On December 1, 2009, the Environmental Protection Agency issued a final rule relating to effluent limitations for construction and development activities that will impact many construction sites throughout the United States. The rule applies to discharges associated with construction activity required to obtain a National Pollution Discharge Elimination System (NPDES) permit. This rule represents the first time that the EPA has set nationwide performance standards and an enforceable numeric limitation on turbidity of stormwater discharges from construction sites. Turbidity is cloudiness or opacity in the appearance of a liquid caused by solids, particles and other pollutants. Turbidity measurement provides an indication of the clarity of water and water quality. As the rule may increase the cost of managing and monitoring stormwater runoff at construction sites, those involved in future construction projects should be aware of the impact of the EPA's new rule.
I. Stormwater Discharge Reduction and Pollution Prevention Requirements (Effluent Limitations)
Effective February 1, 2010, the EPA requires all new construction sites involving a disturbance of an acre or more of land at any one time to incorporate effluent limitation measures intended to reduce stormwater discharge and prevent pollution. This represents the first time that the EPA has set national performance standards and monitoring requirements for those engaged in construction activities, as the EPA previously relied on a range of federal, state and local programs and requirements applicable to construction activity. Requirements for construction sites implicated by the new final rule include designing, installing and maintaining effective erosion and sediment controls, conducting soil stabilization activities immediately following cessation of earth disturbing activities, and designing, installing and maintaining effective prevention measures to prevent discharges of pollutants.
II. Turbidity Limitation
In addition to the stormwater discharge reduction and pollution prevention activities outlined above, the new EPA rule provides that, for sites disturbing 10 or more acres of land at one time, the average daily turbidity of discharges may not exceed 280 NTU (nephelometric turbidity units). Owners or operators of sites that are required to comply with the new limitation must sample stormwater discharges and report levels of turbidity in the discharges in accordance with requirements and methods to be established by the permitting authority. The new turbidity limitation is calculated to be a daily maximum amount; average samples for the day may not exceed the daily maximum, but an owner or operator will not be in violation of the numeric limitation if a particular sample taken during a day exceeds the limitation.
Construction sites disturbing 20 or more acres of land at one time must comply with the turbidity limitation commencing August 1, 2011, and construction sites disturbing between 10 and 20 acres of land at one time must comply with this limitation commencing February 2, 2014. Construction sites disturbing less than 10 acres of land at one time are not subject to the limitation. However, construction activities occurring on non-contiguous lands that take place at the same time and are part of a large common plan of development or sale, and smaller construction activities occurring at the same time but in separate areas of a project site, which together disturb 10 or more acres, are subject to the limitation.
The EPA recognizes that owners or operators may choose to phase construction work in ways that may limit the applicability of the turbidity limitation and monitoring requirements (by, for instance, having less than 10 acres of land subject to construction activities at any one time). The EPA estimates that, annually, more than 21,000 construction projects, or 73 percent of constructed acres per year, will be impacted by the new maximum daily turbidity limitation.
The EPA recognizes certain exceptions to the new turbidity limitation. First, the limitation does not apply on days when the total precipitation for the day is greater than the local two-year, 24-hour storm event. Further, the turbidity limitation is not imposed on discharges associated with construction of interstate natural gas pipelines under the jurisdiction of the Federal Energy Regulatory Commission. Finally, a party otherwise subject to this new rule (as to the discharge reduction requirements, the turbidity limitation, or both) may apply for a "fundamentally different factors variance" from the EPA, which is not frequently granted. In order to receive a fundamentally different factors variance, the party must argue, within the time frames set forth in EPA regulations, that factors relating to the party's facilities, equipment or processes are fundamentally different from the factors considered by the EPA in generating the rule (see 40 CFR 125.30 (http://www.faegre.com/webfiles/40%20CFR%20125.30.pdf) for specifics).
III. Implementation of Rule
The EPA intends for this new rule to work harmoniously with existing state and local stormwater regulations, and to the extent existing state and local regulations are more stringent than the standards set in the new rule, the new EPA rule does not override them. Further, the EPA expects that state and local permitting authorities will develop requirements in NPDES permits to oversee compliance with the effluent limitations and monitoring requirements in the new rule.
To view a copy of the final rule, click here (http://www.faegre.com/webfiles/Amendment(s)%20published%20December%201,%202009,%20in%2074%20FR%2063057.pdf) .
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
