                                                              the permittee. EPA’s regulations
                                                        final effluent guidelines requirements.
       more ......................        130      10.4                                                                                   concerning bypasses and upsets for
     Codification, self-in-
                                                        EPA requests comment on this planned
                                                                                                                                          direct dischargers are set forth at 40 CFR
       spection, certifi-                               schedule.
                                                                                                                                          122.41(m) and (n).
       cation; 5 acres or                                               B. Relationship of Effluent Guidelines to
       more ......................            505              22.0                                                                          Because much of today’s proposal
                                                                        NPDES Permits                                                     includes design standards for design,
     No regulation ............                 0                 0
                                                                           Effluent limitation guidelines and                             installation, and maintenance of ESC
     XVIII. Regulatory Implementation                                   pretreatment standards act as a primary                           BMPs, EPA considered the need for a
                                                                        mechanism to control the discharges of                            bypass-type provision in regard to large
     A. Compliance Dates                                                pollutants to waters of the United                                storm events. However, EPA did not
        C&D sites must comply with the C&D                              States. Once finalized, the proposed                              specifically include such a provision
     regulation, once finalized, at the time of                         C&D regulations would be applied to                               because today’s proposed design
     issuance, re-issuance, or modification of                          sites through individual NPDES permits                            standards only require BMPs to be
     their NPDES permit.                                                or a general permit issued by EPA or                              designed to capture a specified volume
        New sources must comply with the                                authorized States under section 402 of                            of storm runoff for pollutant removal.
     new source performance standards                                   the Act.                                                          Because EPA is not establishing
     (NSPS) (once it is finalized) at the time                             The Agency has developed the                                   requirements for control of larger storm
     they commence discharging process                                  limitations for this proposed rule to                             events, specific bypass provisions were
     wastewater (i.e., storm water runoff                               cover the discharge of pollutants for this                        not necessary.

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     42676                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     D. Variances and Waivers                                or (2) information the applicant did not              2. Low Soil Loss Potential Waiver
        The CWA requires application of                      have an opportunity to submit. The                       Some sites may qualify for a waiver
     effluent limitation guidelines                          alternate limitation or standard must be              due to low potential for soil loss. The
     established pursuant to section 301 to                  no less stringent than justified by the               waiver is provided for small sites (1 to
     all direct dischargers. However, the                    difference and must not result in                     5 acres) in the existing NPDES storm
     statute provides for the modification of                markedly more adverse non-water                       water regulations. See
     these national requirements in a limited                quality environmental impacts than the                § 122.26(b)(15)(i)(A).
     number of circumstances. Moreover, the                  national limitation or standard.
                                                                                                                   E. Other Clean Water Act Requirements
     Agency has established administrative                      EPA regulations at 40 CFR part 125,
     mechanisms to provide an opportunity                    subpart D, authorizing the Regional                      Compliance with the provisions in
     for relief from the application of the                  Administrators to establish alternative               any of the rules proposed today would
     national effluent limitation guidelines                 limitations and standards, further detail             not exempt a discharger from any
     for categories of existing sources for                  the substantive criteria used to evaluate             requirement for a permit for dredged or
     toxic, conventional, and                                FDF variance requests for direct                      fill material under section 404 of the
     nonconventional pollutants. ‘‘Ability to                dischargers. Thus, 40 CFR 125.31(d)                   CWA.
     Pay’’ and ‘‘water quality’’ waivers do                  identifies six factors (e.g., volume of               XIX. Related Acts of Congress,
     not apply to conventional or toxic                      process wastewater, age and size of a                 Executive Orders, and Agency
     pollutants (e.g., TSS, PCBs) and,                       discharger’s facility) that may be                    Initiatives
     therefore, do not apply to today’s                      considered in determining if a facility is
     proposal. However, the variance for                                                                           A. Paperwork Reduction Act
                                                             fundamentally different. The Agency
     Fundamentally Different Factors (FDFs)                  must determine whether, on the basis of                  The information collection
     may apply in some circumstances.                        one or more of these factors, the facility            requirements in today’s proposed rule
                                                             in question is fundamentally different                have been submitted for approval to
     1. Fundamentally Different Factors
                                                             from the facilities and factors                       OMB under the Paperwork Reduction
                                                             considered by EPA in developing the                   Act, 44 U.S.C. 3501 et seq. An
        EPA will develop effluent limitations                nationally applicable effluent                        Information Collection Request (ICR)
     or standards different from the                         guidelines. The regulation also lists four            document has been prepared by EPA
     otherwise applicable requirements if an                 other factors (e.g., infeasibility of                 (ICR No. 1842.03) and a copy may be
     individual discharging facility is                      installation within the time allowed or               obtained from Susan Auby by mail at
     fundamentally different with respect to                 a discharger’s ability to pay) that may               Collection Strategies Division; U.S.
     factors considered in establishing the                  not provide a basis for an FDF variance.              Environmental Protection Agency
     limitation of standards applicable to the               In addition, under 40 CFR 125.31(b) (3),              (2822T); 1200 Pennsylvania Ave., NW,
     individual facility. Such a modification                a request for limitations less stringent              Washington, DC 20460, by email at
     is known as a ‘‘fundamentally different                 than the national limitation may be         , or by calling (202)
     factors’’ (FDF) variance.                               approved only if compliance with the                  566–1672. A copy may also be
        Early on, EPA, by regulation provided                national limitations would result in                  downloaded from the internet at
     for the FDF modifications from the BPT                  either (a) a removal cost wholly out of      In today’s
     and BAT limitations for toxic and                                                                             proposed Option 2, 40 CFR 450.21(f)
                                                             proportion to the removal cost
     nonconventional pollutants and BPT                                                                            and (g) would require operators to
                                                             considered during development of the
     limitations for conventional pollutants                                                                       maintain a site log. The equivalent
                                                             national limitations, or (b) a non-water
     for direct dischargers. For indirect                                                                          provision in proposed Option 1 is 40
                                                             quality environmental impact
     dischargers, EPA provided for                                                                                 CFR 122.44(t). See section X.D. of
                                                             (including energy requirements)
     modifications for PSES. FDF variances                                                                         today’s document for a description of
                                                             fundamentally more adverse than the
     for toxic pollutants were challenged                                                                          these provisions. EPA estimates that this
                                                             impact considered during development
     judicially and ultimately sustained by                                                                        provision would create a total annual
                                                             of the national limits. EPA regulations
     the Supreme Court. (Chemical                                                                                  burden of about 760,158 hours for
                                                             provide for an FDF variance for indirect
     Manufacturers Assn v. NRDC, 479 U.S.                                                                          Option 1 and 633,033 hours for Option
                                                             dischargers at 40 CFR 403.13. The
     116 (1985)).                                                                                                  2. This estimate is the incremental
        Subsequently, in the Water Quality                   conditions for approval of a request to
                                                             modify applicable pretreatment                        burden above the currently-approved
     Act of 1987, Congress added new                                                                               burden level for the EPA and State
     section 301(n) of the Act explicitly to                 standards and factors considered are the
                                                                                                                   construction general permits. EPA has
     authorize modifications of the otherwise                same as those for direct dischargers.
                                                                                                                   received OMB approval for the current
     applicable BAT effluent limitations or                     The legislative history of section                 permit requirements under control no.
     categorical pretreatment standards for                  301(n) underscores the necessity for the              2040–0188, ‘‘Notice of Intent for Storm
     existing sources if a facility is                       FDF variance applicant to establish                   Water Discharges Associated with
     fundamentally different with respect to                 eligibility for the variance. EPA’s                   Construction Activity under a NPDES
     the factors specified in section 304                    regulations at 40 CFR 125.32(b)(1) are                General Permit.’’
     (other than costs) from those considered                explicit in imposing this burden upon                    In today’s proposed Option 2, 40 CFR
     by EPA in establishing the effluent                     the applicant. The applicant must show                450.21(a) would require permittees to
     limitations or pretreatment standard.                   that the factors relating to the discharge            prepare a Storm Water Pollution
     Section 301(n) also defined the                         controlled by the applicant’s permit                  Prevention Plan (SWPPP). This
     conditions under which EPA may                          which are claimed to be fundamentally                 requirement would essentially codify
     establish alternative requirements.                     different are, in fact, fundamentally                 current CGP requirements and no
     Under section 301(n), an application for                different from those factors considered               additional burden would be imposed.
     approval of a FDF variance must be                      by the EPA in establishing the                           Burden means the total time, effort, or
     based solely on (1) information                         applicable guidelines. An FDF variance                financial resources expended by persons
     submitted during rulemaking raising the                 is not available to a new source subject              to generate, maintain, retain, or disclose
     factors that are fundamentally different                to NSPS.                                              or provide information to or for a

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                          42677

