Last week, the National Association of Home Builders (and other parties) announced a settlement with the U.S. Environmental Protection Agency (EPA) regarding their long-standing lawsuit over the 2009 “Effluent Limitations Guidelines” for the “Construction Development Industry” (C&D ELG) rule. EPA will undertake a new rulemaking in the near term to "scrap the turbidity limit altogether" and to modify several of the mandatory “non-numeric” Best Management Practices (BMP) requirements that currently form the basis of the 2009 rule. Click here to read the signed settlement document. The suit, Wisconsin Builders Association v. EPA, brought in the U.S. Court of Appeals for the 7th Circuit, challenged EPA's 2009 C&D ELG rule – specifically the strict numeric discharge limit (280 NTU) and certain parts of the non-numeric BMP provisions (e.g., language specific to controlling “volume, velocity and/or flow” of stormwater discharges and strict soil stabilization requirements). EPA previously acknowledged that it made many errors in calculating the numeric limit; in Jan. 2011, EPA put an indefinite “stay” (legal hold) on the limit until the Agency corrected it. EPA requested new data (AGC submitted extensive comments) but the Agency never proposed a “correction rule.” Some key outcomes:
- EPA will permanently withdraw the turbidity numeric effluent limit (280 NTU) that has been stayed since Jan. 4, 2011, as a result of industry’s legal challenge;
- EPA will propose a revised C&D ELG by April 15, 2013, and take final action by February 28, 2014;
- In addition to withdrawing the numeric 280 NTU limit, EPA has agreed to clarify the “non-numeric” portion of the 2009 C&D ELG rule so that contractors/developers, permit writers and inspectors better understand what control measures are required on all construction projects nationwide - Exhibit A of the Settlement sets forth the specific "non-numeric" effluent limitations modifications agreed to by the parties;
- If EPA proposes a revised C&D ELG consistent with the terms of the settlement agreement, the National Association of Home Builders (NAHB) will drop its legal challenge to EPA's 2012 Construction General Permit (CGP);
- We expect that EPA will modify its 2012 CGP and CGP guidance as appropriate to conform to a new C&D ELG regulation (by 2014 final date); and
- AGC Chapters and members may want to use the settlement when it comes time to discuss updates to their state-specific construction stormwater permits to keep their individual states from adopting what will likely become “outdated” C&D ELG requirements.
As AGC has long argued, the lawsuit stressed the critical points that (1) EPA’s 2009 numeric limit would have cost industry stakeholders up to $10 billion a year in attempts to comply – and that (2) it is not possible for EPA to come up with a one-size-fits-all turbidity limit that will work across all geographic areas and soil types. While not a named party in the lawsuit, AGC has been integrally involved in EPA’s efforts to develop appropriate controls for construction site stormwater runoff for more than 15 years. AGC carefully coordinated its most recent activities with the lawyers and others involved in the C&D ELG lawsuit. ELGs are national technology-based standards that may include limits on discharge characteristics—called numeric effluent limitations—or prescriptive control measures and practices to prevent the discharge of pollutants. The final C&D ELG rule must be incorporated into all state and federal general permits for the discharge of storm water from construction activities. EPA's website has been updated accordingly - http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm.
For more information, contact AGC’s Leah Pilconis at pilconisl@agc.org or (703) 837-5332.