[Federal Register Volume 74, Number 229 (Tuesday, December 1, 2009)]
[Rules and Regulations]
[Pages 62996-63058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28446]
[[Page 62995]]
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Part III
Environmental Protection Agency
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40 CFR Part 450
Effluent Limitations Guidelines and Standards for the Construction and
Development Point Source Category; Final Rule
Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 /
Rules and Regulations
[[Page 62996]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 450
[EPA-HQ-OW-2008-0465; FRL-9086-4]
RIN 2040-AE91
Effluent Limitations Guidelines and Standards for the
Construction and Development Point Source Category
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is publishing final
regulations establishing Clean Water Act (CWA) technology-based
Effluent Limitations Guidelines and New Source Performance Standards
for the Construction and Development (C&D) point source category. EPA
expects compliance with this regulation to reduce the amount of
sediment and other pollutants discharged from construction and
development sites by approximately 4 billion pounds per year.
DATES: This final rule is effective on February 1, 2010, 60 days after
publication in the Federal Register.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2008-0465. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy at the Office of Water Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Office of Water Docket is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
today's rule, contact Mr. Jesse W. Pritts at 202-566-1038
([email protected]). For economic information contact Mr. Todd Doley
at 202-566-1160 ([email protected]). For information regarding
environmental benefits, contact Ms. Ashley Allen at 202-566-1012
([email protected]).
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action include:
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North American
industry
Category Examples of regulated entities classification
system (NAICS)
code
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Industry..................................... Construction activities required to obtain
NPDES permit coverage and performing the
following activities:
Construction of buildings, including building, 236
developing and general contracting.
Heavy and civil engineering construction, 237
including land subdivision.
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EPA does not intend the preceding table to be exhaustive, but
provides it as a guide for readers regarding entities likely to be
regulated by this action. This table lists the types of entities that
EPA is now aware could potentially be regulated by this action. Other
types of entities not listed in the table could also be regulated. To
determine whether your facility is regulated by this action, you should
carefully examine the applicability criteria in Sec. 450.10 of today's
final rule and the definition of ``storm water discharges associated
with industrial activity'' and ``storm water discharges associated with
small construction activity'' in existing EPA regulations at 40 CFR
122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have questions
regarding the applicability of this action to a particular site,
consult one of the persons listed for technical information in the
preceding FOR FURTHER INFORMATION CONTACT section.
Supporting Documentation
Several key documents support the final regulation:
1. ``Development Document for Final Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-821-R-
09-010. (``Development Document'') This document presents EPA's
methodology and technical conclusions concerning the C&D category.
2. ``Economic Analysis for Final Effluent Guidelines and Standards
for the Construction and Development Category,'' EPA-821-R-09-011.
(``Economic Analysis'') This document presents the methodology employed
to assess economic impacts of the rule and the results of the analysis.
3. ``Environmental Impact and Benefits Assessment for Final
Effluent Guidelines and Standards for the Construction and Development
Category,'' EPA-821-R-09-012 (``Environmental Assessment''). This
document presents the methodology to assess environmental impacts and
benefits of the rule and the results of the analysis.
You can obtain electronic copies of this preamble and final rule as
well as the technical and economic support documents for today's rule
at EPA's Web site for the C&D rule, http://www.epa.gov/waterscience/guide/construction.
Overview
This preamble describes the terms, acronyms, and abbreviations used
in this document; the background documents that support these final
regulations; the legal authority of this final rule; a summary of the
final rule; background information; and the technical and economic
methodologies used by the Agency to develop this final regulation.
Table of Contents
I. Legal Authority
II. Purpose & Summary of the Final Rule
III. Background on Existing Regulatory Program
A. Clean Water Act
B. Clean Water Act Stormwater Program
1. NPDES Permits for Stormwater Discharges Associated With
Construction Activity
a. General NPDES Permits
b. EPA Construction General Permit
c. State Construction General Permits
d. Individual NPDES Permits
2. Municipal Stormwater Permits and Local Government Regulation
of Stormwater Discharges Associated With Construction Activity
a. NPDES Requirements
b. EPA Guidance to Municipalities
C. Other State and Local Stormwater Requirements
D. Technology-Based Effluent Limitations Guidelines and
Standards
1. Best Practicable Control Technology Currently Available (BPT)
[[Page 62997]]
2. Best Available Technology Economically Achievable (BAT)
3. Best Conventional Pollutant Control Technology (BCT)
4. Best Available Demonstrated Control Technology (BADT) for New
Source Performance Standards (NSPS)
5. Pretreatment Standards
6. EPA Authority to Promulgate Non-Numeric Effluent Limitations
7. CWA Section 304(m) Litigation
IV. Overview of the Construction Industry and Construction
Activities
V. Summary of the Proposed Regulation
VI. Summary of Major Comments Received
VII. Summary of Significant Decisions and Revisions to Analyses
A. Regulatory Options
B. Cost Analysis
C. Pollutant Load Analysis
D. Economic Analysis
E. Benefits Estimation and Monetization
VIII. Characteristics of Discharges Associated With Construction
Activity
IX. Description of Available Technologies
A. Introduction
B. Erosion Control Measures
C. Sediment Control Measures
D. Other Construction and Development Site Management Practices
E. Performance Data for Passive Treatment Approaches
X. Development of Effluent Limitations Guidelines and Standards and
Options Selection Rationale
A. Description of the Regulatory Options Considered
1. Options Considered in the Proposal
2. Regulatory Options Considered for the Final Rule and
Rationale for Consideration of Revisions to Options in the Proposed
Rule
B. Non-Numeric Effluent Limitations Included in All Regulatory
Options
1. Non-Numeric Effluent Limitations Contained in the Final Rule
2. Changes to the Non-Numeric Effluent Limitations Since
Proposal
C. Numeric Effluent Limitations and Standards Considered
D. Selected Options for BPT, BCT, BAT and BADT for NSPS
E. Selection Rationale for BPT
F. Selection Rationale for BCT
G. Selection Rationale for BAT and BADT for NSPS
1. Selection Rationale
2. Numeric Limitations
3. Rationale for Rejecting Options 1, 2 and 3 as the Technology-
Bases for BAT and BADT for NSPS
4. Definition of ``New Source'' for the C&D Point Source
Category
XI. Methodology for Estimating Costs to the Construction and
Development Industry
XII. Economic Impact and Social Cost Analysis
A. Introduction
B. Description of Economic Activity
C. Method for Estimating Economic Impacts
1. Model Project Analysis
2. Model Firm Analysis
a. Assigning Projects and Costs to Model Firms
b. Project-Level Cost Multiplier
c. Cost Pass-through
3. Housing Market Impacts
4. Impacts on the National Economy
D. Results
1. Project-Level Impacts
2. Firm-Level Impacts
3. Impacts on Governments
4. Community-Level Impacts
5. Foreign Trade Impacts
6. Impacts on New Firms
7. Social Costs
8. Small Business Impacts
XIII. Cost-Effectiveness Analysis
XIV. Non-Water Quality Environmental Impacts
A. Air Pollution
B. Solid Waste Generation
C. Energy Usage
XV. Environmental Assessment
A. Surface Water Impacts From Discharges Associated With
Construction Activity
B. Quantification of Sediment Discharges Associated With
Construction Activity
C. Quantification of Surface Water Quality Improvement From
Reducing Discharges Associated With Construction and Development
Activity
XVI. Benefit Analysis
A. Benefits Categories Estimated
B. Quantification of Benefits
XVII. Benefit-Cost Comparison
XVIII. Approach to Determining Effluent Limitations and Standards
A. Definitions
B. Percentile Basis for Limitations, not Compliance
XIX. Regulatory Implementation
A. Monitoring Requirements
B. Implementation
C. Upset and Bypass Provisions
D. Variances and Waivers
E. Safe Drinking Water Act Requirements
F. Other Clean Water Act Requirements
XX. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211 (Energy Effects)
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations.
K. Congressional Review Act (CRA)
L. Judicial Review
I. Legal Authority
EPA is promulgating these regulations under the authorities of
sections 101, 301, 304, 306, 308, 402, 501 and 510 of the Clean Water
Act (CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1341, 1342, 1361 and
1370 and pursuant to the Pollution Prevention Act of 1990, 42 U.S.C.
13101 et seq.
II. Purpose & Summary of the Final Rule
EPA is today promulgating effluent limitations guidelines (ELG) and
new source performance standards (NSPS) for the C&D point source
category. EPA is promulgating a series of non-numeric effluent
limitations, as well as a numeric effluent limitation for the pollutant
turbidity. All construction sites will be required to meet the series
of non-numeric effluent limitations. Construction sites that disturb 10
or more acres of land at one time will be required to monitor
discharges from the site and comply with the numeric effluent
limitation. EPA is phasing in the numeric effluent 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 effluent limitation.
Construction sites that disturb 20 or more acres at one time will be
required to conduct monitoring of discharges from the site and comply
with the numeric effluent limitation beginning 18 months after the
effective date of the final rule. Construction sites that disturb 10 or
more acres at one time will be required to conduct monitoring of
discharges from the site and comply with the numeric effluent
limitation beginning four years after the effective date of the final
rule.
The total pollutant reductions, once fully implemented, will be
approximately 4 billion pounds per year. The final rule will result in
an extensive range of benefits. For some of those benefits EPA was able
to estimate a monetized value of approximately $369 million per year,
once fully implemented. EPA could not monetize the value of some
benefit categories, such as increases in property value near water
bodies, reduced flood damage, and reduced cost of ditch maintenance.
For other benefits categories, such as swimming and fishing, EPA was
able to partially monetize the benefits. The costs of the final rule in
2010, which is the first year in which the rule must be incorporated
into National Pollutant Discharge Elimination System (NPDES) permits,
are estimated to be $8 million. Costs in 2011 are estimated to be $63
million. Since this regulation will be implemented over time due to the
schedule by which EPA and states will be issuing new or reissued
permits, the annual cost of the rule will be $810 million after all
states have incorporated the requirements of the final rule into their
NPDES permits in 2014. EPA
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expects that after the rule is fully incorporated into EPA and state
NPDES permits after the industry has returned to normal levels of
construction activity, the annual cost of the rule will be $953
million.
The goal of the Clean Water Act is to restore and maintain the
chemical, physical and biological integrity of the Nation's waters. CWA
section 101, 33 U.S.C. 1251. Despite substantial improvements in the
nation's water quality since the inception of the Clean Water Act, many
of the nation's surface waters continue to be impaired. EPA's
Assessment TMDL Tracking and Implementation System (ATTAINS) provides
information on water quality conditions reported by the states to EPA
under Sections 305(b) and 303(d) of the Clean Water Act. According to
ATTAINS (as of September 17, 2009), 49 percent of assessed river and
stream miles, 66 percent of assessed lake area, and 63 percent of
assessed bay and estuary area is impaired by a wide range of sources.
Improper control of stormwater discharges associated with construction
activity is a contributor of sediment, turbidity, nutrients and other
pollutants to surface waters in the United States. Sediment (both
suspended and deposited) and turbidity are common construction site
pollutants and are significant causes of surface water quality
impairment. According to ATTAINS (as of September 17, 2009), turbidity
contributes to impairment of 26,278 miles of assessed rivers and
streams, 1,008,276 acres of assessed lakes, and reservoirs, and 240
square miles of assessed bays and estuaries. These figures probably
underestimate the extent of turbidity impairment since many waters have
not yet been assessed. EPA's Wadeable Streams Assessment (2006) is a
statistical survey of the smaller perennial streams and rivers that
comprise 90 percent of all perennial stream miles in the coterminous
United States. According to the survey, excess streambed sedimentation
is one of the most widespread stressors, with 25 percent of streams in
``poor'' streambed sediment condition.
The sediment, turbidity, and other pollutants entrained in
stormwater discharges associated with construction activity contribute
to aquatic ecosystem degradation, increased drinking water treatment
costs, and impairment of the recreational use and aesthetic value of
impacted waters. Sediment can also accumulate in rivers, lakes, and
reservoirs, leading to the need for dredging or other mitigation in
order to prevent reduced water storage or navigation capacity.
Construction activity typically involves site selection and
planning, and land-disturbing tasks such as clearing, excavating and
grading. Disturbed soil, if not managed properly, can be easily washed
off-site during storm events. Stormwater discharges during construction
activities containing sediment and turbidity can cause an array of
physical, chemical and biological impacts on receiving waters. In
addition to sediment and turbidity, a number of other pollutants (e.g.,
metals, organic compounds and nutrients) are preferentially absorbed or
adsorbed onto mineral or organic particles found in fine sediment.
These pollutants can cause an array of chemical and biological water
quality impairments. The interconnected processes of erosion (i.e.,
detachment of soil particles by water), sediment transport, and
delivery to receiving waters are the primary pathways for the addition
of pollutants from construction and development sites (hereinafter C&D
sites; construction sites; or sites) into aquatic systems.
A primary concern at most C&D sites is the erosion and transport
process related to fine sediment because rain splash, rills (small
channels typically less than one foot deep) and sheetwash (thin sheets
of water flowing across a surface) encourage the detachment and
transport of sediment to water bodies. Although streams and rivers
naturally carry sediment loads, discharges associated with construction
activity can elevate these loads to levels above those in undisturbed
watersheds. In addition, discharges from C&D sites can increase the
proportion of silt, clay and colloidal particles in receiving streams
because these fine-grained particles may not be effectively managed by
conventional erosion and sediment controls utilized at C&D sites that
rely on simple settling.
Existing national stormwater regulations at 40 CFR 122.26 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. Today's regulation establishes a
technology-based ``floor'' or minimum requirements on a national basis.
This rule constitutes the nationally applicable, technology-based ELG
and NSPS applicable to all dischargers currently required to obtain a
NPDES permit pursuant to 40 CFR 122.26(b)(14)(x) and 122.26(b)(15).
This rule focuses on discharges composed of stormwater but the ELGs and
NSPSs also apply to other discharges of pollutants from C&D sites, such
as discharges from dewatering activities. CWA section 301(a). The ELGs
and NSPSs would require stormwater discharges from most C&D sites to
meet effluent limitations designed to reduce the amount of sediment,
turbidity, Total Suspended Solids (TSS) and other pollutants in
stormwater discharges from the site.
EPA acknowledges that many state and local governments have
existing programs for controlling stormwater and wastewater discharges
from construction sites. Today's ELGs and NSPS are intended to work in
concert with these existing state and local programs and in no way does
EPA intend for this regulation to interfere with existing state and
local requirements that are more stringent than this rule or with the
ability of state and local governments to promulgate new and more
stringent requirements. Today's regulation requires all permittees to
implement a range of erosion and sediment controls and pollution
prevention measures at regulated construction sites. Today's regulation
also establishes a numeric effluent limitation for turbidity in
discharges from C&D sites that disturb ten or more acres of land at one
time. Permittees would be required to sample stormwater discharges from
the site and report the levels of turbidity present in the discharges
to the permitting authority. 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. Permitting authorities are required to incorporate these
turbidity limitations into their permits and permittees are required to
implement control measures to meet a numeric turbidity limitation in
discharges of stormwater from their C&D sites. 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. EPA's limitations are based on its
assessment of what specific technologies can reliably achieve.
Permittees have the flexibility to select management practices or
technologies that are best suited to site-specific conditions present
on each individual C&D site if they are able to consistently meet the
limitations and if they are consistent with requirements established by
the permitting authority.
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Permittees also have the ability to phase their construction activities
to limit applicability of the monitoring requirements and turbidity
limitation.
EPA expects that today's regulation will result in reductions in
pollutant discharges and substantial improvements in receiving water
quality nationally in areas where construction activities are occurring
and downstream of areas where construction activities are occurring. In
addition, the monitoring requirements contained in today's rule will
significantly increase transparency and accountability for the largest
category of NPDES dischargers and provide permittees, permitting
authorities and the public with an important mechanism for gauging
compliance with the regulations and standards.
III. Background on Existing Regulatory Program
A. Clean Water Act
Congress passed the Federal Water Pollution Control Act of 1972
(Pub. L. 92-500, October 18, 1972) (hereinafter the Clean Water Act or
CWA), 33 U.S.C. 1251 et seq., with the stated objectives to ``restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Section 101(a), 33 U.S.C. 1251(a). To achieve this
goal, the CWA provides that ``the discharge of any pollutant by any
person shall be unlawful'' except in compliance with other provisions
of the statute. CWA section 301(a). 33 U.S.C. 1311. The CWA defines
``discharge of a pollutant'' broadly to include ``any addition of any
pollutant to navigable waters from any point source.'' CWA section
502(12). 33 U.S.C. 1362(12). EPA is authorized under CWA section 402(a)
to issue a NPDES permit for the discharge of any pollutant from a point
source. These NPDES permits are issued by EPA regional offices or NPDES
authorized state or tribal agencies. Since 1972, EPA and the states
have issued NPDES permits to thousands of dischargers, both industrial
(e.g., manufacturing, energy and mining facilities) and municipal
(e.g., sewage treatment plants). As required under Title III of the
CWA, EPA has promulgated ELGs and standards for many industrial point
source categories, and these requirements are incorporated into the
permits. The Water Quality Act (WQA) of 1987 (Pub. L. 100-4, February
4, 1987) amended the CWA, adding CWA section 402(p), requiring
implementation of a comprehensive program for addressing stormwater
discharges. 33 U.S.C. 1342(p).
B. Clean Water Act Stormwater Program
Prior to the WQA of 1987, there were numerous questions regarding
the appropriate means of regulating stormwater discharges within the
NPDES program due to the serious water quality impacts of stormwater,
the variable nature of stormwater, the large number of stormwater point
sources and permitting agency resources. EPA undertook numerous
regulatory actions, which resulted in extensive litigation, in an
attempt to address these unique discharges. Congress, with the addition
of section 402(p), established a structured and phased approach to
address stormwater discharges and fundamentally altered the way
stormwater is addressed under the CWA as compared with process
wastewater or other discharges of pollutants. Section 402(p)(1) created
a temporary moratorium on NPDES permits for point source stormwater
discharges, except for those listed in section 402(p)(2), including
dischargers already required to have a permit and discharges associated
with industrial activity. In 1990, pursuant to section 402(p)(4), EPA
promulgated the Phase I stormwater regulations for those stormwater
discharges listed in 402(p)(2). 55 FR 47990 (November 16, 1990). The
Phase I regulations required NPDES permit coverage for discharges
associated with industrial activity and from ``large'' and ``medium''
municipal separate storm sewer systems (MS4s). CWA section 402(p)(2).
As part of that rulemaking, the Agency interpreted stormwater
``discharges associated with industrial activity'' to include
stormwater discharges associated with ``construction activity'' as
defined at 40 CFR 122.26(b)(14)(x). As described in the Phase I
regulations, dischargers must apply for and obtain authorization to
discharge (or ``permit coverage''), and a permit is required for
discharges associated with construction activity, including clearing,
grading, and excavation, if the construction activity:
Will result in the disturbance of five acres or greater;
or
Will result in the disturbance of less than five acres of
total land area that is a part of a larger common plan of development
or sale if the larger common plan will ultimately disturb five acres or
greater.
See 40 CFR 122.26(b)(14)(x) and (c)(1). These discharges associated
with ``large'' construction activity are one of the categories of
stormwater dischargers EPA defined as associated with industrial
activity. See 40 CFR 122.26(b)(14).
Section 402(p)(6) established a process for EPA to evaluate
potential sources of stormwater discharges not included in the Phase I
regulations and designation of those discharges for regulation in order
to protect water quality. Section 402(p)(6) instructs EPA to ``issue
regulations * * * which designate stormwater discharges, other than
those discharges described in [section 402(p)(2)], to be regulated to
protect water quality and shall establish a comprehensive program to
regulate such designated sources.'' In 1999, pursuant to the broad
discretion granted to the Agency under section 402(p)(6), EPA
promulgated the Phase II stormwater regulations which designated
discharges associated with ``small'' construction activity and
``small'' MS4s. 64 FR 68722 (December 8, 1999). An NPDES permit is
required for discharges associated with small construction activity,
including clearing, grading, and excavation, if the construction
activity:
Will result in land disturbance of equal to or greater
than one acre and less than five acres; or
Will result in disturbance of less than one acre of total
land area that is part of a larger common plan of development or sale
if the larger common plan will ultimately disturb equal to or greater
than one and less than five acres.
See 40 CFR 122.26(b)(15).
EPA continues to have the authority to use section 402(p)(6) to
designate additional stormwater discharges for regulation under the CWA
in order to protect water quality. See 40 CFR 122.26(a)(9)(i)(C)-(D);
see also Envt Defense Ctr. v. EPA, 344 F.3d 832, 873-76 (9th Cir.
2003).
In addition, as stated above, the Phase I and Phase II regulations
require NPDES permits for ``large,'' ``medium,'' and ``small'' MS4s.
Operators of these MS4s, typically local governments, must develop and
implement a stormwater management program, including a requirement to
address stormwater discharges associated with construction activity and
discharges after construction activity. More details on the
requirements of MS4 programs are described in section III.B.2.
1. NPDES Permits for Stormwater Discharges Associated With Construction
Activity
The NPDES regulations provide two options for obtaining
authorization to discharge or ``permit coverage'': General permits and
individual permits. A brief description of these types of permits as
they apply to C&D sites follows.
[[Page 63000]]
a. General NPDES Permits
The vast majority of discharges associated with construction
activity are covered under NPDES general permits. EPA, states and
tribes use general permits to cover a group of similar dischargers
under one permit. See 40 CFR 122.28. General permits simplify the
process for dischargers to obtain authorization to discharge, provide
permit requirements for any discharger that files a notice of intent to
be covered, and reduce the administrative workload for NPDES permitting
authorities. General permits, including a fact sheet describing the
rationale for permit conditions, are issued by NPDES permitting
authorities after an opportunity for public review of the proposed
general permit. Typically, to obtain authorization to discharge under a
construction general permit, a discharger (the owner or operator of the
C&D sites; typically, a developer, builder, or contractor) submits to
the permitting authority a Notice of Intent (NOI) to be covered under
the general permit. A NOI is not a permit or a permit application, see
Texas Independent Producers and Royalty Owners Ass'n v. EPA, 410 F.3d
964, 977-78 (7th Cir. 2005), but by submitting the NOI, the discharger
acknowledges that it is eligible for coverage under the general permit
and agrees to the conditions in the published general permit.
Discharges associated with the construction activity are authorized
consistent with the terms and conditions established in the general
permit.
EPA regulations allow NPDES permitting authorities to regulate
discharges from small C&D sites under a general permit without the
discharger submitting an NOI if the permitting authority determines an
NOI is inappropriate and the general permit includes language
acknowledging that an NOI is unnecessary (40 CFR 122.28(b)(2)(v)). To
implement such a requirement, the permitting authority must specify in
the public notice of the general permit any reasons why an NOI is not
required. In these instances, any stormwater discharges associated with
small construction activity are automatically covered under an
applicable general permit and the discharger is required to comply with
the terms, conditions and effluent limitations of such permit.
Similarly, EPA, states and tribes have the authority to notify a
C&D site operator that it is covered by a general permit, even if that
operator has not submitted an NOI (40 CFR 122.28(b)(2)(vi)). In these
instances, the operator is given the opportunity to request coverage
under an individual permit. Individual permits are discussed in section
III.B.1.d.
b. EPA Construction General Permit
Since 1992, EPA has issued a series of ``national'' Construction
General Permits (CGP) that cover areas where EPA is the NPDES
permitting authority. At present, EPA is the permitting authority in
four states (Idaho, Massachusetts, New Hampshire, and New Mexico), the
District of Columbia, Puerto Rico, all other U.S. territories with the
exception of the Virgin Islands, federal facilities in four states
(Colorado, Delaware, Vermont, and Washington), most Indian lands and a
couple of other specifically designated activities in specific states
(e.g., oil and gas activities in Texas and Oklahoma). EPA's current CGP
became effective on June 30, 2008 (see 74 FR 40338). EPA has proposed
to modify the expiration date of the current 2008 CGP for one year, to
June 30, 2011, in order to allow EPA adequate time to incorporate the
ELGs and NSPS in this final rule and provide any necessary guidance to
the regulated industry (see 74 FR 53494). At that time, EPA will issue
a new CGP that includes the requirements of this final rule.
The key components of EPA's current CGP are non-numeric effluent
limitations and ``best management practices'' (BMP) that require the
permittee to minimize discharges of pollutants in stormwater discharges
using control measures that reflect best engineering practices based on
EPA's best professional judgment. Dischargers must minimize their
discharge of pollutants in stormwater using appropriate erosion and
sediment controls and control measures for other pollutants such as
litter, construction debris, and construction chemicals that could be
exposed to stormwater and other wastewater. The 2008 EPA CGP requires
dischargers to develop and implement a stormwater pollution prevention
plan (SWPPP) to document the steps they will take to comply with the
terms, conditions and effluent limitations of the permit. EPA's
guidance manual, ``Developing Your Stormwater Pollution Prevention
Plan: A Guide for Construction Sites,'' (EPA 833/R-060-04, May 2007;
available on EPA's Web site at http://www.epa.gov/npdes/stormwater)
describes the SWPPP process in detail. As detailed in EPA's CGP, the
SWPPP must include a description of the C&D site with maps showing
drainage patterns, discharge points, and locations of discharge
controls; a description of the control measures used; and inspection
procedures. A copy of the SWPPP must be kept on the construction site
from the date of project initiation to the date of final stabilization.
The CGP does not require permittees to submit a SWPPP to the permitting
authority; however, a copy must be readily available to authorized
inspectors during normal business hours. Other requirements in the CGP
include conducting regular inspections and reporting releases of
reportable quantities of hazardous substances.
c. State Construction General Permits
Whether EPA, a state or a tribe issues the general permit, the CWA
and EPA regulations require that NPDES permits must include technology-
based effluent limitations. 40 CFR 122.44. In addition, where
technology-based effluent limitations are insufficient for the
discharge to meet applicable water quality standards, the permit must
contain water quality-based effluent limitations as necessary to meet
those standards. See sections 301, 304, 303, 306, and 402 of the CWA.
PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511
U.S. 700, 704-705 (1994).
For the most part, state-issued general permits for stormwater
discharges associated with construction activity have followed EPA's
CGP format and content, starting with EPA's first CGP issued in 1992
(57 FR 41176; September 9, 1992). Over time, some states have changed
components of their permits to better address the specific conditions
encountered at construction sites within their jurisdiction (e.g., soil
types, topographic or climatic characteristics, or other relevant
factors). For example, the States of Washington, Oregon, Georgia and
Vermont's CGPs include discharge monitoring requirements for C&D sites
applicable to all or a subset of construction sites. In addition, the
State of California's current CGP contains monitoring requirements as
well as numeric effluent limitations for a subset of construction sites
within the state.
d. Individual NPDES Permits
A permitting authority may require any C&D site to apply for an
individual permit rather than using the general permit. Likewise, any
discharger may request to be covered under an individual permit rather
than seek coverage under an otherwise applicable general permit (40 CFR
122.28(b)(3)). Unlike a general permit, an individual permit is
intended to be issued to one permittee, or a few co-permittees.