     Federal agency. This includes the time                  section 205 of UMRA generally requires                options, which are provided in the
     needed to review instructions; develop,                 EPA to identify and consider a                        Economic Analysis for today’s proposed
     acquire, install, and utilize technology                reasonable number of regulatory                       rule (see ‘‘Supporting Documentation’’).
     and systems for the purposes of                         alternatives and adopt the least costly,              Additional summary economic
     collecting, validating, and verifying                   most cost-effective or least burdensome               information may be found in sections
     information, processing and                             alternative that achieves the objectives              XII, XVI, and XVII of today’s document.
     maintaining information, and disclosing                 of the rule. The provisions of section                   Option 1 would establish permittee
     and providing information; adjust the                   205 do not apply when they are                        self-inspection and certification
     existing ways to comply with any                        inconsistent with applicable law.                     requirements to improve the
     previously applicable instructions and                  Moreover, section 205 allows EPA to                   effectiveness of ESCs at construction
     requirements; train personnel to be able                adopt an alternative other than the least             sites subject to NPDES storm water
     to respond to a collection of                           costly, most cost-effective or least                  permits. Option 1 would apply to sites
     information; search data sources;                       burdensome alternative if the                         1 acre or more. This option would
     complete and review the collection of                   Administrator publishes with the final                require permittees to periodically
     information; and transmit or otherwise                  rule an explanation why that alternative              inspect their ESCs during land
     disclose the information.                               was not adopted. Before EPA establishes               disturbing activities and certify that
        An Agency may not conduct or                         any regulatory requirements that may                  they have been properly installed and
     sponsor, and a person is not required to                significantly or uniquely affect small                maintained. Option 1 would cost about
     respond to a collection of information                  governments, including tribal                         $130 million annually; the benefits for
     unless it displays a currently valid OMB                governments, it must have developed                   this option are about $10 million per
     control number. The OMB control                         under section 203 of UMRA a small                     year. This option would encourage
     numbers for EPA’s regulations are listed                government agency plan. The plan must                 permittees to adopt better ESC practices
     in 40 CFR part 9 and 48 CFR chapter 15.                 provide for notifying potentially                     and, in the process, reduce discharges of
        Comments are requested on the                        affected small governments, enabling                  sediment and other pollutants from
     Agency’s need for this information, the                 officials of affected small governments               those sites. Under Option 1, EPA
     accuracy of the provided burden                         to have meaningful and timely input in                estimates that State and local
     estimates, and any suggested methods                    the development of EPA regulatory                     governments would incur about $13
     for minimizing respondent burden,                       proposals with significant Federal                    million in annual costs and the private
     including through the use of automated                  intergovernmental mandates, and                       sector would incur about $117 million
     collection techniques. Send comments                    informing, educating, and advising                    in annual costs. Of the $13 million in
     on the ICR to the Director, Collection                  small governments on compliance with                  annual costs to State and local
     Strategies Division; U.S. Environmental                 the regulatory requirements.                          governments, about $3 million would be
     Protection Agency (2822); 1200                             EPA has determined that this rule                  incurred by small government entities,
     Pennsylvania Ave., NW, Washington,                      contains a Federal mandate that may                   less than 50,000 population, and about
     DC 20460; and to the Office of                          result in the expenditure by State, local,            $10 million annually would be incurred
     Information and Regulatory Affairs,                     and Tribal governments, in the                        by large government entities, equal to or
     Office of Management and Budget, 725                    aggregate, or by the private sector of                greater than 50,000 population. EPA has
     17th St., NW, Washington, DC 20503,                     $100 million or more in any one year.                 determined that this option is the least
     marked ‘‘Attention: Desk Officer for                    Accordingly, EPA has prepared under                   expensive of the set of two regulatory
     EPA.’’ Include the ICR number in any                    section 202 of UMRA a written                         options in today’s proposal. Option 1
     correspondence. Since OMB is required                   statement which is summarized below.                  would amend the existing NPDES
     to make a decision concerning the ICR                      EPA is proposing the technology-                   regulations and improve the
     between 30 and 60 days after June 24,                   based construction and development                    effectiveness of the storm water permit
     2002, a comment to OMB is best assured                  (C&D) effluent guidelines under sections              program. The no regulation option,
     of having its full effect if OMB receives               301, 304, 306, 308, 402,and 501 of the                discussed later in this section, is the
     it by July 24, 2002. The final rule will                Clean Water Act CWA), 33 U.S.C. 1311,                 least expensive proposed option in
     respond to any OMB or public                            1314, 1316, 1318, 1342 and 1361 and                   terms of direct costs outlays.
     comments on the information collection                  under authority of the Pollution                         Option 2 would establish a new
     requirements contained in this proposal.                Prevention Act of 1990, 42 U.S.C. 13101               national standard for ESC at
                                                             et seq.                                               construction sites of five acres or more,
     B. Unfunded Mandates Reform Act                            Today, EPA is co-proposing three                   basically codifying the requirements of
     (UMRA)                                                  options for this C&D effluent limitation              EPA’s construction general permit. In
       Title II of the Unfunded Mandates                     guideline: (1) Construction site                      addition, this option would add
     Reform Act of 1995 (UMRA), Public                       permittee self-inspection and                         permittee self-inspection and
     Law 104–4, establishes requirements for                 certification, (2) ‘‘codify’’ provisions of           certification requirements for ESCs to
     Federal agencies to assess the effects of               the current EPA construction general                  improve compliance. EPA estimates that
     their regulatory actions on State, local,               permit with inspection and certification,             these controls would remove, on
     and Tribal governments and the private                  and (3) no regulation. EPA is                         average, 80 percent of the total
     sector. Under section 202 of UMRA,                      considering each of the three options;                suspended solids (TSS) discharged from
     EPA generally must prepare a written                    no option is preferred over the other.                construction sites. The problem that
     statement, including a cost-benefit                     Options 1 and 2 would impose a                        EPA is addressing through this
     analysis, for proposed and final rules                  mandate on the States, local, or Tribal               proposed rule is the need to reduce
     with ‘‘Federal mandates’’ that may                      governments, in the aggregate, or private             construction site erosion and reduce the
     result in expenditures by State, local,                 sector that would exceed $100 million                 amount of sediment discharged during
     and Tribal governments, in the                          per year. Option 3 would not impose a                 land disturbance activities. EPA
     aggregate, or by the private sector, of                 mandate with costs that exceed $100                   estimates that Option 2 would cost
     $100 million or more in any one year.                   million per year for the public or private            about $505 million annually and would
     Before promulgating an EPA rule for                     sectors. The Agency has conducted                     have about $22 million in annual
     which a written statement is needed,                    economic analyses for each of the three               monetized benefits. The benefits of the

