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Federal Court Orders EPA to Set New Effluent (Discharge) Limits for Construction Runoff; Proposal Due Out Dec. 1

November 13, 2008
AGC stands ready to respond to the U.S. Environmental Protection Agency's (EPA) much anticipated rulemaking that will put forth a first-ever national effluent standard dictating the amount of sediment that may lawfully be discharged from all construction sites that disturb one acre or more of land.  A recent federal appellate ruling sets a Dec. 1 deadline for EPA to decide whether, and how, to set a strict, nationwide limit on stormwater discharges from construction sites.  Both in the courtroom and at the regulatory agencies, AGC continues to stress that numeric limits are not an appropriate control for construction runoff due to the high degree of variability in site parameters, regional and site specific rainfall, and erosion and sediment control effectiveness. The U.S. Court of Appeals for the Ninth Circuit recently upheld a 2006 district court ruling that EPA must  propose a so-called effluent limitation guideline (ELG) for the "construction and development" (C&D) industry by December 1, 2008, and finalize it by December 1, 2009.  AGC intervened in this lawsuit to help EPA defend its April 2004 decision not to issue a C&D ELG.  Environmental groups disagreed and promptly sued EPA, ultimately invalidating EPA's "no rule" decision. ELGs typically specify the maximum allowable levels of pollutants that may be discharged by a certain industry.  The "limits" are generally based on the performance of the best available technologies.  Once a C&D ELG has been finalized, it will be incorporated into all state and federal general permits for the discharge of stormwater from construction activities.  In September, several AGC members advised a Small Business Advocacy Review Panel on the potential effects of any ELG rule on regulated small construction companies.  AGC continues to advocate strongly for best management practice (BMP)-based standards that would allow flexibility in the face of widely divergent scenarios due to weather and type of construction. Nonetheless, EPA appears to favor an ELG option that would specify a numeric discharge limit for pollutants such as turbidity or total suspended solids in stormwater running off construction sites.  Setting such a limit would require installation of active treatment technologies, known as Advanced Treatment Systems (ATS).  This option would also include sampling and monitoring requirements. AGC and the National Association of Home Builders (NAHB) have teamed up to submit more than 250 pages of initial comments, followed by additional comments outlining a BMP or "control measure" option, which industry is recommending as an alternative to (or to replace) the ATS option.  The AGC-NAHB comments demonstrate that the cost of treating stormwater with ATS is "upwards of $50 per pound of sediment removed," which is significantly more expensive than other treatment requirements. Further complicating the issue for EPA is a new report from the National Research Council (NRC), Water Sciences and Technology Board -- Urban Stormwater Management in the United States -- that recommends significant changes to EPA’s stormwater permit program and suggests, among other things, that all stormwater and wastewater discharge permits be based on watershed boundaries instead of political boundaries. It calls for an entirely new permitting structure that would place the authority and accountability for stormwater discharges at the municipal level, which is consistent with AGC’s position there is no “one-size-fits-all” approach to stormwater runoff.  The better way to protect the environment is to allow state and local authorities to tailor the details to state and local conditions, and not to impose a rigid and inflexible federal standard. To learn more about current EPA stormwater initiatives and imminent changes to the national permit program, click here for the latest issue of AGC’s Environmental Observer newsletter. For more information, contact Leah Pilconis at (703) 837-5332 or pilconisl@agc.org.
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