Individual permits for stormwater discharges from construction sites
are
[[Page 63001]]
rarely used, but when done so, are most often used for very large
projects or projects located in sensitive watersheds. EPA estimates
that fewer than one half of one percent (< 0.5%) of all construction
sites are covered under individual permits.
2. Municipal Stormwater Permits and Local Government Regulation of
Stormwater Discharges Associated With Construction Activity
Many local governments, as MS4 permittees, have a role to play in
the regulation of construction activities. This section provides an
overview of MS4 responsibilities associated with controlling stormwater
discharges associated with construction activity.
a. NPDES Requirements
A municipal separate storm sewer system (MS4) is generally a
conveyance or system of conveyances owned or operated by a public body
that discharges to waters of the United States and is designed or used
for collecting or conveying stormwater. These systems are not combined
sewers and not part of a Publicly Owned Treatment Works (POTW). See 40
CFR 122.26(b)(8) for an exact definition. An MS4 is all large, medium,
and small municipal storm sewers or those designated as such under EPA
regulations. See 40 CFR 122.26(b)(18). The NPDES stormwater regulations
require many MS4s to apply for permits. In general, the 1990 Phase I
rule requires MS4s serving populations of 100,000 or more to obtain
coverage under an MS4 individual permit. See 40 CFR 122.26(a)(3). The
1999 Phase II rule requires most small MS4s located in urbanized areas
also to obtain coverage. See 40 CFR 122.33. Regardless of the type of
permit, MS4s are required to develop stormwater management programs
that detail the procedures they will use to control discharges of
pollutants in stormwater from the MS4.
The Phase II regulations also provide permitting authorities or the
EPA Regional Administrator with the authority to designate any
additional stormwater discharges for permit coverage where he or she
determines that stormwater controls are needed for the discharge based
on wasteload allocations that are part of total maximum daily loads
(TMDL) that address pollutants of concern or that the discharge, or
category of discharges within a geographic area, contributes to a
violation of a water quality standard or is a significant contributor
of pollutants to waters of the United States. 40 CFR 122.26(9)(a)(i)(C)
and (D).
Both the Phase I and II rules require regulated municipalities to
develop stormwater management programs which include, among other
elements, the control of discharges from construction sites. The Phase
I regulations require medium and large MS4s to implement and maintain a
program to reduce pollutants in stormwater discharges associated with
construction activities, including procedures for site planning,
requirements for structural and non-structural BMPs, procedures for
identifying priorities for inspecting sites and enforcing control
measures, and development and dissemination of appropriate educational
and training materials. In general, the Phase II regulations require
small MS4s to develop, implement, and enforce a program to control
pollutants in stormwater discharges associated with construction
activities which includes developing an ordinance to require
implementation of erosion and sediment control practices, to control
waste and to have procedures for site plan review and site inspections.
Thus, as described above, both the Phase I and Phase II regulations
specifically anticipate a local program for controlling stormwater
discharges associated with construction activity. See 40 CFR
122.26(d)(2)(iv)(D) for Phase I MS4s and 40 CFR 122.34(b)(4) for Phase
II MS4s. EPA has provided guidance materials to the NPDES permitting
authorities and MS4s that recommend components and activities for a
well-operated local stormwater management program.
EPA promulgated two provisions intended to minimize potential
duplication of requirements or inconsistencies between requirements.
First, 40 CFR 122.35 provides that a small MS4 is allowed to rely on
another entity's program to satisfy its NPDES permit obligations,
including construction site control, provided the other entity
implements a program that is at least as stringent as the corresponding
NPDES permit requirements and the other entity agrees to implement the
control measures on the small MS4's behalf. Thus, for example, where a
county implements a construction site stormwater control program
already, and that program is at least as stringent as the controls
required by a small MS4's NPDES permit, the MS4 may reference that
program in the Notice of Intent to be covered by a general permit, or
in its permit application, rather than developing and implementing a
new program to require control of construction site stormwater within
its jurisdiction.
Similarly, EPA or the state permitting authority may substitute
certain aspects of the requirements of the EPA or state permit by
incorporating by reference the requirements of a ``qualifying local
program'' in the EPA or state CGP. A ``qualifying local program'' is an
existing sediment and erosion control program that meets the minimum
requirements as established in 40 CFR 122.44(s). By incorporating a
qualifying local, state or tribal program into the EPA or state CGP,
construction sites covered by the qualifying program in that
jurisdiction would simply follow the incorporated local requirements in
order to meet the corresponding requirements of the EPA or state CGP.
b. EPA Guidance to Municipalities
EPA developed several guidance documents for municipalities to
implement the NPDES Phase II rule.
National Menu of BMPs (http://cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm). This document provides guidance to
regulated MS4s as to the types of practices they could use to develop
and implement their stormwater management programs. The menu includes
descriptions of practices that local programs can implement to reduce
impacts of stormwater discharges from construction activities.
Measurable Goals Guidance for Phase II MS4s (http://cfpub.epa.gov/npdes/stormwater/measurablegoals/index.cfm). This
document assists small MS4s in defining performance targets and
includes examples of goals for practices to control stormwater
discharges from construction activities.
Stormwater Phase II Compliance Assistance Guide (EPA 833-
R-00-002, March 2000). The guide provides an overview of compliance
responsibilities for MS4s, small construction sites, and certain other
industrial stormwater discharges affected by the Phase II rule.
Fact Sheets on various stormwater control technologies,
including hydrodynamic separators (EPA 832-F-99-017), infiltrative
practices (EPA 832-F-99-018 and EPA 832-F-99-019), modular treatment
systems (EPA 832-F-99-044), porous pavement (EPA 832-F-99-023), sand
filters (EPA 832-F-99-007), turf reinforcement mats (EPA 832-F-99-002),
vegetative covers (EPA 832-F-99-027), swales (EPA 832-F-99-006) and wet
detention ponds (EPA 832-F-99-048). (Available at http://www.epa.gov/npdes/stormwater/; click on ``Publications.'')
C. Other State and Local Stormwater Requirements
States and municipalities may have other requirements for flood
control, erosion and sediment control, and in
[[Page 63002]]
many cases, stormwater management. Many of these provisions were
enacted before the promulgation of the EPA Phase I stormwater rule
although many have been updated since. EPA found that all states have
laws for erosion and sediment control measures, with these laws
implemented by state, county, or local governments. A summary of
existing state requirements is provided in the Development Document.
D. Technology-Based Effluent Limitations Guidelines and Standards
Effluent limitations guidelines and new source performance
standards are technology-based effluent limitations required by CWA
sections 301 and 306 for categories of point source discharges. These
effluent limitations, which can be either numeric or non-numeric, along
with water quality-based effluent limitations, if necessary, are
incorporated into NPDES permits. ELGs and NSPSs are based on the degree
of control that can be achieved using various levels of pollutant
control technology as defined in Title III of the CWA and outlined
below.
1. Best Practicable Control Technology Currently Available (BPT)
In establishing effluent limitations guidelines for a point source
category, the CWA requires EPA to specify BPT effluent limitations for
conventional, toxic, and nonconventional pollutants. In doing so, EPA
is required to determine what level of control is technologically
available and economically practicable. CWA section 301(b)(1)(A). In
specifying BPT, the CWA requires EPA to look at a number of factors.
EPA considers the total cost of application of technology in relation
to the effluent reduction benefits to be achieved from such
application. The Agency also considers the age of the equipment and
facilities, the process employed and any required process changes,
engineering aspects of the application of the control technologies,
non-water quality environmental impacts (including energy
requirements), and such other factors as the Administrator deems
appropriate. CWA section 304(b)(1)(B). Traditionally, EPA establishes
BPT effluent limitations based on the average of the best performance
of facilities within the category of various ages, sizes, processes or
other common characteristics. Where existing performance is uniformly
inadequate, EPA may require higher levels of control than currently in
place in a category if the Agency determines that the technology can be
practicably applied. See e.g., American Frozen Foods Inst. v. Train,
539 F.2d 107, 117 (D.C. Cir. 1976).
EPA assesses the cost-reasonableness of BPT limitations by
considering the cost of treatment technologies in relation to the
effluent reduction benefits achieved. This inquiry does not limit EPA's
broad discretion to adopt BPT limitations that are achievable with
available technology. This ``limited cost-benefit analysis'' is
intended to ``limit the application of technology only where the
additional degree of effluent reduction is wholly out of proportion to
the costs of achieving such marginal level of reduction.'' See EPA v.
National Crushed Stone Ass'n, 449 U.S. 64 71 (1980). Moreover, the
inquiry does not require the Agency to quantify benefits in monetary
terms. See, e.g., American Iron and Steel Institute v. EPA, 526 F.2d
1027, 1051 (3rd Cir. 1975).
In balancing costs against the effluent reduction, EPA considers
the volume and nature of the expected discharges after application of
BPT and the cost and economic impacts of the required level of
pollution control. In past effluent limitation guidelines, BPT cost-
reasonableness comparisons ranged from $0.26 to $41.44 per pound
removed (in 2008 dollars). This range is not inclusive of all
categories regulated by BPT, but nonetheless represents a very broad
range of cost-reasonableness values. About half of the cost-
reasonableness values represented by this range are less than $2.99 per
pound (in 2008 dollars).
2. Best Available Technology Economically Achievable (BAT)
BAT effluent guidelines are applicable to toxic (priority) and
nonconventional pollutants. EPA has identified 65 pollutants and
classes of pollutants as toxic pollutants, of which 126 specific
substances have been designated priority toxic pollutants. 40 CFR
401.15 and 40 CFR part 423, Appendix A. In general, BAT represents the
best available performance of facilities through application of the
best control measures and practices achievable including treatment
techniques, process and procedure innovations, operating methods, and
other alternatives within the point source category. CWA section
304(b)(2)(A). The factors EPA considers in assessing BAT include the
cost of achieving BAT effluent reductions, the age of equipment and
facilities involved, the processes employed, the engineering aspects of
the control technology, potential process changes, non-water quality
environmental impacts (including energy requirements), and such factors
as the Administrator deems appropriate. CWA section 304(b)(2)(B). The
Agency retains considerable discretion in assigning the weight to be
accorded to these factors. Weyerhaeuser Company v. Costle, 590 F.2d
1011, (D.C. Cir. 1978). An additional factor, derived from the
statutory phrase best available technology economically achievable, is
``economic achievability.'' CWA section 301(b)(2)(A). EPA may determine
the economic achievability of an option on the basis of the overall
effect of the rule on the industry's financial health. See E.I. du Pont
de Nemours & Co. v. Train, 430 U.S. 112, 129 (1977); American Frozen
Food Inst. v. Train, 539 F.2d 107, 131 (D.C. Cir. 1976). The Agency may
base BAT limitations upon effluent reductions attainable through
changes in a facility's processes and operations. See Texas Oil & Gas
Ass'n v. EPA, 161 F.3d 923, 928 (5th Cir. 1998) (citing ``process
changes'' as one factor EPA considers in determining BAT); see also,
American Meat Institute v. EPA, 526 F.2d 442, 464 (7th Cir. 1975). As
with BPT, where existing performance is uniformly inadequate, EPA may
base BAT upon technology transferred from a different subcategory or
from another category. See CPC International Inc. v. Train, 515 F.2d
1032, 1048 (8th Cir. 1975) (established criteria EPA must consider in
determining whether technology from one industry can be applied to
another); see also, Tanners' Council of America, Inc. v. Train, 540
F.2d 1188 (4th Cir. 1976). In addition, the Agency may base BAT upon
manufacturing process changes or internal controls, even when these
technologies are not common industry practice. See American Frozen
Foods Inst. v. Train, 539 F.2d 107, 132 (D.C. Cir. 1976); Reynolds
Metals Co. v. EPA, 760 F.2d 549, 562 (4th Cir. 1985); California &
Hawaiian Sugar Co. v. EPA, 553 F.2d 280 (2d Cir. 1977).
3. Best Conventional Pollutant Control Technology (BCT)
The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with BCT
technology for discharges from existing point sources. BCT is not an
additional limitation, but replaces Best Available Technology (BAT) for
control of conventional pollutants. In addition to other factors
specified in CWA section 304(b)(4)(B), the Act requires that EPA
establish BCT limitations after consideration of a two-part ``cost-
reasonableness'' test. EPA explained its methodology for the
development of BCT limitations in July 1986. 51 FR 24974 (July 9,
1986).
[[Page 63003]]
Section 304(a)(4) designates the following as conventional
pollutants: biochemical oxygen demand (BOD5), total
suspended solids (TSS), fecal coliform, pH, and any additional
pollutants defined by the Administrator as conventional. 40 CFR 401.16.
The Administrator designated oil and grease as an additional
conventional pollutant. 44 FR 44501 (July 30, 1979).
4. Best Available Demonstrated Control Technology (BADT) for New Source
Performance Standards (NSPS)
NSPS apply to all pollutants and reflect effluent reductions that
are achievable based on the BADT. New sources, as defined in CWA
section 306, have the opportunity to install the best and most
efficient production processes and wastewater treatment technologies.
As a result, NSPS should represent the greatest degree of effluent
reduction attainable through the application of the best available
demonstrated control technology. In establishing NSPS, CWA section 306
directs EPA to take into consideration similar factors that EPA
considers when establishing BAT, namely the cost of achieving the
effluent reduction and any non-water quality, environmental impacts and
energy requirements.
5. Pretreatment Standards
The CWA also defines standards for indirect discharges, i.e.
discharges into publicly owned treatment works (POTWs). These standards
are known as Pretreatment Standards for Existing Sources (PSES) and
Pretreatment Standards for New Sources (PSNS), and are promulgated
under CWA section 307(b). EPA has no data concerning the discharge of
pollutants from construction sites to POTWs and POTW treatment plants.
Therefore, EPA did not propose PSES or PSNS for the C&D category and is
not promulgating PSES or PSNS for the C&D category. EPA determined that
the majority of construction sites discharge either directly to waters
of the U.S. or through MS4s. In some urban areas, construction sites
may discharge to combined sewer systems (i.e., sewers carrying both
stormwater and domestic sewage through a single pipe) which lead to
POTW treatment plants. Sediment and turbidity, which are the primary
pollutants associated with construction site discharges, are
susceptible to treatment in POTWs, using technologies commonly employed
such as primary clarification. EPA has no evidence that construction
site discharges to POTWs would cause interference, pollutant pass-
through or sludge contamination.
6. EPA Authority to Promulgate Non-Numeric Effluent Limitations
The regulations promulgated today include non-numeric effluent
limitations that will control the discharge of pollutants from C&D
sites. It is well established that EPA has the authority to promulgate
non-numeric effluent limitations in addition to, or in lieu of, numeric
limitations. The CWA does not mandate the use of numeric limitations
and EPA's position finds support in the language of the CWA. The
definition of ``effluent limitation'' means ``any restriction * * * on
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents * * *'' CWA section 502(11)
(emphasis added). EPA regulations reflect the Agency's long standing
interpretation that the CWA allows for non-numeric effluent
limitations. EPA regulations explicitly allow for non-numeric effluent
limitations for the control of toxic pollutants and hazardous
substances from ancillary industrial activities; for the control of
storm water discharges; when numeric effluent limitations are
infeasible; or when the practices are reasonably necessary to achieve
effluent limitations and standards or to carry out the purposes and
intent of the CWA. See 40 CFR 122.44(k).
Federal courts have recognized EPA's authority under the CWA to use
non-numeric effluent limitations. In Citizens Coal Council v. U.S. EPA,
447 F3d 879, 895-96 (6th Cir. 2006), the Sixth Circuit, in upholding
EPA's use of non-numeric effluent limitations, agreed with EPA that it
derives authority under the CWA to incorporate non-numeric effluent
limitations for conventional and non-conventional pollutants. See also,
Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 496-97, 502 (2d
Cir. 2005) (EPA use of non-numerical effluent limitations in the form
of best management practices are effluent limitations under the CWA);
Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C. Cir.
1982) (``section 502(11) [of the CWA] defines `effluent limitation' as
`any restriction' on the amounts of pollutants discharged, not just a
numerical restriction.'').
7. CWA Section 304(m) Litigation
EPA identified the C&D point source category in its CWA section
304(m) plan in 2000 as an industrial point source category for which
EPA intended to conduct rulemaking. 65 FR at 53008 and 53011 (August
31, 2000). On June 24, 2002, EPA published a proposed rule that
contained several options for the control of stormwater discharges from
construction sites, including ELGs and NSPSs. (67 FR 42644; June 24,
2002). On April 26, 2004, EPA chose to rely on the range of existing
programs, regulations, and initiatives that already existed at the
federal, state and local level and withdrew the proposed ELGs and
NSPSs. (69 FR 22472; April 26, 2004). On October 6, 2004, the Natural
Resources Defense Council, Waterkeeper Alliance and the states of New
York and Connecticut filed a complaint in federal district court
alleging that EPA's decision not to promulgate ELGs and NSPSs for the
C&D point source category violated a mandatory duty under the CWA. The
district court, in NRDC v. EPA, 437 F.Supp.2d 1137, 1139 (C.D. Cal.
2006), held that CWA section 304(m) imposes on EPA a mandatory duty to
promulgate ELGs and NSPSs for new industrial point source categories
named in a CWA section 304(m) plan. At that time EPA argued that the
district court should enter an order providing for a four-year schedule
for EPA to promulgate the ELGs and NSPSs in order to allow the Agency
the opportunity to collect additional data on the construction
industry, additional data on stormwater discharges associated with
construction activity, and to be able to have the time to solicit
additional data based on comments received on the proposed regulation.
The district court rejected EPA's proposed schedule, forcing the Agency
to proceed under an accelerated schedule by enjoining EPA in an order
to propose and publish ELGs and NSPSs for the C&D industry by December
1, 2008 and to promulgate and publish ELGs and NSPSs as soon as
practicable, but in no event later than December 1, 2009. See NRDC, et
al. v. EPA, No CV-0408307 (C.D. Cal.) (Permanent Injunction and
Judgment, December 5, 2006). On appeal, the Ninth Circuit in NRDC v.
EPA, 542 F.3d 1235 (9th Cir. 2008) affirmed the district court's
decision. Consistent with the district court order, EPA published
proposed ELGs and NSPSs on November 28, 2008 (see 73 FR 72562) and is
publishing final ELGs and NSPSs today.
IV. Overview of the Construction Industry and Construction Activities
The C&D point source category covers firms classified by the Census
Bureau into two North American Industry Classification System (NAICS)
codes.
Construction of Buildings (NAICS 236) includes
residential, nonresidential, industrial, commercial and institutional
building construction.
Heavy and Civil Engineering Construction (NAICS 237)
includes utility systems construction (water and
[[Page 63004]]
sewer lines, oil and gas pipelines, power and communication lines);
land subdivision; highway, street, and bridge construction; and other
heavy and civil engineering construction.
Other types of entities not included in this list could also be
regulated.
A single construction project may involve many firms from both
subsectors. The number of firms involved and their financial and
operational relationships may vary greatly from project to project. In
typical construction projects, the firms identifying themselves as
``operators'' under a construction general permit are usually general
building contractors or developers. While the projects often engage the
services of specialty contractors such as excavation companies, these
specialty firms are typically subcontractors to the general building
contractor and are not separately identified as operators in stormwater
permits. Other classes of subcontractors such as carpentry, painting,
plumbing and electrical services typically do not apply for, nor
receive, NPDES permits. The types and numbers of firms in the
construction industry are described in more detail in the Economic
Analysis.
Construction activity on any size parcel of land almost always
calls for a remodeling of the earth. Therefore, actual site
construction typically begins with site clearing and grading. Earthwork
activities are important in site preparation because they ensure that a
sufficient layer of organic material (ground cover and other
vegetation, especially roots) is removed. The size of the site, extent
of water present, the types of soils, topography and weather determine
the types of equipment that will be needed during site clearing and
grading. Material that will not be used on the site may be hauled away.
Clearing activities involve the movement of materials from one area of
the site to another or complete removal from the site. When grading a
site, builders typically take measures to ensure that new grades are as
close to the original grade as possible to reduce erosion and
stormwater runoff, which can result in discharge of sediment, turbidity
and other pollutants. Proper grade also ensures a flat surface for
development and is designed to attain proper drainage away from the
constructed buildings. A wide variety of equipment is often used during
excavation and grading. The type of equipment used generally depends on
the functions to be performed and on specific site conditions. Shaping
and compacting of the earth is an important part of site preparation.
Earthwork activities might require that fill material be used on the
site. In such cases, the fill must be spread in uniform, thick layers
and compacted to a specific density. An optimum moisture content must
also be reached. Graders and bulldozers are the most common earth-
spreading machines, and compaction is often accomplished with various
types of rollers. If rock is to be removed from the site, the
contractor must first loosen and break the rock into small pieces using
various types of drilling equipment or explosives. (Adapted from
Peurifoy, Robert L. and Oberlender, Garold D. (1989). Estimating
Construction Costs (4th ed.). New York: McGraw Hill Book Company.)
Once materials have been excavated and removed and the ground has
been cleared and graded, the site is ready for construction of
buildings, roads, and/or other structures. During construction
activity, the disturbed land can remain exposed without vegetative
cover for a substantial period of time. Where the soil surface is
unprotected, soil particles and other pollutants are particularly
susceptible to erosion and may be easily washed away by rain or snow
melt and discharged from the site. Permittees typically use a
combination of erosion and sediment control measures designed to
prevent mobilization of the soil particles and capture of those
particles that do mobilize and become entrained in stormwater. In some
cases permittees treat a portion of the discharge using filtration or
other treatment technologies. Common erosion and sediment control
measures and treatment technologies are described further in the
Development Document.
V. Summary of the Proposed Regulation
EPA published proposed regulations for the C&D category on November
28, 2008. 73 FR 72562. The proposed rule contained several options. One
option (Option 1), which is based on the requirements similar to those
contained in past EPA CGPs, would have established a set of non-numeric
effluent limitations requiring dischargers to provide and maintain
effective erosion control measures, sediment control measures, and
other pollution prevention measures to minimize, control or prevent the
discharge of pollutants in stormwater and other wastewater from
construction sites. In addition, reflecting current requirements in the
EPA CGP, sediment basins would have been required for common drainage
locations that serve an area with 10 or more acres disturbed at one
time to contain and settle sediment from stormwater runoff before
discharge. Option 1 would have required minimum standards of design for
sediment basins; however, alternatives that control sediment discharges
in a manner equivalent to sediment basins would have been authorized
where approved by the permitting authority.
Another option (Option 2) would have incorporated the same
provisions as Option 1 and for sites of 30 or more acres located in
areas of the country with the annual Revised Universal Soil Loss
Equation (RUSLE) R-factor greater than 50 and that contained more than
10% by mass of soil particles smaller than 2 microns, discharges of
stormwater from the site would have been required to monitor and meet a
numeric effluent limitation on the allowable level of turbidity. The
numeric turbidity limitation proposed was 13 nephelometric turbidity
units (NTUs). The technology basis for Option 2 was active or advanced
treatment systems (ATS), which consisted of polymer-assisted
clarification followed by filtration. A third option (Option 3) was
similar to Option 2, except that it would have applied the 13 NTU
limitation to all construction sites of 10 or more acres, regardless of
location or soil type.
In addition, the proposal presented and solicited comment on
another option that would require compliance with a higher numeric
turbidity effluent limitation (e.g., 50 to 150 NTU, or some other
value) based on passive treatment technologies instead of ATS (see 73
FR 72562, 72580-72582, 72610-72611). Passive treatment technologies
include conventional erosion and sediment controls, polymer addition to
sediment basins, fiber check dams with polymer addition, and other
controls. At proposal, EPA sought additional data on the performance of
passive treatment systems, and the cost and pollutant loading
reductions that would be attainable from such an option.
In the proposed rule, EPA selected Option 1 as the basis of BPT and
BCT, and Option 2 as the basis of BAT and NSPS. At the time of
proposal, EPA defined a ``new source'' as any source from which there
will be a discharge associated with construction activity that will
result in a building, structure, facility, or installation subject to
new source performance standards elsewhere under 40 CFR subchapter N.
A summary of the costs, estimated pollutant reductions, cost
effectiveness and monetized environmental benefits of the proposed
options are contained in the Federal Register notice for the proposed
rule, in the support
[[Page 63005]]
documents for the proposed rule and in the record.
VI. Summary of Major Comments Received
EPA received numerous comments on the proposed rule. The majority
of comments centered on EPA's selection of ATS as the technology basis
for BAT and NSPS and the data and assumptions used to estimate the
numeric limitation, costs and pollutant load reductions of the proposed
BAT and NSPS. ATS is no longer the technology basis for BAT and NSPS in
the final rule.
Some commenters argued that EPA's data used to estimate costs of
the proposed option based on ATS did not accurately consider all of the
costs, particularly for projects of longer duration. In response, EPA
revised the model project analysis to consider projects of longer
duration and utilized a unit-cost approach based on data contained in
the record for the proposal.
Some commenters argued that EPA's analysis of the amount of
construction activity underestimated actual levels of construction
activity, since EPA's estimates were based on land use change estimates
from 1992 to 2001 using the National Land Cover Dataset (NLCD). In
response, EPA revised estimates of annual acres subject to the
regulation using industry economic data instead of the NLCD data.
Some commenters argued that EPA's data and assumptions used to
estimate loading reductions of the regulatory options did not
accurately account for current controls in place nationwide. In
response, EPA revised the assumptions used in the model to account for
baseline controls. EPA also used data at the watershed level for some
modeling parameters.
Some commenters requested that numeric limitations be based on, or
consider, the background levels of sediment and turbidity in receiving
streams when establishing a turbidity limitation. EPA notes that BAT
and NSPS are based on the capabilities of technology, not receiving
water quality. It would not be appropriate in establishing technology
based effluent limitations pursuant to CWA sections 301 and 306 for EPA
to consider the water quality of specific water bodies. See
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1040-1044 (D.C. Cir. 1978).
Permitting authorities have the ability to develop water-quality based
effluent limitations to address receiving water concerns. Some states
have set limitations for specific projects considering the background
turbidity of the receiving waters. Commenters further argued that
discharges of low turbidity water to streams that are naturally high in
turbidity could contribute to stream instability. EPA does not agree
with this comment. The particles contained in stormwater discharges
from construction sites are primarily fine-grained, since sediment
controls remove the bulk of the coarser particles. These fine-grained
particles are not beneficial from a stream stability standpoint.
