The U.S. Environmental Protection Agency (EPA) has abruptly decided to abandon the first nationwide numeric limit on the amount of sediment that can cloud the water running off of construction sites. Citing evidence that both AGC and the National Association of Home Builders (NAHB) included in their comments on EPA's original proposal - and in direct in response to a lawsuit that NAHB subsequently filed - EPA has admitted that its new "Effluent Limitations Guidelines" for the "Construction and Development Industry" (C&D ELG) are fundamentally flawed. Click here to read the August 13 motion that EPA filed with a federal court of appeals asking it to declare that its numeric turbidity limit is void and to send that limit back to the agency for reconsideration. EPA also has asked the court to put the pending lawsuit on hold until it completes the rule review process.
Courts of appeals generally prefer to allow agencies to correct their own mistakes rather than wasting the courts' and the parties' resources reviewing an admittedly incorrect rulemaking record. In this instance, EPA has concluded that it improperly interpreted the data underlying the numeric limit it adopted. All parties to the pending lawsuit agree that EPA's request to vacate and remand the rule is appropriate. However, the other requirements of the ELG remain in effect: The rule also specifies the exact types of erosion and sediment controls that contractors must use, at a bare minimum, to control stormwater runoff on all construction sites that disturb one or more acres of land.
Over the next 18 months, EPA plans to re-examine its numeric turbidity limit through a "narrowly-tailored notice-and-comment rulemaking and, if necessary, revise [it]." EPA will gather and review additional materials, including the applicability of the numeric limit to cold weather sites and to small sites that are part of a larger project. EPA also may take further action specific to linear gas and electric utility projects. EPA is expected to issue interim stormwater management guidance for construction site operators as the agency works to refine the rule.
Throughout the rulemaking process, AGC worked with and supported NAHB, contributing to the research that ultimately formed the foundation for the lawsuit. AGC and NAHB also combined forces to submit detailed comments demonstrating that EPA had significantly underestimated the cost and impact of a nationwide numeric turbidity limit. Independently, AGC also participated in the small business review of the originally proposed limit, and AGC continues to coordinate with the Small Business Administration - which has also called on EPA to reconsider its numeric turbidity limit.
Background
Published in December 2009, the new C&D ELG requirements impose a nationally applicable - and potentially impossible-to-meet - limit of 280 "turbidity units or NTU" dictating how murky stormwater can be when it runs off construction sites disturbing 10 or more acres of land at one time. See 74 Fed. Reg. 62,996. The rule also requires monitoring and reporting to ensure compliance with that limit, as well as implementation of various other prescriptive erosion and sediment controls. As reported in AGC's Environmental Observer, earlier this year, both the homebuilding industry and the U.S. Small Business Administration (SBA) took legal action to challenge EPA's C&D ELG rule claiming that the 280 NTU standard is arbitrary and based on flawed analyses. Several lawsuits have been consolidated in the Court of Appeals for the Seventh Circuit. In a separate proceeding, the SBA petitioned EPA under the Administrative Procedures Act to reconsider the C&D ELG and its 280 NTU limit. NAHB subsequently also filed a petition for administrative reconsideration with EPA, incorporating by reference SBA's arguments. As a result, the Justice Department filed a motion with the 7th Circuit Court of Appeals asking it to vacate the numeric limit and place a hold on the litigation until February 2012, while EPA goes back and develops a numeric limit with which the construction community can actually comply.
Compliance Costs
EPA admits (as stated in the rule's technical supporting documents) that the estimated costs of compliance are more than twice the estimated benefits. What is more, EPA also has not demonstrated that any particular "technology" will universally ensure compliance across the country with the numeric limit. Hence, actual costs at many construction sites may exceed EPA's estimates of $953 million annually, which would increase the overall negative impact on the construction industry and the likelihood of forcing more construction companies and their workers out of business. In the SBA's petition for reconsideration, it estimates that EPA's C&D ELG rule will cost businesses, including small businesses, in excess of $9.7 billion per year.
For more information, contact Leah Pilconis at pilconisl@agc.org.
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