Comment Letter Urges EPA to Slow Down and Change Course
AGC submitted comprehensive comments to the U.S. Environmental Protection Agency (EPA) on its proposal to mandate drastic changes to the way that construction contractors manage stormwater runoff. EPA intends its new construction general permit (CGP) to replace the one that it adopted just three years ago.
EPA published notice of its draft CGP in the April 25 Federal Register (76 FR 22882). AGC responded July 11 with a 42-page comment letter expressing serious concern that the new CGP for stormwater runoff would increase the complexity and the cost of complying with its terms and conditions, putting site operators at a new and unprecedented level of risk of non-compliance, including fines of up to $37,500 per day per violation. This affects ALL construction firms EVERYWHERE because states that run their own stormwater permit programs generally follow EPA’s lead in adopting enhanced protections. AGC’s letter urges EPA to slow down, change course, and proceed in an orderly way that better reflects the enormous economic risks as well as the environmental rewards of revising its construction stormwater permit.
AGC urged its members to get directly involved, and more than 150 contractors wrote to EPA using a customizable “template” comment letter that AGC made available on its Legislative Action Center. During the public comment period, AGC conducted extensive outreach to inform the membership of this significant stormwater development and to solicit feedback on the proposed permit modifications, as well as other related issues. Over the past few months, AGC has published numerous newsletter articles, distributed a list of 26 questions for members to respond to, hosted a free members-only webinar on the proposed permit, and conducted conference calls with the Environmental Forum Steering Committee and Stormwater Task Force members.
As the construction industry struggles to recover from the economic recession, the proposed permit would rigidly prescribe the stormwater controls that operators have to put in place, require them to sample and test runoff for compliance with a new and still uncertain limit on turbidity, leave them liable for non-compliance with that limit even if they have implemented all of the prescribed measures, and require them to self-report any non-compliance to a publicly accessible database within 24 hours. It would also add a heavy layer of water quality benchmarks that EPA has not provided enough information to justify. And it would do all of this before EPA has even established its new limit on turbidity or finalized the non-numeric provisions of the Construction & Development Effluent Limitations Guidelines (C&D ELG) — all of which remain embroiled in federal litigation. What is more, EPA has neither calculated the economic and employment costs of these provisions nor disclosed or quantified their potential environmental benefits. The draft CGP is online at http://www.epa.gov/npdes/pubs/cgp_proposed.pdf.
Specifically, AGC’s comments focus on the following points—
- EPA is far from ready to impose a strict numeric limit on the turbidity of construction stormwater runoff, much less dictate related requirements for monitoring such runoff, or reporting test results.
- EPA should abandon its one-size-fits-all approach to stormwater controls, including its rigid requirements for erosion and sediment control. These new requirements go well beyond anything required by law, and in some instances, they may be impossible to meet. In proposing such requirements, EPA wrongly disregards the total cost of the technology in relation to the benefits.
- EPA has no reason to ratchet up its separate requirements for stormwater discharges into impaired waterbodies, or to dictate a second set of rigid performance requirements (i.e., costly benchmark limits) for all discharges into such waterbodies. These new requirements are unrealistic and unsupported by science, and deprive the states of the opportunity to tailor the required controls to the nature or scope of the problems that their particular waters are having.
- It would be onerous to require construction contractors to self-report any non-compliance with a numeric limit on the turbidity of stormwater runoff to a publicly accessible database within 24 hours. Over the short-term, test results may be misleading, and requiring contractors immediately to report their results would do more to confuse the public and fuel citizen suits than to protect the environment.
- EPA should permit its current permit for stormwater runoff from construction sites to run its natural course. Such a permit normally has a five-year term. EPA should permit its current permit to run until 2013. If the agency can demonstrate that sound science and a reasoned review of environmental benefits justify new and more stringent requirements, it can then consider such requirements. At this point, EPA remains far from making such a demonstration.
- EPA should rectify the draft permit’s inconsistency with the Administration’s Improving Regulation and Regulatory Review Executive Order.
- EPA should rectify the draft permit’s inconsistency with the agency’s Information Quality Guidelines.