The U.S. Environmental Protection Agency (EPA) has announced that it will propose and take final action by Nov. 2012 on a first-time national rule that would restrict stormwater discharges from newly developed and redeveloped sites. Currently, EPA is requesting the construction industry's feedback on a draft questionnaire that will inform and guide the new stormwater runoff rulemaking. The final industry questionnaire would require certain general contractors to provide detailed technical information for up to 10 projects completed in 2009 - including project type/size, stormwater management controls and associated costs, discharge permit forms - as well as company-wide financial information spanning the last five years.
EPA plans to propose a regulation to strengthen the national stormwater permit program, including, at a minimum, new design or performance standards to control stormwater discharges from developed sites under the authority of section 402(p) of the Clean Water Act. EPA plans to collect the information needed to support this rulemaking by distributing mandatory questionnaires to a "statistical sample" of commercial contractors and other entities that likely will be impacted by any new post-construction stormwater runoff requirements.
In an Oct. 30 Federal Register notice, EPA explains that it is soliciting public comment on its draft questionnaires, and will make any necessary amendments to the forms, prior to submitting a proposed "Information Collection Request" to the White House Office of Management and Budget (OMB). The Paperwork Reduction Act (PRA) of 1995 requires that federal agencies prepare ICRs to explain and justify any activity that involves collecting information from 10 or more non-federal respondents. The PRA also requires that federal agencies submit ICRs to OMB for approval and make them available to the public for comment.
What Does This Mean For AGC Members?
Upon receiving approval from OMB (which EPA estimates to be in April 2010), the Agency plans to send the questionnaire to approximately 1,000 construction and development establishments across the United States via Federal Express (or comparable carrier) to ensure a point of contact signs for and receives the questionnaire package. Establishments that receive this questionnaire will be required by law (under the authority of section 308 of the Clean Water Act) to complete and return the forms to EPA within 60 days; late filings or failure to follow any related EPA instructions could result in civil or criminal enforcement and penalties. EPA estimates that it will take each recipient approximately 53 hours to complete the questionnaire.
According to EPA, it will use the technical, financial and environmental data collected from the questionnaires to identify appropriate options to "strengthen national stormwater regulations and to establish a comprehensive program to reduce stormwater discharges from newly developed and redeveloped sites." Information supplied on the forms will allow EPA to estimate the economic impacts of any new requirements on both the entities responsible for installing stormwater controls and those responsible for maintaining the controls and enforcing the standards.
What Does the Questionnaire Require of Industry?
In its current form, the 61-page "industry questionnaire" would identify the respondent and collect financial and technical information. Specifically, the questionnaire would request information from firms' balance sheets (assets, liabilities, net worth), income statements (revenue, expenses and profit) and cash flow statements for a five-year period covering FY2005 to FY2009. It would also request information on firms' project-level stormwater management practices for up to 10 construction jobs completed during FY2009, including design, installation and maintenance costs of such practices. The draft questionnaire is online at http://www.epa.gov/npdes/pubs/ind_questionnaire.pdf.
Respondents have the right to claim certain financial information (required by the questionnaire) confidential business information (CBI). This is valuable protection for companies targeted by private organizations that seek to delay, halt or frustrate construction activities. If no business confidentiality claim is made, however, EPA may make the information publicly available.
How Can AGC Members Comment on the Questionnaire?
EPA is providing the construction industry with an opportunity to comment on its proposed information collection request (ICR) in an effort to reduce the paperwork and associated burden on companies that ultimately receive the mandatory questionnaire, in accordance with the Paperwork Reduction Act of 1995. EPA is not requesting completion of the survey at this time; but is soliciting feedback by Dec. 29, 2009, on issues such as:
- Can the requested data be provided in the desired format?
- Is the reporting burden (time and financial resources) reasonable? (The annual public reporting and recordkeeping burden for this collection of information is estimated to average 53 hours per response.)
- Are the collection instruments clearly understood?
- Does EPA properly assess the impact of collection requirements on respondents?