The U.S. Environmental Protection Agency (EPA) is moving forward with its commitment to propose and take final action by November 2012 on a first-time national rule that would set new standards to control stormwater discharges from developed sites. As a result of AGC's advocacy work, EPA has decided to not require contractors to respond to a lengthy, mandatory survey that will guide and inform future requirements pertaining to long-term stormwater control practices, recognizing that contractors are not responsible for designing, financing, operating or maintaining post-construction (permanent) stormwater controls.
EPA has initiated a national rulemaking to establish a program to reduce stormwater discharges from new development and redevelopment and make other regulatory improvements to strengthen its stormwater program. In October 2009, EPA published a Federal Register notice announcing its intent to submit an Information Collection Request (ICR) to the White House Office of Management and Budget (OMB) to get approval to distribute a questionnaire to owners, operators, developers, and contractors of developed sites ("Industry Questionnaire"), as well as two other surveys directed at municipalities and states. Acting on AGC's recommendations, EPA has significantly revised its mandatory questionnaires and is now proposing six separate questionnaires (that are focused on gathering data about current stormwater management practices from specific groups); however, none of the revised surveys are directed at general contractors. AGC's work is sure to save the industry both time and money, as many members estimated that it would have taken a construction firm between 120 to 150 hours to complete the EPA survey.
As previously reported in AGC's Environmental Observer, late last year, EPA requested the construction industry's feedback on a draft of an "Industry Questionnaire" that the Agency had planned to distribute this spring to collect detailed financial and technical information to guide and inform a new stormwater runoff rulemaking. The proposed Industry Questionnaire would have required certain general contractors (i.e., those selected by EPA to complete it) 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. Construction companies would have spent significant time, energy and money completing the survey.
AGC provided extensive comments explaining to EPA that the proposed Information Collection Request was: 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.
AGC met with EPA staff in early January to discuss the most efficient method for the Agency to obtain the information it deems necessary to perform its function. As the newly proposed ICR documents show, and as a result of AGC's input and outreach, EPA has correctly determined that general contractors should not be subject to future information collection requests associated with post-construction issues. EPA is accepting public comment until June 9 - Docket ID No. EPA-HQ-OW-2009-0817 - at http://www.regulations.gov.
Stakeholder Input on Stormwater Rulemaking
In related news, EPA recently held five listening sessions in January 2010 in select cities to inform the public and solicit feedback on upcoming rules to strengthen the national stormwater program. Many AGC members "listened in" to these sessions and a few gave 3-minute statements; AGC helped to coordinate industry's message and submitted a written statement on Feb. 26. AGC's statement explained the following points:
- The construction contractor's role in real estate development;
- The construction contractor's role in post-construction stormwater management;
- Post-construction stormwater management does not fit in current NPDES construction general permit program;
- Existing regulatory programs adequately control post-construction discharges; and
- Post-construction discharges are best addressed by local authorities.