News

EPA Issues Final Rule to Reduce Pollution From Construction, Development Sites

The Environmental Protection Agency Nov. 23 released a final rule that for first time imposes national monitoring requirements and enforceable numeric limits on stormwater discharges from construction sites.

The monitoring requirements and the numeric discharge limits apply to larger sites, those that disturb 10 acres or more.

EPA said the rule requires owners and operators of all construction sites disturbing one or more acres to use erosion and sediment control best management practices to ensure that soil disturbed during construction activity does not pollute nearby water bodies.

The rule, at 40 C.F.R. Part 450, establishes technology-based effluent limitations guidelines and new source performance standards for the construction and development point-source category. EPA said the rule will reduce the amount of sediment and other pollutants discharged from construction and development sites by approximately 4 billion pounds per year.

EPA was required under a court order to issue the final rule by Dec. 1. The U.S. District Court for the Central District of California set the deadline in a 2006 decision that stemmed from a lawsuit filed by the Natural Resources Defense Council and Waterkeeper Alliance. That ruling was upheld in September 2008 by the U.S. Court of Appeals for the Ninth Circuit (Natural Resources Defense Council v. EPA, 9th Cir., No. 07-55183, 9/18/08).

The rule will take effect 60 days after it is published in the Federal Register.

The rule affects about 82,000 firms, including residential and commercial construction companies and civil engineering firms involved in highway, street, and bridge construction, according to EPA.

Requirements to Be Phased In

Requirements in the rule will be phased in.

The largest sites, those that disturb 20 or more acres, will be required to monitor discharges and comply with the numeric effluent limitation starting 18 months after the effective date of the final rule.

The monitoring requirement and effluent limits will apply to sites that disturb between 10 acres and 19 acres four years after the effective date.

The agency expects that when the rule is fully incorporated into EPA and state National Pollutant Discharge Elimination System permits, the annual cost of the rule will be $953 million.

The construction and demolition industry is the largest category of dischargers in the NPDES program, according to EPA. There are, however, currently no national performance standards or monitoring requirements for this category. The regulation establishes a technology-based floor or national minimum requirement and allows states to keep or enact more stringent requirements.

Permittees will have flexibility to select management practices or technologies that are best suited to site-specific conditions on each construction and demolition site if they can consistently meet the limitations and if they are consistent with requirements established by the permitting authority.

Water Quality Impairment

According to EPA, pollutants discharged from construction sites include sediment, turbidity, and nutrients, all of which contribute to water quality impairment nationwide. The disturbed soil, if not properly managed, can easily be washed off the construction site during storms and enter water bodies.

EPA published proposed regulations for the construction and demolition category on Nov. 28, 2008 (73 Fed. Reg. 72,562). The final rule includes several changes, including a different limit for turbidity, measured as nephelometric turbidity units, or NTUs.

The numeric limitation in the final rule is 280 NTUs, expressed as a maximum daily discharge limitation, or the highest allowable daily discharge applicable to all sites more than 10 acres using best conventional control technology. EPA had initially proposed a standard of 13 NTUs for sites 30 acres or more meeting certain erosion standards.

"EPA recognizes that meeting a numeric limitation is a significant change for this industry." The agency said it has determined the final rule would result in the numeric effluent limitation and monitoring requirements applying to an estimated 73 percent of constructed acres per year.

Concerns over Linear Projects

EPA said it also received comments expressing concern about the applicability of the final rule to linear construction sites, such as road construction projects. The final rule, in part based on this consideration, no longer contains a requirement to install a sediment basin, the technology basis for the numeric effluent limitation is no longer advanced treatment systems, and revisions were made to the non-numeric effluent limitations based on these comments, the agency said.

The agency said it disagreed with comments that suggested EPA should either exempt all linear projects from the final rule or from the numeric effluent limitation.

"EPA has determined that numeric effluent limitations are feasible for linear projects and passive treatment systems provide flexibility to linear projects to take into account site specific considerations," the agency said.

"Additionally, EPA believes that the permitting authority should exercise discretion when determining the monitoring locations and monitoring frequency for linear construction projects."

Natural Gas Pipelines Addressed

But based on the unique circumstances of interstate natural gas pipeline construction projects, EPA said it chose not to have numeric limitations and monitoring requirements apply to them.

This exemption only applies to discharges associated with construction of interstate natural gas pipelines that are under the jurisdiction of the Federal Energy Regulatory Commission, EPA said.

In addition, EPA said it received comments encouraging the agency to include in the final rule controls on stormwater discharges that occur after construction has ceased, or "post-construction" stormwater discharges.

While these are outside this rule's scope, EPA said it is committed to a rulemaking addressing stormwater discharges from newly developed sites and is drafting a survey (74 Fed. Reg. 56,191, 10/30/09).

Jeffrey Odefey, an attorney representing the Natural Resources Defense Council, said that although the rule "is by no means perfect, it is a significant step forward moving in the right direction." It finally would provide a nationwide standard to large construction sites, he said, although NRDC would prefer that it be more stringent. It could also provide "more meaningful leadership" on erosion and sediment control practices.

However, "it is important that the rule allows states to take more progressive action if they wish", he said.

Updates to Permits

According to an EPA fact sheet, the EPA Construction General Permit, which applies to four states and the District of Columbia and is set to expire on June 30, 2011, will be updated to include the new requirements.

The remaining states issue their own construction general permits, and the new requirements must be incorporated into any new general permits issued after the effective date of the regulation.

"The requirements also apply to individual permits issued by states or EPA. Therefore, the implementation date of the new requirements will vary depending on when states reissue their permits and whether projects are covered by individual or general permits," the agency said.

The final rule and a fact sheet are available at http://www.epa.gov/waterscience/guide/construction/.