Therefore, removal of these particles from the stormwater discharge
would not be expected to further contribute to stream instability, if
the receiving stream was already unstable. It is plausible that
discharge of a large volume of stormwater over a short period of time
to a small stream with a high natural sediment load could contribute to
instability. If this condition were to exist, it could be alleviated
simply by controlling the rate of discharge or by dispersing runoff to
vegetated areas on site, if available (see also, comment by Dr. Britt
Faucette, EPA-HQ-OW-2008-0465-0527 in the rulemaking record).
Some commenters argued that some of the data EPA used to determine
the numeric effluent limitation based on ATS should not be used because
EPA lacked specific information on factors, such as type of
construction project or treatment system configuration. Commenters also
argued that the data was not representative, since these data were
primarily from the Northwest United States. EPA does not agree with
these comments. The data represent a variety of project types. Although
EPA may not have detailed information about specific aspects of some
projects (such as project size and treatment system flow rate), EPA has
conducted an engineering review of the data and determined that the
data is representative. EPA has excluded data, where appropriate, to
account for factors such as treatment system startup and variation
outside of the range that EPA would consider indicative of proper
operation. Details of the engineering review of the data can be found
in the Development Document. In addition, EPA received additional
information on some of the data, such as project type and treatment
configuration. EPA also received data from additional projects,
including projects in New York and North Carolina. More details on the
data can be found in the administrative record.
Some commenters were concerned about the non-numeric effluent
limitations proposed, and specifically questioned whether some of the
proposed requirements could be implemented on all construction sites.
EPA generally agrees that some of the requirements, as proposed, could
not be implemented on all sites and made revisions to the non-numeric
effluent limitations to make them applicable to all sites. For certain
controls, EPA included ``unless infeasible'' to recognize that there
may be some sites where a particular control measure cannot be
implemented, thus allowing flexibility for permittees. (See Section
X.B.)
Some commenters questioned the stringency of the proposed soil
stabilization requirements, and were concerned about the costs and
feasibility of initiating stabilization of disturbed area
``immediately'' when final grade is reached or any clearing, grading,
excavating or other earth disturbing activities have temporarily or
permanently ceased and will not resume for a period exceeding 14
calendar days. EPA disagrees that this requirement is not feasible.
Given the importance of soil stabilization techniques (see Chapter 5 of
the Technical Development Document (TDD)), and the influence of soil
cover on soil erosion rates, EPA has determined that initiating soil
stabilization measures immediately is an important non-numeric effluent
limitation. EPA sees no compelling reason why permittees cannot take
action immediately to stabilize disturbed soils on their sites. Erosion
control measures, such as mulch, are readily available and permittees
need only plan accordingly to have appropriate materials and laborers
present when needed. EPA has, however, modified this requirement for
clarity (see the final requirement at Sec. 450.21(b).
EPA received comments concerning applicability of the final rule to
linear construction projects, including the numeric effluent
limitation. EPA considered the unique characteristics of linear
projects in determining the appropriate technology based effluent
limitations for those sites. The final rule, in part based on the
considerations of linear projects, no longer contains a requirement to
install a sediment basin (See Section VII.A), the technology basis for
the numeric effluent limitation is no longer ATS (See Section X.G.3),
and revisions were made to the non-numeric effluent limitations based
on comments concerning the feasibility at linear projects. (See Section
X.B.2). EPA disagrees with comments that suggested EPA should either
exempt all linear projects from the final rule or from the numeric
effluent limitation. EPA has determined that numeric effluent
limitations are feasible for linear projects and passive treatment
systems provide flexibility to linear projects to
[[Page 63006]]
take into account site specific considerations. (See the TDD for
specific examples of the utilization of passive treatment systems at
linear projects). Additionally, EPA believes that the permitting
authority should exercise discretion when determining the monitoring
locations and monitoring frequency for linear construction projects.
(See Section XIX.A).
Based on the unique regulatory circumstances of interstate natural
gas pipeline construction projects EPA has chosen not to have the
numeric limitation and monitoring requirements at 40 CFR 450.22(a)
apply to the discharges associated with the construction of natural gas
pipelines. This exemption only applies to discharges associated with
construction of interstate natural gas pipelines that are under the
jurisdiction of the Federal Energy Regulatory Commission (FERC). EPA
determined this was appropriate due to the comprehensive regulatory
program that FERC requires and enforces for the construction of these
projects. Through its program, FERC requires a variety of erosion and
sediment controls to be implemented during construction, some of which
are more stringent than those contained in today's rule. FERC conducts
site-specific reviews to establish the allowable area of disturbance
for project construction and dictates the manner in which construction
of these projects can proceed. Typical requirements would include
minimizing the amount of time that soils are allowed to be exposed,
managing the discharges from trench dewatering, limiting the amount of
vegetation that can be cleared adjacent to streams and wetlands, and
requiring successful revegetation of project areas. FERC has been
requiring these projects to implement its erosion and sediment control
program since 1989. Thus, it is a well-developed regulatory program
that includes stringent requirements, oversight, public participation,
and onsite inspection. EPA does not want to limit the flexibility of
FERC to implement its program by imposing numeric limitations on these
unique projects.
EPA received comments encouraging the Agency to include controls in
the final rule on stormwater discharges that occur after construction
activity has ceased or what they call ``post-construction'' stormwater
discharges. These discharges are outside the scope of the final rule;
however the Agency understands that there is a need to address
discharges from newly developed and redeveloped sites, such as
commercial buildings, roads, or parking lots, in order to protect the
water quality of our nation's waters. As the urban, suburban and
exurban human environment expands, there is an increase in impervious
landcover and stormwater discharges. This increase in impervious
landcover on developed property reduces or eliminates the natural
infiltration of precipitation. The resulting stormwater flows across
roads, rooftops and other impervious surfaces, picking up pollutants
that are then discharged to our nation's waters. In addition, the
increased volume of stormwater discharges results in the scouring of
rivers and streams; degrading the physical integrity of aquatic
habitats, stream function and overall water quality. In July 2006, EPA
commissioned the National Research Council (NRC) to review the Agency's
program for controlling stormwater discharges under the CWA and
recommend steps the Agency should take to make the stormwater program
more effective in protecting water quality. The NRC Report Urban
Stormwater Management in the United States (DCN 42101) states that
stormwater discharges from the built environment remain one of the
greatest challenges of modern water pollution controls, ``as this
source of contamination is a principal contributor to water quality
impairment of waterbodies nationwide.'' The NRC report found that the
current regulatory approach by EPA under the CWA is not adequately
controlling all sources of stormwater discharges that are contributing
to waterbody impairment. NRC recommended that EPA address stormwater
discharges from impervious landcover and promote practices that
harvest, infiltrate and evapotranspirate stormwater to prevent it from
being discharged, which is critical to reducing the pollutant loading
to our nation's waters.
EPA has committed to and begun a rulemaking addressing stormwater
discharges from newly developed and redeveloped sites under CWA section
402(p). EPA has published a draft Information Collection Request, 74 FR
56191 (October 30, 2009) for public comment that will seek information
and data to support the rulemaking, and plans to complete this rule in
the fall of 2012.
Some commenters argued that turbidity is not a ``pollutant'' under
the CWA. EPA disagrees with the commenters as turbidity is a
``pollutant'' under the CWA and an indicator for other pollutants and
is the appropriate pollutant in this rule to control, under the
appropriate levels of technology, for discharges from C&D sites. In
this rule, turbidity is being regulated as a nonconventional pollutant
and as an indicator pollutant for the control of other pollutants in
discharges from C&D sites including metals and nutrients. By providing
a measure of sediment and other pollutants in discharges, turbidity is
an indicator of the degree to which sediment and other pollutants found
in discharges are reduced. Turbidity is also a more effective measure
of the presence of fine silts and clays and colloids, which are the
particles in stormwater discharges that EPA is primarily targeting in
today's rule.
Turbidity is a pollutant as that term is defined in the CWA. See
e.g., Conservation Law Foundation v. Hannaford Bros. Co., 327 F.Supp.2d
325, 326 (D.Vt. 2004), aff'd 139 Fed.Appx. 338 (2d.Cir. 2005). The CWA
defines ``pollutant'' broadly to include ``dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal and agricultural waste.'' CWA section 502(6). See NRDC v.
EPA, 822 F.2d 104, 109 (D.C.Cir. 1987) (``The term `pollutant' is
broadly defined[hellip]''); U.S. v. Hamel, 551 F.2d 107, 110 (6th Cir.
1977) (noting that the definition is set forth in ``broad generic
terms.''). EPA describes ``turbidity'' as ``an expression of the
optical property that causes light to be scattered and absorbed rather
than transmitted with no change in direction of flux level through the
sample caused by suspended and colloidal matter such as clay, silt,
finely divided organic and inorganic matter and plankton and other
microscopic organisms.'' 40 CFR 136.3; 72 FR 11200, 11247 (March 12,
2007). Turbidity fits easily into the broad definition of pollutant.
The definition of pollutant is not limited to those terms that are
specifically listed in the statute at section 502(6). See NWF v.
Gorsuch, 693 F.3d 156, 174 n.56 (D.C. Cir. 1982); Sierra Club v. Cedar
Point Oil Co., 73 F.3d 546, 565 (5th Cir. 1996).
Turbidity is also an indicator or measurement of other pollutants
in the water body; however merely because turbidity measures other
pollutants or can be an expression of the condition of the water body,
does not mean it is not itself a ``pollutant'' under the CWA. There are
numerous other pollutants, some that Congress explicitly included in
the CWA, that are also indicators or measurements of other pollutants.
For example, the CWA lists biochemical oxygen demand (BOD) and pH as
pollutants. CWA section 304(a)(4). BOD is the measure of the amount of
oxygen required by bacteria for stabilizing
[[Page 63007]]
material that can be decomposed under aerobic conditions and pH is a
measure of how acidic or basic a substance is. Additionally, chemical
oxygen demand (COD) is a pollutant and a measurement of other
pollutants. See BASF Wyandotte v. Costle, 598 F.2d 637, 651 (1st Cir.
1979). Even total suspended solids (TSS) are a measure of the organic
and inorganic particulate matter in wastewater. Like turbidity, there
is no question BOD, pH, COD and TSS are pollutants and there is no
conflict between a pollutant being a measurement of other pollutants
and a pollutant itself under the CWA.
One commenter argued that turbidity is a direct representation of
TSS, thus, if anything, turbidity can only be used as a surrogate for
TSS, and thus a conventional pollutant. In 1978 EPA interpreted
``suspended solids,'' at section 304(a)(4), as ``total suspended solids
(non-filterable) (TSS).'' EPA defined TSS as ``a laboratory measure of
the organic and inorganic particulate matter in wastewater which does
not pass through a specified glass filter disk.'' See 40 CFR 401.16; 43
FR 32857, 32858 (July 28, 1978). The terms turbidity and TSS are
related to sediment and are analogous, but they are not synonymous
pollutants or measures of water quality. TSS and turbidity are measured
differently, as turbidity is a measure of the light scattering
properties of the sample measured as NTU and TSS is generally a measure
of the concentration (i.e., milligrams per liter). The size, shape, and
refractive index of suspended particulate matter are not directly
related to the concentration and specific gravity of the suspended
matter. Therefore, measurements of TSS and turbidity are not
interchangeable. Pollutants that are not identified as either toxic or
conventional pollutants are nonconventional pollutants under the CWA.
See CWA section 301(b)(2)(F); 304(a)(4); 40 CFR 401.16; Rybacheck v.
EPA, 904 F. 2d 1276, 1291-92 (9th Cir. 1990). CWA section 304(a)(4)
identifies what pollutants are conventional pollutants under the CWA,
namely biochemical oxygen demand, suspended solids, fecal coliform, and
pH, with EPA adding oil and grease. See also, 40 CFR 410.16; 44 FR
44501 (July 30, 1979). Turbidity is not identified as a conventional
pollutant in the CWA or been identified as one by EPA. In the proposal,
EPA cited to Rybachek v. EPA, 904 F.2d at 1291-92, to demonstrate an
analogous situation where it was argued that ``settleable solids'' were
a component of TSS, or in other words, they are the same pollutant,
thus EPA should have classified settleable solids as a conventional
pollutant rather than a nonconventional pollutant. Id. at 1291. The
Ninth Circuit, agreeing with EPA's analysis in that case and the
discussion above, concluded that ``because settleable solids were not
designated by Congress as either conventional or a toxic pollutant,
they should be considered a nonconventional pollutant under [section
301(b)(2)(F)].'' Id. at 1292. EPA applied a similar analysis to
turbidity to conclude that it is a nonconventional pollutant under the
CWA.
Commenters' focus on arguing that turbidity is not a pollutant, or
at the very least a conventional pollutant, may be based on a desire
for a different technology standard applied to this rulemaking (i.e.,
BCT). However, even if EPA did agree that turbidity is not a pollutant
or is a conventional pollutant, TSS and turbidity are not the only
pollutants of concern in discharges from C&D sites. Metals, nutrients,
and other toxic and nonconventional pollutants are naturally present in
soils, and can be contributed during construction activity or by
activities that occurred at the site prior to the construction activity
(see, e.g., comment from Dr. Britt Faucette, EPA-HQ-OW-2008-0465-0527
in the rulemaking record. EPA recognizes that its understanding of the
nature of stormwater discharges associated with construction activity
has evolved. However, as early as 1990, in the Phase I stormwater
rulemaking EPA identified nonconventional and toxic pollutants of
concern in discharges from construction sites stating ``[c]onstruction
sites can also generate other pollutants such as phosphorus, nitrogen,
and nutrients from fertilizer, pesticides, petroleum products,
construction chemicals and solid wastes.'' 55 FR at 48033. The National
Academy of Sciences agrees with EPA and the NRC report states ``[t]he
pollutant parameters of concern in stormwater discharges from
construction activity are TSS, settleable solids, turbidity, and
nutrients from erosion; pH from concrete and stucco; and a wide range
of metallic and organic pollutants from construction materials,
processes, wastes, and vehicles and other motorized equipment.'' NRC at
541. EPA is making clear in this final rule that while conventional
pollutants are a concern in discharges from construction sites, there
are also nonconventional and toxic pollutants of concern in discharges
from these sites. Many of these pollutants are present as particulates
and will be removed with other particles. Dissolved forms of pollutants
are often absorbed or adsorbed to particulate matter and can also be
removed along with the particulates (i.e., sediment). See the
Environmental Assessment document for additional discussion about
pollutants found in discharges from C&D sites.
Additionally, stormwater discharges from C&D sites in their
entirety are ``industrial waste,'' a nonconventional pollutant under
the CWA, thus EPA is not obligated to single out specific constituents
or parameters in the discharge. See Northern Plains Resource Council v.
Fidelity Exploration and Development Co., 325 F.3d 1155 (9th Cir.
2003). Due to stormwater discharges being, or including,
nonconventional or toxic pollutants, EPA is statutorily obligated to
promulgate a BAT level of control for these point source discharges.
CWA section 301(b)(2)(A). EPA is also statutorily obligated to
promulgate a best available demonstrated control technology (BADT) for
NSPS for all pollutants from new sources, even if the only pollutants
from C&D sites were conventional pollutants.
Some commenters urged EPA to establish numeric effluent limitations
for pollutants other than turbidity (such as pH). While EPA agrees
there are other pollutants of concern that are discharged from
construction sites the Agency determined it is not necessary to
establish any other numeric effluent limitations at this time. Many of
the pollutants of concern are sediment-bound pollutants, such as metals
and nutrients. The non-numeric effluent limitations in the final rule
will address the mobilization of sediment and the discharge of these
sediment-bound pollutants. The final rule includes a non-numeric
effluent limitation that prohibits the discharge of wastewater from
washout of concrete, unless managed by an appropriate control. 40 CFR
450.21(3)(1). This requirement was included to specifically address
concerns with pH. Additionally, the numeric effluent limitation, in
addition to controlling the discharge of turbidity, will control the
discharge of some of these other pollutants of concern. If permitting
authorities have concerns regarding the discharge of other pollutants
they may be addressed with numeric effluent limitations on case-by-case
basis through NPDES permits.
Some commenters noted that they believed there may be environmental
risks of applying polymers during construction activity to control
discharges of pollutants from C&D sites due to what commenters believed
was the potential for the polymers to cause fish kills or otherwise
cause an adverse
[[Page 63008]]
effect in the receiving waters. At proposal EPA had no specific
examples of the use of treatment chemicals causing fish kills or
aquatic toxicity, although anecdotal evidence did exist (see DCN
41110). In the proposal, EPA specifically requested information and
data that quantified the number of instances where overuse of polymers
occurred, the circumstances resulting in such overuse, and the actual
or potential environmental impacts associated with such events. 73 FR
at 72573; see also 73 FR at 72610. EPA received one specific comment
regarding a fish kill associated with the use of ATS (see EPA-HQ-OW-
2004-0465-1287 in the rulemaking record) and one comment that
referenced ``significant environmental harm'' resulting from the use of
chitosan or other chemicals, although specific details were not
provided (see EPA-HQ-OW-2008-0465-0973 in the rulemaking record). One
commenter also stated that during pilot testing of two ATS systems that
``chemical overuse and poor operation never purposefully occurred, but
happened anyway.'' This commenter also noted, when comparing ATS usage
during this pilot testing to ATS that is used in Washington State that
``the treatment system used on the Idaho site was missing many features
that made it easier and environmentally safer to operate. The operator
did not have the level of training required in Washington. DEQ did not
come close to the amount of staff time Washington spends overseeing the
operation of these systems and DEQ did not have any staff trained to
assess if the system was being operated correctly.'' (see EPA-HQ-OW-
2008-0465-1269 in the rulemaking record.
A number of coagulant and flocculants, including polymers, are
available on the market and are in wide use for the control of
pollutants, not only on construction sites, but to reduce sediment from
agricultural fields and to reduce pollutants in discharges from
wastewater treatment plants to name a few. While successful in reducing
sediment and turbidity in conveyance systems, polymers and other
additives should be carefully utilized in passive treatment systems.
Several states have approved specific formulations for use on
construction sites and EPA will work with the permitting authorities
and the construction industry to ensure the proper application of
polymers and other additives, if necessary, before owners and operators
of construction sites are required to meet the numeric effluent
limitation. Knowledge from toxicity studies suggest that polymers are
highly variable as to their toxic effects on aquatic organisms (see
discussion of toxicity in the Environmental Assessment). States have
approved the use of polymers and other additives at construction sites,
for example, Washington State has approved chitosan, a cationic
polysaccharide biopolymer, for certain uses and has seen wide use in
water and stormwater treatment. Therefore, the use of specific
compounds should be considered by the permitting authority and owners
and operators of construction sites in light of various environmental
influences. While EPA recognizes that there is the potential for
problems due to improper application of polymers, EPA has determined
that when properly used, environmental impacts from polymers or
flocculants should not occur through the use of passive treatment
systems. The dose ranges where polymers are utilized on construction
sites are well below the chronic toxicity levels. The utilization of
polymers on construction sites has occurred for a significant period of
time and they are currently being used on construction sites throughout
the nation. EPA recognizes the merits of ensuring that polymers or
other chemical additives, if necessary, are properly used. Permitting
authorities should carefully consider the appropriateness of usage of
these materials where there are sensitive or protected aquatic
organisms in the receiving waters, including threatened or endangered
species and their critical habitat. NPDES permitting authorities may
establish controls on dosage and usage, protocols for residual toxicity
testing, require prior approval before the use of particular polymers,
training requirements for site operators or other measures they deem
appropriate. In addition, permittees can also specify, and permittees
may choose to utilize, on-site infiltration or dispersion to vegetated
areas in combination with, or in place of, polymer-based systems. See
73 FR 72562, 72573-74. Based on the information in the record EPA has
determined that when polymers are properly applied the risks of
toxicity to aquatic life or adverse effects to the receiving water are
minimal. However, it is important that permittees be properly trained
in the use of polymers. Operators of C&D sites need to have expertise
in a number of technical areas, including engineering, stormwater
management and implementation of erosion and sediment controls.
Technical specialists, such as engineers, hydrologists and soil
scientists are involved in many aspects of site design and construction
activity. Permittees typically have engineers on staff, or employ
consultants to prepare plans, supervise construction and conduct
inspections of various aspects of the project. Given that construction
activities require rigorous attention to safety and engineering
specifications, there is a reasonable basis for EPA to expect that
operators can conform to proper operation and maintenance of controls
and proper use of polymers and flocculants. The erosion and sediment
control and stormwater management industries are large and composed of
diverse specialties. There are several national trade and professional
organizations whose members are engaged in various aspects of erosion
and sediment control and stormwater management and who have an active
role in conducting research and technical outreach. EPA believes that
there is a range of expertise available across the industry to properly
implement controls that may be required to meet a numeric limitation.
Also, sampling and compliance with the turbidity limitation is not
required until 18 months after the effective date of this final rule
for sites with 20 or more acres of disturbed land at one time and four
years after the effective date of the final rule for sites with 10 or
more acres of disturbed land at one time. This will allow permittees
time to obtain any necessary training if they do not already have
trained personnel on staff and for the permitting authorities to
provide guidance to permittees.
VII. Summary of Significant Decisions and Revisions to Analyses
EPA solicited comments on a number of issues in the proposed rule.
Two areas that EPA specifically requested comments on were the
regulatory options proposed as well as the data used to estimate the
costs, pollutant loading reductions, environmental benefits and
economic impacts of various options. Based on comments received, EPA
revised the regulatory options that were proposed and further developed
a regulatory option that would establish a numeric limitation based on
passive, rather than active, treatment at construction sites. EPA used
data collected in support of the proposed regulation, data submitted
during the public comment period and by the public after the close of
the comment period, as well as additional data collected by EPA to
estimate costs, environmental benefits and economic impacts for this
option. EPA also updated its costs and economic analyses with these new
data to revise the estimates for the proposed options. EPA
[[Page 63009]]
also revised what C&D sites may be new sources and covered by NSPS.
This section summarizes the principle regulatory options considered for
the final rule and the revisions that were made to EPA's analyses
following proposal.
A. Regulatory Options
In considering options for the final rule, EPA revised the proposed
regulatory options in several ways. First, comments received by state
environmental agencies, Departments of Transportation (DOTs), the U.S.
DOT, and other members of the public indicated that sediment basins are
not common practice on all larger construction sites, particularly on
linear projects such as road and highway construction. The reasons
provided by commenters included the lack of available space within the
project right of way as well as the preference to use distributed
controls on some sites instead of centralized drainage at sites.
Commenters also stressed the need to allow engineers and other
professionals that are designing erosion and sediment control plans to
choose practices that reflect site-specific factors, and that mandating
basins for larger sites would limit that flexibility. Commenters also
suggested that active treatment, which typically involves construction
of storage basins, was a disincentive to using distributed stormwater
controls to manage long-term stormwater discharges from newly developed
and redeveloped sites. If permittees construct sediment basins,
according to commenters, they are more likely to retain these basins as
part of the long-term stormwater management controls. EPA agrees with a
number of these comments, particularly the need to give professionals
the flexibility to design site-specific controls. Therefore, EPA
deleted the sediment basin sizing requirements that were contained in
the proposed Options 1, 2 and 3 when considering options for the final
rule. Commenters also indicated that the soil clay content provisions
proposed by EPA for Option 2 would be difficult to implement, given the
variation in soils present at construction sites and the fact that
imported soils are often used for fill material. A concern was also
raised on the practical applicability of the clay content provision to
linear construction projects that may exist over large geographic
areas. Therefore, determination of whether or not a particular project
would meet the soil clay content thresholds would be difficult for
owners and operators of construction sites. EPA agrees with commenters
on this issue. Therefore, EPA deleted the soil clay content threshold
from Option 2. Commenters also suggested that the R-factor criteria
proposed under Option 2 would represent one more unnecessary complexity
to the regulation, and that the site size criteria should be based on
the disturbed area of the site, not the total project size since
stormwater discharges from disturbed areas are the primary discharges
containing pollutants. EPA agrees with these suggestions. Therefore,
EPA also deleted the R-factor criteria from Option 2. The revised
Option 2 would apply to any site that met the disturbed acreage size
threshold, regardless of soil type and R-factor.
Comments from the potentially regulated industry and states on the
proposal did not favor the use of ATS as the technology basis for a
national turbidity limitation. There were a number of reasons given,
but the most prominent included the costs, availability and feasibility
of ATS. While EPA does not agree with all of these comments, the Agency
further evaluated data available to support a numeric turbidity
limitation based on technologies other than ATS, including techniques
that incorporate either liquid or solid forms of polymer. Examples
include liquid polymer dosing of sediment basins, passive dosing in
channels through the use of polymer gel socks or floc-blocks or floc-
logs, and application of polymer to fiber check dams. EPA also
evaluated data available for the placer mining industry. EPA determined
that a numeric turbidity limitation based on these and other passive
treatment techniques are technically available. As a result, EPA
further explored this option and looked at site size thresholds of 1, 5
and 10 acres of disturbed land at one time as potential applicability
criteria for a technology-based numeric limitation based on passive
treatment.
EPA also received numerous comments about the feasibility of many
of the erosion and sediment control and pollution prevention provisions
contained in Options 1, 2 and 3. EPA generally agrees that some of
these requirements, as proposed, could not be implemented on some
construction sites. As a result, EPA made several changes to these
provisions which are described in more detail in section X.B.
B. Cost Analysis
EPA received several comments regarding the costs of ATS and the
methodology used by EPA to determine costs of the regulatory options.
While EPA believes some of these comments have technical merit, EPA
found that some commenters greatly overestimated the likely actual
costs to implement ATS. Key points made by commenters included (1) that
the methodology used at proposal, which was based on a flat cost per
gallon to treat, likely did not capture the actual costs of ATS in some
applications and in some areas of the country; (2) that the methodology
did not factor in the longer duration of some projects (particularly
larger residential projects); and (3) the methodology for estimating
the size of the industry, which was based on land use change data from
1992 to 2001, likely did not accurately predict the level of
construction activity in the near future that would be expected under
normal business conditions (i.e., not reflective of the current
downturn in the industry), which is the primary analysis case upon
which EPA based costs and economic impacts (see discussion in Section
XII). EPA has revised and updated the methodology used to estimate the
costs of ATS and the expected amount of construction activity to
reflect these and other points. The revised analysis significantly
increased costs for the revised Options 2 and 3. In the updated
methodology, EPA first used data submitted by vendors to develop a
series of one-time and monthly costs for ATS. Secondly, EPA estimated
the expected amount of construction activity using long-term industry
economic data. EPA then estimated the expected duration of projects of
varying site size and project types using permit Notice of Intent (NOI)
data from approximately 22,000 permit applications from 4 States for
construction activities occurring primarily between 2003 and 2009. The
combination of all three of these factors (a unit costing approach,
longer durations for some projects and a higher estimate of total acres
being developed) resulted in significantly higher costs for the revised
Options 2 and 3 than were estimated at the time of proposal. Moreover,
the cost of the revised Option 2 increased over the proposed Option 2
because EPA removed the R-factor and soil type criteria of proposed
Option 2, thereby increasing the number of projects covered by revised
Option 2. Additional details can be found in the Development Document
and in the Economic Analysis.
