AGC has been following and (to varying degrees) participating in three ongoing construction stormwater issues.
First, the status of the new “Effluent Limitations Guidelines” for the “Construction and Development Industry” (C&D ELG rule) has not significantly changed since AGC’s Environmental Observer post dated Jan. 14. The U.S. Environmental Protection Agency (EPA) issued a direct final rule to stay implementation of its 280 nephelometric turbidity unit (NTU) limit under the December 1, 2009, final C&D ELG rulemaking, while it addresses issues raised in subsequent 7th Circuit Court of Appeals litigation brought by the National Association of Home Builders and other parties.
EPA has prepared a proposed rulemaking to establish a new, “corrected” turbidity limit, which has been at the White House Office of Management and Budget for more than 90-days (technically the “limit” for OMB review, but there are exceptions and there has been no indication that approval is immediately pending). The construction industry has met with OMB during the review process and made a compelling case to OMB to make sure EPA avoids the problems that plagued the original limit (that EPA has suspended). Originally, EPA wanted to propose a new limit, receive comment, and finalize the new limit by the end of May 2011. Clearly, the delay associated with OMB’s review has affected that schedule; EPA recently reported that it will publish a proposal by the end of 2011.
EPA’s original May 2011 goal was directly linked to the Agency’s desire to promulgate a new C&D ELG turbidity limit before it promulgates a new Construction General Permit (CGP) to replace the current 2008 CGP. The 2008 CGP expires at the end of June 2011.
In recent news, EPA proposed a draft revised construction general permit (CGP) for public comment to regulate stormwater discharges from active sites where EPA is the permitting authority. EPA concurrently proposed to extend the current CGP through January 31, 2012, in order to give the Agency time to promulgate the new CGP in final form. Industry has encouraged EPA to extend the current CGP for up to an additional five years. The proposed new CGP includes significant modifications that would increase the costs, labor, and paperwork burdens and liability for construction site operators tasked with stormwater compliance. Major proposed changes to the current CGP aim to implement the C&D ELG rule.
States authorized to run their own stormwater permit programs are expected to follow EPA’s lead in adopting enhanced protections.
Finally, many of the same EPA staff also are engaged in ongoing efforts to craft EPA’s post-construction stormwater rulemaking, which AGC recently provided comments and recommendations on as part of EPA’s Small Business and Enforcement Fairness Act (SBREFA) review. EPA’s current timeline on the post-construction rulemaking is reflected in the following bullets:
- EPA must finish analyzing all of the information it received through its Clean Water Act (CWA) Section 308 Information Collection Request (over 3,000 questionnaires sent to potentially affected entities).
- EPA must develop a “Report to Congress” by “this summer” if it intends to expand the existing stormwater program (as it has said it would do) to include new categories of dischargers subject to CWA Section 402(p) addressing stormwater controls.
- EPA has committed to proposing a new post-construction stormwater program by September 30, 2011.
- EPA has committed to finalizing that rulemaking by November 12, 2012.