EPA Issues Final Effluent Limitations Guidelines and NSPS for Construction Sites
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.