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     42678                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     proposal would accrue to the public in                  grants to eligible States, that provide a             assessment and benefit analysis. The
     the form of reduced sediment and                        twenty percent match, and then provide                analyses for these proposed options may
     polluted storm water discharged to the                  financial assistance to municipalities or             be found in the support documents in
     Nation’s surface waters. The sediment                   State agencies. Some of these funds are               the record for this proposed action.
     and polluted storm water is discharged                  eligible to finance storm water controls.                The proposed regulatory options
     from active construction sites and                      In some cases, these funds are available              would not impose any costs on the
     settles into stream beds, drinking water                to the private sector if projects are                 industry or government entities after
     reservoirs, and navigational channels. If               located in a designated estuary. Other                termination of the applicable NPDES
     the excess sediment discharged from                     funds are available through other                     permits. Option 1 would require only
     construction sites could be reduced or                  programs such as grant and loan                       permittee self-inspection and
     avoided altogether, the public would                    programs, public/private partnerships,                certification activities during the active
     benefit with improved water quality and                 and private sector contributions.                     construction period. Option 2, in
     less frequent dredging of drinking water                   This proposal will not have any                    addition to the inspection and
     reservoirs and navigational channels.                   disproportionate impacts on particular                certification requirements, would
     This option is the more expensive of the                regions of the country, or particular                 require installation, operation and
     options. The codification of the CGP                    State, local, or Tribal governments, or               maintenance of temporary ESCs during
     plus self-inspection and certification                  communities, or particular segments of                the active construction period. Option 2
     (Option 2) would improve controls at                    the private sector. The regulatory                    would not require maintenance of these
     construction sites and in the process                   options proposed in today’s document                  controls after the active construction
     reduce the amount of sediment and                       apply broadly to the construction and                 period.
     storm water discharged from                             development industry in the United                       EPA has determined that the
     construction sites. EPA found that the                  States. The proposed options will have                mandates under this proposal will not
     cost of sediment removed is about $0.01                 an impact in those locations, wherever                have a significant impact on the
     per pound. The Agency believes that                     they happen to be, in which                           national economy in the form of
     this cost is reasonable for the pollutant               construction and development is                       productivity, economic growth, full
     reduction achieved.                                     occurring. Over time, different regions               employment, creation of productive jobs
        Under Option 2, about $50 million of                 of the country experience more                        and international competitiveness.
     annual incremental costs would accrue                   construction and development than                     Nevertheless, the Agency has conducted
     to State and local governments and                      other regions of the country. For                     an extensive analysis of the economic
     about $455 million to the private sector.               example, at this time, California and                 impacts of the proposed rule on the
     The Agency does not have data to                        Texas are experiencing a relatively large             construction and development industry
     estimate the costs to Tribal lands and is               amount of development, along with                     and the national economy. These
     searching for additional information                    Florida and Pennsylvania.                             analyses are presented in section XII of
     about Tribal lands for the final rule. The                 Option 3 is the no-regulation option               today’s document. While the impact
     Agency requests information about the                   for the construction and development                  analysis shows that less than one
     impacts and costs on Tribal lands. Of                   industry. Under Option 3, there would                 percent of firms in the industry could
     the $50 million in costs accruing to                    be no costs or benefits directly                      potentially fail under the rule and that
     State and local government agencies,                    attributable to government entities or to             less than one percent of jobs in the
     about $5 million per year would be                      the private sector, with the following                industry could be lost from the most
     incurred by small government agencies,                  important exception. Executive Order                  stringent options under analysis, the
     communities with less than 50,000                       12866 advises agencies to consider the                Agency concluded that, based upon the
     population, and about $45 million                       state of the world before and after the               scale of this industry which is a major
     would accrue to large communities,                      prospective regulation. Under the no-                 component of the U.S. economy, even a
     those with more than 50,000                             regulation option, the current state of               small percentage of jobs or firms closed
     population. EPA has analyzed the                        the world would not be changed, nor                   is significant, especially in a sluggish
     impacts on small government entities.                   would the discharge of sediment into                  economy. Accordingly, the burden on
     This analysis is discussed later in this                the Nation’s surface waters from C&D                  the economy is one of the reasons the
     section. EPA estimates that about $2                    activities. These partially-controlled                Agency rejected more stringent options.
     million of the annual benefits will come                sediments would continue to contribute                The options proposed today are a result
     from improvements to State and local                    to the loss of water quality, and                     of an extensive economic analysis of a
     government-funded projects and about                    sedimentation in water reservoirs and                 suite of construction and storm water
     $20 million in benefits will come from                  streams. These effects can be attributed              options. The Agency determined that
     improvements to private sector projects.                as costs imposed on society as an                     Option 1 is the least costly and least
     This distribution of the benefits reflects              externality, and realized when choices                burdensome regulatory option.
     the distribution of construction and                    are made to reclaim or restore the                       EPA is not required by UMRA to
     development in the United States                        functionality of the water body. EPA’s                consult with elected representatives (or
     economy. About 25 percent of all                        benefit methodology is limited in terms               their designated authorized employees)
     construction is funded by Federal, state                of the state-of-the-art to monetize these             of the affected State, local, and Tribal
     and local governments, according to the                 benefits. However, the Agency believes                governments, because the proposed rule
     1997 Census of Construction. The                        that the benefits may be substantially                would not impose a Federal mandate on
     Federal portion of the incremental costs                larger than EPA is claiming through                   State, local and tribal governments, in
     of the proposal are not covered by                      monetized benefits.                                   the aggregate, of $100 million or more
     UMRA.                                                      Additional information about the                   in any one year. The Agency estimates
        State and local governments may find                 costs and economic impacts of the                     that the costs to State, local and tribal
     resources available at the Federal, State               proposed rule may be found in section                 governments is about $50 million on an
     and local level to defray some of the                   XII of today’s document. In addition,                 annual basis. Nevertheless, EPA has
     costs associated with the proposed rule.                section XVI and section XVII of today’s               conducted outreach to the public and
     The Clean Water Act State Revolving                     document provide information and                      private sectors to obtain their input on
     Fund (SRF) provides capitalization                      analyses about the environmental                      the proposed regulations. The Agency

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     has conducted two national public                       government entities, those with a                     impact on a substantial number of small
     meetings in the past year: one in                       population under 50,000, and about 88                 entities. Small entities include small
     Washington, DC and one in Denver,                       percent are funded by large                           businesses, small organizations, and
     Colorado. Representatives of several                    governments, those with a population                  small governmental jurisdictions.
     State and local agencies, and                           greater than 50,000. EPA’s economic                      For purposes of assessing the impacts
     engineering consultants representing                    analysis shows that the cost to small                 of today’s rule on small entities, EPA
     builders and developers attended these                  governments of the most costly option is              defined: (1) Small businesses, according
     national meetings. The Agency also                      significantly less than one tenth of one              to SBA size standards, as construction
     convened a 60-day Small Business                        percent of the revenues of those                      businesses that receive less than $27.5
     Advocacy Review (SBAR) Panel on July                    communities.                                          million in annual revenue and
     16, 2001 to obtain input from the small                   Nevertheless, EPA considered                        developers that receive less than $5
     business community on the possible                      approaches to reduce any impact and                   million in annual revenue; (2) small
     impacts of the proposed regulations on                  assessed methods to find better ways to               government jurisdictions as small
     small businesses. The SBAR Panel was                    meet the objectives of the proposal with              governments of a city, county, town,
     composed of representatives of the                      as few impacts as possible. EPA used                  school district or special district with a
     Office of Management and Budget, the                    several methods to determine costs to                 population of less than 50,000; and (3)
     Small Business Administration, and                      small communities, and each method                    small organizations as any not-for-profit
     EPA. The SBAR Panel met with small                      shows that the cost to small                          enterprise that is independently owned
     entity representatives (SERs) and held                  communities from the most costly                      and operated and is not dominant in its
     conference calls with the SERs to                       option is much less than one tenth of                 field.
     discuss the impact of the proposal. The                 one percent of their annual revenues.                    In accordance with section 603 of the
     Panel issued a final report to the                      Under one method the Agency                           RFA, EPA has prepared an initial
     Administrator in October 2001. In                       compared the aggregate incremental                    regulatory flexibility analysis (IRFA)
     addition, through the auspices of the                   costs of the most costly option to small              that examines the impact of the
     National Association of Home Builders                   governments with the aggregate annual                 proposed rule on small entities along
     (NAHB), EPA conducted six focus group                   revenue of small governments. In                      with regulatory alternatives that could
     meetings with residential builders and                  another method, the Agency analyzed                   reduce that impact. The IRFA is
     developers to learn more about the                      the impacts on average small                          available for review in the docket and is
     economic and business practices of the                  government agencies, based upon data                  summarized below.
                                                             on small government annual revenues                      The objective for the proposed
     construction and development industry.
                                                             and costs. As a result, this rule will not            effluent guidelines for the construction
     Finally, the Agency has conducted
                                                                                                                   and development (C&D) industry is to
     numerous conference calls with                          result in a significant cost to small
                                                                                                                   reduce sediment and storm water
     builders and developers to learn more                   communities. The Agency requests
                                                                                                                   discharged from active construction
     about their business and technical                      comment on the impacts on small
                                                                                                                   sites. EPA’s analysis indicates that
     practices and participated in                           communities from the requirements
                                                                                                                   storm water discharges from
     conferences and meetings across the                     under this proposal. The small
                                                                                                                   construction sites contribute sediment
     country.                                                government agency analysis can be
                                                                                                                   to the nation’s surface waters that is
       EPA has determined that none of the                   found in the Economic Analysis.
                                                                                                                   deposited in stream beds, lakes,
     options proposed today might                              EPA is developing procedures and
                                                                                                                   navigational channels, and water supply
     significantly or uniquely affect small                  methods with which to provide
                                                                                                                   reservoirs. Notwithstanding the social
     governments. Thus, today’s rule is not                  information about this proposal to small
                                                                                                                   policy objective of reducing sediment
     subject to the requirements of section                  government agencies. In particular, the
                                                                                                                   and storm water discharges, EPA has
     203 of UMRA. Nevertheless, the Agency                   Agency has established a website to
                                                                                                                   conducted extensive analyses of the
     has taken steps to provide information                  distribute information to the public,
                                                                                                                   impacts on small businesses based upon
     and accessability to small government                   industry, and government entities, in
                                                                                                                   the costs and impacts of three co-
     agencies. The Agency has conducted an                   particular small government agencies,
                                                                                                                   proposed options. EPA used the small
     extensive small government economic                     about today’s proposed rule. The
                                                                                                                   business analyses to identify approaches
     impact analysis, because the Agency                     website may be accessed at http://                    that would reduce and minimize
     wants to understand the impacts of the                               impacts on small businesses, while at
     proposed rule. Moreover, the Agency                     construction/. This website provides                  the same time striking a balance that
     usually conducts a small government                     information on EPA’s effluent                         would achieve the highly desirable goal
     analysis for all effluent guidelines to                 guidelines program and will contain                   of reducing storm water pollution. EPA
     comply with all applicable Federal                      information about today’s proposed                    also is soliciting comments on other,
     requirements and Executive Orders. The                  regulation.                                           less costly approaches to meet the
     most expensive proposed regulatory                      C. Regulatory Flexibility Act (RFA) as                objective of the proposal. The Economic
     option would impose requirements for                    Amended by the Small Business                         Analysis in its entirety and the initial
     ESC at construction sites. These                        Regulatory Enforcement Fairness Act of                regulatory flexibility analysis
     requirements are technology-based                       1996 (SBREFA)                                         (IRFA)(Chapter 6 within the Economic
     requirements for construction sites that                                                                      Analysis) provide EPA’s analysis of the
     are designed to work with the NPDES                     1. Introduction                                       proposed requirements on small
     storm water program. Some                                  The RFA, 5 U.S.C. 601 et. seq.,                    business entities. Additional
     construction and development projects                   generally requires an agency to prepare               information on the economic impacts
     are funded by State and local                           a regulatory flexibility analysis of any              and, in particular, the impacts on small
     governments, but most are funded by                     rule subject to notice and comment                    businesses, may be found in section XII
     the private sector. The Agency has                      rulemaking requirements under the                     of today’s document.
     determined that about 12 percent of all                 Administrative Procedure Act or any                      EPA proposes to set technology-based
     projects funded by State and local                      other statute unless the agency certifies             effluent guidelines to control sediment
     governments are funded by small                         that the rule will not have a significant             and storm water discharges from active