C. Pollutant Load Analysis
EPA received several comments on the pollutant loading analysis
contained in the proposal, primarily stating that EPA overestimated
baseline pollutant loadings and the reductions due to Options 2 and 3
because the assumptions used in EPA's model did
[[Page 63010]]
not accurately account for current industry practices. EPA generally
agrees with some of these comments, and has revised the assumptions
used in the model. EPA also used a more detailed analysis of loads for
the final rule that uses watershed-specific data for some of the model
parameters. The result of these changes is that the load reduction
estimates for Options 2 and 3 have decreased since proposal. Additional
details on the new assumptions and the results of EPA's analysis can be
found in Section XV and in the Development Document.
D. Economic Analysis
The primary revisions to the economic analysis were updates to the
approach to developing model projects and then the assignment of
project costs to model firms. EPA revised the model projects to include
a set of 288 model projects, based on 12 different size categories, 12
duration categories, and two project types (building, transportation).
EPA also accounted for the effect that different climate and soil
conditions can have on control costs by considering variation in
rainfall and runoff factors for each state. This resulted in 14,688
model projects with potentially different costs. These model projects
were then combined with activity estimates to develop an estimated
84,000 individual model projects.
Another revision to the economic analysis was the way in which
project costs were assigned to firms. For the proposal, project costs
were used to develop a weighted average cost per acre for each state.
These weighted average costs were then assigned to model firms based on
the estimated number of acres they construct on per year. For the final
rule, each of the 84,000 projects and their associated costs were
assigned to firms. This assignment was based on each category of model
firm's capacity to perform projects of various size and duration.
EPA also made changes to the adverse case analysis and the analysis
of future costs. EPA received comments that the data used to represent
adverse business conditions for the adverse case analysis did not
adequately represent the most recent conditions for the industry, which
are less favorable. EPA addressed this concern by updating the adverse
analysis industry financial profile with 2008 Value Line financial
data. For the future costs analysis, EPA was able to use future revenue
projections published by Global Insights, to estimate year to year
changes in acreage developed, the total number of projects and the
number of projects subject to various rule requirements. This allowed
for an assessment of changes in the number of firm and employment
impacts from year-to-year.
EPA made two adjustments to the housing affordability analysis. For
the proposal, EPA evaluated the effect of the proposed options on the
price of the median and lower quartile homes. For the final rule, EPA
evaluated the impacts of potential price increases for a new home
selling for $100,000 and $50,000 to better reflect the impact of price
increases at the very low end of the market for new housing. For the
proposal, all new home buyers were assumed to buy the most expensive
house they could qualify to purchase. However, for the final rule EPA
was able to use data from the American Housing Survey, to estimate the
average percentage of household income typically spent on a home
purchase, for various income ranges. This allowed for a more realistic
assessment of the number of home buyers who may have difficulty
affording a new home after a price increase.
E. Benefits Estimation and Monetization
Although EPA is not required by statute to quantify environmental
benefits for ELGs and NSPSs, EPA did quantify and monetize benefits of
the regulatory options to comply with Executive Order 12866. EPA
solicited comments on the proposed approach. EPA received comments on
the approach and made revisions in order to improve upon the estimates
prepared at proposal. Soil on construction sites contains a number of
pollutants beyond sediment and turbidity. EPA estimated the degree to
which the regulatory options would decrease nitrogen and phosphorus
levels in receiving surface waters, and estimated associated water
quality impacts using the nitrogen and phosphorus versions of the
Spatially Referenced Regressions on Watershed Attributes (SPARROW)
model. EPA used these estimates to inform the estimation of the degree
to which the public is willing to pay for water quality improvements
associated with the regulatory options, which in turn was utilized in
EPA's monetized benefits analysis.
EPA expanded the set of potentially impacted waters to include a
subset of the nation's estuaries. This enabled the agency to analyze
the degree to which the public is willing to pay for improvements in
estuarine water quality. EPA utilized this information in conjunction
with available data on improvements in estuarine water quality
associated with each of the regulatory options in order to monetize
benefits associated with those options.
EPA also made refinements to the Water Quality Index (WQI) used for
mapping pollution parameter changes to effects on human uses and
support for aquatic and terrestrial species habitat. Implementation of
the WQI involves transforming the measurements of parameter, such as
TSS, nitrogen, and phosphorus, into sub-index values that express water
quality conditions on a common scale of 0 to 100. For the pollutant
TSS, a unique sub-index curve was developed for each of the 85 Level
III ecoregions using baseline TSS concentrations calculated in SPARROW
at the enhanced Reach File 1 (RF1) level (see Section XV). In addition,
at proposal, EPA did not quantify projected reductions in nutrient
loadings as a result of the rule, but these were included in the final
rule analysis, including the assessment of changes in the WQI.
VIII. Characteristics of Discharges Associated With Construction
Activity
Construction activity typically involves clearing, grading,
excavating and other land-disturbing activities. Prior to construction
activity, these land areas may have been agricultural, forested or
other undeveloped lands. Construction activity can also occur as
redevelopment of existing rural or urban areas, or infill development
on open space within existing developed areas. The nature of
construction activity is that it changes, often significantly, many
elements of the natural environment. As described earlier, construction
activities typically involve clearing the land of vegetation, digging,
and earth moving and grading, followed by the active construction
period when the affected land is usually left denuded and the soil
compacted, often leading to an increase in the peak discharge rate and
the total volume of stormwater discharged and higher rates of erosion.
During the land disturbance period, affected land is generally exposed
after removal of grass, rocks, pavement and other protective ground
covers. Where the soil surface is unprotected, colloids, silt, clay and
sand particles may be easily picked up by wind and/or washed away by
rain or snow melt.
Stormwater discharges can have variable levels of pollutants.
Available data show that turbidity levels in discharges from
construction sites range from as low as 10-50 NTU to tens of thousands
of NTU. When the denuded and exposed areas contain nutrients,
pathogens, metals or organic compounds, these other pollutants are
carried at increased rates (relative to
[[Page 63011]]
discharges from undisturbed areas) to surrounding waterbodies via
stormwater and other discharges (e.g., inadequately controlled
construction equipment wash water). Discharges of these pollutants from
construction activities can cause changes in the physical
characteristics of waterbodies, such as pH or water temperature as well
as changes in biological characteristics such as aquatic species
abundance, health and composition. Changes in stream flow regime can
also occur due to deposition of sediment, as well as the altered
watershed hydrology resulting from soil compaction and loss of
infiltrative capacity.
Discharges from C&D sites associated with construction activity
have been documented to increase the loadings of several pollutants in
the receiving water bodies. The most prominent and most widespread
pollutants of concern discharged from C&D sites are turbidity,
suspended solids, total suspended solids (TSS), and settleable solids.
Each of these pollutants are indicators of solids contained in the
discharge (which, in the case of stormwater discharges associated with
construction activities, are primarily due to soil particles), and each
of these measures quantify different fractions of these solids.
Discharges associated with construction activity are also expected
to contain varying concentrations of metals and toxic organic
compounds, some of which may be contributed by equipment used onsite
for grading and other construction activities, as well as various
construction materials used on-site (such as asphalt sealants, copper
flashing, roofing materials, adhesives, and concrete admixtures).
Metals are also naturally present in soils and, by removing vegetative
cover and increasing erosion and sediment loss, there will likely be an
increase in the amount of metals discharged from the C&D site. Metals
can also be present as a contaminant from previous activity on the site
(such as may occur in redevelopment of industrial areas) or as a
contaminant or additive in fertilizers and other soil amendments. Fuels
and lubricants are maintained onsite to refuel and maintain vehicles
and equipment used during construction activities. These products,
should they come in contact with stormwater and other site discharges,
could contribute toxic organic pollutants. Pathogenic pollutants can be
present in stormwater that comes into contact with sanitary wastes
where portable sanitation facilities are poorly located or maintained.
Also, trash and other municipal solid waste can be carried away by
stormwater.
Nutrients can be present in construction site discharges, either as
naturally-occurring components of the soil or due to previous
activities on the site, such as enrichment due to agricultural
activities. In addition, activities during construction activity, such
as hydroseeding, can increase nutrients levels in the soil.
IX. Description of Available Technologies
A. Introduction
As described in Section VIII, construction activity results in the
discharge of pollutants to waters of the U.S. These discharges can be
controlled by applying site design techniques that preserve or avoid
areas prone to erosion and through the effective use of a combination
of erosion and sediment control and pollution prevention measures.
Construction activities should be managed to reduce erosion and retain
sediment and other pollutants in the soil at the C&D site. Erosion and
sedimentation are two separate processes and the practices to control
them differ. Erosion is the process of wearing away of the land surface
by water, wind, ice, gravity, or other geologic agents. Sedimentation
is the deposition of soil particles, both mineral and organic, which
have been transported by water, wind, air, gravity or ice (adapted from
North Carolina Erosion and Sediment Control Planning and Design Manual,
September 1, 1988).
Erosion control measures are intended to minimize dislodging and
mobilizing of sediment particles. Sediment control measures are
controls that serve to capture particles that have mobilized and are
entrained in stormwater, with the objective of removing sediment and
other pollutants from the stormwater discharge. An overview of
available technologies and practices is presented below; see the
Development Document for more complete descriptions. Many states and
local governments and other entities have also published detailed
manuals for erosion and sediment control measures, and other stormwater
management practices.
B. Erosion Control Measures
The use of erosion control measures is widely recognized as the
most important means of limiting soil detachment and mobilization of
sediment. The controls described in this preamble are designed to
reduce mobilization of soil particles and minimize the amount of
sediment and other pollutants entrained in discharges from construction
activity. Erosion can be minimized by a variety of practices. The
selection of control measures that will be most effective for a
particular site is dictated by site-specific conditions (e.g.,
topography, soil type, rainfall patterns). The main strategies used to
reduce erosion include minimizing the time bare soil is exposed,
preventing the detachment of soil and reducing the mobilization and
transportation of soil particles off-site.
Decreasing the amount of land disturbed can significantly reduce
sediment detachment and mobilization directly from ground disturbance
or indirectly through changes in overland flows. Minimizing site
disturbance by minimizing the extent of grading and clearing is the
most effective means of reducing sediment yield. This approach not only
maintains some site vegetative cover but also minimizes the temporary
and permanent alteration of the natural hydrology of the site and the
receiving waters, thereby reducing the susceptibility of the receiving
waters to long-term changes in channel incision and expansion which
affects the basin's sediment regime. Short term reductions in sediment
yield can also be accomplished by phasing construction so that only a
portion of the site is disturbed at a time. Another effective approach
is to schedule clearing and grading events to reduce the probability
that bare soils will be exposed to rainfall. Many areas of the country
have defined times during the year when the majority of rainfall (and
hence erosion) occurs. By scheduling major earth disturbing activities
outside of the rainy season, erosion can be significantly reduced.
Managing stormwater flows on the site can be highly effective at
reducing erosion. Typical practices include actively managing off-site
and on-site stormwater using diversion berms, conveyance channels and
slope drains to avoid stormwater contact with disturbed areas. In
addition, stormwater should be managed using energy dissipation
approaches to prevent high runoff velocities and concentrated flows
that are erosive. Vegetative filter strips are often considered as
sediment controls, but they can also be quite effective at dissipating
energy and reducing the velocity (and thus erosive power) of
stormwater. Stormwater that is directed to vegetated areas can
infiltrate, thus reducing or even eliminating the amount of stormwater
discharged from a site, particularly for smaller storm events.
After land has been disturbed and construction activity has ceased
on any portion of the site, exposed soils should
[[Page 63012]]
be covered and stabilized immediately. Simply providing some sort of
soil cover on these areas can significantly reduce erosion rates, often
by an order of magnitude or more. Vegetative stabilization using annual
grasses is a common practice used to control erosion. Physical barriers
such as geotextiles, straw, rolled erosion control products and mulch
and compost are other common methods of controlling erosion. Polymers
(such as PAM) and soil tackifiers are also commonly used. These
materials and methods are intended to reduce erosion where soil
particles can be initially dislodged on a C&D site, either from
rainfall, snow melt or up-slope runoff.
The effectiveness of erosion control measures is dependent on
periodic inspection and identification and correction of deficiencies
(e.g., after each storm event). Erosion control measures alone will not
eliminate the mobilization of soil particles and such controls must
often be used in conjunction with sediment control measures.
C. Sediment Control Measures
Despite the proper use of erosion control measures, some sediment
detachment and movement is inevitable. Sediment control measures are
used to control and trap sediment that is entrained in stormwater
runoff. Typical sediment controls include perimeter controls such as
silt fences constructed with filter fabric and compost filter berms.
Trapping devices such as sediment traps and basins, inlet protectors
and check dams are examples of in-line sediment controls. Sediment
traps and basins are commonly used approaches for settling out sediment
eroded from small and large disturbed areas. Their performance can be
enhanced using baffles and skimmers, and additional removal can be
accomplished by directing trap or basin discharges to a sand filter or
to a vegetated area. Basin and trap performance can also be enhanced by
using chemically-enhanced settling (e.g., polymer or flocculant
addition). Typical chemicals used on construction sites include
polyacrylamide (or PAM), chitosan, alum, polyaluminum chloride and
gypsum. Polymers or flocculants are available in either liquid or solid
form, and can be introduced at several points in the treatment train in
order to increase sediment removal. Liquid chemicals can be introduced
via a metering pump in a channel upstream of a basin, or can be sprayed
onto the surface of a basin. Rainfall-driven systems can also be used
to introduce liquid forms of chemicals into channels or basins. This
configuration allows for operation on nights or weekends when
construction personnel may not be present on-site.
Conveyances are often used to channelize and manage stormwater on
construction sites, and check dams are often placed in channels to
control flow velocities and to remove sediment through settling and
filtration. Sediment removal by check dams can be enhanced by applying
polymer to the check dam, or by placing a polymer enclosed in a
permeable material, such as a gel sock, or solid forms sometimes
referred to as a floc-block, in the channel. Floc-blocks and gel socks
are effective when placed in channels just prior to a basin, a check
dam or other structure or conveyance, where the water velocity will be
slowed allowing the turbidity, sediment and other pollutants, along
with the polymer, to settle out.
Sediment removal can be further enhanced by directing discharges
from basins and channels, or by directing discharges through silt
fences or filter berms into vegetation or other buffers between the
site and surface waters to promote filtration and infiltration. Also,
stormwater in basins or other impoundments can be dispersed to
vegetated areas using spray or drip irrigation systems, allowing for
filtration and infiltration.
Active treatment processes such as electrocoagulation and
filtration can also be used to increase sediment removal.
Electrocoagulation uses an electrical charge to destabilize particles,
allowing removal by settling or filtration. Filtration can be
accomplished by directing stormwater to a sand filter bed, or by
pumping water through vessels filled with sand or other media. Tube
settlers and weir tanks can also be utilized to aid in sediment
removal. When discharges from sediment controls or active treatment
processes are directed to vegetated areas and stormwater is dispersed
and allowed to infiltrate, the amount of stormwater discharged from the
site can be reduced, and in some cases the discharge can be eliminated.
More detailed descriptions of sediment and erosion control
measures, use of polymers and flocculants and active treatment
processes can be found in the Development Document.
D. Other Construction and Development Site Management Practices
Construction activity generates a variety of wastes and wastewater,
including concrete truck rinsate, construction and demolition waste,
municipal solid waste (MSW), trash, and other pollutants. Construction
materials and chemicals should be handled, stored and disposed of
properly to avoid contamination of runoff that is discharged from the
site. While mobilization by stormwater is one mechanism by which these
wastes may be discharged from C&D sites, pollutants may also be
discharged if wastes or wastewaters are dumped into streams or storm
drains. Pollutants, trash and debris may also be carried away by wind.
Control of these wastes can be accomplished using a variety of
techniques.
Site planning, sequencing of land-disturbing activities and phasing
of construction activities are also important management practices.
Limiting the amount of land disturbed at one time, as well as during
the entire construction project, are perhaps some of the most effective
practices to reduce the amount of sediment, turbidity and other
pollutants in discharges. The longer exposed soil areas are left
unprotected, the greater the chance of rainfall-induced erosion. Proper
planning such that soil stabilization activities can occur in quick
succession after grading activities have been completed on a portion of
a site can greatly reduce the amount of sediment and turbidity
discharged. In addition, limiting the amount of land that is ``opened
up'' at one time to the minimum amount that is needed, as well as
limiting soil compaction and retaining natural vegetation on the site,
can greatly reduce erosion rates and help maintain the natural
hydrology. Also, grading of the site to direct discharges to vegetated
areas and buffers that have the capacity to infiltrate runoff can
reduce the volumes of stormwater requiring management in sediment
controls.
E. Performance Data for Passive Treatment Approaches
Passive treatment systems (PTS), as described in this notice,
include a variety of practices that rely on settling and filtration to
remove sediment, turbidity and other pollutants. Where necessary, PTS
includes the use of polymers or other flocculants. Data in the
literature indicate that PTS are able to provide a high level of
turbidity reduction at a significantly lower cost than active treatment
systems. Details on PTS used as a basis for developing the numeric
effluent limitation are contained in the Development Document as well
as in the administrative record. Several studies and data sources are
also summarized here.
[[Page 63013]]
For example, McLaughlin (see DCN 41005) evaluated several
modifications to standard sediment trap designs at the North Carolina
State University Sediment and Erosion Control Research and Education
Facility (SECREF). He evaluated standard trap designs as contained in
the North Carolina Erosion and Sediment Control Manual utilizing a
stone outlet structure as well as alternative designs utilizing a
skimmer outlet and various types of porous baffles. Baffle materials
tested included silt fence, jute/coconut and tree protection fence
tripled over. Tests were conducted using simulated storm events in
which sediment was added to stormwater at flows of 10 to 30 liters per
second. McLaughlin found that a standard gravel outlet did not
significantly reduce turbidity values. Average turbidity values in the
basin were 843 NTUs, while average turbidity in the effluent was 758
NTUs using the standard outlet. Use of a skimmer instead of a standard
gravel outlet reduced turbidity to an average of 353 NTUs. Additional
tests were conducted to evaluate the addition of polyacrylamide (PAM)
through the use of floc-blocks. Floc-blocks are a solid form of PAM
which are designed to be placed in flowing water. They are typically
anchored by a rope or by placing them in a mesh bag or cage either in
open channels or in pipes. As the water flows over the floc-blocks, the
PAM dissolves somewhat proportional to flow. The floc-blocks typically
have substantial amounts of non-PAM components, which are intended to
improve PAM release, maintain the physical integrity of the blocks and
enhance PAM performance (McLaughlin--Soil Facts; Chemical Treatments to
Control Turbidity on Construction Sites). McLaughlin found that
addition of PAM to sediment traps resulted in average effluent
turbidities of 152 NTUs using a rock outlet and 162 NTUs using a
skimmer outlet. For one set of tests, use of a standard stone outlet
along with PAM was able to attain an average effluent turbidity of 51
NTUs, while tests with jute/coconut mesh baffles with PAM were only
slightly higher, at 71 NTUs.
Warner and Collins-Camargo (see DCN 43071) evaluated several
innovative erosion and sediment controls at a full-scale demonstration
site in Georgia as part of the Erosion and Sedimentation Control
Technical Study Committee (known as ``Dirt II''). The Dirt II project
consisted, among other things, of field monitoring as well as modeling
of erosion and sediment control effectiveness at construction sites.
The demonstration site was a 50-acre lot in a suburban area near
Atlanta where a school was being constructed. In total, 22.5 acres of
the site was disturbed. A comprehensive system of erosion and sediment
controls were designed and implemented to mimic pre-developed peak flow
and runoff volumes with respect to both quantity and duration. The
system included perimeter controls that were designed to discharge
through multiple outlets to a riparian buffer, elongated sediment
controls (called seep berms) designed to contain runoff volume from 3-
to 4-inch storms and slowly discharge to down-gradient areas, multi-
chambered sediment basins designed with a siphon outlet that discharged
to a sand filter, and various other controls. Extensive monitoring was
conducted at the site. For one particularly intense storm event of 1.04
inches (0.7 inches of which occurred during one 27-minute period), the
peak sediment concentration monitored prior to the basin was 160,000
mg/L while the peak concentration discharged from the passive sand
filter after the basin was 168 mg/L. Effluent turbidity values ranged
from approximately 30 to 80 NTUs. Using computer modeling, it was shown
that discharge from the sand filter, which flowed to a riparian buffer,
was completely infiltrated for this event. Thus, no sediment was
discharged to waters of the state from the sand filter for this event.
For another storm event, a 25-hour rainfall event of 3.7 inches
occurred over a 2-day period. Effluent turbidity from one passive sand
filter during this storm ranged from approximately 50 to 375 NTU, with
20 of the 24 data points below 200 NTU. For a second passive sand
filter, effluent turbidity ranged from approximately 50 to 330 NTU,
with nine of 11 data points below 200 NTU. In estimating compliance
costs for the rule, EPA assumed that most operators would use sediment
basins or check dams with polymer addition to enhance settling, rather
than a passive sand filter. The Warner study indicates that using a
comprehensive suite of erosion and sediment controls, including a basin
with a surface outlet coupled with an in-ground passive sand filter may
be able to achieve comparable turbidity control to the technologies
that EPA costed without relying upon the use of polymers or
flocculants. EPA has not costed this approach for the rule, nor
included this data in calculation of the numeric limitation.
There are other references in the literature describing the various
types of PTS and the efficacy of these systems. One application of a
PTS is to add liquid polymer, such as PAM, to the influent of a
conventional sediment basin. This can be accomplished by using a small
metering pump to introduce a pre-established dose of polymer in the
influent pipe or channel. If the polymer is added in a channel far
enough above the basin, then turbulent mixing in the channel can aid in
the flocculation process. Otherwise, some sort of provision may need to
be made to provide mixing in the basin to produce flocs. Polymers
typically used in this particular application include PAM, chitosan,
polyaluminum chloride (PAC), aluminum sulfate (alum) and gypsum.
The Auckland (New Zealand) Regional Council conducted several
trials to evaluate the effectiveness of chemical flocculants and
coagulants in improving settling of suspended sediment contained in
sediment laden runoff from earthworks sites (DCN 42112). Trials were
conducted using both liquid and solid forms of flocculants. Trials were
initially conducted on two projects: a highway project and residential
development. A follow-on study evaluated passive basin dosing at an
additional site (see DCN 42102).
The highway project (ALPURT) evaluated both a liquid polymer system
and solid polymers. Liquid polymers evaluated were alum and PAC and
solid polymers evaluated were all polyacrylamide products (Percol AN1,
Percol AN2 and Percol CN1). Bench tests indicated that AN2 performed
best among the solid polymers and that both PAC and alum were effective
in flocculating the soils present on the site.
Following bench testing of the polymers, liquid and solid dosing
systems were developed. For the liquid dosing system, initial
consideration was given to a runoff proportional dosing system which
would include a weir or flume for flow measurement, an ultrasonic
sensor and signal generating unit, and a battery-driven dosing pump.
These components, together with costs for necessary site preparatory
work, chemical storage tanks and a secure housing, were estimated to
cost approximately $12,000 (1999 NZ $) per installation. An alternative
system was developed that provided a chemical dose proportional to
rainfall. This rainfall-driven system, which did not require either a
runoff flow measurement system or a dosing pump, had a total cost of
$2,400 (1999 NZ $) per installation.
The rainfall-driven system operated by collecting rainfall in a
rainfall catchment tray that was designed
[[Page 63014]]
proportional to the watershed area. Rainfall into this tray was used to
displace the liquid treatment chemical from a storage tank into the
stormwater diversion channel prior to entering the sediment basin. The
size of the catchment tray was determined based on the size of the
catchment draining to the basin, taking into consideration the desired
chemical dosage rate obtained from the bench tests. Accumulated
rainfall from the catchment tray fills a displacement tank that floats
in the chemical storage tank. As the displacement tank fills with
rainfall and sinks, liquid chemical is displaced from the chemical
storage tank and flows via gravity to the dosing point.
Field trials of the liquid treatment system using alum were
conducted at the ALPURT site. The authors report that the system
performed ``satisfactorily in terms of reduction of suspended solids
under a range of rainfall conditions varying from light rain to a very
high intensity, short duration storm, where 24mm of rainfall fell over
a period of 25 minutes.'' Suspended solids removal for the intense
storm conditions was 92% with alum treatment. For a similar storm on
the same catchment with the same retention pond without alum treatment,
suspended solids removal was about 10%.
Field trials at the ALPURT site were also conducted using PAC. In
total, 21 systems were used with contributing catchments ranging
between 0.5 and 15 hectares (approximately 1 to 37 acres). The overall
treatment efficiency of the PAC-treated basins in terms of suspended
sediment reduction were reported to be between 90% and 99% for ponds
with good physical designs. The authors noted that some systems did not
perform as well due to mechanical problems with the system or physical
problems such as high inflow energy (which likely caused erosion or
sediment resuspension) or poor separation of basin inlets and outlets.
The suspended solids removal for all ponds incorporating PAC ranged
from 77% to 99.9%, while the removal in a pond not incorporating PAC
ranged from 4% to 12%. Influent suspended solids concentrations for the
systems incorporating PAC ranged from 128 to 28,845 mg/L while effluent
concentrations ranged from 3 to 966 mg/L. In comparison, influent
suspended solids concentrations for the untreated ponds were
approximately 1,500 mg/L while effluent concentrations were
approximately 1,400 mg/L. The authors also noted that dissolved
aluminum concentrations in the outflow from the basins treated with
PAC, in most cases, were actually less than the inflow concentrations,
and were also less than the outflow concentrations from the untreated
ponds. Outflow aluminum concentrations in the PAC treated ponds ranged
from 0.01 to 0.072 mg/L. The ALPURT trials indicate that a relatively
simple PTS using liquid polymers can result in significant reductions
in suspended sediment concentrations, even with influent concentrations
in excess of 25,000 mg/L. Although some effluent concentrations were as
high as several hundred mg/L, the majority were below 100 mg/L. This
indicates that a passive liquid polymer system can be used to meet a
numeric effluent limitation for turbidity at a capital cost on the
order of several thousand dollars per sediment basin. Coupling a system
such as this with a gravity sand filter or distributed discharge to a
vegetated buffer (as described by Warner and Collins-Camargo, DCN
43071) or dispersion would reduce discharge turbidity levels even
further, and for certain storm events would eliminate the discharge
altogether.
