On November 5, 2010, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a direct final rulemaking to formally stay the numeric limit and associated monitoring requirements for turbidity in the “effluent limitation guidelines” rule (ELG) for stormwater runoff from “construction and development” (C&D) because of an error in the way the Agency calculated the limit.
EPA plans to propose in December 2010 a “correction rule” for public comment that would revise the current numeric limit of 280 nephelometric turbidity units (NTUs), and then take final action on a revised limit by May 30, 2011.
The direct final rule takes effect January 4, 2011, without further notice, unless EPA receives adverse comment by December 6. This immediate action is necessary because EPA has concluded that it improperly interpreted the data underlying the 280 NTU limit and, as a result, the calculations in the existing administrative record are no longer adequate to support the 280 NTU effluent limitation. EPA intends to expeditiously conduct a separate rulemaking to correct the numeric effluent limitation. According to EPA, states issuing construction stormwater permits between the effective date of the stay and the effective date of the new numeric limit rulemaking need not incorporate the 280 NTU standard into their permits. This is especially critical for the 16 states that are expected to issue new construction general (stormwater) permits in 2010 and 2011.
The final C&D ELG rule was published Dec. 1, 2009, at 40 CFR 450 and became effective Feb. 1, 2010 (74 FR 62996). Under the rule, starting in August 2011, on certain larger construction sites, the average turbidity for any stormwater discharges on any day may not exceed 280 NTU (turbidity measurement units) (40 CFR § 450.22(a)). As reported previously by AGC, the home building industry challenged EPA’s final C&D ELG regulations in the U.S. Court of Appeals for the Seventh Circuit (in Chicago). AGC also reported that the U.S. Small Business Administration (SBA) and industry had filed administrative petitions with EPA to reconsider the 280 NTU standard, pursuant to the Administrative Procedure Act. Despite EPA’s admission that the 280 NTU limit is improperly derived, and both industry and EPA’s support for throwing it out, the 7th Circuit refused to vacate the flawed limit. Instead, the court remanded certain portions of the final rule back to EPA for further reconsideration. EPA said it would re-examine the numeric limit “through a narrowly-tailored notice-and-comment rulemaking, and, if necessary, revise that portion of the limit” (Wisconsin Builders Ass'n v. EPA, 7th Cir., No. 09-4113, 8/24/10). EPA now says it will propose a change to the turbidity limit in December.
In short, EPA’s inability or unwillingness to defend the 280 NTU limit in the 7th Circuit litigation and that court’s failure to vacate that limit per EPA’s request have forced the Agency to use the Administrative Procedure Act to issue a direct final rulemaking staying the 280 NTU limit while it works on a new rulemaking. Simultaneously and as a precaution, EPA has proposed a separate rule to stay the 280 NTU limit, in case the Agency receives “adverse comment” to the direct final rule, which would require EPA to withdraw that rule.
In a fact sheet explaining the latest developments, EPA has indicated that it hopes to propose a new rule to set a numeric effluent limit for the C&D ELG regulations by the end of 2010, and finalize a new limit by May 30, 2011. That would provide EPA with a month between setting a new limit and reissuing its federal Construction General Permit (CGP); a period of time the Agency believes is sufficient to promulgate a new CGP with the new numeric limit and other ELG requirements by EPA’s June 29, 2011, self-imposed deadline for completing its CGP. States authorized to run their own permit programs also are required to incorporate the new rule requirements into any reissued National Pollutant Discharge Elimination System construction stormwater permits, EPA said.
EPA’s action to stay the 280 NTU limit in the C&D ELG does not impact existing stormwater permits for discharges from active construction operations. Those permit conditions continue to be effective and construction site operators must still obtain and comply with such permits for any land disturbing activity equal to or greater than one acre, or part of a common plan of development that would disturb one acre or more. The Agency is encouraging states that were in the process of following EPA’s lead and were working to promulgate their own numeric limit of 280 NTU to withhold such rulemaking efforts until EPA has acted on a new rulemaking. Concerned AGC members should ensure that their states recognize that EPA has admitted to improperly calculating the 280 NTU limit and encourage state permitting authorities to provide data and input into EPA’s new rulemaking.
Currently, the EPA lawsuit pending in the 7th Circuit is being held in “abeyance” by the court until after EPA concludes the scheduled May 30, 2011 rulemaking.
A fact sheet and the Federal Register notices are available on EPA’s website at: http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm.
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