AGC recently submitted comments to the U.S. Environmental Protection Agency (EPA) in support of the agency’s proposed rule to withdraw the nationwide numeric discharge limit from the existing 2009 Construction and Development Effluent Limitations Guidelines rule (C&D ELG). The proposal would also revise some of the C&D ELG’s non-numeric or Best Management Practice (BMP) requirements and clearly define the term “infeasible,” as it relates to implementation of the BMP-control requirements. In its letter to EPA, AGC affirmed that the proposal is a major step forward and welcome resolution to the litigation on this rule.
The C&D ELG’s nationwide numeric effluent limit (NEL) and monitoring requirements have been on hold, or stayed, since 2011; however, those provisions still appear in the Code of Federal Regulations at 40 CFR Part 450. [See footnote 1 below.] 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 NPDES construction stormwater permits the next time the authorities reissue the their permits. EPA’s April 1 proposed rule would finally withdraw the NEL and monitoring requirements, removing them from the federal regulations (currently found at 40 CFR Parts 450.22(a) and 450.22(b)) and clarifying that these provisions do not need to be incorporated into state-issued construction stormwater permits. 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 (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 heavily involved in EPA’s efforts to develop appropriate controls for construction site stormwater runoff for more than 15 years. A final rule is due no later than February 28, 2014. If faced with a numeric limit, contractors in every state would have been required to monitor the turbidity levels in 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. AGC’s comments were submitted to EPA on May 31 in support of EPA’s proposal to withdraw the numeric limit. AGC’s letter points out that the modifications to the C&D ELG would provide additional clarity, efficiency, and improve the existing C&D ELG. However, AGC’s letter also expresses some concern that EPA’s preamble contains unnecessary and potentially confusing examples and excessive effort to explain the proposed changes, which ultimately compromises its efforts to clarify. Summarized below are AGC’s general responses to EPA’s proposal. To read AGC’s detailed comment letter, click here. Summary of AGC’s Comment Letter
- AGC strongly supports EPA’s proposal to delete the NEL from the C&D ELG. Existing controls in federal, state and local programs combined with the BMP-based standards in the C&D ELG are efficient means to control turbidity levels in construction site discharges. AGC remains concerned, however, about EPA’s ongoing effort to collect data and develop a new numeric effluent limit (middle column of p. 19436). AGC strongly believes that a NEL is not practical. EPA cannot justify a single compliance limit for all locations throughout the nation. If faced with a NEL, contractors would be 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 unachievablelimit and publicly report any exceedances of the limit. AGC estimates it would have cost industry $10 billion a year to comply with a NEL for turbidity on construction sites nationwide.
- By and large, AGC finds that the proposed amendments to the various non-numeric BMP provisions of the C&D ELG will provide additional clarity, efficiency, and improve the existing C&D ELG. AGC supports EPA’s recognition of the fundamental principle that it can regulate only the “discharge of pollutants through point sources to waters of the U.S.” and agrees with the proposed amendments that are premised on these key facts. AGC supports EPA’s efforts to revise current provisions that wrongly imply that EPA can control “on-site” activities or even down-stream environmental concerns, neither of which could be directly related to the discharge of pollutants from point sources (in this case originating from active construction operations subject to NPDES permitting) to waters of the U.S. AGC agrees, as described in the proposal, the non-numeric BMP requirements would apply only during the construction phase and end once construction has ceased and sites have been stabilized.
- In the preamble to its proposal, EPA set forth several “examples of appropriate controls” (or explanations) for the amended BMPs. AGC recommends that EPA remove this text from the preamble to the final rule and work to develop a separate guidance document as appropriate. In some cases, EPA’s examples appear to contradict the rationale for amending the BMP in the first place, which may lead to confusion for permit writers and permitees. The states’ permitting authorities have ample authority to provide guidance on the most effective ways to implement the non-numeric BMP provisions within their jurisdictions. EPA also should encourage permitting authorities (in implementing the C&D ELG) to develop state or locally-appropriate guidance.
On the other hand, EPA’s examples of “What EPA does not mean by the requirement?” would be extremely helpful for EPA to retain in the preamble to the final rule and to include in guidance.
- AGC supports EPA’s proposed definition of “infeasible”: whether a control is (1) “technologically possible” OR (2) “economically practicable and achievable in light of best industry practices.” EPA’s proposal appropriately recognizes that compliance may be “infeasible” in certain cases when site-specific conditions pose technically impossible or cost-prohibitive hurdles. AGC agrees with EPA’s approach to allow a permittee to 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; AGC maintains that this is of vital importance to the regulated community.
Overall, AGC maintains that a BMP-based, control-measure approach is known and understood by the regulated community; it is cost-effective; and it promotes the use of innovative technologies on construction sites. AGC will continue to urge EPA to strengthen educational programs and materials on BMP-based stormwater permitting programs and not to burden state regulators, construction firms, and the public with rigid and inflexible numeric standards and monitoring requirements.
For more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.
[1] EPA admitted that it miscalculated the stormwater runoff limit in its 2009 C&D ELG rule. The agency took direct final action Nov. 5, 2010, to stay the numeric effluent limitation of 280 NTU and associated monitoring requirements. 75 Fed. Reg. 68,215 (effective Jan. 4, 2011).