Field trials of polymer treatment using solid forms of PAM by the
Auckland Regional Council were conducted at the ALPURT site as well as
a residential project (Greenhithe). Trials at the ALPURT site were
conducted by placing the floc-blocks in plastic mesh bags in plywood
flumes through which the runoff from the site was directed. Initial
trials encountered problems due to the high bedload of granular
material, which accumulated against and stuck to the floc-blocks
inhibiting solubility of the polymer. The system was reconfigured to
incorporate a forebay before the flumes in order to facilitate removal
of the bedload fraction. The authors noted that while this system was
generally effective at low flow rates, it was difficult to control
dosage rates and sediment accumulation in the flumes continued to be a
problem. The authors concluded that ``Floc Block treatment has a high
potential for removal of suspended solids from stormwater with
consistent quality, particularly for small catchments; when flow
balancing can be achieved prior to treatment.''
Field trials were also conducted at the Greenhithe site, which was
a 4-hectare (approximately 10-acre) residential project. As with the
ALPURT trial, a flume was constructed and placed in the flow path
immediately before the sediment basin. Results of the trials were
mixed. The authors noted several problems with the floc-blocks, such as
drying and breakdown of the blocks due to prolonged exposure to the air
and softening and breakdown during periods of prolonged submergence.
Sediment accumulation around the blocks and breakdown continued to be a
problem. Incorporating an effective sediment forebay and limiting
bedload are suggestions for increasing performance. In addition, the
authors recommended soaking the floc-blocks in water to allow hydration
before use and periodic spraying with water as ways to limit drying of
the floc-blocks. EPA notes that similar problems with floc-blocks have
been noted by some construction site field inspectors (see DCN 41109)
and by McLaughlin (see DCN 43082). Because of the additional operation
and maintenance requirements associated with the use of floc-blocks, a
field inspection and maintenance program should be part of proper
application of this technology.
Results of the PAC studies at the ALPURT sites have led the
Auckland regional council to require chemical treatment for any site
that produces more than 1.5 metric tons of (net) sediment as determined
by the Universal Soil Loss Equation. Sites that exceed this threshold
require chemical treatment in accordance with a site chemical treatment
plan. Exceptions include projects of less than one month duration and
sites with granular volcanic soils and sand areas. Chemical treatment
may also not be required if bench testing indicates that chemical
treatment will provide no improvement in sediment removal efficiency
(see DCN 41111).
In addition to (or in place of) adding polymers to sediment basins,
polymers can be introduced on other areas of the site as a soil
stabilization measure or as components of other BMPs. For example,
McLaughlin (DCN 41005) evaluated adding polymer to check dams on
highway projects. McLaughlin noted significant reductions in turbidity
from the use of fiber check dams coupled with PAM application.
Significant reductions were even noted when PAM was added to rock check
dams. Other research done by McLaughlin with other researchers includes
studying the effectiveness of using PAM dosing systems for turbidity
reduction in stilling basins (EPA-HQ-OW-2008-0465-0984.4), and using
polymer blocks for turbidity control (EPA-HQ-OW-2008-0465-0984.7 and
0984.10). McLaughlin, Hayes et al. also studied modified sediment
control practices including polymer dosing at a transportation
construction site (EPA-HQ-OW-2008-0465-0984.3)
Various other researchers evaluated PAM as a soil stabilization
agent. There are a number of documents in the administrative record for
this
[[Page 63015]]
rulemaking describing the use of PAM in this manner.
The data from these sources, as well as other data in the record,
indicate that various types of PTS that utilize both solid and liquid
forms of polymers have been reported to be effective in reducing
turbidity levels in discharges from construction and development sites.
EPA also considered the results of a three-year study conducted in
Georgia (Warner & Collins-Comargo, DCN 43071) which developed and
demonstrated cost-effective erosion prevention and sediment control
systems. These controls did not rely on the use of polymer, instead
they demonstrate the effectiveness of ponds, passive sand filters and
seep berms.
X. Development of Effluent Limitations Guidelines and Standards and
Options Selection Rationale
In developing this final rule, EPA considered all the available
information, including information, data and analyses conducted in
support of the proposed rule, public comments received and additional
information and data collected by EPA following proposal which is
contained in the record. EPA evaluated a range of options for reducing
pollutant discharges associated with construction activity. The options
evaluated by EPA are intended to control the discharge of turbidity,
sediment and other pollutants in stormwater and other wastewater from
C&D sites.
A. Description of the Regulatory Options Considered
1. Options Considered in the Proposal
In developing today's final rule, EPA evaluated several regulatory
options. The proposal discussed a wide range of options and presented a
detailed analysis for several options. As discussed earlier, Option 1
would have required implementation of erosion and sediment controls and
pollution prevention measures for all sites and the installation of a
sediment basin with a surface outlet for certain sites and other non-
numeric effluent limitations or BMPs; Option 2, would have added to the
requirements of Option 1 by establishing a requirement to monitor for a
numeric limitation for turbidity (13 NTU) based on the application of
ATS at sites of 30 or more acres with soil clay content of 10 percent
or more and an R-factor of 50 or larger; Option 3 would have expanded
the application of the turbidity limitation based on ATS to all sites
which disturb 10 or more acres. The proposal also presented and
solicited comment on another option that would require compliance with
a higher numeric turbidity effluent limitation (e.g., 50 to 150 NTU, or
some other value) based on passive treatment technologies (see 73 FR
72562, 72580-72582, 72610-72611). At proposal, EPA sought additional
data on the performance of PTS, and the cost and pollutant loading
reductions that would be attainable from such an option.
2. Regulatory Options Considered for the Final Rule and Rationale for
Consideration of Revisions to Options in the Proposed Rule
In developing the final rule, EPA considered the wide range of
options considered in the proposed rule, and some revisions to those
options, based on comments received and additional information obtained
by EPA. EPA considered a revision to Option 1 to remove the requirement
for a sediment basin in response to concerns raised by commenters about
the appropriateness and availability of a basin at all construction
sites with 10 or more disturbed acres draining to one location. An
example includes areas where excavation is precluded due to the
presence of shallow bedrock. In addition to the sediment basin
requirements, EPA also considered modifying some of the erosion and
sediment control and pollution prevention requirements to make them
broadly applicable and compatible with all types of potentially
regulated construction activity, and considered deleting certain
proposed requirements. These changes to the non-numeric effluent
limitations are detailed in Section X.B of this notice.
EPA considered a revision to Option 2 to remove the soil clay
content criteria as part of the basis for determining if a site would
be subject to the numeric limitation. Numerous commenters expressed
concern about difficulties associated with implementation of this soil
clay content criterion. Commenters raised questions, for example, about
how sites would measure soil content and to what depth would the soil
have to be sampled to determine the clay content (e.g., to a depth to
which excavation will occur, or only the top several inches). Also,
questions were raised as to the number of soil samples that would be
required of sites of different size. Also, commenters raised the
question of how to account for fill brought onto the site and the
variation in soil types present at different depths and at different
areas within the site. EPA also considered that adding complexity to
the applicability section generally makes it more difficult to comply
with, implement and enforce a rule. EPA agrees that the implementation
of a soil clay content criterion for determining whether a site would
be subject to a numeric limitation would be difficult to implement and
therefore considered removing this criterion from Option 2.
EPA similarly considered modifying Option 2 to remove the RUSLE R-
factor criterion as part of the basis for determining if a site would
be subject to the numeric limitation. EPA received numerous comments
about the potential practical difficulties associated with this
criterion. Particularly, R-factor data is not readily available for all
areas of the country, including the entire state of Alaska. Also, in
certain areas of the country, the annual R-factor may be low, but soil
erosion rates may still be very high during certain time periods (such
as during spring thawing). Therefore, EPA determined that an annual R-
factor criterion, as proposed, would not be easily implementable, nor
necessarily target those sites with greater potential for soil erosion.
EPA also considered revising Options 2 and 3 so that the monitoring
requirements and turbidity limitation would not apply to interstate
natural gas pipeline construction activity (see discussion in Section
VI).
EPA also considered changing Option 2 so that the applicability of
the turbidity limitation would be a function of disturbed area of the
site, as opposed to the total size of the site. In addition, EPA
considered revising the non-numeric effluent limitations of Option 2
(as well as Option 3) to be consistent with the Option 1 requirements
discussed above.
EPA also considered the option discussed in the proposal (Option 4)
that would establish a numeric limitation for turbidity based on the
application of PTS for the final rule. This option would require all
construction sites to implement the non-numeric effluent limitations
described for Option 1, as well as requiring sites equal to or greater
than a specified number of acres disturbed at one time to meet a
numeric limitation to control turbidity and other pollutants in
stormwater discharges from C&D sites. EPA considered thresholds of 1, 5
and 10 acres disturbed at one time for this option. The technology
basis for Option 4 consists of a suite of passive treatment
technologies and erosion and sediment controls that are currently used
at construction sites across the United States and abroad, as well as
in other industries, such as drinking water treatment and mining.
Examples of passive treatment technologies include sediment basins,
sediment traps and
[[Page 63016]]
other impoundments (with and without polymer or flocculant dosing),
polymer addition to fiber check dams, sand filtration, and dispersion
of stormwater to vegetated areas. PTS can substantially reduce the
amount of turbidity, sediment and other pollutants discharged from
construction sites. See Section IX for additional discussion of passive
treatment approaches.
B. Non-Numeric Effluent Limitations Included in All Regulatory Options
Today's final rule, as well as the other options EPA considered,
includes a suite of non-numeric effluent limitations that apply to all
permitted C&D sites. This suite of non-numeric effluent limitations
makes up Option 1 and is also a component of Options 2, 3 and 4. These
non-numeric effluent limitations are structured to require permittees
to first prevent the discharges of sediment and other pollutants
through the use of effective planning and erosion control measures; and
second, to control discharges that do occur through the use of
effective sediment control measures. Permittees are also required to
implement a range of pollution prevention measures to limit or prevent
discharges of pollutants including those from dry weather discharges.
The non-numeric effluent limitations that are included in all
options are designed to prevent the mobilization and discharge of
sediment and sediment-bound pollutants, such as metals and nutrients,
and to prevent or minimize exposure of stormwater to construction
materials, debris and other sources of pollutants on construction
sites. In addition, these non-numeric effluent limitations limit the
generation of dissolved pollutants. Soil on construction sites can
contain a variety of pollutants such as nutrients, organics,
pesticides, herbicides and metals. These pollutants may be present
naturally in the soil, such as arsenic or selenium, or they may have
been contributed by previous activities on the site such as agriculture
or industrial activities. These pollutants, once mobilized by rainfall
and stormwater, can detach from the soil particles and become dissolved
pollutants. Once dissolved, these pollutants would not be removed by
down-slope sediment controls. Source control through minimization of
soil erosion is therefore the most effective way of controlling the
discharge of these pollutants. Therefore, the non-numeric effluent
limitations are important components of the final rule not only for the
purposes of limiting sediment generation and discharge, but also to
minimize the discharge of dissolved pollutants.
The non-numeric effluent limitations in the final rule apply to all
permitted C&D sites including the sites that are subject to the numeric
effluent limitation and monitoring requirements at 40 CFR 450.22. (See
Section X.G.) EPA has the authority under the CWA to establish non-
numeric effluent limitations as supplemental to a numeric effluent
limitation or in place of a numeric effluent limitation. See Citizens
Coal Council v. EPA, 447 F.3d 879, 896 (6th Cir. 2006). The non-numeric
effluent limitations in this rule are necessary for those sites that
are also subject to the numeric effluent limitation for turbidity
because the non-numeric effluent limitations may address different
pollutants or the same pollutants differently, the numeric effluent
limitation is not applicable on days when total precipitation on that
day is greater than the local 2-year, 24-hour storm event (See Section
XIX.A), and the fact that sites may fluctuate above and below ten acres
of disturbed land. Thus there will be times when sites are discharging
pollutants in excess of the numeric effluent limitation and the non-
numeric effluent limitations will be the only applicable effluent
limitation and are thus essential to the control of discharges from the
site. Also, some of the non-numeric effluent limitations are addressing
discharges unrelated to the discharge of turbidity, for example, 40 CFR
450.21(e)(1) which prohibits the discharge of ``wastewater from washout
of concrete, unless managed by an appropriate control'' addresses
pollutants such as pH and can occur during precipitation related events
or dry weather discharges. The structure of the final rule, including
the requirement that the non-numeric effluent limitations apply to all
sites, was supported by state permitting authorities and is similar to
the structure of the newly issued California CGP (see DCN 42104).
The final rule contains non-numeric effluent limitations that
require the permittee to minimize the discharge of pollutants. Under
the regulatory structure of the final rule the permitee can minimize
the discharge of pollutants from construction sites by utilizing non-
numeric effluent limitations or BMPs such as the erosion and sediment
controls listed below at (i) through (vii) and at 40 CFR 450.21(a)(1)
through (7). The erosion and sediment controls at (i) through (vii)
below are what EPA has determined are the required non-numeric effluent
limitations that are necessary for owners or operators of construction
sites to utilize in order to minimize the discharge of pollutants from
the site. This is true for the other non-numeric effluent limitations
at 40 CFR 450.21 as they are what EPA has determined are the required
controls necessary to minimize, control or prohibit discharges of
pollutants from construction sites. The permitting authority may
determine that additional non-numeric effluent limitations or specific
BMPs are necessary in order to minimize the discharge of pollutants and
EPA has structured 40 CFR 450.21 to allow the permitting authority that
discretion. Due to geographic differences or other variable factors a
permitting authority may choose to require additional or more stringent
non-numeric effluent limitations in its individual or general NPDES
permits for discharges associated with construction activity. For
example, the permitting authority may determine that it is necessary
for permitees to initiate soil stabilization measures when construction
activity has permanently or temporarily ceased and will not resume for
a period exceeding 7 calendar days, as opposed to 14 calendar days at
X.B.1.b below or that additional erosion and sediment controls are
necessary. EPA purposefully drafted the non-numeric effluent
limitations to allow for flexibility in how the permitting authority
implements the requirement in NPDES permits. For example, in the
erosion and sediment control section below at section X.B.1.a.iv EPA
simply required that permitees ``minimize the disturbance of steep
slopes'' leaving it up to the permitting authority to determine the
specific requirements applicable to owners or operators of C&D sites to
minimize disturbance of steep slopes in order to minimize the discharge
of pollutants from the site. This flexibility built into the final rule
will also benefit permittees by allowing the owners or operators of
construction sites discretion to choose BMPs that will minimize the
discharge of pollutants based on the unique nature of the particular
site. For example, at 40 CFR 450.21(a)(5), the final rule states that
construction sites must design, install and maintain controls to
``minimize sediment discharges from the site.'' Absent specific
requirements from the permitting authority the final rule gives the
permittee discretion to choose what practices and controls to use to
minimize the discharge of sediment from the site based on the site
specific nature of the construction activity.
The non-numeric effluent limitations are required for all sites,
but there are
[[Page 63017]]
site-specific considerations that may make one or more of the
provisions infeasible on a particular site. EPA has specifically
qualified some of the requirements to state that the requirement must
be implemented unless infeasible. By infeasible, EPA means that there
is a site-specific constraint that makes it technically infeasible to
implement the requirement, or that implementing the requirement would
be cost-prohibitive. The burden is on the permittee to demonstrate to
the permitting authority that the requirement is infeasible.
With respect to the soil stabilization language at Sec. 450.21(b),
EPA has qualified the soil stabilization requirements such that
vegetative stabilization may be delayed in arid or semi-arid areas, or
if an area is experiencing a drought such that vegetative stabilization
practices cannot be initiated. In such cases, the permittee should
consider non-vegetative stabilization practices. In addition, EPA would
generally not expect permitting authorities to require vegetative
stabilization in areas that are excessively rocky or infertile, that
have non-erodible soils (such as sands), certain coastal areas, or
during periods when snow or ice are covering the ground and generally
in areas where vegetative stabilization would not be appropriate.
Permitting authorities should incorporate this requirement into permits
with consideration of appropriate stabilization measures for various
areas within their jurisdiction.
EPA made several revisions to the non-numeric effluent limitation
since proposal. Some of these revisions were made in response to
comments, while others were made as a result of EPA re-evaluating the
feasibility and appropriateness of some of the proposed requirements.
Section X.B.1 describes the non-numeric effluent limitations contained
in the final rule while Section X.B.2 describes how the non-numeric
effluent limitations in final rule differ from those in the proposal.
1. Non-Numeric Effluent Limitations Contained in the Final Rule
The non-numeric effluent limitations contained in the final rule
are as follows:
a. Erosion and Sediment Controls
Permittees are required to design, install and maintain effective
erosion controls and sediment controls to minimize the discharge of
pollutants. At a minimum, such controls must be designed, installed and
maintained to:
i. Control stormwater volume and velocity within the site to
minimize soil erosion;
ii. Control stormwater discharges, including both peak flowrates
and total stormwater volume, to minimize erosion at outlets and to
minimize downstream channel and streambank erosion;
iii. Minimize the amount of soil exposed during construction
activity;
iv. Minimize the disturbance of steep slopes;
v. Minimize sediment discharges from the site. The design,
installation and maintenance of erosion and sediment controls must
address factors such as the amount, frequency, intensity and duration
of precipitation, the nature of resulting stormwater runoff, and soil
characteristics, including the range of soil particle sizes expected to
be present on the site;
vi. Provide and maintain natural buffers around surface waters,
direct stormwater to vegetated areas to increase sediment removal and
maximize stormwater infiltration, unless infeasible; and
vii. Minimize soil compaction and, unless infeasible, preserve
topsoil.
b. Soil Stabilization Requirements
Permittees are required to, at a minimum, initiate soil
stabilization measures immediately whenever any clearing, grading,
excavating or other earth disturbing activities have permanently ceased
on any portion of the site, or temporarily ceased on any portion of the
site and will not resume for a period exceeding 14 calendar days.
Stabilization must be completed within a period of time determined by
the permitting authority. In arid, semiarid, and drought-stricken areas
where initiating vegetative stabilization measures immediately is
infeasible, vegetative stabilization measures must be initiated as soon
as practicable.
c. Dewatering Requirements
Permittees are required to minimize the discharge of pollutants
from dewatering trenches and excavations. Discharges are prohibited
unless managed by appropriate controls.
d. Pollution Prevention Measures
Permittees are required to design, install, implement, and maintain
effective pollution prevention measures to minimize the discharge of
pollutants. At a minimum, such measures must be designed, installed,
implemented and maintained to:
i. Minimize the discharge of pollutants from equipment and vehicle
washing, wheel wash water, and other wash waters. Wash waters must be
treated in a sediment basin or alternative control that provides
equivalent or better treatment prior to discharge;
ii. Minimize the exposure of building materials, building products,
construction wastes, trash, landscape materials, fertilizers,
pesticides, herbicides, detergents, sanitary waste and other materials
present on the site to precipitation and to stormwater; and
iii. Minimize the discharge of pollutants from spills and leaks and
implement chemical spill and leak prevention and response procedures.
e. Prohibited Discharges
The following discharges from C&D sites are prohibited:
i. Wastewater from washout of concrete, unless managed by an
appropriate control;
ii. Wastewater from washout and cleanout of stucco, paint, form
release oils, curing compounds and other construction materials;
iii. Fuels, oils, or other pollutants used in vehicle and equipment
operation and maintenance; and
iv. Soaps or solvents used in vehicle and equipment washing.
f. Surface Outlets
When discharging from basins and impoundments, permittees are
required to utilize outlet structures that withdraw water from the
surface, unless infeasible.
2. Changes to the Non-Numeric Effluent Limitations Since Proposal
EPA made a number of changes to the non-numeric effluent
limitations for the final rule. EPA does not view these changes as
making the final rule requirements less stringent than those contained
in the proposal, but rather views these changes as necessary
adjustments that make the requirements applicable to all types of
construction activities. EPA has determined that many of the
requirements, as proposed, could not be implemented on every
construction site due to technical reasons. In general, some
requirements were eliminated, while others were revised to include
``unless infeasible'' language, recognizing that not every site will be
able to implement every one of the proposed requirements. Also, the
requirements were re-arranged to separate erosion and sediment control
requirements from soil stabilization and pollution prevention
requirements. However, EPA believes that most practices can be
implemented on most sites, and where a practice is feasible and
necessary for effective control of pollutant discharges from stormwater
[[Page 63018]]
runoff, this rule requires that it be implemented. The changes made, by
section of the proposed rule text, along with the rationale for the
changes are as follows:
Section 450.21(a): The definition of when erosion controls are
considered effective has been deleted since effectiveness varies based
on site-specific parameters. In addition, the proposed language was
limiting in that there may be other objective measures of effectiveness
that were not described by EPA. The requirement to stabilize exposed
soils has been incorporated into a ``Soil Stabilization'' section in
the final rule at Sec. 450.21(b).
Section 450.21(a)(4): The requirement to minimize the amount of
soil exposed at any one time has been removed as the soil stabilization
language at Sec. 450.21(b) requires immediate stabilization.
Section 450.21(a)(5): The requirement to preserve natural
vegetation was removed as there are cases where preserving the natural
vegetation may not be compatible with the ultimate land use. The
requirement to preserve topsoil was changed to include ``unless
infeasible,'' recognizing that it may not always be feasible to
preserve topsoil depending on the ultimate land use.
Section 450.21(a)(6): The language regarding minimizing soil
compaction was simplified and now includes ``unless infeasible,'' and
the requirements for deep ripping and decompaction and incorporation of
organic matter to restore infiltrative capacity were deleted because
the use of these techniques is dependent upon the ultimate land use.
Section 450.21(a)(7): The requirement for providing and maintaining
natural buffers around surface waters was combined with the requirement
to direct discharges to vegetated areas found in Sec. 450.21(b)(9) and
now includes ``unless infeasible.''
Section 450.21(a)(8): The requirement to minimize the construction
of stream crossings was deleted as the construction of stream crossings
on a particular project is determined by consideration of a number of
factors, and simply minimizing the number based on erosion and sediment
control considerations may conflict with other considerations. EPA has
determined that this requirement is best left to the discretion of the
permitting authority.
Section 450.21(a)(9): The requirement to sequence/phase
construction activities was deleted. EPA believes that permittees
should consider sequencing or phasing for projects, particularly for
larger or longer-duration projects. Phasing construction so that less
than 10 acres of land are disturbed at any one time is one way for
owners or operators of construction sites to comply with the rule
without having to sample discharges and meet the numeric limitation in
Option 4. EPA believes that this is appropriate because of the
environmental benefits of such sequencing. However, EPA has determined
that this is a site-specific consideration best addressed by the
permitting authority.
Section 450.21(a)(11): The requirement to implement erosion
controls on slopes was deleted as the soil stabilization requirements
encompasses all types of stabilization, not just on slopes.
Section 450.21(a)(12): The requirement to establish temporary or
permanent vegetation to stabilize exposed soils was deleted as
vegetative controls may not always be the most appropriate
stabilization measures. The selection of appropriate stabilization
techniques is best left to the discretion of the permitting authority.
Section 450.21(a)(13): The requirement to divert stormwater that
runs onto the site away from disturbed areas of the site was deleted as
this may not always be feasible, or, in certain instances, may increase
off-site erosion.
Section 450.21(b): The sediment control requirements were combined
with the erosion control requirements into a new section titled
``Erosion and Sediment Controls'' at Sec. 450.21(a) in the final rule
regulatory text. The requirement to install sediment controls prior to
commencement of construction and to maintain during all phases of
construction activity was deleted as the timing of implementation of
controls is site-specific. Maintenance of controls is inherent in
permits and it is not necessary to include this requirement in the
national rule.
Section 450.21(b)(1): The requirement to establish and maintain
perimeter controls was deleted, as the need for perimeter controls is
dictated by site topography. The requirement to discharge stormwater
from perimeter controls through vegetated buffers and functioning
stream buffers was deleted. This requirement now applies to all
discharges, unless infeasible, as described at Sec. 450.21(a)(6).
Section 450.21(b)(2): The requirement to control discharges from
silt fences using a vegetated buffer or filter strip was deleted as
this may not always be feasible, depending on the site location or
climate.
Section 450.21(b)(3): The requirement to minimize slope length and
to install linear sediment controls and slope breaks on erodible slopes
was deleted as the need for these controls is dictated by site-specific
considerations and is best left to the discretion of the permitting
authority.
Section 450.21(b)(4): The requirements to establish construction
entrances and exits and to utilize wheel wash stations were deleted as
it may not always be feasible to utilize wheel wash stations (for
example, in remote areas). The need for construction entrances and
exits are dependent on site configuration.
Section 450.21(b)(5): The requirement to remove sediment from paved
surfaces daily and the prohibition on washing sediment and other
pollutants into storm drains were deleted. The need for these
requirements depend on site configuration (i.e., if storm drains
discharge to a sediment control or discharge off-site).
Section 450.21(b)(6): The requirement to implement controls to
minimize the introduction of sediment and other pollutants to storm
drain inlets was deleted (for the same reason as Sec. 450.21(b)(5)
above).
Section 450.21(b)(7): The language regarding dewatering was changed
to be specific to dewatering trenches and excavations. This language is
now found at Sec. 450.21(c).
Section 450.21(b)(8): All language regarding sediment basins was
deleted (see Section VII.A).
Section 450.21(b)(9): The requirement to direct discharges from
sediment controls to seep berms and level spreaders and to utilize
spray or drip irrigation systems was changed. This requirement now
applies to all discharges, but is more general in that it does not
specify techniques, but rather requires all discharges to be directed
to vegetated areas, unless infeasible (now found at Sec.
450.21(a)(6)). This provides more flexibility for permittees to select
appropriate techniques.
Section 450.21(c): The language describing examples of effective
pollution prevention measures was deleted and instead the new
requirement at Sec. 450.21(d) is to ``design, install, implement and
maintain effective pollution prevention measures'' as this language is
not limiting to those measures described in the proposal. In addition,
pollution prevention requirements in the final rule are presented
separately from a series of ``prohibited discharges''. At proposal,
these two concepts were presented together.
Section 450.21(c)(1): Discharges of construction waste, trash and
sanitary wastes are not prohibited in the final rule, but rather the
requirement is to minimize the exposure of a variety of
[[Page 63019]]
materials to precipitation and stormwater (now found at Sec.
450.21(d)(2)). EPA has determined that a requirement to minimize
exposure to precipitation and stormwater, rather than a strict
prohibition on the discharge of these materials, is a more appropriate
requirement as it may not always be feasible to prevent these materials
from being discharged from the site.
Section 450.21(c)(2): Concrete washout is now addressed separately
at Sec. 450.21(d)(1), and discharges are allowed if managed by
appropriate controls. The concrete washout provision is not a
prohibition, as are discharges from other sources, because there are
technologies available to treat concrete washout. Therefore, discharges
of wastewaters from concrete washout are allowed if managed by
appropriate controls. Wastewater from washout of form release oils and
curing compounds have been added to the list of prohibited discharges
at Sec. 450.21(d)(2).
Section 450.21(c)(4): The requirement was changed to clarify that
the prohibition is on the discharge of soaps and solvents.
Section 450.21(c)(5): The requirement was changed so as not to
prohibit the discharge of wash waters but rather to control discharges
from equipment and vehicle washing and wheel wash, recognizing that
wash waters can be managed using appropriate controls.
