Environmental Viewpoint

Environmental
Viewpoint
Doreen M. Zankowski, Esq.
Hinckley Allen Snyder LLP
EPA’s LONG-AWAITED
Construction Stormwater Rule
Effective February 1, 2010
T
(Annual Cost of Program Compliance Estimated at $1B By 2014)
he EPA has issued its longawaited final Stormwater Rule
that affects nearly every construction and development (C&D)
project in the Country. Published in
the Federal Register on December 1,
2009, the Rule, for the first time, imposes an enforceable numeric limit
on stormwater discharges from large
construction sites, requires monitoring to ensure compliance with the
numeric limit, and requires nearly
all construction sites to implement a
range of extremely stringent erosion
and sediment controls and pollution
prevention measures. While the nonnumeric effluent limitations will apply to every construction site over
one acre when the rule takes effect
on February 1, 2010, the numeric limit
and associated monitoring requirements applicable to large sites will be
phased in over a four-year period.
According to EPA, in its Effluent Limitations
Guidelines and Standards for the Construction and Development Point Source Category; Final Rule 74 Fed.
Reg. 62,996, 63,003-04, 63,031 (Dec. 1, 2009) (“Final
Rule”), the Rule will affect approximately 82,000 firms
MARCH, 2010
within the C&D category, including residential and commercial construction and heavy and civil engineering
firms, and will cost the industry nearly $1 billion to comply. Many trade organizations have gone on record with
EPA opposing the new rule, including the National Association of Homebuilders, which has been quite clear in its
opposition. EPA has estimated that more than 20,000
utility contractors will be affected, followed closely by
more than 10,000 highway, street and bridge firms.
Overview of the Final Rule
EPA’s Final Rule establishes nationally applicable
general Effluent Limitation Guidelines (ELGs) and new
Source Performance Standards (NSPSs) to NPDES permits covering stormwater discharges from construction
sites, including Best Management Practices (BMPs), and
a numeric limit for turbidity. Although BMPs have been
the norm for sometime, the significant difference is in the
numeric limits for turbidity.
The non-numeric effluent limitations include a range
of erosion and sediment controls. Further, pollution prevention measures will apply to construction activities that
will disturb one acre or greater. These limitations must
be incorporated into NPDES permits issued after the rule
takes effect. The Final Rule revises several elements of the
non-numeric effluent limitations from the 2008 proposed
rule, with the intent to make the requirements applicable to
all construction activities. These changes include the elimination of specific requirements, such as the implementation of sediment basins on all large construction sites,
and generally responding to the variability of C&D sites
with the inclusion of “unless feasible” language in some
requirements.
continued on page 17
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Environmental Viewpoint continued from page 15
The Rule requires implementation of BMPs related to:
• erosion and sedimentation controls,
• soil stabilization controls, and
• pollution prevention measures.
The Rule also prohibits discharges from:
• dewatering activities and concrete washout activities
(unless managed by appropriate controls),
• wastewater from the washout of stucco, paint, form
release oils, curing compounds and other construction materials,
• fuels, oils, or other pollutants used in vehicle and
equipment operation and maintenance, and
• soaps or solvents used in vehicle and equipment
washing.
The Rule sets a numeric effluent limitation for turbidity at 280 Nephelometric Turbidity Units (NTU) and requires monitoring to ensure that this limitation is met. EPA
explained its decision to regulate turbidity using numeric
standards based on the fact that turbidity is an “indicator
pollutant” that will help to control the discharge of other
pollutants, such as metals and nutrients, from construction
sites. Turbidity can also be measured in the field, which
MARCH, 2010
EPA expects will reduce compliance costs. In other words,
EPA and/or a representative state agency (MassDEP) can
engage in a compliance visit to a construction site and take
field tests of turbidity.
On all projects where the numeric limit applies, the
rule requires contractors to collect numerous stormwater
runoff samples from all discharge points during every
rainfall and calculate the levels. The data is then averaged and if the average exceeds the daily stated maximum
levels, the site will be in violation of the new requirement.
