EPA Delays Issuance of Nationwide Limit on Dirt in Stormwater from Active Construction Sites; Move Will Temporarily Help Industry Avoid Billions in New Costs

The U.S. Environmental Protection Agency’s (EPA) recent decision to pull back its latest stormwater turbidity limit proposal will help the construction industry avoid billions in new compliance costs.  Unfortunately, EPA is only seeking to delay imposing its nationwide limit on dirt in stormwater, instead of abandoning the idea all together.  AGC’s strong advocacy and outreach efforts have led EPA to hold off for a decade on forcing contractors to monitor the water running across their jobsites and publicly report any exceedance of a strict number limit. Following is a rundown on recent events, the implications for construction and AGC’s take away message. EPA remains under a court order to specify the maximum allowable levels of pollutants that may be discharged from active construction sites.  In December 2009, EPA issued a final “Effluent Limitation Guidelines” for the “Construction Development Industry” (C&D ELG) rule, but in January 2011, issued an administrative stay of the 280 nephelometric turbidity unit (NTU) limit pending completion of a “corrected” rulemaking. EPA has spent the last several months re-evaluating its data, but recently decided to withdrawal from final government review the rulemaking proposal that was supposed to correct the December 2009 numeric turbidity limit for runoff from construction sites.  To ensure that the first-ever nationwide stormwater turbidity limit is “flexible and achievable,” EPA is collecting additional data from construction and development sites and other stakeholders before proposing a rule, according to the agency. AGC is encouraged by the fact that EPA is finally recognizing the fact that there are serious flaws in the data supporting its efforts to impose a rigid, one-size-fits-all limit on the amount of dirt in rainwater leaving construction sites.  A statement on EPA’s website explains its plans to collect more data before reaching a final decision. AGC also issued a statement to the membership and media on EPA’s change in course. AGC has long argued that EPA is not ready to impose a “one-size-fits-all” limit that exceeds legal requirements and could be impossible to meet. AGC loudly objected to the December 2009 C&D ELG rule, stressing that the $1 billion cost of implementing new controls each and every year would be double the amount of benefits the public would receive.  AGC recently published a “plain English” overview of the larger situation – click here.    EPA Pulls Back “Corrected” Stormwater Turbidity Limit Proposal EPA told AGC that it needs more information on the effectiveness of existing stormwater “passive-treatment technologies” at construction sites before moving ahead with a new rule to correct the stormwater turbidity limit it finalized back in December 2009.  Indeed, 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 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, a closer and more in-depth review of EPA’s data set revealed that 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. In its calculations, EPA relied on questionable data, including figures obtained from the vendors that would have supplied the expensive systems contractors would have been required to use. In the end, EPA continued to endorse and base its economic impact calculations on the use of less-costly "passive" treatment. The Small Business Administration and the homebuilding industry took legal action to challenge EPA’s C&D ELG rule, saying the limit could not be reached without acquiring expensive technologies and was based on flawed analysis.  Relying on years of building a working relationship with the Agency, AGC stepped up its advocacy efforts with EPA about the infeasibility of the limit and the ELG’s impact on federal and state general permits for stormwater discharges from construction sites.  Several AGC members also volunteered to participate in a confidential survey and collect stormwater discharge samples at their construction sites.  EPA eventually put the 280 NTU limit on hold and agreed to reconsider the number. Latest reports are that the agency plans to issue a revised numeric limit by November 2012. What This Means for Construction? 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 to formally seek new data, which is due out in a few weeks. EPA’s actions to stay the 280 NTU limit in the December 2009 C&D ELG pending further review, 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. In addition, the non-numeric portions to the December 2009 C&D ELG rule remain in effect (see 40 CFR Part 450 – click here). States that are in the process of revising their construction stormwater permits (see chart below) should adhere to the following—

1. Any state that is due to re-issue its construction stormwater permit before EPA finalizes its corrected numeric limit rulemaking should issue its permit without a numeric limit.  EPA has told any state in this situation to consider a shorter permit term in order to incorporate the corrected limit sooner than five years. It would be up to a state as to whether they wanted to issue a full 5-year permit, in which case they would not need to incorporate a limit that becomes effective within that 5-year period, until the permit is reissued.  But note that the non-numeric requirement of the C&D ELG at 40 CFR Part 450 remain in effect and must be included in all new state stormwater permits.
2. Any state that will finalize its new CGP after EPA finalizes its corrected numeric limit rulemaking, must incorporate the limit into its state-issued permit (along with all other non-numeric requirements of the C&D ELG – i.e., 40 CFR Part 450).
3. Any state on schedule to propose its new permit before EPA finalizes its corrected numeric limit rulemaking – BUT where the EPA numeric limit is expected to go final before the state finalizes its new permit, may refer to the requirements contained in 40 CFR Part 450 without incorporating a specific limit, and propose monitoring and reporting requirements.