Section 450.21(c)(6): ``Building products'' were added to the list
of materials, and spills and leaks are addressed in a separate
requirement (Sec. 450.21(d)(3)).
Section 450.21(c)(7): The requirement to prevent runoff from
contacting areas with uncured concrete was deleted, as this may not be
feasible on some sites (such as bridges, roads, etc.).
C. Numeric Effluent Limitations and Standards Considered
EPA considered numeric effluent limitations based on primarily two
suites of technologies for the final rule. The first, advanced
treatment systems or ATS, were described in the proposed rule under
Options 2 and 3. For the final rule, EPA considered effluent
limitations for turbidity based on ATS for site size thresholds of 10
acres and 30 acres of disturbed land. As described earlier, these
options are similar to those contained in the proposal, except the soil
clay content and R-factor criteria have been removed from Option 2. In
addition, Option 2 would apply to sites of 30 or more disturbed acres.
At proposal, Option 2 would have applied if the site was 30 or more
acres, regardless of the amount of land disturbed on the project
The second technology suite, passive treatment systems or PTS,
constitutes the technology basis for today's final rule. In the
proposal, EPA considered the establishment of numeric turbidity
limitations based on PTS and solicited comment and additional
information and data on this option. For the final rule, EPA considered
numeric limitations for turbidity based on PTS for a site size
threshold of 10 or more acres disturbed at one time (Option 4). EPA
also evaluated site size thresholds of 1 and 5 acres disturbed at one
time.
Additional information on both PTS and ATS is presented in Section
IX of today's notice, the development document and in the
administrative record. The nomenclature presented in Table X-1 is used
to describe these options throughout today's notice.
Table X-1--Main Options Considered for Numeric Effluent Limitations and
Standards
------------------------------------------------------------------------
Site size
Option Technology basis threshold (acres
disturbed)
------------------------------------------------------------------------
2.............................. Active Treatment... 30 or more.
3.............................. Active Treatment... 10 or more.
4.............................. Passive Treatment.. 10 or more.
------------------------------------------------------------------------
For all of these options, the numeric turbidity limitation would
apply to all discharges from the site except on days when total
precipitation during the day exceeded the local 2-year, 24-hour storm.
If the total precipitation in any one day is greater than the local 2-
year, 24-hour storm event, then permittees would still need to sample
(because they wouldn't know in advance whether the precipitation on
that day was going to exceed the storm size threshold) but the numeric
effluent limitation would not apply to discharges for that day.
However, the numeric effluent limitation is applicable to all
discharges from the site on subsequent days if there is no 2-year, 24-
hour storm event during those days. Even when total precipitation
during the day exceeds the local 2-year, 24-hour storm permittees must
comply with the non-numeric effluent limitations Sec. 450.22(c)
through Sec. 450.22(h). (See Section XIX.A for EPA's rationale for
selecting the 2-year, 24-hour storm event).
Under all the options considered that contain a numeric limitation,
the limitation applies so long as the total amount of disturbed area on
the project, at any one time, is at or above the specified acreage
threshold (i.e., 10, 20 or 30 acres). For example, under Option 4, if a
project initially disturbs 10 or more acres of land at one time during
construction activity, but after completion of clearing and grading and
infrastructure installation the site is stabilized prior to or during
commencement of vertical construction, then the sampling requirements
and turbidity limitation would cease to apply at the point where the
total disturbed land area at the site is less than 10 acres at one
time. So long as the total disturbed land area at one time remains
below 10 acres for the remainder of the construction activity, the
sampling requirements and turbidity limitation would not apply. If,
however, at some point during the remainder of the project 10 or more
acres were to be disturbed at one time, then the sampling requirements
and turbidity limitation would again apply to all discharges from the
C&D site. This 10 acre threshold also applies to projects that are part
of a larger common plan of development. If an individual portion of a
project disturbs less than 10 acres at one time, but the amount of land
disturbed at one time under the larger common plan of development is 10
or more acres, then sampling of discharges from the entire project is
required during the period when the total disturbed land for the whole
project is 10 or more acres.
EPA has also found it is reasonable to allow time for permitting
authorities to develop monitoring requirements and to allow the
regulated community time to prepare for compliance with a numeric
limitation. Compliance with the numeric limitation and the associated
monitoring requirements are not required until 18 months after the
effective date of this rule for sites with 20 or more acres of land
disturbed at one time and four years after the
[[Page 63020]]
effective date for sites with 10 or more acres of land disturbed at one
time. EPA's rationale for this decision is described in Section XIX.B.
In addition to the issue discussed above regarding EPA's
determination that turbidity is the appropriate end point for today's
rule because of its applicability to more than simply conventional
pollutants, EPA evaluated the advantages and disadvantages of
establishing a limitation on turbidity rather than total suspended
solids (TSS). Turbidity is more appropriate because turbidity can be
easily measured in the field while TSS requires collection of a sample
and analysis in a laboratory. Demonstrating compliance with a turbidity
limitation is relatively easy and inexpensive for construction site
owners or operators to implement. Hand-held turbidity meters
(turbidimeters) can be used to measure turbidity in discharges, or data
loggers coupled with in-line turbidity meters can be used to
automatically measure and log turbidity measurements reducing labor
requirements associated with sampling. Since most controls and
treatment systems are flow-through systems, the use of TSS would not
allow permittees to gauge performance in the field and take any
correction action if they are in danger of violating the limitation.
With the limitation based on the pollutant turbidity, permittees can
measure turbidity levels in discharges continuously, with immediate,
real-time information on the efficacy of their controls, and take
immediate action if they are in danger of exceeding the turbidity
limitation. For these reasons, EPA has determined that turbidity is a
more appropriate measure of the effectiveness of the PTS and the
technology can be implemented more easily by utilizing turbidity rather
than TSS.
D. Selected Options for BPT, BCT, BAT and BADT for NSPS
EPA has selected Option 1 as the basis for BPT and BCT and EPA has
selected Option 4 as the basis for BAT and BADT for NSPS. Option 1
requires all C&D sites to implement a range of non-numeric effluent
limitations. Option 4 requires all C&D sites to implement the same
range of non-numeric effluent limitations as in Option 1 and requires
sites with 10 or more acres of disturbed land at one time to meet a
numeric limitation based on PTS to control pollutants in stormwater
discharges.
E. Selection Rationale for BPT
EPA is establishing BPT effluent limitations on the basis of the
technologies described under Option 1. EPA has determined that the non-
numeric effluent limitations in Option 1 represent a level of control
that is technologically available and economically practicable and
represents the average of the best performance of construction sites in
the C&D point source category considering the factors in CWA section
304(b)(1)(B). The requirements established by Option 1 are well-
established for construction activities in all parts of the country.
The Option 1 requirements are generally consistent with the
requirements currently in place under the existing Construction General
Permits issued by EPA and most states. Many of these types of effluent
limitations have been in place in NPDES permits for discharges
associated with construction activity since at least the early 1990s.
Prior to the issuance of the 1990 NPDES Phase I regulations, many
existing state laws and regulations required the implementation of
erosion and sediment controls. Many of these controls were first used
beginning in the 1960s and 1970s, and they are well-established
industry practices. In Option 1, EPA has taken this established
approach to controlling stormwater discharges from construction sites
and established minimum requirements for owners or operators of the
site. In some cases the narrative limitations of Option 1 are more
stringent than past EPA general permit requirements, e.g., the soil
stabilization requirements are more stringent than the 2008 EPA CGP.
These requirements represent the average of the best performance of the
industry because they are being used effectively by construction
operators and/or EPA's analysis indicates that the costs are small in
relation to the effluent reduction benefits to be achieved from such
requirements, traditionally measured in terms of cost per pound of
pollutant removed. As stated in Section III.D., EPA assesses cost-
reasonableness of BPT effluent limitations by considering the cost of
treatment in relation to the effluent reduction benefits achieved,
typically in dollars/pounds of pollutants reduced. EPA has determined
that the costs in relation to the pollutant reduction benefits of the
selected option for BPT are reasonable. The costs per pound of sediment
removed expressed as TSS for Option 1 is $0.10 per pound ($ 2008). The
range of costs per pound removed for other industrial categories is
$0.26 to $41.44 per pound in year 2008 dollars.
EPA considered the non-water quality environmental impacts of
Option 1 including energy usage, air emissions and solid waste handling
associated with the non-numeric effluent limitations. Energy usage
associated with the non-numeric effluent limitations includes fuel
consumption for construction equipment to excavate and install erosion
and sediment controls and excavation and placement or disposal of
accumulated sediment (see Section XIV.C). Air emissions associated with
the non-numeric effluent limitations would be emissions generated from
the burning of fuel by construction equipment (see Section XIC.A).
Solid waste generated from stormwater treatment includes the polymer-
laden sediment settled out during treatment, if polymers or flocculant
are utilized, though they are not part of the technology-basis for BPT
(see Section XIV.B). EPA found the non-water quality environmental
impacts associated with Option 1 to be minimal and acceptable. The non-
water quality environmental impacts associated with the BPT effluent
limitations are negligible as there is little incremental energy
expended in the implementation of the erosion and sediment controls,
since these types of controls are already being implemented by the
majority of construction sites nationwide. Selecting Option 1 as BPT
for this point source category is consistent with the CWA and
regulatory determinations made for other point source categories, in
that the Option 1 requirements represent limitations based on the
average of the best performance of facilities within the C&D point
source category. See Weyerhauser Co. v. Costle, 590 F. 2d 1011, 1053-54
(D.C. Cir. 1978).
EPA rejected Options 2, 3 and 4 as the basis for BPT because EPA
views BPT as the first level of technology-based control representing
the average of the best performance on a national basis. Although
meeting a numeric limitation represents BAT and BADT for NSPS, as
discussed below, meeting a numeric effluent limitation is a substantial
change for most owners or operators engaged in construction activity
nationwide. EPA's record does not indicate that meeting a numeric
turbidity limitation, even for the subset of facilities identified in
Option 4, represents today's average of the best performance and
therefore it does not represent the BPT level of control for this point
source category.
F. Selection Rationale for BCT
EPA is establishing BCT equivalent to BPT, based on Option 1. BCT
represents the best control technology for conventional pollutants
which is primarily TSS for the construction and development point
source category. As discussed in X.E above, the
[[Page 63021]]
requirements of Option 1have been demonstrated to be technologically
available and EPA's analyses show that the requirements are
economically practicable. Establishing BCT effluent limitations for a
point source category begins by identifying technology options that
provide additional conventional pollutant control beyond that provided
by application of BPT effluent limitations. Conventional pollutants
under the CWA are biochemical oxygen demand (BOD5), TSS,
fecal coliform, pH, and oil and grease. CWA section 304(a); 40 CFR
401.16. Stormwater discharges, if not adequately controlled, can
contain very high levels of TSS. In addition, many of the construction
materials used at the site can contribute BOD or oil and grease. Fecal
coliform can also be present at elevated levels, due to natural sources
(contributed by animal wastes) or if stormwater is not segregated from
sanitary waste facilities. See Section VIII for additional discussion
of pollutant sources.
EPA evaluates the candidate BCT options by applying the two-part
BCT cost test. The first part of the BCT cost test is the POTW test. To
``pass'' the POTW test, the cost per pound of conventional pollutant
discharges removed in upgrading from BPT to the candidate BCT must be
less than the cost per pound of conventional pollutant removed in
upgrading POTWs from secondary treatment to advanced secondary
treatment. Using the RS Means Historical Cost Indices, the inflation-
adjusted POTW benchmark (originally calculated to be $0.25 in 1976
dollars) is $0.92 (2008 $). To examine whether an option passes this
first test, EPA calculates incremental values of the candidate option
relative to the selected BPT (Option 1). EPA calculated the incremental
cost per pound of conventional pollutants removed ($/lb TSS) for Option
2 to be $2.50. Since this result is more than the POTW benchmark,
Option 2 fails the first part of the two-part BCT cost test. EPA also
calculated the incremental cost per pound of conventional pollutants
removed for Option 3, which is $3.22. Therefore, Option 3 also fails
the first part of the BCT cost test. EPA also calculated the
incremental cost per pound of conventional pollutants removed for
Option 4, which is $0.35. Therefore, Option 4 passes the first part of
the BCT cost test.
To pass the second part of the BCT cost test, the industry cost
effectiveness test, EPA computes a ratio of two incremental costs. The
numerator is the cost per pound of conventional pollutants removed by
the BCT candidate technology relative to BPT. The denominator is the
cost per pound of conventional pollutants removed by BPT relative to no
treatment (i.e., raw wasteload). As in the POTW test, the ratio of the
numerator divided by the denominator is compared to an industry cost
benchmark. The industry cost benchmark is the ratio of two incremental
costs: The cost per pound to upgrade a POTW from secondary treatment to
advanced secondary treatment, divided by the cost per pound to
initially achieve secondary treatment from raw wasteload. If the
calculated ratio is lower than the industry cost benchmark of 1.29
(i.e., the normalized cost increase must be less than 29 percent), then
the candidate technology passes the industry cost test. Since both
Option 2 and 3 fail the first part of the BCT cost test, it is not
necessary to compute the ratio for the second part. The calculated
ratio for Option 4 is 5.47; therefore, Option 4 fails the second part
of the BCT cost test. Therefore, EPA is setting BCT equal to Option 1.
G. Selection Rationale for BAT and BADT for NSPS
1. Selection Rationale
EPA is selecting Option 4 as the basis for BAT and BADT for NSPS.
The requirements of the selected Option have been demonstrated to be
technologically available, economically achievable, pose no barrier to
entry and have acceptable non-water quality environmental impacts (see
section XIV) and thus represent BAT and BADT for NSPS. As described
above in Section III.D of this notice, the CWA requires EPA to consider
several of the same factors when establishing BAT and NSPS. Both levels
of control are based on the best technology, considering the cost of
achieving such effluent reduction and any non-water quality
environmental impacts (including energy requirements). See CWA sections
304(b)(2)(B) and 306(b)(1)(B). The principle difference between the two
technology standards is the potential for new sources under NSPS to
install the best available demonstrated control technology without the
cost to retrofit new technology into an existing site. In both cases,
the Agency must determine that the requirement will not cause
unacceptable economic impacts to the industry as a whole or by
presenting a barrier to entry to new facilities.
The construction industry is different from other industries when
considering closures and barriers to entry. For this industry, the
permitted activity is a temporary project rather than ongoing
operations at a permanent facility. This is an important distinction,
in that it provides construction firms with greater flexibility in how
they respond to the rule. Not only can they elect to use one or more
technologies to ensure compliance with the rule for a project they can
also plan the dimensions and timing of the project in such a way as to
minimize the effects of the rule on project profitability. As all new
construction projects are new and impermanent, there is no meaningful
distinction between new and existing sources, from the standpoint of
economic affordability. As such, EPA is discussing the basis for both
BAT and NSPS together.
EPA has determined that a numeric limitation as well as non-numeric
effluent limitations for sites with 10 or more acres disturbed at one
time is technically available as that term is used in the CWA. The
technologies used to meet the limitation in Option 4 are non-numeric
effluent limitations or BMPs, the use of polymer-aided settling, and
site planning techniques such as limiting the amount of land disturbed
at any one time or phasing construction activities. These technologies
are currently being utilized throughout the country and EPA has
determined that the use of these technologies will result in stormwater
discharges from C&D sites consistently meeting the requirements of
Option 4. EPA has determined that a numeric effluent limitation is
achievable based on the performance of these technologies measured by
the information and data described in Section IX.E and by information
concerning similar treatment systems used in the placer mining
industrial point source category.
Passive treatment systems are currently used at a range of
construction sites as evidenced by the information contained in the
record. EPA has determined that a numeric limitation is achievable
based on the performance of PTS measured by the data described in
Section IX.E and in the Development Document and the record. Multiple
studies performed by McLaughlin in North Carolina have demonstrated the
effectiveness of passive approaches in reducing turbidity in stormwater
discharges from construction sites. Many of McLaughlin's studies were
performed on linear transportation projects for the North Carolina
Department of Transportation in piedmont areas of the State. Another
researcher, Warner, evaluated several erosion and sediment controls at
a full-scale demonstration construction site in Georgia. Additionally,
there were several studies conducted in New
[[Page 63022]]
Zealand on the effectiveness of flocculants and coagulants at improving
settling at transportation and residential projects. See Section IX.E
for a more detailed discussion of these studies. Adding flocculants or
polymers to aid in sediment removal are also routinely used a drinking
water plants to treat their source water. Polymer aided settling has
also been used in placer mining to treat effluent.
In the proposal, EPA provided data on PTS and solicited comments on
the pollutant removal effectiveness, effluent quality attainable and
the technical basis for establishing a particular numeric turbidity
limitation for C&D sites based on passive treatment. See 73 FR 72562,
72580-82, 72610-11. Commenters provided additional data and papers on
PTS and EPA identified additional data on PTS (see the chapter 6 of the
TDD for a description of the data EPA has used as a basis for the
numeric limitation). EPA also obtained additional data from vendors on
ATS, the first component of which, namely polymer-assisted settling,
has been used, in combination with data available at the time of
proposal, as a basis for the numeric limitation (see Chapter 6 of the
TDD). A technology is ``available'' even if it is not widely or
routinely used as long as the technology is used at some facilities, a
pilot plant or is adequately available. See e.g., American Frozen Foods
v. Train, 539 F.2d 109 (D.C. Cir. 1976) (BAT was based on two exemplary
plants); Ass'n of Pacific Fisheries v. EPA, 615 F.2d 794, 816 (9th Cir.
1980) (legislative history indicates BAT can be established based on
statistics from one plant); FMC Corp v. Train, 539 F.2d 973 (4th Cir.
1976) (BAT limitations based on single pilot plant and a few exemplary
plants); Kennecott v. EPA, 780 F.2d at 458 (Congress required EPA to
search out BAT and to strive for zero discharge. BAT was based on two
plants). The data and information in the record on the use of these
technologies to control stormwater discharges support EPA's
determination that a well designed and maintained PTS on varying types
of construction sites in several areas of the country will consistently
achieve a numeric limitation and is thus technologically available. The
data and studies in the record show that these technologies have been
used in areas of the country with different rainfall patterns and soil
types. Locations of the studies include the Pacific Northwest, North
Carolina, and Georgia, as well as outside the U.S. (including New
Zealand). In addition, these technologies have been implemented on
different project types, including transportation, institutional and
residential construction.
The Agency also examined the use of these technologies to control
sediment, turbidity and other pollutants in other industries. At least
six federal circuit courts have upheld EPA's use of transfer of
technology in the context of the CWA when promulgating ELGs and NSPSs,
concluding that effluent limitations may be based on a technology which
has been demonstrated outside the industry, if that technology is
transferable to it. See e.g., CPC International v. Train, 515 F.2d
1032, 1048 (8th Cir. 1975); Kennecott v. EPA, 780 F.2d 445, 453 (4th
Cir. 1986); CHS v. EPA, 553 F.2d 280, 285-287 (2d. Cir. 1977); Ass'n.
of Pacific Fisheries v. EPA, 615 F.2d 794, 817 (9th Cir. 1980).
EPA examined the use of polymer-aided settling that is used in the
placer mining industry to treat effluent from the mining facilities.
Placer mining extracts gold from alluvial deposits. Excavation often
uses water as the means to disturb the sediments allowing the gold to
be extracted. The wastewater generated with placer mining contains the
sediment that has been separated from the gold. Though the water used
during the gold extraction process is not ``stormwater,'' the water
during the mining process acts in a similar manner as stormwater as it
detaches, erodes and dislodges the soil and discharges sediment,
turbidity and other pollutants from the facility. The placer mining
effluent guidelines (40 CFR part 440 subpart M) established limitations
for settleable solids based on simple settling for a minimum of 4
hours. While developing the placer mining effluent limitations
guidelines, EPA conducted treatability studies on the effectiveness of
simple settling and chemically-aided settling (polyethylene oxide (PEO)
and PEO with polyelectrolyte). Settleable solids, TSS and turbidity
were measured in these studies. EPA has examined the data from these
studies to evaluate the effectiveness of settling and polymer aided
settling applicable to the C&D point source category. EPA considers
this treatment performance data to be appropriate because both placer
mining and C&D involve significant disturbance of soils and placer
mining process wastewater has similar characteristics to stormwater
from construction sites. Untreated wastewater in the tests contained
concentrations of TSS ranging from 3,585 mg/L to 161,700 mg/L with
turbidity ranging from 2,450 to >80,000 NTU. After simple settling for
6 hours the concentrations of TSS dropped to between 28 mg/L and 26,235
mg/L while turbidity decreased to between 35 to 35,000 NTU. In the
tests where polyelectrolyte was added, initial TSS concentrations
ranged from 869 to 55,340 mg/L while turbidity ranged from 1,680 to
42,500 NTU. After 6 hours of settling, the TSS in the polyelectrolyte
samples ranged from 2 to 23 mg/L while turbidity ranged from 5 to 78
NTU. Notable also was that turbidity had decreased to between 13 and 97
NTU after only one hour of settling in these samples. Similar results
were reported for PEO with initial turbidity ranging from 1,235 to
39,500 and results after 6 hours ranging from 51 to 140 NTU (See DCN
42103, 1986 Alaskan Placer Mining Study Field Testing Program Report).
EPA acknowledges that the placer mining treatment data was specific
to that industry. There may be other distinctions between the treatment
evaluated there and the technology in today's rule (e.g., the placer
mining data is based on enhanced settling using a polyelectrolyte and a
polyelectrolyte with a polymer only, as opposed to a full range of
passive treatment techniques relied upon in today's rule). Nonetheless,
the technology (chemically-enhanced settling) and the materials (water
containing dirt, rock, sand and similar materials) are fundamentally
similar and support EPA's conclusion that this type of well-
demonstrated treatment technique can reliably achieve low turbidity
levels in sediment bearing waste streams. This data demonstrates that
simple settling or enhanced settling is capable of achieving the
limitation.
The data in the record on the use of PTS at construction sites
supports EPA's determination that a well designed and maintained
passive treatment system will consistently achieve the limitation and
is thus technologically available. The data in the record on the use of
enhanced settling at placer mining facilities supports EPA's
determination that PTS will consistently achieve the limitation in
discharges associated with construction activity and supports PTS being
technologically available.
Besides the use of PTS, owners and operators will often times be
able to rely on non-numeric effluent limitations or BMPs, without the
use of polymers of flocculants, to meet the limitation. For example,
Horner et al. (see NRC at pg. 445 and DCN 01350) showed that a
turbidity limitation of 25 to 75 NTUs can be consistently met on
highway construction sites in Washington. See also discussion of Warner
and Collins-Camargo earlier (DCN 43071). Owners or operators can also
choose to modify their site planning, construction
[[Page 63023]]
operations or the processes in which the construction activity occurs,
such as changing the way the site is graded so that stormwater is
directed to areas where it can infiltrate. Also, if a vegetated area is
available, owners or operators can choose to utilize this area for
dispersion of the stormwater. The Agency may base BAT and NSPS
limitations and standards upon effluent reductions attainable through
changes in a facility's processes and operations, as are available to
owners and operators of construction sites. See Texas Oil & Gas Ass'n
v. EPA, 161 F.3d 923, 928 (5th Cir.1998). In addition, owners or
operators have the option to phase their construction activity or limit
the amount of land disturbed at one time in a manner such that the
numeric limitation would not apply to their construction activity.
Construction site owners or operators can avoid the application of the
numeric limitation in Option 4 to their discharges altogether if they
limit construction activity so that less than 10 acres are disturbed at
any one time.
EPA's analysis shows that the technologies that form the basis of
Option 4 can consistently meet the limitation.
In addition, the non-numeric effluent limitations of Option 4 are
technically available. These non-numeric effluent limitations represent
the average of the best performance of construction sites across the
country. See discussion of BPT in section III.D.1. As BAT represents
best available technology, they are also technologically available.
In considering economic impacts, EPA's analyses show that the
requirements of Option 4 are economically achievable (BAT) and will not
pose a barrier to entry (NSPS). Under the CWA, in the effluent
guidelines program, EPA traditionally assesses the economic impact on
the industry as a whole, by looking at what percentage of facilities
would close or face a barrier to entry as a result of the costs of the
regulatory requirements and any resulting loss of employment.
EPA estimates that out of the 82,000 firms expected to be affected
by this regulation, 147 firms or 0.2 percent, may close as a result of
the requirements. This closure estimate is based on the assumption that
some of the costs associated with this regulation will be passed on to
the customers of these firms. Based on the typical number of employees
working for these firms, EPA estimates 7,257 job losses associated with
these closures, out of total in-scope employment of 1.85 million. As
discussed in section XII.D, construction firms routinely expand and
contract their workforce in response to work load and as a result many
workers laid off when a firm closes are rehired by new and other
existing more financially healthy firms. Therefore, job losses due to
firm closures are in many cases a temporary displacement of the
workforce as compared to other industrial point source categories. The
construction industry is a highly dynamic industry that is
characterized by many small firms with a relatively high turnover that
expand and contract their level of activity readily in response to
changes in market conditions.
The relatively high rate of entry and exit in the construction
industry, compared to other industries, suggests barriers to entry are
normally low. Option 4 is not likely to put new firms at a disadvantage
as both existing and new firms will need to meet the same requirements
for each new project begun. Existing firms are likely to have more
assets than new firms and therefore may be able to use more of their
own financial resources to finance a new project. The greater the
compliance costs in comparison to baseline assets the more likely the
rule would pose a barrier to new entrants. EPA assessed the increase in
financing requirements in relation to typical baseline assets for the
different firm revenue categories, and under Option 4 no firm category
would face financing requirements greater than 4.1% of baseline assets.
EPA does not consider Option 4 to pose a barrier to entry for new firms
into the marketplace. For a more detailed discussion see Section XII
below.
Option 4 is projected to have a total industry compliance cost,
once fully implemented in NPDES permits and the industry has returned
to normal levels of construction activity, of $953 million per year
(2008 $). Most C&D sites are permitted under general permits, so this
rule will not be fully implemented until all state and EPA general
permits have expired and new general permits are issued that
incorporate the Option 4 requirements, which will take approximately 5
years after the effective date of this rule. Costs in the first year
(2010) are estimated to be approximately $8 million, and annualized
costs for the first 10 years after promulgation are estimated to be
$577 million (see Table X-2). Given the size of the industry and the
current annual value of construction activity of $960 billion (July,
2009), EPA has determined that this cost, which represents less than
one tenth of one percent of the current total value of annual
construction activity, can be reasonably borne by the industry.
Table X-2--Option 4 Annual Compliance Cost by Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compliance year
---------------------------------------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Compliance Cost (Millions)............................. $8 $63 $204 $538 $810 $834 $859 $885 $911 $938
--------------------------------------------------------------------------------------------------------------------------------------------------------
These economic impacts are well within the range of impacts EPA has
imposed on other industries subject to ELG and NSPS rulemakings.
