As frequently reported in AGC's Environmental Observer, EPA was under court order to issue a final C&D ELG in the Federal Register by December 1.  AGC continues to analyze this lengthy rule, but at first read, it appears to be extremely onerous and costly to industry.  EPA's C&D ELG establishes minimum control technologies that must be incorporated into every construction stormwater permit issued by EPA and states authorized to administer the National Pollutant Discharge Elimination System (NPDES) permit program.  Specific requirements include-

• For all construction stormwater permits, EPA identifies a series of mandatory Best Management Practices (BMPs) relating to Erosion and Sediment Controls (40 CFR § 450.21(a)), Soil Stabilization BMPs (40 CFR § 450.21(b)), Dewatering BMPs (40 CFR § 450.21(c)), Pollution Prevention Measures (40 CFR § 450.21(d)), and Prohibited Discharges (40 CFR § 450.21(e));
• For all construction sites that disturb 20 or more acres of land at one time (whether contiguous or not), the average turbidity for any discharge for any day may not exceed a numeric effluent limit of 280 NTU (turbidity measurement units) - the deadline for complying with this numeric limit will be August 1, 2011 (40 CFR § 450.22(a));
• The 280 NTU effluent limit is expanded to include all construction sites that disturb 10 or more acres of land at one time (whether contiguous or not) on February 2, 2014;
• The turbidity effluent limit is limited to the 2-year, 24-hour storm event;
• All of the BMPs and other restrictions contained in the first bullet above also are enforceable against sites meeting the 280 NTU effluent limit;
• States will be responsible for determining a monitoring protocol and how to incorporate the above standards into their own stormwater permit programs.

On all jobsites where the numeric limit applies, the rule requires contractors to collect numerous stormwater runoff samples from all discharge points during every rain event and calculate the NTU level(s).  (This may entail taking “grab” samples by hand and performing measurements with a field turbidimeter; however, the rule doesn't specify any sort of monitoring protocol or methods - instead EPA is leaving it up to the states to spell that out in their permits.)  If the average NTU level of the samples taken over the course of a day exceeds the “daily maximum limit" of 280 NTU on any given calendar day, then the site is in violation of the federal limitation requirement.  EPA is also leaving it up to the states to specify applicable requirements for contractors to report on the samples they take of their construction site discharges.

EPA puts the annual cost of the rule at about $953 million, once fully implemented.  As reported by Dow Jones, EPA anticipates that four-year phase-in of the rule will give the industry time to recover from the current economic downturn. AGC countered that the rule will only put more contractors out of work and increase the current unemployment rate for the industry above its current 18.7 percent.  AGC submitted comments to EPA in advance of its final rulemaking, arguing that a numeric discharge limit for stormwater runoff is inappropriate for the construction industry and would be very expensive to implement.

EPA will include the new ELG provisions in a new five-year Construction General Permit (CGP) to be reissued no later than July 2011.  EPA currently issues permits for construction activities in four states, the District of Columbia and in certain U.S. territories and tribal areas.  The remaining states issue their own construction general permits, and the new ELG requirements MUST be incorporated into any new general permits issued after the effective date of the regulation, which February 1, 2010. The requirements also apply to individual permits issued by states or EPA.

The new ELG requirements WILL NOT directly apply to construction site “operators” until the requirements are incorporated into an individual or general National Pollutant Discharges Elimination System (NPDES) stormwater permit that applies to their project(s).  In other words, the construction stormwater permit language is what will become the legally enforceable requirement that construction site "operators" must meet or face potential fines and penalties.  Therefore, the implementation date of the new requirements will vary from state to state, depending on when states reissue their permits and whether projects are covered by individual or general permits.  Click here to see when your state's construction general stormwater permit is scheduled to expire and be re-issued. 

EPA’s final rule differs significantly from its proposed rule.  As a result of comments that it received on its originally proposed numeric effluent limit of 13 NTU (nephelometric turbidity units), from both a cost and benefits perspective, it could not justify promulgating its proposed standard.  In lieu, EPA has crafted a new final option, which it refers to as Option 4, based on a question it asked within its proposal regarding possible comments on passive treatment systems and the performances of "passive treatment." 

Additional analyses are needed regarding how the construction industry will comply with this new mandate.  EPA has not provided a "model" technology that will meet the 280 NTU limit in all instances, as it has for previous ELGs.  In fact, many construction companies may have to employ Advanced Treatment Systems (ATS) to meet the limit.