By Meline
MacCurdy and Russell
Prugh
January
20, 2010
http://www.martenlaw.com/news/?20100120-construction-stormwater-rule
EPA
has issued a long-awaited final stormwater
rule, impacting nearly every construction and development project in the
United States. The rule, published in the Federal Register on December 1, 2009,
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 erosion and sediment controls and pollution prevention
measures. While the non-numeric 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 four years.
According
to EPA, the rule will impact approximately 82,000 firms within the construction
and development (“C&D”) category, including residential and commercial
construction and heavy and civil engineering firms,[1] and will cost the industry
nearly $1 billion in new compliance costs.[2] While massive, the cost of
the new requirements are less than were estimated under the proposed rule, as a
result of changes made during the rulemaking process.
The
Clean Water Act[3] (“CWA”)
prohibits discharges of pollutants by any person from point sources into waters
of the United States without a National Pollutant Discharge Elimination System
(“NPDES”) permit.[4] NPDES
permits “place limits on the type and quantity of pollutants that can be
released into the Nation’s waters, and must set forth effluent limitations,”[5] which are specific
restrictions on the quantities, rates, and concentrations of chemical,
physical, biological or other constituents, such as sediment or turbidity,
discharged into navigable waters from point sources.[6] EPA’s effluent limitations
are incorporated into NPDES permits when the permits are issued. NPDES permits
are generally issued by state agencies, because most states have sought and
received NPDES permitting authority from EPA.[7] EPA’s national regulations
set a floor for state NPDES permits, but states can include requirements that
are more stringent than the national standards.
The
specific effluent limitations incorporated into NPDES permits are established
using more general effluent limitations guidelines (“ELGs”) and new source
performance standards (“NSPSs”).[8] ELGs impose technology-based requirements for categories
of point source dischargers. ELGs apply to existing sources of pollution and
NSPSs apply to “new sources.”[9]
Under
EPA’s current NPDES regulations, dischargers engaged in construction activity
are required to obtain an NPDES stormwater permit if the activity will result
in the disturbance of a land area of one acre or greater.[10] While construction
activity dischargers make up the largest category of NPDES permits, the current
federal guidelines do not provide national performance standards or monitoring
requirements for this category of dischargers.[11] That changes with the new
rule.
EPA
identified the construction industry as a point source category for which it
intended to promulgate rules regarding ELGs and NSPSs back in 2000.[12] EPA issued a proposed
rule in 2002 that contained several options for addressing stormwater
discharges from construction sites, including ELGs and NSPSs.[13] 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.[14]
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,[15] and promulgate a final
rule by December 1, 2009.[16]
EPA’s
final rule establishes nationally applicable ELGs and NSPSs to NPDES permits
covering stormwater discharges from construction sites, including best
management practices (“BMPs”) and a numeric limit for turbidity.
The
non-numeric effluent limitations include a range of erosion and sediment
controls and pollution prevention measures, apply to construction activities
that will disturb one acre or greater, and must be incorporated into NPDES
permits issued after the rule takes effect.[17] 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,[18] and generally responding
to the variability of C&D sites with the inclusion of “unless feasible”
language in some requirements.[19]
The
rule requires implementation of best management practices related to: (1)
erosion and sedimentation controls,[20] (2) soil stabilization
controls,[21] and (3)
pollution prevention measures.[22]
The rule also prohibits discharges from: (1) dewatering activities and concrete
washout activities (unless managed by appropriate controls), (2) wastewater
from the washout of stucco, paint, form release oils, curing compounds and
other construction materials, (3) fuels, oils, or other pollutants used in
vehicle and equipment operation and maintenance, and (4) soaps or solvents used
in vehicle and equipment washing.[23]
The rule also requires that discharges from basins or impoundments on a
construction site must withdraw water from the surface, unless infeasible.[24]
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.[25] 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.[26] Turbidity can
also be measured in the field, which EPA expects to reduce compliance costs.[27]
In
response to comments on the proposed rule, EPA changed the technology basis for
BAT and NSPS from active or advanced treatment systems (“ATS”), which consist
of poly-assisted clarification followed by filtration, to passive treatment
systems (“PTS”), which, as used in the final rule, include practices that rely
on settling and filtration to remove sediment, turbidity, and other pollutants.[28] EPA determined that PTS
could “provide a high level of turbidity reduction at a significantly lower
cost than” ATS.[29]
Unlike
the rule’s non-numeric requirements, the turbidity limitation only applies to
large construction sites – i.e., sites that will disturb ten acres or more at
one time.[30] In addition,
the numeric limitation will be implemented in two phases. First, construction
sites that disturb twenty 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 (i.e., by August 1, 2011).[31] Second, 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 (i.e., by February 2, 2014).[32]
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).[33]
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.[34]
The rule also exempts discharges resulting from a storm event that is larger
than the local two-year, twenty-four hour storm.[35]
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,”[36]
although some states have been imposing monitoring requirements on construction
operators in their permits for some time.[37] 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 appropriate 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.
