Final Rule Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category

On Tuesday, December 1, 2009, the U.S. EPA published final regulations establishing Clean Water Act technology based effluent limitation guidelines and new source performance standards for the construction and development (“C&D”) point source categories. U.S. EPA expects the following industries to be potentially regulated by this action: Building Development and General Contracting, North American Industry Classification System (“NAICS”) code 236, involved with the construction of buildings, and Civil Engineering Construction, NAICS code 237, including land subdivision, utility systems construction, and highway, street, and bridge construction. As written, despite receiving comments from the National Mining Association requesting clarification, the rule fails to clarify whether or not stormwater discharges from exploration and construction related activities associated with mining are directly affected by this rulemaking.  

Through this rule, U.S. EPA promulgates effluent limitation guidelines and new source performance standards for the construction and development point source category. This establishes a series of non-numeric effluent limitations, in addition to a numeric effluent limitation for the pollutant turbidity. This rule shall become effective on February 1, 2010. All construction sites permitted after February 1, 2010 will have to meet the non-numeric effluent limitations. These non-numeric effluent limitations require the permittee to: 

·   Design, install and maintain effective erosion and sediment controls to control stormwater, minimize soil exposure, minimize erosion, minimize sediment discharges, maintain natural buffers around surface water, minimize soil compaction, and preserve topsoil

·   Initiate soil stabilization measures immediately whenever any clearing, grading, excavating have permanently ceased on any portion of the site, or temporarily ceased and will not resume for a period exceeding 14 calendar days

·   Minimize the discharge of pollutants from dewatering trenches and excavations

·    Design, install, and maintain effective pollution prevention measures to minimize the discharge of pollutants from wash waters, on-site materials, and spills and chemical leaks

·    Prohibit discharges from wastewater from washout of concrete (unless appropriately managed), and the washout and cleanout of stucco, paint, form release oils, curing compounds and other construction material; fuels, oils, or other vehicular pollutants; and soaps or solvents

·   Utilize outlet structures that withdraw water from the surface when discharging from basins and impoundments, unless infeasible 

By contrast only those construction sites disturbing ten or more acres of land will be required to comply with the numeric effluent limitation for turbidity. As U.S. EPA has done with the Greenhouse Gas Tailoring Rule, U.S. EPA is using tailoring approach to “phase in” the numeric effluent limitation over four years to provide permitting authorities time to develop monitoring requirements and provide the regulated community time to determine how they will come into compliance with the numeric effluent limitation. Beginning 18 months after the effective date of February 1, 2010, construction sites disturbing 20 or more acres at one time shall be required to monitor discharges from the site and comply with the numeric effluent limitation. Beginning February 1, 2014, smaller construction sites disturbing ten or more acres at one time will be required to monitor discharges from the site and comply with the numeric effluent limitation, allowing four years to adjust to the new rule. 

It is important to understand how this rule will apply to individual state National Pollutant Discharge Elimination System (“NPDES”) permits. This rule will not retroactively apply to existing individual or general stormwater NPDES permits. Thus existing NPDES permits are not affected by this rulemaking. After the effective date of this rule, February 1, 2010, whenever the state with a delegated NPDES program or the U.S. EPA issues a new individual stormwater NPDES permit or reissues the general stormwater NPDES permit it will incorporate the requirements of the final rule, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category. Those operating under West Virginia’s General WV/NPDES Stormwater Construction permit will not be affected by this rule until the general permit expires December 4, 2012, when West Virginia Department of Environmental Protection will reissue the general permit incorporating the new rule. 

U.S. EPA expects the total pollutant reductions from the final rule Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category to be approximately 4 billion lb/yr. U.S. EPA expects the final rule to provide in an “extensive range of benefits,” which include, increased property values near water bodies, reduced flood damage, reduced cost of ditch maintenance, and improved fishing and swimming uses, for an annual monetized benefit of $369 million per year, while recognizing that some of the benefits of the rule could not be fully monetized. At the same time, U.S. EPA anticipates the annual cost of this rule to be $953 million per year.  

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.