EPA Fast Tracks Rule To Set Limits on Sediment in Construction Runoff
The U.S. Environmental Protection Agency (EPA) has accelerated its schedule to write a first-ever effluent limitation guideline (ELG) for the construction and development (C&D) industries. EPA staff is under the gun to get a final rule out by December 2008—a full year earlier than required by a related court order—per new instructions from undisclosed Administration officials. AGC met with senior EPA staff in late January to learn that an “end-of-pipe” numeric limit on construction stormwater runoff and discharge monitoring requirements are not off the table. What is more, it is unlikely that AGC’s ongoing lawsuit contesting EPA’s “nondiscretionary” duty to issue such an ELG will conclude before the final rule comes out.
EPA is developing an effluent guideline for construction pursuant to a judicial order resulting from litigation brought by environmental groups and the states of New York and Connecticut (Natural Resources Defense Council et al v. EPA et al (C.D. Cal. 2006, Case No. CV-04-8307 GHK)). The court-issued injunction calls for EPA to publish a proposed rule by December 2008 and a final rule by December 2009 that would specify the maximum allowable levels of pollutants that may be discharged from a construction site of one acre or more. AGC has joined EPA in appealing this district court decision to the 9th Circuit. That legal proceeding is in the works.
The main issue before the federal court is whether the Clean Water Act requires EPA to impose an ELG on the construction industry and, in the alternative, whether EPA abused its discretion in deciding not to impose such guidelines in the past (see below). Recognizing that the appellate court’s ruling in not expected until 2009 at the earliest, it appears that EPA will develop its new construction ELG without regard for a decision in the case.
Construction ELG: Round 2
This is EPA’s second attempt to promulgate an ELG for construction. AGC applauded EPA’s decision back in April 2004 not to issue an ELG for construction sites. The Agency’s “no rule” decision closely tracked AGC’s three-year legal, technical and policy campaign to convince EPA that additional rules are unnecessary given the existing stormwater program, and that this type of rule is more properly (and already) the precinct of state and local regulators. But environmental groups quickly filed a lawsuit to force EPA to tighten controls on construction stormwater runoff and so far have been successful in overturning EPA’s “no rule” decision (and AGC’s victory).
While EPA had until December 2009 to complete a construction ELG (assuming that the 9th Circuit does not overturn the district court’s injunction in the interim), the Agency recently announced that it will both propose and finalize a construction ELG in 2008. When finalized, the ELG will set the minimum requirements for all new and reissued National Pollutant Discharge Elimination System (NPDES) stormwater permits.
Options Under Consideration
EPA has identified four options that it currently is considering for a proposed rule:
To formalize the requirement that all sites must develop and implement stormwater pollution prevention plans (SWPPPs).
To establish minimum best management practice (BMP) standards (i.e. sizing criteria and performance standards for sediment basins, as well as other BMPs currently required in EPA’s Construction General Permit).
To establish a numeric standard for designing sediment basins to remove a specified particle size fraction of sediment derived for specific sites based on a multi-variable equation that takes into consideration settling velocity, particle diameter, soil type, etc.
To establish a numeric standard for turbidity or total suspended solids for discharges from sediment ponds, which most likely would require water from the pond to be pumped to a separate treatment system prior to discharge.
Environmental groups are pushing hard for tougher BMP standards, discharge limits, and discharge monitoring requirements.
ELGs are national technology-based 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. Once national limits are set, they must be incorporated into appropriate state and federal 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 BMPs to control any erosion of their jobsites and any sedimentation of surface waters. In contrast, an ELG could 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. Worst case scenario would be an “end-of-pipe” numerical limits on construction stormwater discharges (e.g., discharges can contain no more than “XX” part per million of total suspended solids), coupled with a requirement to monitor and take samples to a laboratory after every rainfall.
For more information, contact Leah Pilconis, Senior Environmental Advisor to AGC of America at firstname.lastname@example.org.
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