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     42680                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     construction sites. Construction and                       EPA also has analyzed the projected                meeting on June 14, 2001 to receive
     development activity disturbs the soil                  reporting, recordkeeping, and other                   information from prospective small
     on construction sites, and, in the                      compliance requirements under the                     entity representatives (SER) about plans
     process, releases sediment and storm                    Paperwork Reduction Act for today’s                   for convening the Panel and their early
     water into surface streams, lakes, and                  proposed rule, including an estimate of               concerns about the planned proposed
     water supply reservoirs. See section                    the classes of small entities that would              regulation. EPA invited seven
     VI.B.2, Clearing, Excavating and                        be subject to the proposed rule. The                  residential builders and developers, five
     Grading of today’s document for                         results of the analysis are reported in               heavy construction company
     additional details. Disturbed soil, if not              section XIX.A, Paperwork Reduction                    representatives, one local government
     managed properly, can be easily washed                  Act. EPA anticipates that small firms                 official, one trade association
     off-site during storm events. Storm                     may incur some incremental costs for                  representative, and five consultants to
     water and sediment discharges during                    reporting, record keeping and other                   serve as potential SERs during the pre-
     construction can cause an array of                      compliance requirements. However,                     panel outreach process. The full Panel
     physical, chemical and biological                       these incremental costs are expected to               report lists the materials provided to the
     impacts. Water quality impairment                       be small. EPA has analyzed the                        SERs and summarizes their comments.
     results, in part, because pollutants                    incremental burden and costs of                       Their full written comments also are
     available at construction sites are                     reporting and record keeping                          attached to the report. In light of these
     released into surface waters. The                       requirements. These costs are covered                 comments, the Panel considered the
     interconnected process of erosion                       by the approved information collection                regulatory flexibility issues specified by
     (detachment of the soil particles),                     request (ICR) for the existing NPDES                  RFA/SBREFA and developed the
     sediment transport, and delivery is the                 Storm Water Program. Moreover, these                  findings and discussion summarized
     primary pathway for introducing key                     costs are included in the engineering                 below.
     pollutants, such as nutrients (nitrogen                 cost models and in the economic impact                   Consistent with the RFA/SBREFA
     and phosphorous), metals and organic                    models that support the regulatory                    requirements, the Panel evaluated the
     compounds into surface waters and                       options in today’s document.                          assembled materials and small-entity
     aquatic systems.                                           EPA has not identified any rules that              comments on issues related to the
        The proposed rule would establish                    duplicate, overlap, of conflict with                  elements of the IRFA. A copy of the
     technology-based effluent guidelines for                today’s proposal. Moreover, this                      Panel report is included in the docket
     the control of erosion and sediment on                  proposal would complement the                         for this proposed rule.
     active construction projects. The                       existing NPDES storm water regulations.
                                                                There may be alternatives to the                   2. Summary of Panel Recommendations
     technology-based options would
     complement the requirements of the                      proposed options that accomplish the                     The SBAR Panel submitted a final
     existing NPDES storm water                              objectives of today’s proposal. EPA is                report of the sixty day panel process,
     requirements. EPA is proposing this                     seeking comment on variations to these                that convened on July 16, 2001, to the
     regulation under the authorities of                     options and is particularly interested in             Administrator of EPA in October 2001.
     sections 301, 304, 306, 308, 402 and 501                information that would accomplish                     The following issues and EPA’s
     of the Clean Water Act, 33 U.S.C. 1311,                 these objectives and minimize any                     response provides information about the
     1314, 1316, 1318, 1342 and 1361 and                     significant economic impact on small                  discussions between the SBAR Panel
     under authority of the Pollution                        entities.                                             and the SERs. The final SBAR Panel
     Prevention Act of 1990, 42 U.S.C. 13101                    The Agency as analyzed a broad suite               Report is available in the docket for the
     et seq., Public Law 101–508, November                   of regulatory options and technology                  proposed effluent guidelines for the
     5, 1990.                                                alternatives. The three regulatory                    construction and development industry.
        For purposes of assessing the                        options in today’s document provide the
                                                             final set of options that the Agency is               a. Related Federal Rules
     economic impacts of today’s rule on
     small entities through the IRFA, ‘‘small                considering for the proposal.                            • The Panel recommended that EPA,
     entity’’ is defined by SBA size standards                  As required by section 609(b) of the               during the development of the proposed
     for small businesses and RFA default                    RFA, as amended by SBREFA, EPA also                   effluent guidelines, evaluate the
     definitions for small governmental                      conducted outreach to small entities                  adequacy of the current NPDES storm
     jurisdictions and small organizations.                  and convened a Small Business                         water program. The Panel also
     The small entities directly regulated by                Advocacy Review (SBAR) Panel to                       recommended that EPA proceed with
     this proposed rule include small land                   obtain advice and recommendations of                  the development of proposed effluent
     developers, small residential                           representatives of the small entities that            guidelines, but that in doing so, keep
     construction firms, small commercial                    potentially would be subject to the                   open the option of ultimately declining
     and industrial firms, and small special                 rule’s requirements. On July 16, 2001,                to promulgate final guidelines until the
     trade firms. Over ninety percent of the                 EPA’s Small Business Advocacy                         effectiveness of Phase I and Phase II,
     businesses in the construction and                      Chairperson convened the C&D SBAR                     without national effluent guidelines,
     development industry are small                          panel under section 609(b). In addition               can be evaluated more fully.
     businesses. EPA recognizes the                          to the Chairperson, the Panel consists of                EPA response. EPA is proposing a set
     tremendous contributions that these                     the Director of the Engineering and                   of three options that is consistent with
     small businesses make to the fabric of                  Analysis Division of the Office of                    the comments from the Small Business
     the American economy. Accordingly,                      Science and Technology within EPA’s                   Advocacy Review (SBAR) Panel. One of
     the Agency has attempted to reduce                      Office of Water, the Administrator of the             the options would require additional
     impacts to small businesses while, at                   Office of Information and Regulatory                  ESCs. The three options are: (1) Self-
     the same time, working to identify ways                 Affairs within the Office of Management               inspection and certification for projects
     to achieve the objective of today’s                     and Budget (OMB), and the Acting Chief                one acre or more; (2) Codify the CGP
     document.                                               Counsel for Advocacy of the Small                     with self-inspection and certification for
        Table XII–8 in section XII of today’s                Business Administration (SBA).                        projects five acres or more; (3) a no-
     document presents the results of EPA’s                     Prior to convening the Panel on July               regulation option that considers the
     small business analysis.                                16, 2001, EPA held a conference call/                 possibility of not issuing a final

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                           42681

