December 4, 2009

EPA Establishes New Effluent Guidelines and Standards for Discharges on Construction Sites

Holland & Knight Alert
Dianne R. Phillips

On November 23, 2009, the U.S. Environmental Protection Agency (EPA) issued a final rule establishing effluent limitation guidelines (ELGs) and new source performance standards (NSPS) for the discharge of pollutants at construction sites (“Final Rule”). The EPA promulgated these standards pursuant to the federal Clean Water Act and has, over the years, applied similar standards to manufacturing operations in various industries. The Final Rule significantly increases the standard for managing discharge pollutants at construction sites thereby creating additional risk for the party contractually responsible for stormwater runoff. Owners and contractors should take notice because this is the first time that the EPA has imposed both national monitoring requirements and express numeric turbidity limitations.

Construction Pollutants

Construction activity disturbs soils and exposes materials that can wash off during storm events. Organic pollutants discharged into these stormwaters, such as soil, sediment and other nutrients, can increase turbidity and thereby degrade aquatic ecosystems, drinking water supplies and surface water clarity. Sediment discharge can also reduce water depth and increase the need for expensive dredging in navigable waters. In addition, discharge from dewatering, wash waters and other various building materials (such as concrete, paints, fertilizers and trash) can also wreak havoc on surrounding aquatic ecosystems and water supplies. The Final Rule is intended to accomplish the following:

  • preserve and improve water quality on a national scale
  • reduce the amount of sediment discharged from construction sites by approximately four billion pounds each year

New Guidelines and Standards

The Final Rule creates a technology-based “floor” of national, minimum requirements for all construction activity subject to the National Pollutant Discharge Elimination System (NPDES) permit program as authorized by the Clean Water Act. These national standards are meant to work harmoniously with existing state and local programs. In addition to a new range of pollution prevention practices, the Final Rule establishes new control measures for erosion, sediment and soil stabilization. Site owners, contractors and other operators must include such prevention practices and controls within their best management practices (BMPs).

Stormwater sampling and compliance with a new, numeric turbidity standard will be required using a phased-in approach. These activities are mandatory for construction activity disturbing 10 or more acres of land at one time, including non-contiguous disturbances, that are part of a larger common plan of development or sale. The EPA is phasing in the numeric limitation to allow local permitting authorities adequate time to develop monitoring requirements and to allow the industry time to prepare for compliance. Construction activity disturbing 20 or more acres at one time will be required to comply with both the monitoring rule and numeric limitation beginning 18 months after the effective date of the Final Rule. For activity disturbing 10 or more acres at one time, compliance is not required until four years after the effective date of the Final Rule.

As described in our previous alert,1 there has been a spate of EPA enforcement activity regarding stormwater runoff in recent years. Given the importance of this issue to EPA, continued vigorous enforcement should be anticipated.

Proper compliance includes two key steps:

  1. Proper permitting. Design of a proper Stormwater Pollution Prevention Plan (SWPPP), whose BMPs both coextend with the Final Rule and local requirements, creates a framework for success.
  2. Rigorous management of the SWPPP throughout the project. The party contractually responsible for stormwater discharge must implement the BMPs and also maintain the appropriate training documentation, subcontractor certifications, construction activity logs, corrective action logs, inspection reports (periodically and after all storm events), and other necessary documentation.

A SWPPP should also be periodically reviewed for a determination of whether any amendments are necessary as the site develops. To ensure compliance, professionals with proven track records in this area should be retained to design, implement and assist in managing a comprehensive and proper stormwater management plan.



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