The data must be kept on site, and a log showing the testing
will be required as part of the rule.
Unlike the Rule’s non-numeric requirements, the turbidity limitation only applies to large construction sites —
sites that will disturb ten acres or more. In addition, the
numeric limitation will be implemented in two phases:
1. Construction sites that disturb 20 or more acres of
land at one time are required to sample and comply
with the turbidity limitation within eighteen months
of the effective date of the final rule, which would require compliance by August 1, 2011.
2. Construction sites that disturb ten or more acres at one
time are required to sample and comply with the turbidity limitation within four years of the effective date
of the Rule, which would be February 2, 2014.
continued on page 19
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Environmental Viewpoint continued from page 17
The 280 NTU turbidity limit is expressed as a maximum daily limitation, meaning that the averages of the
samples taken over the course of a day may not exceed
the maximum daily amount. This allows for temporary
discharges of stormwater that exceed the turbidity requirement (such as discharges during an intense period of rainfall). While the Final Rule leaves the specific monitoring
requirements in the NPDES construction stormwater permits to the states, EPA has indicated that it expects at least
three samples per day from the discharge point while discharges are occurring. The Rule also exempts discharges
resulting from a storm event that is larger than the local
two-year, 24 hour storm.
EPA did not address post-construction issues, but has
initiated a separate rulemaking to develop post-construction guidelines by November 2012.
Impacts on Existing State Programs
All NPDES permitting authorities will be required
to incorporate the Rule into their construction stormwater
permits, but the impact of the changes will depend on existing state and local requirements. In many cases, the Rule
is more restrictive than current stormwater requirements,
which will impose significant burdens on permitting authorities and permittees. For example, EPA acknowledges
that the monitoring requirements will generally “require
an additional layer of management practices and/or treatment above what most state and local programs are currently requiring,” although some states have been imposing monitoring requirements on construction operators
in their permits for some time. Additionally, although the
Rule does not require the use of a particular technology
for meeting the numeric limitation, permitting authorities
and permittees will need to develop and select appropri-
ate management practices or technologies for meeting the
numeric limitations. Although the final rule responds to
many primary concerns and is expected to cost less than
the proposed rule, the Final Rule comes at an economically
difficult time for an already-strained construction industry.
Why the Construction Industry?
EPA identified the construction industry as a point
source category for which it intended to promulgate rules
regarding ELGs and NSPSs back in 2000. EPA issued
a proposed rule in 2002 that contained several options
for addressing stormwater discharges from construction
sites, including ELGs and NSPSs. However, in 2004,
EPA opted not to promulgate ELGs for the construction industry, and instead relied on “the range of existing programs, regulations, and initiatives” at the federal,
state, and local levels. In response to EPA’s rulemaking
decision, environmental groups filed a complaint to force
EPA to promulgate discharge standards and guidelines
for the construction industry. In Natural Resources Defense Council v. EPA, the Ninth Circuit affirmed an injunction forcing EPA to propose ELGs and NSPSs for the
construction industry by December 1, 2008, and promulgate a Final Rule by December 1, 2009.
What to Expect?
The construction and development industries should be prepared for further
site visits by regulators and quasi-public
groups like the Clean Water Initiative.
The regulators and their counterparts will
be seeking a greater enforcement role in
garnering compliance, and in the event
of alleged non-compliance, issuing consent orders or notices of
noncompliance with penalty components.
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Please Note: Part IV of Doreen Zankowski’s four part series
relating to Environmental Complexities in Design-Build Roadway Projects: Lessons Learned
will be published in the April
issue of Construction Outlook
magazine, and will address a few
of the “lessons learned” on the
Commonwealth’s Route 3 DesignBuild Project.
Please contact the UCANE
office if there are any particular
issues you would like covered in
future UCANE articles. Email:
[email protected] with your
requests. n
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