     regulation. The Agency appreciates the                  the stochastic nature of rainfall and                 D. Executive Order 12866: Regulatory
     comments from the SBAR Panel, and                       runoff events. The Panel recommended                  Planning and Review
     the regulatory options in today’s                       that EPA acquire and evaluate data on                   Under Executive Order 12866 (58 FR
     document reflect the Panel’s final                      both costs and effectiveness of such                  51735, October 4, 1993), the Agency
     report.                                                 requirements from sites across the                    must determine whether the regulatory
       • The Panel further recommended the                   country, reflecting a variety of                      action is ‘‘significant’’ and therefore
     inclusion in the proposal of regulatory                 geographic, weather, soil, and other site             subject to OMB review and the
     language that would provide a                           conditions, before it makes any                       requirements of the Executive Order.
     mechanism by which construction sites                   determination on the utility and                      The Order defines ‘‘significant
     could meet the effluent guidelines                      feasibility of such standards. The Panel              regulatory action’’ as one that is likely
     requirement by complying with State                     also recommended that any BMP
     and/or local regulations that provide a                                                                       to result in a rule that may:
                                                             certification requirements that may be                  (1) Have an annual effect on the
     comparable level of environmental                       included in the guidelines be limited to
     protection. The Panel also noted and                                                                          economy of $100 million or more or
                                                             design parameters only and not include                adversely affect in a material way the
     endorsed EPA’s intention to incorporate                 performance certification or liability of
     any additional requirements for ESC                                                                           economy, a sector of the economy,
                                                             the certifier for failure of BMPs to                  productivity, competition, jobs, the
     and storm water management developed                    perform as expected.
     under the effluent guidelines into the                                                                        environment, public health or safety, or
     existing construction general permitting                   EPA response. As described in the                  State, local, or tribal governments or
     system, which should ease the                           Agency’s response to the previous Panel               communities;
     regulatory burden associated with the                   recommendation, EPA is not proposing                    (2) Create a serious inconsistency or
     new requirements, at least in terms of                  quantitative or numerical effluent                    otherwise interfere with an action taken
     permitting and related paperwork costs.                 standards. EPA has compiled data from                 or planned by another agency;
       EPA response. EPA plans to recognize                  across the country and found that                       (3) Materially alter the budgetary
     States with excellent storm water                       numeric limits and monitoring                         impact of entitlements, grants, user fees,
     programs. In those States, there would                  requirements are not the most effective               or loan programs or the rights and
     be no additional requirements beyond                    tools for management and control of                   obligations of recipients thereof; or
     those currently in place. In addition,                  storm water discharges.                                 (4) Raise novel legal or policy issues
     there would be no incremental costs to                                                                        arising out of legal mandates, the
                                                                • Several SERs suggested that EPA                  President’s priorities, or the principles
     those States or the dischargers in those                base the effluent guidelines on the
     States.                                                                                                       set forth in the Executive Order.
                                                             existing CGP requirements. The panel                    Pursuant to the terms of Executive
       EPA plans to implement the                            recommended that EPA give
     technology-based effluent guidelines                                                                          Order 12866, EPA has concluded that
                                                             consideration to this approach and that,              this rule is a ‘‘significant regulatory
     through the existing NPDES storm water                  at a minimum, EPA should present it for
     program. Moreover, EPA plans to                                                                               action.’’ As such, this action was
                                                             comment in the preamble to the                        submitted to OMB for review. Changes
     implement the effluent guidelines                       proposed effluent guidelines as a
     through the construction general                                                                              made in response to OMB suggestions or
                                                             regulatory option under consideration.                recommendations will be documented
     permits as recommended by the SBAR
     Panel.                                                     EPA response. EPA gave considerable                in the public record.
                                                             weight to this recommendation from the
     b. Regulatory Alternatives                              SBAR Panel. The Agency has concluded                  E. Executive Order 13132: Federalism
        • Many of the SERs commented that                    that using the technology-based                          Executive Order 13132, entitled
     quantitative or numerical effluent                      requirements to complement those in                   ‘‘Federalism’’ (64 FR 43255, August 10,
     standards are not appropriate for storm                 the CGP has considerable advantages                   1999), requires EPA to develop an
     water discharges. Another SER                           and served as the basis for one of the                accountable process to ensure
     indicated that numeric limits are                       options proposed today.                               ‘‘meaningful and timely input by State
     unproven in a construction discharge                                                                          and local officials in the development of
                                                             c. Methodological Issues                              regulatory policies that have Federalism
     context and are extremely cost-
     ineffective. The Panel recommended                        • The Panel recommended that EPA                    implications.’’ ‘‘Policies that have
     against establishing across-the-board                   fully evaluate the appropriateness of the             Federalism implications’’ is defined in
     storm water monitoring requirements as                  selected baseline requirements and the                the Executive Order to include
     part of the effluent guidelines.                        estimated costs, and the regulatory                   regulations that have ‘‘substantial direct
        EPA response. For the reasons                        requirements and their costs in the                   effects on the States, on the relationship
     discussed in section IX.B of today’s                    development of the proposed rule. The                 between the national government and
     document, EPA is not proposing                          Panel further recommended that EPA                    the States, or on the distribution of
     quantitative or numerical effluent                      specifically consider the comments of                 power and responsibilities among the
     standards for construction and                          the SERs in this effort.                              various levels of government.’’
     development, and is not proposing                                                                                This proposed rule does not have
     storm water monitoring requirements in                    EPA response. EPA has assessed the                  Federalism implications. It will not
     today’s proposed rule.                                  baseline and understands the progress                 have substantial direct effects on the
        • The Panel urged EPA, as it conducts                that the industry has made in improving               States, on this relationship between the
     evaluations of the feasibility of                       the implementation of ESCs. The                       national government and the States, or
     establishing numeric effluent                           Agency has conducted an analysis that                 on the distribution of power and
     limitations to comply with the                          reflects the current level of progress and            responsibilities among the various
     settlement agreement with NRDC, to                      the progress anticipated under the                    levels of government, as specified in
     fully consider the many challenges                      existing storm water programs.                        Executive Order 13132. EPA estimates
     associated with developing numeric                        EPA invites comments on all aspects                 that the average impact on all
     effluent standards, such as monitoring                  of this proposal and its impacts on small             authorized States and local governments
     difficulties, site-specific variability, and            entities.                                             of the most expensive of the options

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     42682                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     proposed today is $50 million (year                     regulatory policies that have tribal                  I. Plain Language Directive
     2000 $) annually. EPA does not consider                 implications.’’                                          Executive Order 12866 requires each
     an impact of $50 million (year 2000 $)                    ‘‘Policies that have Tribal                         agency to write all rules in plain
     on States and local governments a                       implications’’ is defined in the                      language. EPA invites comments on
     substantial effect. Moreover, this annual               Executive Order to include regulations                how to make this proposed rule easier
     cost is less than one tenth of one percent              that have substantial direct effects on               to understand.
     of the revenues of State and local
                                                             one or more Indian Tribes, on the                     J. Executive Order 13211 (Energy
                                                             relationship between the Federal                      Effects)
       Further, the revised regulations would                government and the Indian Tribes, or on
     not alter the basic State-Federal scheme                                                                         This rule is not a ‘‘significant energy
                                                             the distribution of power and
     established in the Clean Water Act                                                                            action’’ as defined in Executive Order
                                                             responsibilities between the Federal
     under which EPA authorizes States to                                                                          13211, ‘‘Actions Concerning Regulations
                                                             government and Indian Tribes. This
     carry out the NPDES permitting                                                                                That Significantly Affect Energy Supply,
                                                             proposed rule does not have tribal
     program. EPA expects the revised                                                                              Distribution, or Use’’ (66 FR 28355, May
                                                             implications. It will not have substantial
     regulations to have little effect on the                                                                      22, 2001) because it is not likely to have
     relationship between, or the distribution               direct effects on Tribal governments, on              a significant adverse effect on the
     of power and responsibilities among,                    the relationship between the Federal                  supply, distribution, or use of energy.
     the Federal and State governments.                      government and Indian Tribes, or on the               The treatment systems required by
     Thus, Executive Order 13132 does not                    distribution of power and                             today’s proposal rely on passive
     apply to this rule.                                     responsibilities between the Federal                  treatment techniques that do not utilize
       In the spirit of Executive Order 13132,               government and Indian tribes as                       mechanical equipment. The proposed
     and consistent with EPA policy to                       specified in Executive Order 13175.                   rule may require larger sediment basins
     promote communications between EPA                      Today’s proposed rule contains no                     in certain cases, and therefore may
     and State and local governments, EPA                    Federal mandates for Tribal                           result in the use of additional fuel for
     specifically solicits comments on this                  governments and does not impose any                   construction equipment conducting
     proposed rule from State and local                      enforceable duties on Tribal                          excavation and soil moving activities.
     officials.                                              governments. Thus, Executive Order                    EPA estimates that this additional fuel
                                                             13175 does not apply to this rule. In the             usage will be approximately 700,000
     F. Executive Order 13045: Protection of                 spirit of Executive Order 13175, and                  gallons per year, which is insignificant
     Children From Environmental Health                      consistent with EPA policy to promote                 compared to the annual consumption in
     Risks and Safety Risks                                  communications between EPA and                        the United States.
        Executive Order 13045, ‘‘Protection of               Tribal governments, EPA specifically
                                                             solicits comment on this proposed rule                XX. Solicitation of Data and Comments
     Children from Environmental Health
     Risks and Safety Risks’’ (62 FR 19885,                  from tribal officials.                                A. Specific Solicitation of Comments
     April 23, 1997) applies to any rule that:                                                                     and Data
                                                             H. National Technology Transfer and
     (1) Is determined to be ‘‘economically                                                                           EPA solicits comments on all aspects
                                                             Advancement Act
     significant’’ as defined under Executive                                                                      of today’s proposal. In addition to the
     Order 12866, and (2) concerns an                          Section 12(d) of the National                       various topics on which EPA has
     environmental health or safety risk that                Technology Transfer and Advancement                   specifically solicited comments
     EPA has reason to believe may have a                    Act (NTTAA) of 1995, (Public Law 104–                 throughout this proposal, EPA solicits
     disproportionate effect on children. If                 113, section 12(d); 15 U.S.C. 272 note)               comments in several additional areas.
     the regulatory action meets both criteria,              directs EPA to use voluntary consensus                   Today’s proposal at § 450.21(i)
     the Agency must evaluate the                            standards in its regulatory activities                specifies requirements for permittees to
     environmental health or safety effects of               unless to do so would be inconsistent                 remove accumulated sediment from
     the planned rule on children, and                       with applicable law or otherwise                      sediment traps and ponds when design
     explain why the planned regulation is                   impractical. Voluntary consensus                      capacity has been reduced by 50
     preferable to other potentially effective               standards are technical standards (e.g.,              percent. Today’s proposal does not
     and reasonably feasible alternatives                    materials specifications, test methods,               require any other specific maintenance
     considered by the Agency.                               sampling procedures, and business                     requirements, although some additional
        This proposed rule is not subject to                 practices) that are developed or adopted              maintenance costs such as replacing
     Executive Order 13045 because it does                   by voluntary consensus standard bodies.               mulching have been included in the
     not concern an environmental health or                  The NTTAA directs EPA to provide                      costs of Option 2. EPA solicits
     safety risk that EPA has reason to                      Congress, through OMB, explanations                   comments on the assumption that these
     believe may have a disproportionate                     when the Agency decides not to use                    maintenance activities would be a
     effect on children. This rule is based on               available and applicable voluntary                    natural outcome of the inspection
     technology performance, not health or                                                                         requirements. Alternatively, EPA
                                                             consensus standards.
     safety risks.                                                                                                 solicits comment on additional
                                                               The Agency is not aware of any                      maintenance requirements that the
     G. Executive Order 13175: Consultation                  consensus-based technical standards for
     and Coordination With Indian Tribal                                                                           Agency should consider requiring
                                                             the types of controls contained in                    through regulation, as well as the costs
     Governments                                             today’s proposal. EPA welcomes                        and benefits of such requirements.
        Executive Order 13175, entitled                      comments on this aspect of the                           EPA solicits comments on the
     ‘‘Consultation and Coordination with                    proposed rulemaking and, specifically,                effectiveness and appropriateness of
     Indian Tribal Governments’’ (65 FR                      invites the public to identify                        each of the technologies contained in
     67249, November 6, 2000), requires EPA                  potentially-applicable voluntary                      today’s proposal. The Agency also
     to develop an accountable process to                    consensus standards and to explain why                solicits comments on any other
     ensure ‘‘meaningful and timely input by                 such standards should be used in this                 equivalent technologies the Agency
     tribal officials in the development of                  regulation.                                           should consider, as well as the costs,

