Posted on December 2, 2009 by John Crawford
John Crawford, Michael Caples and Gary Rikard
On November 23, 2009, EPA finalized technology-based effluent guidelines that are likely to have a significant impact on the construction industry. The new regulation applicable to the Construction and Development Point Source Category is found at 40 C.F.R. Part 450 and imposes both non-numeric standards and, for the first time, numeric standards designed to reduce the discharge of pollutants to stormwater.
According to EPA, construction site owners and operators are the largest group of dischargers under NPDES permits. Despite existing requirements (see 40 C.F.R. 122.26 and similar state regulations) pertaining to “stormwater associated with industrial activity” which regulates discharges from construction sites that disturb one acre or more, EPA believes additional standards are necessary. The new rule requires construction site owners to monitor, report, and comply with effluent limitations guidelines (ELG) and new source performance standards (NSPS) set by EPA. EPA plans to implement the rule in phases over a four-year period. While states with delegated NPDES programs are governed by MOUs with EPA which normally require new regulations to be adopted within one year of EPA adoption, it appears that the new standards will not have to be incorporated by states until existing stormwater construction general permits expire; thus, some states may have up to six years to incorporate the new standards into their general permits.
In non-delegated states, effective in February 2010, all construction site owners and operators must meet non-numeric effluent guidelines set by EPA. Beginning in August 2011, the rule will require construction site owners and operators of projects on twenty (20) or more acres to monitor discharges and comply with numeric effluent guidelines on turbidity to be determined by EPA. By February 2014, construction site owners and operators of projects on as few as ten (10) acres will fall subject to the regulation.
EPA’s new regulation largely affects the construction and development industry. According to EPA, the new rule requires compliance of an estimated 82,000 civil engineering, residential, and commercial construction firms. Former EPA Region 4 Regional Administrator Jimmy Palmer says, “These new rules for controlling stormwater runoff from construction sites trace back to 2002, in the Bush administration. As with the entire federal stormwater program, this is another add-on to state wastewater permit requirements under Section 402 of the Clean Water Act. The most serious impacts of these new rules are the costs of obtaining individual permits when they are required; very significant additional project costs for tighter best management practices, new control measures, and monitoring in order to comply with permit conditions; and dramatically increased enforcement actions, especially in cases where permits are required.”