United States: EPA Issues Final Rule To Reduce Water Pollution From Construction Sites

The U.S. Environmental Protection Agency (EPA) recently issued a final rule on effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants—primarily sediments—from construction sites. For the first time, certain large construction sites will have to meet an objective, numeric turbidity standard.

EPA promulgated the rule because construction activities like clearing, grading and excavating, disturb soil and sediment, which can be washed off construction sites during storm events and can pollute nearby water bodies. EPA has identified stormwater runoff from construction sites as one of the most significant threats to water quality nationwide. Turbidity, a measure of sediment in water, amounts to approximately four billion pounds per year, according to calculations by the EPA. The cost of reducing turbidity under the new rule will cost the construction industry close to $1 billion dollars according to estimates.

The final rule requires construction site owners and operators that disturb one or more acres to use best management practices in implementing erosion and sediment control measures and pollution prevention practices in order to control pollutants in discharges from construction sites. When 10 or more acres of land are affected by construction activities at one time, however, site owners and operators will be required to monitor and sample discharges, and to comply with a numeric standard for turbidity (280 NTUs). This national monitoring requirement and enforceable numeric limitation is the first of its kind for EPA, and the rule has garnered initial praise from environmentalists, but scorn from developers based on the cost. The new rule does not include standards for managing post-construction stormwater runoff, which had been sought by environmentalists; however, the rule indicates that such standards will likely be included in new rules in the near future.

The rule also contains more stringent requirements for soil stabilization than EPA has required in the past. The rule requires initial stabilization of disturbed areas "immediately" when final grade is reached or any clearing, grading or excavating activities have temporarily or permanently ceased, unless the soil of the area meets certain exceptions listed in the rule.

The final rule is intended to work with existing state and local programs, adding a technology-based minimum requirement that would apply nationally. The rule will take effect in February 2010, and will be phased in over four years. Implementation dates will vary for the standard through state general permits for construction stormwater discharges. EPA also plans to revise its own Construction General Permit to include the new requirements when the permit will expire on June 30, 2011. Tennessee's Construction General Permit is set to expire in July 2010, which may lead Tennessee to revise its permit sooner.

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Article by Waller Lansden Dortch & Davis