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                           42683

     benefits and effectiveness of such                      PART 122—EPA ADMINISTERED                             inspection, stabilization and BMP
     technologies.                                           PERMIT PROGRAMS: THE NATIONAL                         maintenance requirements of the permit
       EPA has attempted to capture all of                   POLLUTANT DISCHARGE                                   have been satisfied within 48 hours of
     the provisions of the EPA’s ‘‘national’’                ELIMINATION SYSTEM                                    actually meeting such requirements; and
                                                                                                                      (iv) The permittee shall post at the
     CGP (63 FR 7901, February 17,1998) in                     1. The authority citation for part 122              site, in a publicly-accessible location, a
     today’s proposal. EPA solicits comments                 continues to read as follows:                         summary of the site inspection activities
     on the components of the CGP that were                    Authority: The Clean Water Act, 33 U.S.C.           on a monthly basis;
     inadvertently left out of today’s                       1251 et seq.                                             (2) Site Inspections. The permittee or
     proposal, as well as the costs and                                                                            designated agent of the permittee (such
                                                               2. Section 122.44 is amended by
     benefits of such components. In                                                                               as a consultant, subcontractor, or third-
                                                             revising paragraph (i)(4) and adding
     addition, EPA recognizes that the EPA                   paragraph (t) to read as follows:                     party inspection firm) shall conduct
     CGP is scheduled to be revised in 2003                                                                        regular inspections of the site and
     and that certain provisions contained in                § 122.44 Establishing limitations,                    record the results of such inspection in
     the permit may change prior to final                    standards, and other permit conditions                the site log book in accordance with
     action on the effluent guideline. EPA                   (applicable to State NPDES programs, see              paragraph (t)(1) of this section.
                                                             § 123.25).                                               (i) After initial groundbreaking,
     solicits comments on the appropriate
     approach to take to reconcile any                       *       *     *      *    *                           permittees shall conduct site
                                                                (i) * * *                                          inspections at least every 14 calendar
     changes made in the EPA CGP with                           (4) Requirements to report monitoring
     today’s proposal.                                                                                             days and within 24 hours of the end of
                                                             results for storm water discharges                    a storm event of 0.5 inches or greater.
     B. General Solicitation of Comment                      associated with industrial activity (other            These inspections shall be conducted by
                                                             than construction activity pursuant to                a qualified professional. During each
       EPA encourages public participation                   40 CFR 122.26(b)(14)(x) and those                     inspection, the permittee or designated
     in this rulemaking. EPA asks that                       discharges addressed in paragraph (i)(3)              agent shall record the following
     commenters address any perceived                        of this section) shall be established on              information:
     deficiencies in the record supporting                   a case-by-case basis with a frequency                    (A) Indicate on a site map the extent
     this proposal and that suggested                        dependent on the nature and effect of                 of all disturbed site areas and drainage
     revisions or corrections to the rule,                   the discharge. * * *                                  pathways. Indicate site areas that are
     preamble or record be supported by                      *       *     *      *    *                           expected to undergo initial disturbance
     data. EPA invites all parties to                           (t) Inspection and certification for               or significant site work within the next
     coordinate their data collection                        construction site storm water                         14 days;
     activities with the Agency to facilitate                discharges.                                              (B) Indicate on a site map all areas of
     mutually beneficial and cost-effective                     (1) Site log book. The permittee for a             the site that have undergone temporary
     data submissions. Please refer to the FOR               point source discharge under                          or permanent stabilization;
     FURTHER INFORMATION section at the                      § 122.26(b)(14)(x) or § 122.26(b)(15)                    (C) Indicate all disturbed site areas
     beginning of this preamble for technical                shall maintain a record of site activities            that have not undergone active site work
     contacts at EPA.                                        in a site log book. The site log book shall           during the previous 14 days;
                                                             be maintained as follows:                                (D) Inspect all sediment control
     List of Subjects                                           (i) A copy of the site log book shall              practices and note the approximate
                                                             be maintained on site and be made                     degree of sediment accumulation as a
     40 CFR Part 122                                         available to the permitting authority                 percentage of the sediment storage
       Environmental protection,                             upon request;                                         volume (for example 10 percent, 20
                                                                (ii) In the site log book, the permittee           percent, 50 percent, etc.). Note all
     Administrative practice and procedure,
                                                             shall certify, prior to the                           sediment control practices in the site log
     Confidential business information,
                                                             commencement of construction                          book that have sediment accumulation
     Hazardous substances, Reporting and                     activities, that any plans required by the            of 50 percent or more; and
     recordkeeping requirements, Water                       permit meet all Federal, State, Tribal                   (E) Inspect all erosion and sediment
     pollution control.                                      and local erosion and sediment control                control BMPs and note compliance with
     40 CFR Part 450                                         requirements and are available to the                 any maintenance requirements such as
                                                             permitting authority;                                 verifying the integrity of barrier or
       Environmental protection,                                (iii) The permittee shall have a                   diversion systems (e.g., earthen berms or
     Construction industry, Land                             qualified professional (knowledgeable                 silt fencing) and containment systems
     development, Erosion, Sediment, Storm                   in the principles and practices of                    (e.g., sediment basins and sediment
     water, Water pollution control.                         erosion and sediment controls, such as                traps). Identify any evidence of rill or
                                                             a licensed professional engineer, or                  gully erosion occurring on slopes and
       Dated: May 15, 2002.
                                                             other knowledgeable person) conduct an                any loss of stabilizing vegetation or
     Christine Todd Whitman,                                 assessment of the site prior to                       seeding/mulching. Document in the site
     Administrator.                                          groundbreaking and certify in the log                 log book any excessive deposition of
       For the reasons set out in the                        book that the appropriate best                        sediment or ponding water along barrier
     preamble, EPA proposes to amend title                   management practices (BMPs) described                 or diversion systems. Note the depth of
     40, chapter I of the Code of Federal                    in plans required by the permit have                  sediment within containment
     Regulations as follows:                                 been adequately designed, sized and                   structures, any erosion near outlet and
                                                             installed to ensure overall preparedness              overflow structures, and verify the
     [Option 1]                                              of the site for initiation of                         ability of rock filters around perforated
                                                             groundbreaking activities. The permittee              riser pipes to pass water.
       Part 122 is proposed to be amended                    shall record the date of initial                         (ii) Prior to filing of the Notice of
     to read as follows:                                     groundbreaking in the site log book. The              Termination or the end of permit term,
                                                             permittee shall also certify that any                 a final site erosion and sediment control

