The U.S. Environmental Protection Agency (EPA) recently published a proposed rule to withdraw the nationwide numeric discharge limit from its 2009 Construction and Development Effluent Limitations Guidelines rule (C&D ELG), along with revising some of the rule’s non-numeric requirements. If faced with a numeric limit, contractors would have been required to monitor the turbidity levels in the stormwater running off their construction jobsites, implement extremely costly advanced treatment controls to try to meet EPA’s potentially unachievable legal limit and publicly report any exceedances of the limit. We urge you to submit any comments to EPA – they are due May 31, 2013. The numeric limit and monitoring requirements have been on hold, or stayed, since 2011; however, the provisions still appear in the Code of Federal Regulations (40 CFR Part 450). This has caused much confusion across the country as the Clean Water Act requires permitting authorities to add the C&D ELG provisions to all individual and general National Pollutant Discharge Elimination System (NPDES) construction stormwater permits the next time they reissue them. EPA is now proposing to withdraw the numeric turbidity effluent limitation and monitoring requirements (currently found at 40 CFR 450.22(a) and 450.22(b)) and clarify that these provisions do not need to be incorporated into state-issued construction stormwater permits. A final rule is due no later than February 28, 2014. In addition, the proposed rule amends and clarifies the following non-numeric requirements to —
- Control stormwater volume and velocity (also provides greater clarity on appropriate controls during construction and implementation times);
- Control stormwater discharges to minimize channel and streambank erosion in the immediate vicinity of discharge points;
- Provide and maintain natural buffers around waters of the United States;
- Minimize soil compaction and preserve topsoil;
- Stabilize disturbed areas and
- Minimize the exposure of building materials, waste, etc., to precipitation and to stormwater.
See 78 Fed. Reg. 19,434 (April 1, 2013). As previously reported, EPA has proposed these changes to the C&D ELG pursuant to a settlement agreement with the National Association of Home Builders (and other parties) to resolve a lawsuit over the 2009 C&D ELG rule (Wisconsin Builders Ass'n v. EPA, 7th Cir., No. 09-4113, 12/21/12). While not a named party in the lawsuit, AGC has been integrally involved in EPA’s efforts to develop appropriate controls for construction site stormwater runoff for more than 15 years. AGC carefully coordinated its most recent activities with the lawyers and others involved in the C&D ELG lawsuit. AGC estimates it would have cost industry $10 billion a year to comply with a numeric turbidity limit on construction sites nationwide. EPA admitted back in 2011 that it miscalculated the stormwater runoff limit in its 2009 C&D ELG rule.
More Details
The proposal essentially mirrors the settlement documents by summarizing the litigation, EPA's efforts to “stay” (put on hold) the numeric effluent limit from the final 2009 C&D ELG, and the proposed changes to that regulation set forth in the settlement itself. Following are some additional thoughts and insights based on AGC’s initial review of EPA's proposed rule and coordination with the lawyers representing the industry petitioners in the C&D ELG suit:
- Recognize that each of the proposed amendments to the various C&D ELG Best Management Practices (BMPs or “non-numeric effluent limitations”) is premised on the fundamental principle that EPA can regulate only the "discharge of pollutants through point sources to waters of the U.S.” Hence, BMPs that originally implied EPA could control “on-site” activities that may not directly be related to pollutant discharges have been revised to focus on the fundamental principle set forth above. The BMP requirements would apply only during the construction phase and end once construction has ceased and sites have been stabilized.
- EPA’s proposal recognizes that compliance may be “infeasible” in certain cases when site-specific conditions pose “technically impossible or cost-prohibitive” hurdles. Accordingly, the agency is seeking comments on the proposed, 2-part definition for “infeasible”: (1) whether a control is “technologically possible” OR (2) whether it is “economically practicable and achievable in light of best industry practices.” A permittee may assert either/or as a reason why a certain control may be “infeasible.” EPA said it proposed the definition to avoid inconsistency among permitting authorities.
- As stated above, EPA has proposed to formally withdraw the existing numeric effluent limit (which it postponed in Jan. 2011) to remove it from the CFR. You may notice that EPA references its ongoing effort to collect data and develop a new numeric effluent limit (middle column of p. 19,436), but AGC does not anticipate that EPA will be prepared to propose a new numeric limit for several years.
- While EPA was true to the settlement regarding the specific language for amending the various BMPs (as described in the first bullet above), unbeknownst to the plaintiffs in the litigation, EPA added fairly substantial descriptions of “examples of appropriate controls” (or explanations) for the amended BMPs. In some case, these examples appear to mildly contradict the purpose for amending the BMP in the first place. For example, Section II.B.3. addresses stormwater flow that might erode stream banks in situations in which the permittee's outfall directly discharged over the bank and into a stream, possibly increasing pollutant loads during discharge. However, the reasoning behind the proposed change was to avoid any reference to “down stream” impacts and focus on the actual discharge of pollutants from the site, which might include part of the stream bank at the point of discharge under certain circumstances.
EPA also said it wants to give permitting authorities the discretion and permit holders the flexibility to address site-specific factors when dealing with minimizing exposure of materials at construction sites to rain and stormwater. The proposed rule is available on EPA’s website at http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm.
Comments
In sum, the proposed modifications to the C&D ELG will provide additional clarity, efficiency, and improve the existing C&D ELG. It is a major step forward and welcome outcome to the litigation. However, in addition to supporting the specific amendments, AGC Chapters and members may want to comment on some of the examples and other issues raised in EPA's preamble. You may submit your own comments through May 31 at http://www.regulations.gov under Docket No. EPA-HQ-OW-2010-0884. Also feel free to provide thoughts and input to AGC’s Leah Pilconis at pilconisl@agc.org. AGC will be submitting comments on behalf of the industry in advance of the May 31 comment deadline.
For technical questions on the proposal, contact EPA's Jesse W. Pritts at (202) 566-1038 or pritts.jesse@epa.gov.
For information on AGC’s environmental advocacy efforts, please contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.