Building a Green Maryland : Maryland Green Building Lawyer & Attorney : Megan Reuwer : O’Malley, Miles, Nylen & Gilmore Law Firm : MD Green Building, Sustainability

On November 23, 2009, the EPA issued its pre-publication version of new effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants from construction sites. This rule requires construction site owners and operators to implement a range of erosion and sediment control measures and pollution prevention practices to control pollutants in discharges from construction sites. The rule is effective 60 days after publication in the Federal Register (likely sometime in February 2010) and will be phased in over four years.

The rule requires certain construction site owners and operators to sample stormwater discharges and comply with a numeric standard for the pollutant turbidity in these discharges. Existing national stormwater regulations at 40 CFR 122.26 currently require dischargers engaged in construction activity to obtain NPDES permit coverage and to implement control measures to manage discharges associated with construction activity. This category is the largest category of dischargers in the NPDES program. However, there are currently no national performance standards or monitoring requirements for this category of dischargers. This regulation establishes a technology-based “floor” or minimum requirements on a national basis.

EPA is phasing in the numeric limitation over four years to allow permitting authorities adequate time to develop monitoring requirements and to allow the regulated community time to prepare for compliance with the numeric limitation.

• 20 acre disturbances: Construction sites that disturb 20 or more acres at one time will be required to conduct monitoring of discharges and comply with the numeric limitation beginning 18 months after the effective date of the final rule.
• 10 acre disturbances: Beginning four years after the effective date of the final rule, the monitoring requirements and numeric limitation will apply to all sites that disturb 10 or more acres at one time. These effluent limitations would, for many sites, require an additional layer of management practices and/or treatment above what most state and local programs are currently requiring. It's important to note, however, that the sampling requirements and turbidity requirements apply ONLY so long as the total disturbed land area at one time is 10 or more acres.
• 1 or more acre disturbances: The final rule requires construction site owners and operators that disturb one or more acres to use best management practices to ensure that soil disturbed during construction activity does not pollute nearby water bodies.

Other pertinent facts:

• Because of the phase-in period for the numeric limit, and the timing of state construction general permit renewals, it is expected that the cost of the rule will be $8 million in 2010, $63 million in 2011, and $204 million in 2012.
• EPA is not dictating that specific technologies be used to meet the numeric limitation, but is specifying the maximum daily turbidity level that can be present in discharges from C&D sites.
• Through the pre-publication version of the rule, the EPA presents argument and concludes that turbidity is a pollutant as that term is defined in the Clean Water Act.

The new requirements must be incorporated into any new general permits issued after the effective date of the regulation and the requirements also apply to individual permits issued by states or EPA.

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The Federal Leadership Committee for the Chesapeake Bay released its Draft Strategy for Protecting and Restoring the Chesapeake Bay on November 9, 2009 (concurrent with the Draft Strategy, an Executive Summary was released). Comments on the Draft Strategy are due by January 8, 2010 and the final strategy for protecting and restoring the Chesapeake Bay is to be completed and released by May 12, 2010.

The Draft Strategy isn't very different from the Draft 202(a) Report submitted by the EPA to the Federal Leadership Committee. Some of the recommendations that may be of particular interest to the building industry include:

1. Development of an Economic Market for Ecosystem Services: Federal agencies will support the development of innovative technologies and economic markets as a way to provide landowners with an incentive to practice sustainable agriculture and forestry. Essentially, entities such as urban water utilities, industrial polluters, and land developers who must pay to mitigate negative impacts to the watershed will pay for the implementation of conservation practices that offset those impacts. USDA will lead a collaborative federal effort to develop ecosystem markets in the Chesapeake Bay watershed.

2. Promote Smart Growth and Sustainable Development: Because land use has a direct impact on the environment, federal agencies will promote sustainable development and smart growth through assistance and tools to local governments. DOT, EPA and the Department of Housing and Urban Development will convene a series of forums and partner with local governments to conduct integrated transportation, land use, housing, and water infrastructure planning in a sustainable and environmentally sensitive manner. DOT will promote use of public transportation, bicycling, and walking, and partner with the Department of Energy (DOE) on a pilot project to support increased use of electric cars.

There are a couple of statements in the Draft Strategy that seem to directly address some of the concerns raised by the industry during listening sessions with the EPA. For example, page 23 of the Draft Strategy addresses the cost implications for more stringent stormwater management practices for new construction but ultimately concludes that change is more valuable:

Demonstrating the value of changing our behaviors is a difficult task. Often, such changes are viewed as a threat to people’s lifestyle or economic well-being. Reducing stormwater runoff, for example, may require the installation of new technologies in both residential and commercial developments. Requirements to use new roofing technologies or porous pavement have the potential to raise the price of such development. Partnering with states and communities to lead change in community planning and individual choices is important to bring all stakeholders and residents into the effort to achieve and sustain a healthy system.”

