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Dec 2009
01
December 01, 2009

New Pollution Control Requirements for Construction and Development Sites

The U.S. Environmental Protection Agency has just published a new rule that will require an array of new water pollution controls at most construction and development (C&D) sites nationwide. The new regulation will cover every phase of construction, from clearing, grading and excavation through completion of construction activity.

The new rule results from the settlement of litigation commenced in 2004 against the U.S. EPA by the Natural Resources Defense Council, Waterkeeper Alliance, and the states of New York and Connecticut. It will require a variety of controls, termed "non-numeric effluent limitations," for a newly defined "point source" category. Specifically, the C&D category covers companies in North American Industry Classification System codes 236 (construction of residential, non-residential, industrial, commercial, and institutional buildings) and 237 (heavy and civil engineering construction, including utility system construction, land subdivision, and highway and bridge construction).

The new rule does not apply to interstate natural gas pipeline construction.

These new standards for the C&D industry are the latest "categorical" wastewater standards promulgated by the U.S. EPA. The agency has previously issued categorical standards for a wide variety of industries, from paper manufacture to iron and steel, and from food production to organic and inorganic chemical manufacturing. The C&D rules are among the first that the U.S. EPA has promulgated outside of the conventional "industrial" context. While the new C&D rule focuses on discharges of storm water, the requirements in the rule also apply to other discharges from C&D sites, including discharges from dewatering activities. Importantly, the U.S. EPA characterizes these as "minimum requirements" and notes that state and local governments may add their own more stringent requirements.

The new C&D rule builds on the back of the storm water permitting program, established under the federal CWA, which for most construction sites in Michigan is implemented through soil erosion and sedimentation control permits issued at the county level. The requirements being introduced under the new C&D rule will be incorporated into storm water discharge permits for construction activity, which may be either general or individual permits.

The new rule will become effective 60 days after its December 1 publication in the Federal Register, or on January 30, 2010. Many of the requirements of the new rule will take effect immediately, while others will be phased in over time. The rule imposes a number of "non-numeric effluent limits" – mostly consisting of best management practices – that apply to all construction sites. In addition, construction sites that involve disturbance of 10 to 20 acres of land at one time will be required to monitor storm water discharges for compliance with a numeric limitation for "turbidity" – essentially a measure of how muddy a discharge is. (The turbidity limit is 280 nephelometric turbidity units.) For these sites, discharge monitoring requirements and the turbidity limit will be phased in over a period of four years from the effective date of the rule. For C&D sites that will involve disturbance! of 20 or more acres of land at one time, monitoring and the turbidity effluent limitation will be phased in within 18 months from the effective date.

Importantly, the 10-acre threshold for discharge monitoring and the turbidity limit applies to areas of disturbed soil within a construction site, as opposed to entire construction sites. In many cases it will be possible to stay under the 10-acre threshold through sequencing or phasing of construction activities to ensure that fewer than 10 acres are disturbed at any one time.

In developing the final rules, the U.S. EPA rejected a comment recommending that turbidity compliance take into account existing background levels of turbidity in a receiving water. Accordingly, where the new turbidity limit applies (10 or more acres of disturbed soil), discharges from construction sites will have to meet the same turbidity requirement regardless of the quality of the receiving stream.

The following summarizes the non-numeric "effluent limitations" that will now be incorporated into storm water permits at all construction sites:

  • Erosion and Sediment Controls.
    • Control storm water volume and velocity.
    • Control storm water discharges to minimize erosion.
    • Minimize the amount of soil exposed during construction activity.
    • Minimize disturbance of steep slopes.
    • Minimize sediment discharges.
    • Provide and maintain natural buffers around surface waters.
    • Minimize soil compaction and preserve topsoil.
  • Soil Stabilization. Under this item, stabilization of disturbed areas must be initiated immediately whenever any clearing, grading, excavation, or other earth disturbing activities have ceased, permanently or temporarily. (This requirement for "immediate" stabilization attracted significant public comment in opposition, but the U.S. EPA held firm.)
  • Dewatering is prohibited unless "managed by appropriate controls."
  • Pollution Prevention Measures.
    • Minimize discharge of pollutants from equipment and vehicle washing, etc. Wash waters must be treated in a sediment basin or alternative control.
    • Minimize exposure of building materials and other materials to precipitation and storm water.
    • Minimize discharge of pollutants from spills and leaks.
  • Prohibited Discharges. The rule forbids the discharge of the following:
    • Wastewater from washout of concrete.
    • Wastewater from washout and clean out of stucco, paint, and other materials.
    • Fuels, oils, or other pollutants used in vehicle and equipment operation.
    • Soaps or solvents used in vehicle and equipment washing.
  • Surface Outlets. Discharges from basins and impoundments must utilize outlet structures that withdraw water from the surface, unless infeasible.

In addition, storm water permits for larger construction sites will be required to include discharge monitoring a numeric turbidity limit within the time frames prescribed by the rule (18 months for construction sites disturbing 20 or more acres, four years for sites involving 10 or more acres of disturbance). Where best management practices and/or compliance with the non-numeric "effluent limitations" is not sufficient to attain compliance with the numeric turbidity limit, the rule requires whatever additional measures, including treatment, may be necessary to attain the turbidity limit. The preamble to the final rule includes considerable discussion of treatment options, including the use of polymers and other treatment additives. It is not clear how this requirement will be implemented, since the U.S. EPA in many cases imposes limitations on the use of wastewater treatment additives.

The U.S. EPA projects that the benefits of the new rule will vastly exceed its cost. (The principal benefit, according to the agency, is a reduction of four billion pounds per year in pollutant discharges from construction sites.) What the U.S. EPA does not address is the more complex question as to what development opportunities may be lost in the present economic climate as the cost of development and construction is driven higher as the result of this new rule.

For additional information regarding storm water management, permitting, erosion control and similar issues, please contact Scott D. Hubbard at 616.752.2157 or shubbard@wnj.com or Dennis J. Donohue at 616.752.2192 or ddonohue@wnj.com.

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