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Phyllis Harden

Legislative & Special Projects, Pine Bluff Sand & Gravel
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AGC Responds To National Stormwater Initiatives Aimed at Restricting Runoff from Construction Sites

February 4, 2010
Three key stormwater developments are in the works that will affect contractors nationwide.  To ensure the construction industry's voice is heard, AGC of America has created a Stormwater Task Force (made up of 17 AGC Environmental Network members) to respond to current rulemaking efforts and enforcement initiatives aimed at restricting construction site runoff.  Effluent Limitations Guidelines - First, the U. S. Environmental Protection Agency (EPA) has finalized first-time effluent limitations guidelines for the "construction and development industry."  The new rule is on EPA's Web site at http://www.epa.gov/waterscience/guide/construction.  The so-called C&D ELG imposes nationwide monitoring requirements and enforceable numeric limits on the amount of sediment that can run off any construction site that disturbs 10 or more acres of land at any one time, despite AGC's years-long effort to explain the detrimental effect on the construction industry.  It 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.  The rule takes effect in February 2010 and phases in over four years.  The new ELG requirements will be incorporated into all federal and state individual and general National Pollutant Discharges Elimination System (NPDES) stormwater construction permits upon their next reissuance. AGC has a very established working relationship with the U.S. EPA's Office of Water and will be collaborating with senior staff from that office to hold joint educational programs on the new ELG rule in early March 2010.  EPA has also invited AGC to provide suggestions and recommendations as it works to draft a new federal construction general permit that will include the new ELG requirements. For more information, see the related article in this issue of AGC's Environmental ObserverPost-Construction Runoff Requirements - Second, EPA has committed to propose and take final action by November 2012 on a national rule that would include, at a minimum, new design or performance standards to control stormwater discharges from newly developed and redeveloped sites.  EPA recently announced that it will hold listening sessions in January 2010 to inform the public, and solicit feedback, on these upcoming rules that are currently in the works.  EPA also plans to collect 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.  EPA recently provided 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.  AGC submitted comments on the "industry questionnaire," stating that the proposed ICR is: premature and unauthorized by law, as it presumes regulatory authority that does not exist; overly burdensome and misdirected, as it misapprehends the role that contractor's play in the real estate development process; and ineffective in gathering data EPA believes it requires.  To read AGC's comment letter click here.  For more information, see the related article in this issue of AGC's Environmental Observer. Clean Water Act Enforcement Action Plan - Third, contractors everywhere can expect to see increased enforcement by EPA, including criminal and civil penalties for noncompliance, as well as more reporting and public oversight. EPA Administrator Lisa Jackson recently appeared before Congress to discuss the Clean Water Act's (CWA) permit program and EPA's immediate plans to strengthen its enforcement efforts.  Jackson specifically called out construction sites as one of "the biggest threats" to our nation's waters, adding that EPA needs "to target enforcement to the most serious violations and the most significant sources."  To address what she describes as an "unacceptably low" level of enforcement activity, Administrator Jackson announced the release of EPA's new action plan to strengthen federal and state CWA enforcement.  AGC plans to develop recommendations on potential ways to increase industry's stormwater permit compliance and make better use of EPA's enforcement efforts, in accordance with the newly released EPA Clean Water Act Enforcement Action Plan.  For more information, click here. For additional information, contact Leah Pilconis at pilconisl@agc.org
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