Congress expressly considered BAT and NSPS to be technology-forcing and
that in striving towards the ambitious goals of the CWA either BAT or
NSPS may, and likely will, result in some economic impacts to a portion
of an industry. See e.g., American Iron & Steel v. EPA, 526 F.2d 1027,
1052 (3d. Cir. 1975); Weyerhaeuser v. Costle, 590 F.2d 1011, 1026 (D.C.
Cir. 1978). Based on the traditional factors EPA considers under the
CWA when promulgating effluent limitations guidelines and standards the
Agency determined that Option 4 is economically achievable and will not
pose a barrier to entry. For a more complete discussion of EPA's
economic impact analysis see Section XII of this notice.
Under the Regulatory Flexibility Act (RFA), EPA also considered the
impact to firm revenues for Option 4, at full implementation under
normal levels of construction activity. EPA evaluated impacts of the
rule on small firms. EPA considers the number of firms where the costs
to those firms exceed 1 percent and 3 percent of revenue. Under Option
4, there are no firms, either small or large, that are expected to
incur compliance costs exceeding 3 percent of their revenues, while
only 230 small firms (0.03% of in-scope firms and 0.84% of those
incurring costs) are expected to incur costs exceeding 1
[[Page 63024]]
percent of their revenues. Another measure of economic stress
considered by EPA is the estimated change in important firm financial
metrics, such as the ratio of pretax income to total assets. For this
option, a total of 169 out of 82,000 firms expected to be affected by
this regulation are estimated to incur financial stress as a result of
regulatory requirements, which represents 0.2 percent of in-scope
firms. These impacts are not necessarily additive with estimated 147
firm closures, mentioned previously, as they evaluate different aspects
of a firm's financial viability, and the same firm may experience more
than one measure.
EPA found the non-water quality environmental impacts associated
with Option 4 to be minimal and acceptable. The non-water quality
environmental impacts associated with the BPT effluent limitations are
negligible as there is little incremental energy expended in the
implementation of the erosion and sediment controls, since these types
of controls are already being implemented by the majority of
construction sites nationwide. Depending on the particular polymer or
flocculant used, these solids are typically utilized as fill material
on the construction site. If they cannot be used as fill, then they
would be treated as municipal solid waste. However, EPA would expect
permittees to choose polymers or flocculants that would allow for use
of removed solids on-site
EPA considered site size thresholds smaller than 10 acres for the
applicability of passive treatment systems and a numeric effluent
limitation and associated monitoring requirements. While EPA does not
have information to indicate a numeric effluent limitation for
stormwater discharges is not feasible for smaller construction sites,
EPA has determined that a site size threshold below 10 acres disturbed
at one time does not at this time represent BAT and NSPS in recognition
of other relevant factors, such as the fact that this is the first time
EPA has required an enforceable numeric effluent limitation for
stormwater discharges from construction sites nationwide, the increased
burden on the permitting authorities, and that construction sites less
than 10 acres are more likely to be operated by small businesses.
EPA recognizes that meeting a numeric limitation is a significant
change for this industry. A 10-acre threshold of land disturbed at one
time will result in the numeric effluent limitation for turbidity and
the associated monitoring requirements applying to a very substantial
number of constructed acres of land per year. EPA has estimated that at
a threshold of 10 acres disturbed at one time, 623 thousand acres and
more than 21,000 projects annually will be subject to the numeric
effluent limitation. Thus, EPA has determined the final rule would
result in the numeric effluent limitation and monitoring requirements
applying to an estimated 73% of the constructed acres per year. If EPA
were to lower the threshold of land disturbed at one time to below 10
acres, the final rule would significantly increase the number of
projects subject to the numeric effluent limitation. As stated above,
at a 10-acre threshold, about 21,000 projects are subject to the
numeric effluent limitation; however, if the Agency were to lower the
threshold to, for example, 5 acres, the number of construction projects
climbs to 37,000 projects; and at 1 acre, the number of construction
projects would jump to 84,000 projects, a four-fold increase in covered
projects compared to a 10-acre threshold. EPA received comments from
state permitting authorities concerned about the potential increased
burden a numeric effluent limitation may have if it were applied to all
construction sites. State permitting authorities must oversee
incorporation of the final rule into their NPDES permits, in addition
to providing logistical and technical support to permittees subject to
the new requirements. While the final rule is not mandating specific
reporting requirements, EPA expects permitting authorities to develop
requirements in their NPDES permits for frequent reporting to assist in
compliance monitoring and program development. The permitting authority
will have to manage the reported effluent data and discharge monitoring
reports. EPA considered the significant further progress that applying
a numeric effluent limitation based on passive treatment systems to 73%
of the constructed acres would have in meeting the goals of the CWA in
combination with the likely increased workload to permitting
authorities, especially during a unique period of time when resources
may be an issue for permitting authorities.
Additionally, EPA considered that construction sites less than 10
acres are more likely to be operated by small businesses. Larger
construction firms, who tend to operate on larger sites, will likely
have in-house expertise, while smaller construction firms may need to
rely on hiring consultants to implement the passive treatment systems
in order to meet the numeric effluent limitation. Based on comments EPA
received, the Agency has some concerns regarding the expertise at the
small construction firm level and, given the size of the construction
industry, the availability of the support industries for small
construction sites. The concern is that the support industries for
small construction sites, such as consulting firms and erosion and
sediment control service providers, will not be available, especially
as the entire industry adjusts to the new requirements, to provide the
level of support needed for these smaller sites to effectively
implement passive treatment systems to meet the numeric effluent
limitation. If the threshold was below 10 acres disturbed at one time,
an additional 63,000 sites, under a 1-acre threshold, or an additional
15,000 sites, under a 5-acre threshold, may need outside support for
passive treatment systems. EPA considered the issue of small
businesses' operation of small sites, the availability of expertise for
small sites that is necessary to meet a numeric effluent limitation and
the resulting questions raised as to whether passive treatment systems
are available for construction sites with less than 10 acres disturbed
at one time.
In sum, after consideration of all the relevant factors in CWA
sections 304(b) and 306(b), EPA has determined that the selected option
is technologically available, economically achievable for the industry
as a whole, poses no barrier to entry, has acceptable non-water quality
environmental impacts and is BAT and NSPS for this point source
category. The selected option accommodates the concerns of the
regulated community and permitting authorities about the practicalities
of meeting a numeric effluent limitation. This rule reflects a new
generation of controls and approach to managing stormwater discharges
from C&D sites, with objective and enforceable limitations based upon
demonstrated technologies that this industry as a whole can achieve and
afford.
2. Numeric Limitations
Numeric effluent limitations are feasible for discharges associated
with construction activity. Numeric effluent limitations are
appropriate on a nationwide basis for some construction sites and in
this case are the best way to quantifiably ensure industry compliance
and to make reasonable further progress toward the CWA goal of
eliminating pollutants into the nation's waters. Numeric effluent
limitations are an objective and effective way for the permitting
authority to implement, and the regulated industry to comply with, the
technology based requirements for
[[Page 63025]]
this point source category. Numeric limitations put the owner and
operator, the permitting authority and the public on notice as to what
is required, thereby facilitating effective permit development and
management of stormwater discharges associated with construction
activity, in order to further the objectives of the CWA.
EPA has in the past indicated that numeric limitations for
discharges from C&D sites might not be feasible. Over the last several
years, additional data and information has become available indicating
that a numeric limitation is technically available and is appropriate
for some sites. Several states have recognized that current BMPs used
at construction sites are not always able to meet water quality
objectives. Therefore, several researchers (such as McLaughlin, Warner
and Horner) have investigated improved approaches to managing
construction site stormwater. Their research has demonstrated that the
performance of current BMPs can be improved and that effluent quality
can be substantially improved. In addition, several states have
incorporated action levels into their permits, so owners and operators
of construction sites have experience with sampling stormwater
discharges and analyzing for turbidity. In addition, California has
recently established effluent limitations for some sites within the
State, and dischargers within the Lake Tahoe basin have been subject to
numeric limitations for some time. The industry in general has become
more aware of the importance of turbidity control and has developed a
number of innovative approaches to improve turbidity removal. Also, a
substantial vendor base has developed in recent years that offer a
range of expertise and approaches for controlling turbidity. In
addition, permittees have many choices regarding when land disturbing
activities take place and how they decide to conduct land disturbing
activities on a particular site that have a pronounced effect on the
amount of sediment generated, and subsequently the amount of sediment
and other pollutants requiring management. Consideration of these
factors during the planning phases of projects will significantly
influence the level of control needed, and the feasibility of meeting a
limitation.
Not withstanding a heavy reliance on non-numeric limitations in the
past, the use of numeric effluent limitations by EPA in national
rulemakings to control stormwater discharges has precedent in a number
of contexts. Industries that have exposed areas devoted to production
or material storage often have numeric limitations that apply to
stormwater discharges from these areas. EPA has promulgated at least
eight different effluent limitations guidelines for industrial point
source categories that address stormwater or a combination of
stormwater and process wastewater with numeric effluent limitations.\1\
---------------------------------------------------------------------------
\1\ See 40 CFR part 411 (Cement Manufacturing); 40 CFR part 418
(Fertilizer Manufacturing); 40 CFR part 419 (Petroleum Refining); 40
CFR part 422 (Phosphate Manufacturing); 40 CFR part 423 (Steam
Electric); 40 CFR part 434 (Coal Mining); 40 CFR part 440 (Ore
Mining and Dressing); and 40 CFR part 443 (Asphalt Emulsion).
---------------------------------------------------------------------------
In addition to numeric limitations being utilized for stormwater
discharges in other industrial categories, several states have effluent
limitations or action levels or benchmarks (hereinafter, benchmarks)
for stormwater discharges associated with construction activity. A
benchmark is a numeric monitoring requirement where discharges must be
sampled to determine whether they meet a certain level of pollutant(s)
in the discharge. For example, the State of Oregon requires
construction sites to monitor, and the permit contains a 160 NTU
benchmark for sites discharging to a CWA section 303(d) listed
waterbody or a waterbody with a TMDL for sediment and turbidity. The
State of Georgia has turbidity benchmarks that are a function of the
construction site size in relationship to the watershed size.
The only practical difference between a numeric effluent limitation
and a benchmark is that a violation of a benchmark, in and of itself,
is not a violation of a NPDES permit. If a benchmark is exceeded,
generally, the enforceable requirement is for the discharger to contact
the permitting authority, examine its BMPs, and implement additional
controls, if necessary. A benchmark requires similar types of site
planning, employee education, firm resources, monitoring and sampling,
design, installation and maintenance of erosion and sediment controls
and compliance with other non-numeric effluent limitations, and
application of other passive treatment technologies as are necessary to
meet a numeric limitation.
Some commenters argued for a benchmark as opposed to a numeric
turbidity limitation due to the variable nature of stormwater and after
the comment period industry stakeholders stated that they were
supportive of a benchmark approach, albeit at a higher NTU level. EPA
believes that benchmarks can be an important tool for permitting
authorities and for permittees. However, numeric limitations are
feasible and appropriate for larger C&D sites on a nationwide basis and
the feasibility of using a benchmark approach is comparable to the
feasibility of meeting a numeric effluent limitation. EPA does not
believe that a benchmark approach would represent BAT and NSPS at the
national level. Technologies and practices that can achieve numeric
effluent limitations for stormwater discharges are technologically
available and the Agency finds no reason to rely on benchmarks as
opposed to numeric effluent limitations in this case. EPA recognizes
and has considered the issue of variability of stormwater discharges at
C&D sites and has included several provisions in the rule to address
this issue. First, today's numeric limitation does not apply on days
when total precipitation in that day is greater than the local 2-year,
24-hour storm event. As stated below in Section XIX.A, the reasoning
behind this exemption is that for larger storm events, controls may be
overwhelmed by the large amount of stormwater and a numeric limitation
may be more difficult to meet. Additionally, as discussed below, the
numeric turbidity limitation is a daily maximum, meaning an owner or
operator will not be in violation of the limitation if individual
samples of their discharges exceed the limitation, as long as the
average of the samples taken over the course of a day are below the
limitation.
In addition to the use of benchmarks, at least one state has state-
wide numeric effluent limitations for discharges associated with
construction activity. The State of California has an enforceable
numeric effluent limitation of 500 NTU in its construction general
permit for high risk sites. Also, states have set numeric turbidity
limitations for specific areas (such as the Lake Tahoe Basin), or for
specific projects.
3. Rationale for Rejecting Options 1, 2 and 3 as the Technology-Basis
for BAT and BADT for NSPS
EPA rejected Option 1 as the basis for BAT and BADT for NSPS
because there are technologies that remove greater levels of pollutants
from stormwater discharges from C&D sites than Option 1 that are
technologically available, economically achievable, pose no barrier to
entry and have acceptable non-water quality environmental impacts, thus
Option 1 is not BAT and BADT for NSPS.
EPA rejected Options 2 and 3 for numerous reasons. For Option 2 and
3 EPA believes that the use of ATS is likely to influence the ability
of site planners to select stormwater management controls that can
infiltrate
[[Page 63026]]
and manage stormwater on-site through green infrastructure practices
because ATS typically requires the use of a centralized drainage system
and large stormwater basins. Option 3 would present an even larger
disincentive to the use of infiltration and retention practices because
of the larger number of sites that may need to use larger basins.
EPA is concerned that basing a numeric limitation on ATS is likely
to present a disincentive for site planners to select controls that may
be more effective from a hydrologic standpoint to maintain the
predevelopment hydrology of the site. In particular, ATS would require
larger basins than what may be required under existing state permits.
For example, EPA estimates that a construction project on a 17-acre
site in Alabama would need a basin providing approximately 200,000
cubic feet of storage to support application of ATS. This is almost
three times larger than the sediment basin that EPA estimates may be
required on this same project under the Alabama CGP. Since it would be
much more expensive to decommission this larger basin, this presents an
incentive for the developer to retain this basin as part of the
permanent stormwater management controls because the cost of
retrofitting this basin would likely be cheaper than installing
distributed runoff controls, such as rain gardens, which EPA views as
significantly more effective at managing stormwater on the development
after construction activity has ceased. As discussed at length in the
NRC report noted above, the use of retention, infiltration and other
low-impact development techniques is preferable from a hydrologic
standpoint to maintain predevelopment hydrology than detention through
the use of a sediment basin. Passive treatment systems do not have
these same limitations as ATS, since there is more flexibility in the
selection of controls. By utilizing passive treatment systems, a
sediment basin may not be required, and the site planner may be more
inclined to use distributed runoff controls, such as rain gardens,
instead of converting the sediment basin into a permanent stormwater
management pond. Even where a basin is needed, it may be a smaller
basin than would be needed for a full ATS. As discussed in Section
VII.A, there is also a concern that was raised by commenters on the
reliance on ATS due to the unique characteristics of linear projects.
Similar to what was discussed above, passive treatment systems will
provide owners and operators of construction sites the flexibility in
the selection of controls to include site specific conditions,
including right-of-way constraints.
Many states and municipalities are moving in the direction of
requiring stormwater discharges from newly developed and redeveloped
sites to mimic the hydrology that would have occurred on the site prior
to the site being developed. These techniques not only eliminate or
reduce stormwater discharges from newly developed or redeveloped sites,
they can be designed to prevent stream bank and bed erosion, help
recharge groundwater, conserve energy, and mitigate urban heat island
impacts. As these practices can provide various environmental benefits,
these important environmental outcomes have been factored into EPA's
options selection process. As discussed in Section VI, EPA recognizes,
as the NRC report concluded, that the current regulatory approach by
EPA under the CWA is not adequately controlling all sources of
stormwater discharges that are contributing to waterbody impairment. As
a result, EPA has committed to and begun a rulemaking addressing
stormwater discharges from newly developed and redeveloped sites under
CWA section 402(p). EPA has published a draft Information Collection
Request, 74 FR 56191 (October 30, 2009) for public comment seeking
information and data to support the rulemaking.
Passive treatment systems are able to provide a high level of
pollutant reduction at a significantly lower cost than active treatment
systems. In particular, Option 2 would have cost about $4.9 billion and
removed 70% of the sediment discharged from construction sites. This is
in contrast with a $0.95 billion cost with 77% sediment removals for
Option 4. While Option 3 achieves somewhat greater removals (87%) it
comes at a very high cost ($9 billion).
In rejecting ATS as BAT and NSPS in the final rule, EPA also
considered the fact that as discussed above EPA is conducting a
rulemaking to address stormwater discharges from development that is
likely to impose additional costs on the construction industry. EPA has
just begun the rulemaking process for that rule, thus the Agency has
not quantified the costs, but the Agency is concerned about the
potential additive costs of choosing ATS as BAT and NSPS in this final
rule in combination with the potential costs of this new stormwater
rule. This was a similar consideration by EPA in the Offshore Oil & Gas
ELG where EPA rejected the most stringent option in part because of the
potential for the same industry to be required to bear additional costs
in a subsequent rule. See 58 FR 12454, 12483 (March 4, 1993).
Although EPA is rejecting ATS as a basis for BAT and NSPS
nationally, ATS is an effective and important technology that has broad
applicability for construction sites. ATS was applied to construction
site discharges initially as a means of addressing water-quality
concerns, such as discharging stormwater to high-quality receiving
waters with low background turbidity. Indeed, in many areas where ATS
use has been most prevalent (such as in the States of California,
Washington and Oregon), construction activities are taking place in
areas where the receiving waters have background turbidity of only a
few NTUs and where sensitive or endangered species are present. In
these cases, the use of ATS has allowed construction activity to occur
so that discharges are at or below the background turbidity levels in
the receiving waters. If not for ATS, it is unlikely that many of these
projects would have met water quality requirements if forced to rely on
conventional erosion and sediment controls.
As stated above, EPA acknowledges that many state and local
governments have existing programs for controlling stormwater and
wastewater discharges from construction sites. Today's rule is intended
to work in concert with these existing state and local programs and in
no way does EPA intend for this regulation to interfere with existing
state and local requirements that are more stringent than this rule or
with the ability of state and local governments to promulgate new and
more stringent requirements. Today's rule is a floor, not a ceiling. To
make this point clear EPA included ``at a minimum'' language in the
regulation to highlight the fact that EPA does not want to prevent more
stringent state technology-based or other effluent limitations from
serving as CWA requirements in NPDES permits. This rule is establishing
the minimum technology required by construction operators. States and
EPA can also require more stringent limitations that are necessary to
meet water quality standards. CWA section 301(b)(1)(C). Where TMDLs for
sediment or turbidity are established, the use of ATS may be an
important tool to ensure water quality standards are met. States also
have the authority to require more stringent requirements under state
law under CWA section 510. Permitting authorities may establish more
stringent effluent limitations subsequent to promulgation of today's
regulation
[[Page 63027]]
based on the application of ATS, or other technologies, where
appropriate.
4. Definition of ``New Source'' for the C&D Point Source Category
As stated above, EPA is selecting Option 4 as the best available
demonstrated control technology (BADT) for NSPS under section 306. At
proposal, EPA stated that it interpreted ``new source'' at CWA section
306 to not include stormwater discharges associated with construction
activity from C&D sites. EPA stated that it is a reasonable
interpretation of section 306 to exclude C&D sites from the definition
of ``new source'' because a construction site cannot itself be
constructed. The Agency found that if construction sites were intended
to be ``new sources'' it is illogical that there would be a separate
definition for ``construction'' or that there would be a requirement in
section 306 that ``sources'' be constructed prior to becoming ``new
sources.'' See 73 FR 72583. The result of this interpretation is that
no C&D sites would ever be new sources. However, the 2006 district
court order enjoins EPA to promulgate ELGs and NSPSs.
In order to comply with the district court order, EPA proposed a
specialized definition of ``new source'' for purposes of part 450 as
any source of stormwater discharge associated with construction
activity that itself will result in an industrial source from which
there will be a discharge of pollutants regulated by a new source
performance standard in subchapter N. (All new source performance
standards promulgated by EPA for categories of point sources are
codified in subchapter N.) See 73 FR 72583. The definition of new
source would mean that the land-disturbing activity associated with
constructing a particular facility would itself constitute a ``new
source'' when the facility being constructed would be a ``new source''
regulated by NSPSs under section 306 of the CWA. For example,
construction activity that builds a new pharmaceutical plant whose
process wastewater is covered by 40 CFR 439.15 would be subject to the
NSPS under 40 CFR 450.24, as proposed, for its stormwater discharges
associated with the construction activity.
Commenters raised numerous objections to the proposed ``new
source'' definition, arguing that the proposed definition is overly
narrow and there is no rational explanation for treating a C&D site for
a commercial facility as an existing source, while treating a C&D site
for a new iron and steel facility that happens to have NSPSs for its
process wastewater as a new source. EPA's proposed definition of ``new
source'' was the result of the difficult application of section 306 to
the unique nature of the C&D point source category compared to other
industrial categories. Section 306 was part of the 1972 amendments to
the CWA, when the focus was on industrial facilities that are
traditionally considered ``plants'' or ``factories,'' such as petroleum
refineries, power plants and heavy manufacturing. See e.g., 118 Cong.
Rec. 10201, 10208, 33747, 33760, 33763 (1972); A Legislative History of
the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st
Sess. (Comm. Print 1973). However, the CWA has evolved since 1972, most
notably through the WQA of 1987 and the addition of a comprehensive
program to address stormwater discharges under section 402(p). As a
result, the nature and characteristics of the sources that EPA now
regulates under the NPDES program may not, and in the case of C&D
sites, do not, necessarily align themselves plainly with the provisions
of section 306: however EPA does not believe that this results in C&D
sites not being subject to section 306.
After a careful review, based on comments received, EPA has decided
to reconsider its proposed definition of ``new source.'' EPA agrees
with commenters that it is not the best reading of section 306 for the
definition of ``new source'' for C&D sites to be dependent upon the
result of the construction activity or the activity that occurs on the
developed site. EPA recognizes there is difficulty in treating a C&D
site for a commercial facility not as a new source, while treating a
C&D site for a new iron and steel facility that happens to have NSPSs
for its process wastewater as a new source. Even within similarly
situated industrial categories, there may be facilities that have NSPSs
for their process wastewater and other facilities that do not, and that
fact is removed from the concerns of this rule regarding discharges of
turbidity, sediment and other pollutants associated with construction
activity. The concerns of this rulemaking and the nature of C&D sites
exist notwithstanding and independently of the nature of the developed
site and the activity on that site that leads to discharges of
pollutants after completion of construction activity.
While EPA believes it is a reasonable interpretation of the CWA to
exclude C&D sites from the definition of ``new source'' based on the
text of section 306, the Agency has determined the better reading of
the statute is that C&D sites may be new sources. The term ``source''
is defined in 306(a)(3) of the CWA to mean ``any building, structure,
facility, or installation from which there is or may be the discharge
of pollutants.'' While it is not clear that a C&D site would be a
``building,'' ``structure,'' or ``installation,'' the regulatory
definition of ``facility'' means ``any NPDES `point source' or any
other facility * * * (including land or appurtenances thereto) that is
subject to regulation under the NPDES program.'' 40 CFR 122.2. Based on
the WQA of 1987, EPA promulgated the Phase I and Phase II stormwater
regulations which required NPDES permits for stormwater discharges
associated with construction activity. See 40 CFR 122.26(b)(14)(x) and
122.26(b)(15). C&D sites are point sources and subject to regulation
under the NPDES program due to their discharge of pollutants. Based on
EPA's regulatory definition, C&D sites are ``facilities,'' thus EPA
interprets them to be ``sources,'' as that term is defined under
section 306. The term ``construction'' is defined as any ``placement,
assembly, or installation of facilities or equipment (including
contractual obligations to purchase such facilities and equipment) at
premises where such equipment will be used, including preparation work
at such premises.'' CWA section 306(a)(5). The definition of
``construction'' is broad to include activities that occur, including
preparation work, placement of equipment and signing of contracts,
before actual construction activity, such as clearing, grading and
excavation occurs on the site. This broad, encompassing definition,
would allow an owner or operator to begin ``construction'' of the C&D
site without actually beginning construction activity. While it is
reasonable, based on a common sense understanding of the term, that an
owner or operator cannot construct a construction site as that term is
commonly used, ``construction'' is specifically defined in the CWA and
based on that broad definition it is a better interpretation of
``construction,'' that owners or operators of a C&D site can
``construct'' a C&D site within the meaning of the CWA as interpreted
by EPA. See 40 CFR 122.29(a)(4). Given the evolution of the CWA, as
discussed above and the focus of the CWA in 1972, it is not illogical
that there would be a separate definition for ``construction'' or that
there would be a requirement in section 306 that ``sources'' be
constructed'' prior to becoming ``new sources.'' EPA did not regulate
discharges associated with construction activity at that time, thus
there would be nothing illogical with including a separate definition
of
[[Page 63028]]
``construction.'' While section 306 and EPA's regulations on new source
determinations appear to emphasize permanent facilities as opposed to
relatively temporary sources like C&D sites, EPA is taking into
consideration this evolution of the CWA and viewing the statute as
whole in determining a reasonable and appropriate reading of section
306 and EPA regulations. ``New source'' means ``any source, the
construction of which is commenced after publication of proposed
regulations prescribing a standard of performance under this section
which will be applicable to such source * * *'' CWA section 306(a)(2);
40 CFR 122.2. As outlined above, C&D sites are ``sources'' and owners
and operators can construct C&D sites given the broad definition of
``construction,'' thus a C&D site may be a ``new source'' under section
306 and subject to NSPS.
For purposes of this rule, EPA has defined ``new source'' as ``any
source, whose discharges are defined in 40 CFR 122.26(b)(14)(x) and
(b)(15), that commences construction activity after the effective date
of this rule.'' Under this definition, the only construction sites that
will not be ``new sources'' are those sites that commenced construction
activity before the effective date of this rule. The definition aligns
itself with the nature of construction sites, the opportunities to
utilize the most effective control technologies and Congress'
``recognition of the significantly lower expense of attaining a given
level of effluent control in a new facility as compared to the future
cost of retrofitting a facility.'' A Legislative History of the Water
Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (Comm.
Print 1973) at 797. Congress ``recognized that new sources could attain
discharge levels more easily and at less cost than existing sources
which must be retrofitted * * * [and Congress] clearly expressed [a]
belief that it would be easier for new sources to attain a particular
level of effluent control than it would be for existing sources.''
American Iron & Steel v. EPA, 526 F.2d 1027, 1058 (3d Cir. 1975).
EPA has the authority to provide specialized definitions of ``new
source'' to particular point source categories. See 40 CFR 122.29(b);
401.10. As stated above, the substantive standards for BAT and NSPS are
based on the best available technology or best available demonstrated
control technology which consider both the cost of achieving such
effluent reduction and any non-water quality environmental impacts and
energy requirements. See CWA sections 304(b)(2)(B) and 306(b)(1)(B).
