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USEPA Establishes Effluent Limitations Guidelines and New Source Performance Standards for Construction Sites

USEPA published a final rule on December 1, 2009 imposing national monitoring requirements and enforceable numeric turbidity effluent limitations for certain construction sites. The new rule, which will primarily affect homebuilders and contractors, marks the first time USEPA has imposed enforceable numeric stormwater effluent limitations. It was issued by USEPA pursuant to a court-issued deadline.

The new rule's monitoring requirements and effluent limitations will only apply to owners and operators of construction sites impacting ten or more acres of land at one time. Importantly, this differs from the broader means used to determine whether construction activities need NPDES permit coverage at all. As a result, construction site owners or operators may effectively avoid the new effluent limitations by phasing their construction activity such that less than 10 acres are disturbed at a single time.

When applicable, the new turbidity limitations must not be exceeded, as a daily average, 280 nephelometric turbidity units throughout the course of a day. The new rule leaves the specific monitoring requirements to the discretion of each permitting authority, including the sampling type, location, interval and frequency of sampling sufficient to yield data that are representative of the monitored activity. USEPA expects, however, that a minimum of three samples per day will need to be collected at each discharge point while a discharge is occurring.

This new rule's monitoring and effluent requirements are to be phased in over a four-year period following its February 1, 2010 effective date. On August 2, 2011 the new monitoring requirements and effluent limitations will begin to apply to construction sites disturbing 20 or more acres at one time. Those same requirements will begin to apply to construction sites disturbing 10 acres or more as of February 2, 2014. In addition to its monitoring requirements and effluent limitations the new rule imposes mandatory best management practice requirements (BMPs) for all permittees relating to erosion and sediment controls (40 CFR §450.21(a)) and soil stabilization (40 CFR §450.21(b)). USEPA states these types of controls are already being implemented at the majority of construction sites nationwide.

While the rule focuses on stormwater discharges, the narrative effluent limits also apply to other discharges of pollutants from construction sites such as discharges from dewatering activities (40 CFR §450.21(c)), vehicle washing (40 CFR §450.21(d)(1)), building materials, trash and landscape materials such as fertilizers and herbicides (40 CFR §450.21(d)(2)), and concrete washout (40 CFR §450.21(e)(1)). These BMP requirements will become effective on February 1, 2010.

USEPA intends to implement the requirements of the new rule primarily through a revision and reissuance of its general NPDES construction stormwater permit, which is set to expire on June 30, 2011. After the effective date, USEPA will incorporate the new requirements into newly issued individual permits as well. State permitting authorities will implement the new regulations over time as they reissue their general permits and issue new individual permits. The numeric limitation and monitoring requirements must be included in newly issued general permits even though these requirements will not be applicable until 18 months or four years after the effective date, depending on the size of the site. The new rule was published in the Federal Register at 74 F.R. 229 (Dec. 1, 2009).

RECENT ENVIRONMENTAL PUBLICATIONS

In a Year of Cuts, USEPA's Enforcement Budget Rises to Record Level," Environmental Update (December 1, 2009)
"USEPA Proposes New Sulfur Dioxide NAAQS," Environmental Update (November 25, 2009)
"New State Legislation Increases Funding, Availability and Scope for Green Energy Bonds in Illinois," Environmental Update (November 18, 2009)
"USEPA Continues Its Pursuit Of Greenhouse Gas Regulation," Environmental Update (October 30, 2009)
"Greenhouse Gas Emissions a Nuisance, Yes or No?" Environmental Update (October 23, 2009)

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