Court Orders EPA to Set Limits on Sediment in Construction Runoff
Over AGC’s strong objections, a federal court has ruled that the U.S. Environmental Protection Agency (EPA) must issue an “effluent limitation guideline” or “ELG” that sets specific limits on the sediment that storm water can lawfully discharge from construction sites.
In 2004, EPA found that the cost of such an ELG would outweigh its benefits. Siding with the Natural Resources Defense Council (NRDC) and two states, the U.S. District Court for the Central District of California has now held that EPA had a “nondiscretionary” duty to issue such an ELG, and that the agency’s failure to take that expensive step violated the Clean Water Act (Natural Resources Defense Council v. U.S. EPA, C.D. Cal., No. CV-04-8307-GHK (RCx), 6/28/06).
While the court’s decision will have no immediate effect on contractors, it does set the stage for a second round of debate on whether EPA should develop “numeric limits” that would require contractors to measure the amount of any sediment in any storm water that runs off their jobsites. Environmental groups also want EPA to make contractors responsible for controlling runoff that occurs after project completion.
AGC actively participated in the first rulemaking on an ELG for the construction industry, and it applauded the agency’s final decision not to issue such an ELG. AGC also intervened in the lawsuit brought against the agency for making that decision. AGC joined EPA in arguing that Congress gave the agency the discretion to make an informed decision based on the evidence that it gathered. If the agency launches a second rulemaking, AGC will continue to press the agency to pursue a reasonable course. If the agency appeals the court’s decision, AGC will continue to defend the agency’s original decision.
ELGs are national standards intended to control the discharge of pollutants to surface waters. They require the targeted industry to use the most stringent treatment and control technologies it can afford to achieve the greatest pollutant reductions possible. To develop these technology-based limits, EPA first identifies the best available technologies that are economically achievable for an industry and then sets requirements based on the performance of those technologies. Once national limits are set, they must be incorporated into appropriate state and federal National Pollutant Discharge Elimination System (NPDES) permits.
Right now, construction contractors are not subject to an ELG for construction storm water runoff. Instead, they must follow stringent rules for erosion and sediment control set by federal, state and local authorities. Generally, those rules require contractors (and other construction site “operators”) to select, design and maintain the best management practices (BMPs) to control any erosion of their jobsites and any sedimentation of surface waters. In contrast, an ELG would dictate the BMPs that contractors have to use, and the performance that they have to achieve, on all construction sites of one acre or more.
As noted, AGC applauded EPA's decision not to impose an ELG on the construction industry -- for reasons that closely tracked the many concerns that AGC's multi-year legal, technical and policy campaign had brought to the agency’s attention. After years of analysis and outreach, EPA concluded that additional rules are unnecessary, given the evolution of the existing storm water program. In defense of the EPA and its “no-rule” decision, AGC later intervened in Natural Resources Defense Council v. EPA.
At this time, both AGC and EPA are reviewing the case and evaluating next steps. AGC will oppose any move that would increase expense, create uncertainty, or delay the millions of construction projects undertaken each year.
For more information, contact AGC’s Leah Pilconis at email@example.com.
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