Here are a few statistics cited in the Draft Strategy that builders and developers may find interesting:

1. Between 1990 and 2000, the amount of land in the watershed covered by impervious surfaces increased by about 41 percent, while population in the Bay watershed grew by 8 percent. Stormwater running off urban and suburban lands is now the fastest-growing source of pollution in the Bay. (Draft Strategy p.19)

2. Construction sites can contribute, on a per-acre basis, 10 to 20 times more sediment than do agricultural lands. (Draft Strategy p. 22)

3. A one-acre parking lot produces about 16 times the volume of runoff that comes from a one-acre meadow.” (Draft Strategy p.31)

4. Development has increasingly altered both natural and cultural landscapes, tearing at the very fabric that defines the region and supports our way of life….Moreover, converting forests and open spaces to development simply exacerbates pollution problems now harming the Bay and its rivers. On average, an acre of forest delivers just 3.3 lbs of nitrogen to streams annually; an acre of developed land delivers 32.9 lbs of nitrogen annually. (Draft Strategy p. 33)

If you have any statistics, data, or general comments that you'd like to make to the FLC and the EPA as they go forward in developing a more concrete strategy, it's important to submit them by January 8, 2010 to be considered. Comments can be provided via this link.

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I attended the Maryland Green Show presented by the Home Builders Association of Maryland and the Maryland Residential Green Building Council that took place over the weekend at the Maryland State Fairgrounds. This was an interesting show that provided a forum for vendors and consumers to discuss green building products and technologies and also included an educational component by featuring various classes and speakers throughout both days.

Some of my favorite products and services from the Show included:

• Enviroshake, Inc.’s engineered roofing product: These roofing panels are made of 95% recycled materials and are crafted to look like Cedar shake. These panels have a 50 year warranty and look really great. Just like real cedar shake, they fade to a lighter color after installation. According to the salesperson for the company, use of these products in regional buildings have made those projects eligible for up to 6 points under LEED v.3.
• Roll-off Express, Inc’s construction waste services: Roll-off Express picks up unsorted construction site job waste, takes the waste back to its facilities, and then sorts the waste for recycling. This helps cut down on waste sent to landfills and also helps a project to potentially earn LEED points.
• Aquabarrel’s “designer” refurbished rain barrels: A rain barrel is something that every homeowner should consider installing - they help manage stormwater runoff, they make use of a free resource that the homeowner would otherwise pay for, and they’re relatively easy to install and to maintain. Aquabarrel’s rain barrels are unique in the market because they utilize a lower hose connection point than most barrels, thereby enabling a homeowner to make use of water at the bottom of the barrel.

There were many great vendors and service providers at this show and I would recommend that you consider attending next year’s show (November 6-7, 2010). For more information, check out www.marylandgreenhome.org.

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On Monday, November 2, 2009, I attended a “Get the Dirt Out” training session taught by members of the Potomac Riverkeeper. The goals of these training sessions are to teach citizens how to identify and report potential construction site erosion and sediment control violations. The Potomac Riverkeeper organization has developed a Construction Site Report for public use that asks witnesses to potential sediment and erosion control violations to assess sites based on criteria including (1) stormwater appearance; (2) construction entrances and exits; (3) perimeter controls; (4) storm drain and inlet protection; (5) soil stabilization and cover; (6) sediment traps and basins; (7) outlet protection; and (8) encroachment on water bodies. The organization encourages citizens to take numerous photographs of the perceived violations, to submit those photographs to agencies responsible for inspecting the site, and then to follow-up with inspectors to make sure the compliant has been received and the identified issues addressed.

The motivations of this program (to keep responsible parties accountable for implementing best management techniques on their sites) are good, but I can think of a couple of concerns this raises from an industry perspective:

1. Lack of Knowledge of Applicable Laws: For the most part, your average person does not know the laws and regulations governing stormwater management BMPs and sediment control on construction sites. If you’re not aware of the law, it’s difficult to know when the law is being violated. In the scenario in which a developer or construction site manager is complying with the law, but the citizen files a report mistakenly believing that the law and/or regulation has been violated, the developer may incur additional administrative expenses (i.e., time expended to meet with inspector; time expended to meet with citizen; cost of creating and supplying response material to counter complaint filed by citizen). It seems to me like it would be a good idea for construction site managers and developers to become proactive about photographing their own sites and updating their logs with measures taken in anticipation of such reports being filed.
2. Trespass and Liability Issues: The Potomac Riverkeeper members at the particular training session that I attended were careful to warn citizens not to trespass on private construction sites; however, some of the criteria identified on the Construction Site Report sheet seems to invite a more detailed exploration of the premises. This could in turn raise liability issues if a citizen is harmed while evaluating the site.

I thought it interesting that the Riverkeeper instructors echoed a theme that I also heard last week at the EPA meeting on the Draft 202(a) Report: even though sediment and other pollutants are known to come from sources such as agriculture and farming practices, construction sites are targeted because, due to the existing regulatory scheme, it’s easy for citizens to affect change. 

To me, this is a double-edged sword. It’s great that we, as citizens, can enforce accountability when needed; however, it also becomes unfair if we can only hold a fraction of those responsible accountable for their actions.

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