AGC Appeals Federal Court’s Ruling that EPA Must Set Limits on Sediment in Construction Runoff
On January 30, 2007, the U.S. Environmental Protection Agency (EPA) and the Associated General Contractors of America both filed an appeal with the U.S. Court of Appeals for the Ninth Circuit to contest a recent California district court ruling that requires the EPA to issue an “effluent limitation guideline” (ELG) for the “Construction and Development” (C&D) industry.
Such an ELG would set uniform, nationwide limits on the sediment that stormwater can lawfully discharge from construction sites. After years of analysis and outreach, EPA concluded that additional rules are unnecessary, given the evolution of the existing stormwater program.
“EPA recognizes that there is no ‘one-size-fits-all’ approach to stormwater runoff,” said AGC CEO Stephen E. Sandherr. “The better way to protect the environment is to allow state and local authorities to tailor the details of their construction runoff programs to state and local conditions, and not to impose a rigid and inflexible federal standard.”
Siding with the Natural Resources Defense Council (NRDC) and two states, the U.S. District Court for the Central District of California held that EPA had a “nondiscretionary” duty to issue a C&D 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), 12/05/06). AGC intervened in the lawsuit, maintaining that Congress gave the agency the discretion to make an informed no-rule decision based on the evidence that it gathered.
Sandherr added, “AGC believes that EPA’s final decision not to issue a C&D ELG was an appropriate use of the agency’s discretion under the Clean Water Act and the Administrative Procedures Act, and that the district court lacked jurisdiction to review that action. EPA rightly found that the cost of a C&D ELG would outweigh its benefits; concluding that the most appropriate method to control stormwater discharges from construction and development activities is through the existing stormwater permit program.”
AGC agrees with EPA that state and local authorities are in a better position to identify the best practices and techniques to control any erosion or sedimentation that might result from stormwater runoff from the construction job sites within their borders. Additionally, EPA’s “Total Maximum Daily Load (TMDL) program” mandates the use of more stringent control technologies where construction site runoff may be contributing to water quality impairment.
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 stormwater 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.
return to top ]