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EPA Proposes To Withdraw Numeric Limit from Construction Stormwater Rule

Please submit comments to EPA by May 31.
 

The U.S. Environmental Protection Agency (EPA) recently published a proposed rule to withdraw the nationwide numeric discharge limit from its 2009 Construction and Development Effluent Limitations Guidelines rule (C&D ELG), along with revising some of the rule’s non-numeric requirements. If faced with a numeric limit, contractors would have been required to monitor the turbidity levels in the stormwater running off their construction jobsites, implement extremely costlyadvanced treatment controls to try to meet EPA’s potentially unachievable legal limit and publicly report any exceedances of the limit. We urge you to submit any comments to EPA – they are due May 31, 2013.

The numeric limit and monitoring requirements have been on hold, or stayed, since 2011; however, the provisions still appear in the Code of Federal Regulations (40 CFR Part 450). This has caused much confusion across the country as the Clean Water Act requires permitting authorities to add the C&D ELG provisions to all individual and general National Pollutant Discharge Elimination System (NPDES) construction stormwater permits the next time they reissue them. EPA is now proposing to withdraw the numeric turbidity effluent limitation and monitoring requirements (currently found at 40 CFR 450.22(a) and 450.22(b)) and clarify that these provisions do not need to be incorporated into state-issued construction stormwater permits. A final rule is due no later than February 28, 2014.

In addition, the proposed rule amends and clarifies the following non-numeric requirements to —

  • Control stormwater volume and velocity (also provides greater clarity on appropriate controls during construction and implementation times);
  • Control stormwater discharges to minimize channel and streambank erosion in the immediate vicinity of discharge points;
  • Provide and maintain natural buffers around waters of the United States;
  • Minimize soil compaction and preserve topsoil;
  • Stabilize disturbed areas and
  • Minimize the exposure of building materials, waste, etc., to precipitation and to stormwater.

See 78 Fed. Reg. 19,434 (April 1, 2013). 

As previously reported, EPA has proposed these changes to the C&D ELG pursuant to a settlement agreement with the National Association of Home Builders (and other parties) to resolve a lawsuit over the 2009 C&D ELG rule (Wisconsin Builders Ass’n v. EPA, 7th Cir., No. 09-4113, 12/21/12). 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. AGC estimates it would have cost industry $10 billion a year to comply with a numeric turbidity limit on construction sites nationwide. EPA admitted back in 2011 that it miscalculated the stormwater runoff limit in its 2009 C&D ELG rule.

In sum, the proposed modifications to the C&D ELG will provide additional clarity, efficiency, and improve the existing C&D ELG.  You may submit your own comments through May 31 at http://www.regulations.gov under Docket No. EPA-HQ-OW-2010-0884. AGC will be submitting comments on behalf of the industry in advance of the May 31 comment deadline.

For more details, click here or contact Leah Pilconis, senior environmental advisor to AGC of America, at pilconisl@agc.org

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