Construction General (Stormwater) Permit Expiration Chart

Permitting Authority	Permit Expiration Year
Delaware, Wyoming, South Carolina, Vermont, Wisconsin, Arkansas, Kansas, Montana, New Hampshire, New Mexico, Idaho, Massachusetts	2011
Missouri, New Jersey, Colorado, Oklahoma, Nevada, Iowa, Hawaii, West Virginia, Nebraska	2012
U.S. Environmental Protection Agency (permitting authority in Idaho, Massachusetts, New Hampshire, and New Mexico, the District of Columbia, Puerto Rico, most other territories and Indian lands, and federal facilities in Colorado, Delaware, Vermont, and Washington.)	Feb. 15, 2012
Arizona, Ohio, Texas, Utah, Georgia, Illinois, Minnesota, Rhode Island, Maryland	2013
Florida, Kentucky, Virginia, California, Louisiana	2014

Lawsuits Got Us Where We Are Now Looking back, EPA has been trying to set a construction stormwater limit for more than a decade.  In 2004, AGC praised EPA’s decision to withdraw a prior regulatory proposal to promulgate a C&D ELG after EPA found that the high cost of such an ELG would outweigh its benefits.  Environmental groups promptly filed suit and AGC and the National Association of Home Builders (NAHB) jointly intervened on EPA’s side to defend its “no rule” decision.  A district court in California ruled that EPA failed to comply with the Clean Water Act by not performing a non-discretionary duty to promulgate a C&D ELG (because the agency had listed construction in its CWA Section 304(m) clean-up plan). Both EPA and AGC filed an appeal with the U.S. Court of Appeals for the Ninth Circuit. The appellate court affirmed the lower court’s decision in 2006 and a federal judge gave EPA a December 1, 2009, deadline to set strict technology-based limits on construction site runoff.  EPA rushed to finalize the “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.  (AGC successfully advocated against a previous proposal by EPA that would have set a limit of only 13 NTUs for construction-site discharges.)  The rule also requires monitoring and reporting to ensure compliance with that limit. This time, industry groups have 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.   Nine months ago, EPA sent its new, “corrected” numeric limit proposal to the White House Office of Management and Budget (OMB) and that is where it eventually died. (OMB clearance is the last step in the rulemaking process before a regulation is signed and published in the Federal Register.) Now EPA is back at the drawing board and preparing to formally solicit data on the effectiveness (i.e., performance) of various “passive” treatment technologies that can be used to control sediment in construction stormwater runoff.  This information will then be used to re-write a “corrected” nationwide turbidity discharge limit. AGC’s Message – Spread the Word!

• One-size-fits-all requirements are not suitable to construction. The nationwide numeric turbidity limit and associated monitoring requirements under the C&D ELG rule are officially on hold until EPA reevaluates the data and issues a “correction rule.”  Numeric limits are not an appropriate control for construction because wet weather events are highly variable, and it is well-recognized that established sampling techniques do not accurately measure pollutant levels in stormwater discharges from construction sites.  To date, EPA has not demonstrated a scientific or reasonable basis for a nationally-applicable numeric limit; a non-numerically-based C&D ELG rule would satisfy EPA’s legal obligations.  Also embedded in EPA’s C&D ELG rule are a series of costly and very prescriptive control measures that contractors will need to implement on every construction jobsite.  As permitting authorities incorporate the non-numeric requirements into their stormwater permits, contractors must retain the opportunity to tailor the required controls to the nature or scope of the problems their particular waters are having.
• Until EPA figures out just how clean the water really needs to be, EPA should not revise the federal construction general permit (CGP). While the numeric limit portion of the C&D ELG rule is on-hold, EPA has proposed to include these costly new controls in its draft revised CGP. In addition, EPA has ratcheted up the non-numeric control requirements in the draft CGP going well beyond anything required by law, and in some instances, they may be impossible to meet. These significant modifications would increase the costs, labor, paperwork burdens and liability for construction site operators tasked with stormwater compliance. Even if a contractor implements all of the new mandated erosion and sediment controls, but for some reason, the water is still too muddy, the contractor can be fined $37,500 per violation per day. EPA should allow the current CGP to remain in effect for a full five-year term to give the agency much-needed time to set a legally defensible standard on how much dirt it thinks should be in that water runoff.
• EPA’s first-time national post-construction “mud rules” are a regulatory overreach. EPA may release controversial new rules to restrict stormwater that washes or may wash off land development sites after construction work is completed. The new federal requirements would increase the cost of construction and present liability issues concerning the contractor’s legal and/or contractual obligations to the site and the owner after the contractor leaves the site. At the same time, EPA has circumvented the “study and report” mandate in the Clean Water Act that requires the agency first study the need for new regulations, then report to Congress, and finally allow Congress to have a fair and adequate opportunity to consider EPA’s recommendation before new regulations are proposed.

More Information For the most up-to-date status of EPA’s rulemaking to review the numeric turbidity limit and the complete text of the December 2009 C&D ELG rule, log on to EPA’s website at http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm.