On December 1, 2009, the U.S. Environmental Protection Agency promulgated long-awaited effluent limits on stormwater discharges from construction and development sites. This so-called “Construction Rule” became effective February 1, 2010. According to EPA, the rule will affect approximately 82,000 firms within the construction and development category, including residential, commercial, and heavy/civil construction companies, and will cost the industry more than $1 billion in new compliance costs. Many trade organizations have gone on record with EPA opposing the new rule, and both the home building industry and the U.S. Small Business Administration have taken legal action to challenge EPA’s new rule – in particular, its numeric turbidity standard. This is an important issue for construction and development firms because it will require increased compliance monitoring on projects, training of employees in the best management practices for stormwater control and maintenance, and (in the near future) actual sampling and record keeping. It will also lead to increased project-site scrutiny by the governing regulatory agencies.
REQUIREMENTS OF THE NEW RULE
The Construction Rule imposes the following general requirements:
- For construction activity that disturbs one or more acres, various nonnumeric effluent limitations, including erosion and sediment controls, soil stabilization, de-watering, pollution prevention measures, certain discharge prohibitions, and use of outlet structures to withdraw water from the surface of the site; and
- For larger construction and development projects (20 or more acres beginning August 2011, dropping to 10 or more acres in February 2014), a numeric turbidity limit and related monitoring and sampling requirements.
The Construction Rule also creates a technology-based “floor” of minimum requirements for discharges of stormwater associated with construction activities like clearing, grading and excavation that are subject to the National Pollutant Discharge Elimination System (NPDES) permit program established by the Clean Water Act. The intent of technology-based effluent limits in NPDES permits is to require a minimum level of treatment of pollutants for point source discharges based on available treatment technologies, while allowing the discharger to use any available control technique to meet the limits. For industrial (and other nonmunicipal) facilities, technology-based effluent limits are derived by using national effluent limitations guidelines and standards established by EPA, and/or using best professional judgment on a case-by-case basis in the absence of national guidelines and standards.
In all but four states (Massachusetts, New Hampshire, Idaho, and New Mexico), NPDES permits are issued by state or local environmental authorities. In many cases, this requirement is satisfied by a general permit that focuses on minimizing the impact of stormwater discharges using erosion and sediment control measures that reflect best engineering management practices, as well as control measures for other pollutants. EPA has issued a general permit for the four states that do not have their own permitting authority. On January 28, 2010, EPA extended the expiration date for the existing federal general permits covering stormwater discharges from construction activities to June 30, 2011, to provide sufficient time to incorporate the requirements of the Construction Rule into a renewed general permit.
RULE-MAKING PROCESS TO BEGIN FOR POST-CONSTRUCTION STORMWATER RULE
The Construction Rule has a direct impact on all new construction projects. EPA now wants to control stormwater post-construction, and possibly impose new rules on contractors as well as project owners. On December 28, 2009, EPA published a notice announcing plans to begin rule-making for post-construction site maintenance. In its notice, EPA stated that, “[t]o address the degradation of water quality caused by stormwater discharges from impervious cover, EPA is exploring regulatory options that would strengthen the stormwater program, including establishing specific postconstruction requirements for stormwater discharges from, at a minimum, new development and redevelopment.” The agency expects to issue a final rule by November 2012.
WHAT THIS MEANS TO THE CONSTRUCTION AND DEVELOPMENT INDUSTRIES
The Construction Rule significantly expands and toughens the standards that apply to the discharge of stormwater from construction and development sites. Based on the importance of this issue to EPA, it is reasonable to expect continued vigorous enforcement visits and actions by EPA and state regulatory authorities at construction sites. The construction and development industries should be prepared for 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 noncompliance, issuing consent orders or notices of noncompliance with penalty components.