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     42684                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     inspection shall be conducted by the                      Authority: Sections 301, 304, 306, 308,             establishing temporary stabilization
     permittee or designated agent. The                      402, and 501 of the Clean Water Act, as               including perimeter controls for an
     inspector shall certify that the site has               amended; 33 U.S.C. 1311, 1314, 1316, 1318,            individual lot prior to occupation of the
                                                             1342, and 1361.
     undergone final stabilization as required                                                                     home by the homeowner and informing
     by the permit and that all temporary                    Subpart A—General Provisions                          the homeowner of the need for, and
     erosion and sediment controls (such as                                                                        benefits of, final stabilization; or
     silt fencing) not needed for long-term                  § 450.10    Applicability.                               (3) For construction projects on land
     erosion control have been removed.                         This part applies to any point source              used for agricultural purposes (e.g.,
                                                             discharges from construction and                      pipelines across crop or range land),
     [Option 2]
                                                             development activities that are subject               final stabilization may be accomplished
       Part 122 is proposed to be amended                    to an NPDES permit under the                          by returning the disturbed land to its
     and part 450 is proposed to be added to                 definition of ‘‘construction activity’’ at            preconstruction agricultural use.
     read as follows:                                        40 CFR 122.26(b)(14)(x). This may                     Disturbed areas that were not previously
                                                             include, but is not restricted to,                    used for agricultural activities, such as
     PART 122—EPA ADMINISTERED                               construction of residential buildings                 buffer strips immediately adjacent to
     PERMIT PROGRAMS: THE NATIONAL                           and non-residential buildings, and                    ‘‘waters of the United States,’’ and areas
     POLLUTANT DISCHARGE                                     heavy construction (including highways                that are not being returned to their
     ELIMINATION SYSTEM                                      and streets, bridges and tunnels,                     preconstruction agricultural use must
                                                             pipelines, transmission lines and                     meet the final stabilization criteria in
       1. The authority citation for part 122                industrial non-building structures).
     continues to read as follows:                                                                                 paragraph (1) or (2) of this definition.
                                                             Where there is more than one operator                    Groundbreaking means the
       Authority: The Clean Water Act, 33 U.S.C.             of a discharge at a site, the requirements            commencement of construction activity
     1251 et seq.                                            of this part may be shared among                      at a site.
       2. Section 122.44 is amended by                       operators if all the requirements of this
                                                                                                                      New Source means any source from
     revising paragraph (i)(3) as follows:                   part are met for the entire site. The
                                                                                                                   which there may be a discharge
                                                             Storm Water Pollution Prevention Plan
                                                                                                                   associated with construction activity
     § 122.44 Establishing limitations,                      (SWPPP) required by § 450.21(d) shall
                                                                                                                   pursuant to 40 CFR 122.26(b)(14)(x) that
     standards, and other permit conditions                  clearly delineate the responsibilities of
     (applicable to State NPDES programs, see                                                                      will result in a building, structure,
                                                             all operators.
     § 123.25).                                                                                                    facility or installation from which there
     *     *     *     *     *                               § 450.11    General definitions.                      may be a discharge of pollutants
                                                                In addition to the definitions set forth           regulated by new source performance
       (i) * * *
                                                             in 40 CFR 122.2, 122.26(b) and 40 CFR                 standards elsewhere under subchapter
       (3) Requirements to report monitoring                                                                       N.
                                                             401.11, the following definitions apply
     results for storm water discharges
                                                             to this part:                                            Operator for the purpose of this Part
     associated with industrial activity, with                  Best Management Practices (BMPs)                   and in the context of storm water
     the exception of construction activity as               means schedules of activities,                        associated with construction activity,
     defined in § 122.26(b)(14)(x), that are                 prohibitions of practices, maintenance                means any party associated with a
     subject to an effluent limitation                       procedures, and other management                      construction project that meets either of
     guideline shall be established on a case-               practices to prevent or reduce the                    the following two criteria:
     by-case basis with a frequency                          discharge of pollutants to waters of the
     dependent on the nature and effect of                                                                            (1) The party has operational control
                                                             United States. BMPs also include                      over construction plans and
     the discharge, but in no case less than                 treatment requirements, operating
     once a year. Discharges from                                                                                  specifications, including the ability to
                                                             procedures, and practice to control                   make modifications to those plans and
     construction activity pursuant to                       plant site runoff, spillage or leaks,
     § 122.26(b)(14)(x) shall be governed                                                                          specifications; or
                                                             sludge or waste disposal, or drainage                    (2) The party has day-to-day
     instead by 40 CFR part 450.                             from raw material storage.
       3. A new part 450 is added to read as                                                                       operational control of those activities at
                                                                Commencement of construction
     follows:                                                                                                      a project that are necessary to ensure
                                                             means the initial removal of vegetation
                                                                                                                   compliance with a storm water
                                                             and disturbance of soils associated with
     PART 450—CONSTRUCTION AND                                                                                     pollution prevention plan (SWPPP) for
                                                             clearing, grading or excavating activities
     DEVELOPMENT POINT SOURCE                                                                                      the site or other permit conditions (e.g.,
                                                             or other construction activities.
     CATEGORY                                                                                                      they are authorized to direct workers at
                                                                Final stabilization means that either:
                                                                (1) All soil-disturbing activities at the          a site to carry out activities required by
     Subpart A—General Provisions                                                                                  the SWPPP required by § 450.21(d) or to
                                                             site have been completed and a uniform
     Sec.                                                                                                          comply with other permit conditions).
     450.10 Applicability.
                                                             (e.g, evenly distributed, without large
                                                             bare areas) perennial vegetative cover                   Perimeter controls means best
     450.11 General Definitions.
                                                             with a density of 70 percent of the                   management practices that are designed
     Subpart B—Erosion and Sediment Controls                 native background vegetative cover for                to prevent uncontrolled discharge of
     450.21 Effluent limitations reflecting the              the area has been established on all                  sediment from the site. Perimeter
         best practicable technology currently               unpaved areas and areas not covered by                controls include BMPs such as
         available (BPT).                                    permanent structures, or equivalent                   diversion dikes, storm drain inlet
     450.22 Effluent limitations reflecting the              permanent stabilization measures (such                protection, berms, and silt fencing.
         best available technology economically                                                                       Qualified professional means a person
         achievable (BAT).
                                                             as the use of riprap, gabions, or
     450.23 Effluent limitations reflecting the              geotextiles) have been employed; or                   knowledgeable in the principles and
         best conventional pollutant control                    (2) For individual lots in residential             practice of erosion and sediment
         technology (BCT).                                   construction by either: The homebuilder               controls, such as a licensed professional
     450.24 New source performance standards                 completing final stabilization as                     engineer, or other knowledgeable
         (NSPS).                                             specified above; or the homebuilder                   person.

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                              Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules                                             42685

        Runoff coefficient means the fraction                stabilization of the site. Where no such              Such alternate documents will satisfy
     of total rainfall that will appear at the               calculation has been performed, a                     the requirements for a SWPPP so long
     conveyance as runoff.                                   temporary (or permanent) sediment                     as they contain the necessary elements
        Stabilization means covering or                      basin providing 3,600 cubic feet of                   of a SWPPP. A SWPPP shall incorporate
     maintaining an existing cover over soil.                storage per acre drained, or equivalent               the following information:
     Cover can be vegetative (e.g., grass,                   control measures, shall be provided                      (1) A narrative description of the
     trees, seed and mulch, shrubs, or turf)                 where attainable until final stabilization            construction activity, including a
     or non-vegetative (e.g., geotextiles,                   of the site. When computing the number                description of the intended sequence of
     riprap, or gabions).                                    of acres draining into a common                       major activities that disturb soils on the
                                                             location it is not necessary to include               site (major activities include grubbing,
     Subpart B—Erosion and Sediment                          flows from off-site areas and flows from              excavating, grading, and utilities and
     Control                                                 on-site areas that are either undisturbed             infrastructure installation, or any other
                                                             or have undergone final stabilization                 activity that disturbs soils for major
     § 450.21 Effluent limitations reflecting the
     best practicable technology currently
                                                             where such flows are diverted around                  portions of the site);
     available (BPT).                                        both the disturbed area and the                          (2) A general location map (e.g.,
                                                             sediment basin.                                       portion of a city or county map) and a
       Except as provided in 40 CFR 125.30                      (2) In determining whether a sediment
     through 125.32, any existing point                                                                            site map. The site map shall include
                                                             basin is attainable, the operator may                 descriptions of the following:
     source subject to this subpart must                     consider factors such as site soils, slope,              (i) Drainage patterns and approximate
     achieve the following effluent                          available area on site, etc. In any event,            slopes anticipated after major grading
     limitations representing the application                the operator must consider public                     activities;
     of the best practicable control                         safety, especially as it relates to                      (ii) The total area of the site and areas
     technology currently available (BPT).                   children, as a design factor for the                  of disturbance;
     Permittees with operational control over                sediment basin, and alternative                          (iii) Areas that will not be disturbed;
     construction plans and specification,                   sediment controls shall be used where                    (iv) Locations of major structural and
     including the ability to make                           site limitations would preclude a safe                nonstructural controls identified in the
     modifications to those plans and                        basin design.                                         SWPPP;
     specifications (e.g., developer or owner),                 (3) For portions of the site that drain               (v) Locations where stabilization
     must ensure the project specifications                  to a common location and have a total                 practices are expected to occur;
     that they develop meet the minimum                      contributing drainage area of less than                  (vi) Locations of off-site material,
     requirements of a SWPPP required by                     10 disturbed acres, the operator should               waste, borrow or equipment storage
     paragraph (d) of this section.                          use smaller sediment basins and/or                    areas;
       (a) General Erosion and Sediment                      sediment traps.                                          (vii) Surface waters (including
     Controls. Each SWPPP shall include a                       (4) Where neither a sediment basin                 wetlands); and
     description of appropriate controls                     nor equivalent controls are attainable                   (viii) Locations where storm water
     designed to retain sediment on site to                  due to site limitations, silt fences,                 discharges to a surface water;
     the extent practicable. These general                   vegetative buffer strips or equivalent                   (3) A description of available data on
     erosion and sediment controls shall be                  sediment controls are required for all                soils present at the site;
     included in the SWPPP developed                         down slope boundaries of the                             (4) A description of BMPs to be used
     pursuant to paragraph (d) of this                       construction area and for those side                  to control pollutants in storm water
     section. The SWPPP must include a                       slope boundaries deemed appropriate as                discharges during construction as
     description of interim and permanent                    dictated by individual site conditions.               described elsewhere in this section;
     stabilization practices for the site,                      (c) Pollution Prevention Measures.                    (5) A description of the general timing
     including a schedule of when the                        The SWPPP shall include the following                 (or sequence) in relation to the
     practices will be implemented.                          pollution prevention measures:                        construction schedule when each BMP
     Stabilization practices may include:                       (1) Litter, construction chemicals, and            is to be implemented;
       (1) Establishment of temporary or                     construction debris exposed to storm                     (6) An estimate of the pre-
     permanent vegetation;                                   water shall be prevented from becoming                development and post-construction
       (2) Mulching, geotextiles, or sod                     a pollutant source in storm water                     runoff coefficients of the site;
     stabilization;                                          discharges (e.g., screening outfalls,                    (7) The name(s) of the receiving
       (3) Vegetative buffer strips;                         picked up daily); and                                 water(s);
       (4) Protection of trees and                              (2) A description of construction and                 (8) Delineation of SWPPP
     preservation of mature vegetation.                      waste materials expected to be stored                 implementation responsibilities for each
       (b) Sediment controls. The SWPPP                      on-site with updates as appropriate, and              site owner or operator;
     must include a description of structural                a description of controls to reduce                      (9) Any existing data that describe the
     practices to divert flows from exposed                  pollutants from these materials                       storm water runoff characteristics at the
     soils, store flows, or otherwise limit                  including storage practices to minimize               site.
     runoff and the discharge of pollutants                  exposure of the materials to storm                       (e) Updating the SWPPP. The operator
     from exposed areas of the site to the                   water, and spill prevention and                       shall amend the SWPPP and
     degree attainable.                                      response.                                             corresponding erosion and sediment
        (1) For common drainage locations                       (d) Storm Water Pollution Prevention               control BMPs whenever:
     that serve an area with 10 or more acres                Plan. Operators subject to this part shall               (1) There is a change in design,
     disturbed at one time, a temporary (or                  compile Storm Water Pollution                         construction, or maintenance that has a
     permanent) sediment basin that                          Prevention Plans (SWPPPs) prior to                    significant effect on the discharge of
     provides storage for a calculated volume                groundbreaking at any construction site.              pollutants to waters of the United States
     of runoff from a 2 year, 24-hour storm                  In areas where EPA is not the permit                  which has not been addressed in the
     from each disturbed acre drained, or                    authority, operators may be required to               SWPPP; or
     equivalent control measures, shall be                   prepare documents that may serve as                      (2) Inspections or investigations by
     provided where attainable until final                   the functional equivalent of a SWPPP.                 site operators, local, State, Tribal or