For
more information on stormwater permiting, please contact Meli MacCurdy, Russell Prugh or any
other member of Marten Law’s Permitting and Environmental Review practice
group.
[1] See
EPA, 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”).
[2] See id.
at 62,997-98, 63,040;EPA’s
Proposed Stormwater Regulations for Construction Sites Could Cost up to $2
Billion, Marten Law Group Environmental News (Dec. 18, 2008).
[3] 33 U.S.C. §
1251 et. seq.
[4] See
33 U.S.C. § 1311(a); 33 U.S.C. § 1342.
[5] Natural
Resources Defense Council v. U.S. EPA, 542 F.3d 1235, 1238-39 (9th Cir.
2008) (citations omitted).
[6] 33 U.S.C.
§1362(11).
[7] EPA
administers the NPDES permit program in only four states (Idaho, Massachusetts,
New Hampshire, and New Mexico) and the District of Columbia. Final Rule at
63,000.
[8] See
33 U.S.C. § 1314(b).
[9] See id.
§ 1316(a)(2)).
[10] 40 C.F.R.
§ 122.26(b)(15), (c)(1). An NPDES permit is also required if the
construction activity will disturb less than one acre of total land where the
activity is part of a larger common plan of development or sale that will
ultimately disturb one or more acres. Id.
[11] Final Rule
at 62,998.
[12] Id.
at 63,003.
[13] 67 Fed.
Reg. 42,644 (June 24, 2002).
[14] Final Rule
at 63,003.
[15] EPA issued
the proposed rule on November 28, 2008. 73 Fed. Reg. 72562 (Nov. 28, 2008).
[16] 542 F.3d
1235, 1241, 1253 (9th Cir. 2008).
[17] Final Rule
at 62,997-99.
[18] See
id. at 63,009, 63,018.
[19] See
id. at 63,017-18.
[20] Id.
at 63,057 (to be codified at 40 C.F.R. § 450.21(a)).
[21] Id.
at 63,057 (to be codified at 40 C.F.R. § 450.21(b)).
[22] Id.
at 63,057 (to be codified at 40 C.F.R. § 450.21(d)).
[23] Id.
at 63,057 (to be codified at 40 C.F.R. § 450.21(c), (e)(1)-(4)).
[24] Id.
at 63,057 (to be codified at 40 C.F.R. § 450.21(f)).
[25] Id.
at 63,058 (to be codified at 40 C.F.R. § 450.22(a)(1)). EPA describes
turbidity as “an expression of the optical property that causes light to be
scattered and absorbed rather than transmitted with no change in direction of
flux level through the sample caused by suspended and colloidal matter such as
clay, silt, finely divided organic and inorganic matter and plankton and other
microscopic organisms.” Id. at 63,006. EPA considered and rejected
making the turbidity limitation a “benchmark” instead of a requirement. The
difference between a benchmark and a numeric limitation is that a violation of
a benchmark is not, in itself, a violation of the NPDES permit. EPA concluded
that numeric turbidity limitations were feasible and appropriate for larger
construction sites. Id. at 63,025.
[26] Id.
at 63,006-07.
[27] Id.
at 63,020.
[28] Id.
at 63,004-05; 63,012; 63,019.
[29] Id.
at 63,012.
[30] Id.
at 63,047-48, 63,057-58 (to be codified at 40 C.F.R.§ 450.22(a)). “EPA
emphasizes that the applicability of the turbidity limitation is tied to acres
disturbed at one time, not to the ultimate amount of land disturbance on a site.”
Id. at 63,047-48.
[31] Final Rule
at 63,047-48, 63,057-58 (to be codified at 40 C.F.R.§ 450.22(a)). EPA’s
website notes that Federal Register notice (at 63,050 and 63,058) contains
incorrect compliance dates associated with the turbidity limitation for sites
disturbing 20 or more acres at one time. The website explains that the correct
date for implementation is August 1, 2011. See EPA, Construction
and Development – Final Effluent Guidelines .
[32] Final Rule
at 63,047-48, 63,057-58 (to be codified at 40 C.F.R. § 450.22(a)).
[33] Id.
at 63,047-48, 63,057-58 (to be codified at 40 C.F.R. § 450.22(a)).
[34] Id.
at 63,048.
[35] Id.
at 63,058 (to be codified at 40 C.F.R. § 450.22(b)).
[36] Id.
at 62,998.
[37] Id.
at 63,047.