EPA Delays Nationwide Limit on Dirt in Stormwater; Move Will Help Construction Industry Avoid Billions in New Costs
The U.S. Environmental Protection Agency’s (EPA) announcement that it is delaying its effort to protect the Earth from dirt gives temporary relief for struggling contractors. AGC’s chief executive officer, Stephen E. Sandherr, issued a statement approving the decision by the EPA to withdraw a proposed “numeric limit” on the amount of dirt the federal government will allow in stormwater from construction sites.
Specifically, EPA has withdrawn from the White House Office of Management and Budget (OMB) the rulemaking proposal that would have revised the numeric turbidity limit for runoff from construction sites. (OMB clearance is the last step in the rulemaking process before a regulation is signed and published in the Federal Register.) EPA withdrew the proposal on August 12 – eight months after it sent the draft rule to OMB for review – with plans to collect more data before reaching a final decision. Unfortunately, EPA is only seeking to delay imposing its nationwide limit on dirt in stormwater, instead of abandoning the idea all together. "We will continue to fight this," said Sandherr. Read AGC’s statement.
An official EPA statement appears on its website, along with links to prior EPA action on this matter – http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm.
EPA admitted to AGC in a meeting last week that it needs more information on the effectiveness of existing stormwater “passive-treatment technologies” at construction sites before moving ahead with a new rule. As previously reported by AGC, industry was both surprised and alarmed when it learned that EPA had derived its prior nationwide numeric limit of 280 nephelometric turbidity limits (NTU) by relying on discharge monitoring reports from only nine construction sites, spanning just three different states(California, North Carolina and Oregon). What is more, the Agency set that strict one-size-fits-all requirement based on the capabilities of expensive and site-specific advanced treatment systems that were being used on those nine sites. Yet in the end, EPA continued to endorse and base its economic impact calculations on the use of less-costly "passive" treatment.
Lawsuits Got Us Where We Are Now
Looking back, it was a lawsuit by the Natural Resources Defense Council (NRDC) that prompted a federal judge back in 2006 to give EPA a December 1, 2009, deadline to set strict technology-based limits on construction site runoff. EPA rushed to finalize “Effluent Limitations Guidelines” for the “Construction and Development Industry” (C&D ELG rule) by the court-ordered deadline, setting the first-ever nationally applicable – and potentially impossible-to-meet – limit of 280 “turbidity units or NTU” dictating how murky stormwater can be when it runs off construction sites disturbing 10 or more acres of land at one time. See 74 Fed. Reg. 62,996. (A previous proposal by EPA would have set a limit of only 13 NTUs for construction-site discharges.) The rule also required monitoring and reporting to ensure compliance with that limit.
Industry groups sued EPA over the December 2009 C&D ELG rule, questioning the agency's data and pointing out what EPA later conceded was a calculation error in setting the turbidity limit. Then in November 2010, EPA put the limit on hold and agreed to reconsider the number. Eight months ago, EPA sent its new, “corrected” numeric limit proposal to the White House and that is where it eventually died.
AGC will publish more information soon on what this means in the long term for stormwater management on construction sites. We will know more specifics on EPA’s next steps when it publishes a Federal Register notice seeking new data, which is due out in a few weeks. AGC will continue to argue strenuously against a “one-size-fits-all” limit. Note that EPA’s action to stay the 280 NTU limit in the December 2009 C&D ELG, and, most recently, to withdraw its “corrected” numeric limit proposal, do not impact existing stormwater permits for discharges from active construction sites that disturb one acre or more of land.
Click here to watch AGC’s general counsel Mike Kennedy explain the significance of the EPA decision.
The news was covered by Fox News and Roads and Bridges.
For more information, please contact Leah Pilconis at firstname.lastname@example.org.
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