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     42686                    Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 / Proposed Rules

     Federal officials indicate that the                     pathways. Indicate site areas that are                or permanently ceased is precluded by
     SWPPP is proving ineffective in                         expected to undergo initial disturbance               snow cover or frozen ground conditions,
     eliminating or significantly minimizing                 or significant site work within the next              stabilization measures shall be initiated
     pollutant discharges.                                   14-day period;                                        as soon as practicable;
        (f) Site Log Book/Certification. The                    (ii) Indicate on a site map all areas of              (2) Where construction activity on a
     operator shall maintain a record of site                the site that have undergone temporary                portion of the site is temporarily ceased,
     activities in a site log book, as part of               or permanent stabilization;                           and earth-disturbing activities will be
     the SWPPP. The site log book shall be                      (iii) Indicate all disturbed site areas
                                                                                                                   resumed within 21 days, temporary
     maintained as follows:                                  that have not undergone active site work
                                                                                                                   stabilization measures need not be
        (1) A copy of the site log book shall                during the previous 14-day period;
                                                                (iv) Inspect all sediment control                  initiated on that portion of the site.
     be maintained on site and be made
     available to the permitting authority                   practices and note the approximate                       (3) In arid areas (areas with an average
     upon request;                                           degree of sediment accumulation as a                  annual rainfall of 0 to 10 inches), semi-
        (2) In the site log book, the operator               percentage of the sediment storage                    arid areas (areas with an average annual
     shall certify, prior to the                             volume (for example 10 percent, 20                    rainfall of 10 to 20 inches), and areas
     commencement of construction                            percent, 50 percent, etc.). Record all                experiencing droughts where the
     activities, that the SWPPP prepared in                  sediment control practices in the site log            initiation of stabilization measures by
     accordance with paragraph (d) of this                   book that have sediment accumulation                  the 14th day after construction activity
     section meets all Federal, State and                    of 50 percent or more; and                            has temporarily or permanently ceased
     local erosion and sediment control                         (v) Inspect all erosion and sediment               is precluded by seasonably arid
     requirements and is available to the                    control BMPs and record all                           conditions, the operator shall initiate
     permitting authority;                                   maintenance requirements such as                      stabilization measures as soon as
        (3) The operator shall have a qualified              verifying the integrity of barrier or                 practicable.
     professional conduct an assessment of                   diversion systems (earthen berms or silt                 (i) Maintenance. Sediment shall be
     the site prior to groundbreaking and                    fencing) and containment systems                      removed from sediment traps or
     certify in the log book that the                        (sediment basins and sediment traps).                 sediment ponds when design capacity
     appropriate BMPs and erosion and                        Identify any evidence of rill or gully                has been reduced by 50 percent.
     sediment controls described in the                      erosion occurring on slopes and any loss
     SWPPP and required by paragraphs (a),                   of stabilizing vegetation or seeding/                 § 450.22 Effluent limitations reflecting the
     (b), (c) and (d) of this section have been              mulching. Document in the site log book               best available technology economically
     adequately designed, sized and installed                any excessive deposition of sediment or               achievable (BAT).
     to ensure overall preparedness of the                   ponding water along barrier or diversion                Except as provided in 40 CFR 125.30
     site for initiation of groundbreaking                   systems. Record the depth of sediment                 through 125.32, any existing point
     activities. The operator shall record the               within containment structures, any                    source subject to this subpart must
     date of initial groundbreaking in the site              erosion near outlet and overflow                      employ the best management practices
     log book. The operator shall also certify               structures, and verify the ability of rock            (BMPs) in this section, representing the
     that the requirements of paragraphs (g),                filters around perforated riser pipes to              application of the best available
     (h) and (i) of this section have been                   pass water.                                           technology economically achievable
     satisfied within 48 hours of actually                      (2) Prior to filing of the Notice of
                                                                                                                   (BAT): The effluent limitations are the
     meeting such requirements;                              Termination or the end of permit term,
                                                                                                                   same as those specified in § 450.21.
        (4) The operator shall post at the site,             a final site erosion and sediment control
     in a publicly-accessible location, a                    inspection shall be conducted by the                  § 450.23 Effluent limitations reflecting the
     summary of the site inspection activities               operator or designated agent. The                     best conventional pollutant control
     on a monthly basis.                                     inspector shall certify that the site has             technology (BCT).
        (g) Site Inspections. The operator or                undergone final stabilization using                      Except as provided in 40 CFR 125.30
     designated agent of the operator (such as               either vegetative or structural                       through 125.32, any existing point
     a consultant, subcontractor, or third-                  stabilization methods and that all                    source subject to this subpart must
     party inspection firm) shall conduct                    temporary erosion and sediment                        employ the best management practices
     regular inspections of the site and                     controls (such as silt fencing) not                   (BMPs) in this section, representing the
     record the results of such inspection in                needed for long-term erosion control                  application of the best conventional
     the site log book in accordance with                    have been removed.                                    pollutant control technology (BCT): The
     paragraph (f) of this section.                             (h) Stabilization. The operator shall              effluent limitations are the same as
        (1) After initial groundbreaking,                    initiate stabilization measures as soon as            those specified in § 450.21.
     operators shall conduct site inspections                practicable in portions of the site where
     at least every 14 calendar days and                     construction activities have temporarily              § 450.24 New source performance
     within 24 hours of the end of a storm                   or permanently ceased, but in no case                 standards (NSPS).
     event of 0.5 inches or greater. These                   more than 14 days after the construction                 Any new source subject to this
     inspections shall be conducted by a                     activity in that portion of the site has              subpart must achieve new source
     qualified professional. During each                     temporarily or permanently ceased. This               performance standards (NSPS): The
     inspection, the operator or designated                  requirement does not apply in the                     effluent limitations are the same as
     agent shall record the following                        following instances:                                  those specified in § 450.21.
     information:                                               (1) Where the initiation of
        (i) On a site map, indicate the extent               stabilization measures by the 14th day                [FR Doc. 02–12963 Filed 6–21–02; 8:45 am]
     of all disturbed site areas and drainage                after construction activity temporarily               BILLING CODE 6560–50–P

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