For this final rule BAT is equal to NSPS.
Some commenters raised the issue of the National Environmental
Policy Act of 1969 (NEPA) 33 U.S.C. section 4321 et seq. and its
relationship to ``new sources.'' Pursuant to CWA section 511(c) the
issuance of a NPDES permit under section 402 for the discharge of any
pollutant by a ``new source'' as defined under section 306 may be
deemed a major Federal action significantly affecting the quality of
the human environment within the meaning of NEPA and would be subject
to the environmental review provisions of NEPA. The issuance of a NPDES
permit to a new source by an NPDES-approved state is not a federal
action; therefore, issuance of these permits is not subject to NEPA.
Forty-six (46) states have NPDES authorization. For the remaining four
states, tribal lands, territories, and other areas where EPA is the
permitting authority the issuance of any NPDES permit to a new source
is subject to the environmental review provisions of NEPA as set out in
40 CFR part 6. The vast majority construction sites in these remaining
jurisdictions obtain NPDES permit coverage for discharges associated
with construction activity under the EPA CGP. EPA intends to comply
with NEPA, as necessary, pursuant to the issuance of the EPA CGP.
XI. Methodology for Estimating Costs to the Construction and
Development Industry
In developing today's final rule, EPA used numeric models to
estimate the costs of compliance with various regulatory options. This
approach was used to estimate the incremental costs associated with the
regulatory options at the state and national level. This approach is
the same as that used at proposal; however, EPA has updated various
models and estimates of costs as well as estimates of annual
construction activity, based on comments received as well as other
factors.
For the proposal, EPA developed a series of nine model projects (3
site size categories and 3 project types). EPA estimated incremental
compliance costs for each of these model projects under the various
regulatory options and scaled costs to the national level. EPA used a
fixed project duration of nine months for each of the model projects as
a basis for estimating compliance costs. The annual amount of
construction activity was estimated based on the 1992 and 2001 National
Land Cover Dataset (NLCD) available at the time of proposal.
For the final rule analysis, EPA also estimated project-level costs
for a series of model projects. The models vary by size (disturbed
acres), duration, and type of construction to establish the baseline
conditions for factors that can directly influence compliance costs and
firm impacts. EPA developed a set of model projects that includes 12
size categories and 12 duration categories. For costing purposes, EPA
made a distinction between building and transportation projects. The
linear configuration of many transportation projects requires
additional considerations for managing stormwater. However, EPA did not
consider residential and nonresidential projects of the same size and
duration to have appreciably different costs. These two project types
(building and transportation) were combined with the size and duration
categories to create 288 different model projects. These model projects
were then combined with a set of geographic conditions unique to each
state, based on a representative metropolitan area within the state,
resulting in 14,688 model projects (288 x 51). There were many factors
affecting model project cost for each option. The primary factor was
the set of applicable technologies and practices considered necessary
for meeting each option's regulatory requirements. The costs associated
with each set of technologies and practices varied by project size, but
they also vary by duration, state, and construction sector. For all
four options, the costs for projects under 10 acres were based on non-
numeric effluent limitations or BMPs and only varied by size. For
Option 1, projects above 10 acres were also assumed to rely upon non-
numeric effluent limitations or BMPs and costs only varied by size. For
Options 2, 3, and 4, projects that were required to meet numeric
limitations had costs that also varied by duration to reflect either
the application of PTS or ATS, as well as O&M costs and costs for
monitoring.
In developing unit costs for each model project, EPA refined the
approach used at proposal. At proposal, EPA estimated annual rainfall
and runoff volumes on a per-acre basis for one indicator city in each
state. EPA estimated ATS treatment costs using an estimate of $0.02 per
gallon. For the final rule analysis, EPA again used rainfall data from
one indicator city in each state to estimate annual rainfall and runoff
volumes and determined ATS treatment system sizes (based on a design
flowrate) needed in each state for each of the model project site
sizes. Using data supplied from vendors on the unit cost of various ATS
treatment system components contained in the proposed rule record (see
DCNs 41130
[[Page 63029]]
and 41131), as well as the Development Document EPA estimated the one-
time and monthly recurring costs for deploying ATS in each state.
Monthly recurring costs included costs for operator labor, treatment
chemicals and fuel usage. Using the distribution of projects by site
size and duration in each state, EPA was then able to estimate the
costs to implement ATS for Options 2 and 3. EPA also estimated
incremental storage requirements to impound runoff prior to treatment
from the 2-year, 24-hour storm for each indicator city and added
additional storage costs if existing state sediment basin sizing
requirements were smaller than these volumes. EPA intended to use this
analysis at the time of proposal in order to compare results with the
$0.02 per gallon approach, but was unable to complete this analysis
prior to publication of the proposed rule. The information that EPA
used for this approach was, however, included in the docket (see DCN
51201) and commenters provided comment on this approach (See EPA-HQ-OW-
2008-0465-1360 in the rulemaking record).
In developing costs for Option 4, EPA estimated the costs for
deploying liquid polymer dosing systems and for implementing fiber
check dams with PAM addition on sites. EPA also estimated monthly labor
needs for sampling personnel, as well as monthly operation and
maintenance costs for polymer dosing systems and for fiber check dam
replacement and PAM application. EPA then scaled costs to the state and
national level. EPA also estimated costs for firms to purchase
turbidity meters. Detailed results of this analysis are presented in
the Development Document.
From Table XI-1 it is apparent that there was a wide range of
project costs. The $490 project cost reflects the use of BMPs on the
smallest model project, estimated to be 1.9 acres in size. The model
project with the highest cost, for options 2, 3, and 4 are all based on
the largest model project with the longest duration, 145 acres over
three years. The $390 thousand, under Option 4, represents a 145 acre
transportation project in Florida lasting three years, and the $5.5
million project, under Options 2 and 3, represents a three year 145
acre project in Louisiana.
Table XI-1--Range of Project Costs for the Four Options
----------------------------------------------------------------------------------------------------------------
Average cost Median cost Minimum cost Maximum cost
----------------------------------------------------------------------------------------------------------------
Option 1........................................ $8,026 $5,296 $490 $44,832
Option 2........................................ 328,322 5,296 490 5,501,864
Option 3........................................ 399,371 224,541 490 5,501,864
Option 4........................................ 42,207 28,330 490 389,786
----------------------------------------------------------------------------------------------------------------
For estimating the total annual construction acreage in-scope, EPA
relied on industry economic data rather than the NLCD because recent
NLCD data is not yet available. EPA used historical construction
spending data to derive a long-term trend for construction activity.
This allowed EPA to base its estimates on normal industry conditions
rather than large fluctuations in activity seen in recent years. Next
EPA used data from the U.S. Housing Census, Reed Construction, and the
Federal Highway Administration to estimate the relationship between
construction spending levels and the average annual quantity of acres
developed. This relationship was then combined with the long-term trend
to project expected construction acreage for 2008 under normal
conditions (see Section XII for additional discussion of this
analysis).
XII. Economic Impact and Social Cost Analysis
A. Introduction
EPA's Economic Analysis (see ``Supporting Documentation'')
describes the impacts of today's final rule in terms of firm closures
and employment losses, in addition to firm financial performance and
market changes. In addition, the report provides information on the
impacts of the rule on sales and prices for residential construction.
The results from the small business impact screening analysis support
EPA's implementation of the Regulatory Flexibility Act (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA). Results from the government costs analysis support the
implementation of the Unfunded Mandate Reform Act (UMRA). The report
also presents identified, quantified, and monetized benefits of the
rule as described in Executive Order 12866.
This notice includes related sections such as the cost-
effectiveness analysis in Section XIII, benefits analysis in Section
XVI, and benefit-cost analysis in Section XVII. In their entirety,
these sections comprise the economic analysis (referred to collectively
as the ``C&D economic analysis'') for the final rule. EPA's
Environmental Assessment provides the framework for the monetized
benefits analysis. See the complete set of supporting documents for
additional information on the environmental impacts, social costs,
economic impact analysis, and benefit analyses.
The C&D economic analysis, covering subsectors that disturb land
(NAICS 236 and 237), uses information from, and builds upon, the 2002
final rule (67 FR 42644; June 24, 2002), the 2004 withdrawal of the
final rule (69 FR 22472; April 26, 2004), and the 2008 proposed rule
(73 FR 72562). In addition to CWA requirements, EPA has followed OMB
guidance on the preparation of the economic analyses for Federal
regulations to comply with Executive Order 12866. See Section XX.A of
today's notice.
B. Description of Economic Activity
The construction sector is a major component of the United States
economy as measured by the gross domestic product (GDP), a measure of
the output of goods and services produced domestically in one year by
the U.S. economy. Historically, the construction sector has directly
contributed about five percent to the GDP. Moreover, one indicator of
the economic performance in this industry, housing starts, is also a
``leading economic indicator,'' one of the indicators of overall
economic performance for the U.S. economy. Several other economic
indicators that originate in the construction industry include
construction spending, new home sales, and home ownership.
During most of the 1990s, the construction sector experienced a
period of relative prosperity along with the overall economy. Although
cyclical, the number of housing starts increased from about 1.2 million
in 1990 to almost 1.6 million in 2000, with annual cycles during this
period. (U.S. Census Bureau, ``Current Construction Reports, Series
C20--Housing Starts,'' 2000, available at http://www.census.gov/const/www). At the beginning of the 21st century, the
[[Page 63030]]
economy began to slow relative to previous highs in the 1990s. This
slower economic growth had a negative impact on construction starts for
new commercial and industrial projects. Driven in part by low mortgage
interest rates, consumer spending for new homes continued to remain
strong through 2005. However, in 2006 the U.S. residential construction
market began a rapid decline in activity that continued all the way
through 2008. (Global Insights, ``U.S. Economic Outlook; Executive
Summary,'' January 2009). In June of 2009, the single-family housing
market began to show signs of recovery, while multi-family construction
is still in decline. Government spending increased in the first half of
2009, and is expected to accelerate in the near future as the bulk of
the infrastructure projects, funded by the 2009 Stimulus bill, will
begin in 2010 and 2011. Conversely, the outlook for nonresidential
construction is poor as spending on new commercial and industrial
properties is decreasing due to the current recession. Overall
construction spending is expected to decline through the first quarter
of 2010, as declines in private nonresidential and multi-family housing
construction is predicted to outweigh the gains from infrastructure and
single-family home construction. (Global Insight, ``An Update on U.S.
Construction Spending,'' August 2009.) However, overall construction
spending is expected to return to positive growth by 2011 and continue
this positive trend through 2014, approximately when this rule will be
fully implemented in EPA and state NPDES permits. (Global Insight,
``U.S. Economic Service,'' July, 2009.)
1. Industry Profile
The C&D point source category is comprised of sites engaged in
construction activity, including clearing, grading and excavation
operations. The projects that fall under this category are performed by
business establishments (the Census Bureau uses the term
``establishment'' to mean a place of business; ``Employer
establishment'' means an establishment with employees) that are
involved in building construction (NAICS 236) as well as heavy and
civil engineering construction (NAICS 237). As a starting point, Table
XII-1 shows the number of business establishments whose projects are in
the C&D point source category in 1992, 1997, and 2002. Only a portion
of these establishments would be covered by the final regulation,
because some of these establishments are house remodelers and others
who build on sites with less than one acre of disturbed land each year.
The NAICS classification system changed between the issuance of the
1997 and 2002 Economic Census.
Table XII-1 shows a sharp decline in the number of developers
between 1992 and 1997. The decrease in the number of developers may
have been a response to changes in tax laws and the Financial
Institutions Reform, Recovery, and Enforcement Act (FIRREA) of 1989
(Pub. L. 101-73, August 9, 1989) and the 1993 implementing regulations.
The objective of FIRREA and the implementing regulations was to correct
events and policies that led to a high rate of bankruptcies in the
thrift industry in the late 1980s. The regulations changed lending
practices by financial institutions, requiring a higher equity position
for most projects, with lower loan-to-value ratios, and more
documentation from developers and builders. (Kone, D. L. ``Land
Development 9th ed.,'' Home Builder Press of the National Association
of Home Builders, Washington, DC 2000).
Table XII-1--Number of C&D Industry Establishments, 1992, 1997, and 2002, Economic Census Data
----------------------------------------------------------------------------------------------------------------
1992 1997 2002 Change Change
NAICS Description (No.) (No.) (No.) 92-97(%) 97-02(%)
----------------------------------------------------------------------------------------------------------------
236............................. Construction of 168,407 191,101 211,629 13.50 10.70
Buildings, except all
other Heavy
Construction \a\.
237 except 2372................. Heavy Construction, 37,180 42,554 49,433 14.50 16.20
except Land
Subdivision.
2372............................ Land Subdivision....... 8,848 8,185 8,403 -7.50 2.70
----------------------------------------------------------------------------------------------------------------
Total....................... ....................... 214,435 241,840 269,465 12.80 11.30
----------------------------------------------------------------------------------------------------------------
\a\ In the 2002 NAICS classification framework, All Other Heavy Construction was assigned among NAICS 236, 237,
and 238. To maintain relevant comparisons, 2002 All Other Heavy Construction data were reassigned back into
NAICS 237 (Heavy Construction).
Figures do not necessarily add to totals due to rounding.
Source: U.S. Census Bureau (2005).
Building upon Table XII-1, Table XII-2 shows the number of firms
that are expected to be covered under the C&D final regulation.
Construction establishments are relatively permanent places of business
where the usual business conducted is construction related.
Construction firms are an aggregation of construction establishments
owned by a parent company that share an annual payroll. EPA estimates
that for approximately 99 percent of construction firms there is only
one establishment, and those that do have more than one establishment
tend to be in the highest revenue categories.
For Table XII-2, EPA subtracted out firms that are engaged in home
remodeling (NAICS 236118) from the total of about 269,000 firms in
2002, as they would not be subject to the final regulations. The
elimination of remodelers is based on the fact that remodeling and
renovation activities generally disturb less than one acre of land, if
at all. Thus, the total number of C&D firms would be 178,835.
EPA used data from the Economic Census and other sources to define
an average housing density for the nation as a whole (average number of
housing units per acre), then used this figure to identify firms to be
excluded from regulation based on their likelihood of disturbing less
than one acre on a per project basis. EPA believes that these estimates
(of firms unaffected by the final options) are conservative, meaning
that they potentially overestimate the actual number of firms that will
be affected. First, while the regulatory threshold for NPDES regulation
applies to each site, EPA excluded firms only if the estimated number
of acres disturbed in a whole year falls below the regulatory threshold
for needing permit coverage under the NPDES regulations. In addition,
the analysis was not adjusted for the portion of a site that is
potentially left undisturbed, such as open space and buffers.
Furthermore, EPA assumes that all of the housing units built by a firm
during a year are covered by NPDES stormwater permits, while in reality
the firm could build houses on lots not covered by NPDES
[[Page 63031]]
permits. However, the Agency does not have information on the amount of
houses that are built within subdivisions, rather than on discrete
lots, by these firms.
Based upon these adjustments of the total number of firms, EPA
believes there currently are about 81,655 firms that would be covered
under the rule. However, the Agency has insufficient data to make any
further adjustments to the population of developers and builders
covered by the rule.
Table XII-2--Number of Firms Covered by the Construction and Development Final Regulations
----------------------------------------------------------------------------------------------------------------
Firms
-------------------------------
NAICS Industry sector Percent of
Number total
----------------------------------------------------------------------------------------------------------------
2361....................................... Residential Building Construction
----------------------------------------------------------------------------------------------------------------
236115..................................... New Single-family Housing 18,269 22
Construction (except operative
builder).
236116..................................... New Multifamily Housing 2,148 3
Construction (except operative
builder).
236117..................................... New Housing Operative Builder...... 16,040 20
----------------------------------------------------------------------------------------------------------------
2362....................................... Nonresidential Building Construction
----------------------------------------------------------------------------------------------------------------
236210..................................... Industrial Building Construction... 1,752 2
236220..................................... Commercial and Institutional 33,399 41
Building Construction.
----------------------------------------------------------------------------------------------------------------
237........................................ Heavy and Civil Engineering Construction
----------------------------------------------------------------------------------------------------------------
237310..................................... Highway, Street, and Bridge 10,047 12
Construction.
----------------------------------------------------------------------------------------------------------------
Total.................................. ................................... 81,655
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
2. Consideration of Current Economic Conditions
EPA received numerous comments expressing concern regarding the
effect the rule may have on the construction industry during the
current economic downturn. Although, EPA considers the rule to be
affordable even under the current adverse circumstances, EPA recognizes
that full immediate implementation of the rule could be disruptive to
the industry, and potentially slow the pace of the industry's return to
normal levels of activity.
The construction industry is distinguishable from other industries
in that it has a comparatively large number of firms, the majority of
which are small, that operate on many sites, which are temporary and
widely dispersed over a broad geographic area. EPA recognizes that
these characteristics could pose potentially greater obstacles to
mobilizing the necessary resources for compliance, than those normally
faced by industries dealing with a new regulation. By phasing in the
regulation starting with a smaller number of larger sites, EPA believes
that this will minimize the chance of bottlenecks of resources, and
reduce the start-up burden for firms as they plan for implementation
and learn new techniques. When new methods or techniques are introduced
into the production process and employees gain more experience with the
technique it is common for there to be a corresponding increase in the
efficiency of performing the new technique. This efficiency gain, often
referred to as an experience or learning curve, is likely to occur with
both the application of passive treatment systems and the monitoring of
performance. The gradual phase-in of the regulation, gives the firms
and groups such as industry trade associations time to disseminate
information on how to meet requirements in the more cost-effective
ways.
Construction is a keystone industry of the economy, comprising 10
percent of U.S. businesses and 6.6 percent of total employment. The
steep decline in construction activity since 2006 is considered a major
factor in precipitating the recent economic recession. However, the
four-year phasing process is expected to give the industry sufficient
time to experience several years of growth, before all rule
requirements are in effect. In 2014, the year that all projects greater
than 10 acres will need to comply with the numeric limit, the economic
forecasting firm Global Insights predicts that the industry will
experience its fifth consecutive year of positive growth. Forecasts of
future activity are always uncertain and Global Insights has tried to
provide baseline, positive and pessimistic predictions for several
important economic indicators. Housing starts are a considered a key
measure of industry health and they are estimated to steadily increase
during the five years after promulgation. Table XII-3 shows that even
the pessimistic forecast predicts sustained growth albeit at a slower
pace.
Table XII-3--Global Insight Five-Year Forecast of Housing Starts
[Seasonally adjusted annual rate]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2009 2010 2011 2012 2013 2014
-----------------------------------------------------------------------------------------------------------------------
Pessimistic Forecast (20% probability)... 556,000 701,000 1,044,000 1,296,000 1,472,000 1,566,000
Baseline Forecast........................ 556,000 865,000 1,294,000 1,563,000 1,659,000 1,665,000
Optimistic Forecast (20% probability).... 556,000 1,096,000 1,542,000 1,785,000 1,882,000 1,886,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Global Insights, U.S. Economic Outlook, July 2009.
[[Page 63032]]
C. Method for Estimating Economic Impacts
EPA has conducted economic impact analyses to examine the economic
achievability of each of the four ELG and NSPS options presented in
this rule. The analyses used to assess economic achievability are based
on conditions of both full implementation of the rule requirements and
an estimate of normal business conditions. These normal business
conditions reflect the long-term trend based on construction activity
data from 1990 through 2008. For more information see the Chapter 4:
Analysis Baseline of the Economic Analysis.
An important aspect of the economic impact analysis is an
assessment of how incremental costs would be shared by developers and
home builders, home buyers, and society. This method is called ``cost
pass-through'' analysis or CPT analysis. Details of this method may be
found in Chapter 6 of the Economic Analysis.
The economic analysis conducted for this rule also uses another
method called partial equilibrium analysis that builds upon analytical
models of the marketplace. These models are used to estimate the
changes in market equilibrium that could occur as a result of the final
regulation. In theory, incremental compliance costs would shift the
market supply curve, lowering the supply of construction projects in
the market place. This would increase the market price and lower the
quantity of output, i.e., construction projects. If the demand schedule
remains unchanged, the new market equilibrium would result in higher
costs for finished construction and lower quantity of output. The
market analysis is an important methodology for estimating the impacts
of the options presented in today's notice.
The economic analysis also reflects comments in the October 2001
final report from the Small Business Advocacy Review (SBAR) Panel
submitted to the EPA Administrator as part of the requirements under
SBREFA. The SBAR Panel was convened as part of the 2002 rulemaking
effort and EPA considers the information in the 2001 report to still be
relevant to today's C&D final rule. EPA also voluntarily convened a
SBAR Panel on September 10, 2008 in order to gather more information on
the potential impacts of the rule on small businesses and held an
outreach meeting with Small Entity Representative (SERs) on September
17, 2008. The current economic analysis contains changes to the initial
economic analysis done for the proposed rule, which are based on SER
comments and comments received during the proposed rule public comment
period. A summary of the changes can be found in section VII.D.
EPA estimated the incremental compliance costs for the regulatory
options using an engineering cost model that accounts for cost factors
such as treatment costs, labor, materials, and operation and
maintenance costs. Because some of the erosion and sediment controls
considered have design requirements that take into account
meteorological and soil conditions, EPA developed compliance costs that
take into account regional differences. EPA also took into
consideration the additional monitoring and reporting costs that would
be incurred by construction permit holders.
EPA estimated both the incremental compliance costs and the
economic impacts of each regulatory option at the project, firm, and
industry (national) level. The economic impact analysis considered
impacts on both the firms in the construction industry, and on
consumers who purchase the homes, and buy or rent industrial buildings
and commercial and office space. In the case of public works projects,
such as roads, schools, and libraries, the economic impacts would
accrue to the final consumers, who, in most circumstances, are the
taxpaying residents of the community. The sections below summarize each
modeling effort. Detailed information on the data, models, methods, and
results of the economic impact analyses are available in the Economic
Analysis.
1. Model Project Analysis
EPA estimated project-level costs and impacts for a series of model
projects. The models vary by size (disturbed acres), duration,
geography, and type of construction to establish the baseline
conditions for factors that can directly influence compliance costs and
firm impacts. Numerous comments by small business representatives and
public comments received by the agency suggested that the approach to
modeling projects used for the proposal did not sufficiently account
for many of the project characteristics that could affect the
feasibility and cost of compliance. Characteristics most often sighted
were project size, duration, and geographic conditions. As a result,
EPA refined the analysis to use a more refined set of model projects
that includes 12 different size categories and 12 different duration
categories. To account for how project type can affect control costs,
EPA partitioned these categories between building and transportation
projects to create 288 model project categories. These 288 different
model projects were then combined with a set of geographic conditions
unique to each state, based on a representative metropolitan area
within the state. This resulted in 7,344 model projects (144 x 51) with
distinct size, duration, type and geographic characteristics. EPA used
these characteristics to determine what the likely compliance costs
would be for each model project under each option considered.
Next EPA determined the frequency of occurrence for each of these
144 model projects within each state. This requires state level
information on the distribution of construction projects by size,
duration, and type. A comprehensive national data set with this
information does not exist. However, this information can be derived
for some states based on Notice of Intent (NOI) data. An NOI is
submitted to a state permitting authority, by each owner or operator of
the C&D site seeking coverage for their project under the state's
construction general permit. The information required under an NOI
varies from state to state, and state permitting authorities are not
required to submit their NOI information to EPA. However, some states
have voluntarily submitted their NOI data to the Agency. The Agency
identified data sets from four states (California, New York, South
Carolina, and South Dakota) containing detailed information on the type
of project, the size of the disturbed area, and the period of active
construction, which could be used to develop distributions of project
size and duration for the residential, commercial & industrial
building, and transportation sectors. The Agency used the distribution
from each of these states to represent the typical distribution for the
region of the country they are in. These four regions were delineated
based on similar geography and demographic trends. Table XII-4 shows
which representative distribution was assigned to each state. These
distributions are then combined with state value of construction data,
for each of the three sectors, and revenue per acre estimates to
predict how many actual projects are represented by each of the 288
size/duration/type categories. Given the fact there is no comprehensive
national data set with this information EPA believes this is a
reasonable approach. For more information on this approach see the
Technical Development Document.
[[Page 63033]]
Table XII-4--Assignment of Regionally Representative Project
Distributions Based on NOI Data From Four States
------------------------------------------------------------------------
States with regionally States assigned regionally representative
representative NOI data project distribution
------------------------------------------------------------------------
California................... Arizona, Colorado, Nevada, New Mexico,
Oregon, Texas, Utah, Washington.
New York..................... Connecticut, Delaware, Dist. of Columbia,
Hawaii, Illinois, Indiana, Maine,
Maryland, Massachusetts, Michigan,
Minnesota, New Hampshire, New Jersey,
Ohio, Pennsylvania, Rhode Island,
Vermont, Wisconsin.
South Carolina............... Arkansas, Florida, Georgia, Kentucky,
Louisiana, Mississippi, Missouri, North
Carolina, Oklahoma, Tennessee, Virginia,
West Virginia.
South Dakota................. Alaska, Idaho, Iowa, Kansas, Montana,
Nebraska, North Dakota, Wyoming.
------------------------------------------------------------------------
2. Model Firm Analysis
EPA analyzed the impacts of the regulations at the level of the
firm by building financial models of representative construction firms.
Model firms are broken out by seven revenue ranges for each of the six
NAICS sectors aligning with the principal construction business
segments expected to be affected by the regulation (See Table XII-2).
These revenue ranges and sector breakouts are based on data reported by
the Statistics of U.S. Business (SUSB) and the Economic Census. Within
each business sector and revenue range model firms are further
differentiated based on median, lower quartile, and upper quartile
measures of baseline financial performance and condition (i.e., capital
returns, profit margins, levels of debt and equity to capital, etc.).
Firms in the upper quartile have better than normal financial metrics,
while the metrics for firms in the lower quartile are worse than
normal. Baseline financing costs (cost of debt and equity) was varied
over revenue ranges, with firms in higher revenue ranges having access
to more favorable terms. However, the financial data was not
sufficiently disaggregated to allow financing terms to vary over the
three quartiles. These model firms are used in combination with
compliance cost estimates to examine the potential for financial
stress, firm closures, employment effects, and increased barriers to
the entrance of new firms to the industry. EPA did not base its
analysis, as it has for many past ELGs, on actual firm-specific data
because the Agency was not provided the time necessary by the district
court order to survey the industry through an Information Collection
Request and gather such data.
The financial statements for the model firms are constructed to
capture two business condition cases for the firm-level analysis:
General Business Conditions case that reflects the financial
performance and condition of construction industry businesses during
normal economic conditions; and Adverse Business Conditions case that
is meant to reflect financial performance during weak economic
conditions. The two business condition cases are differentiated by the
baseline operating financial circumstances of the model firms as well
as other important factors in firm financial performance, including
cost of debt and equity capital.
a. Assigning Projects and Costs to Model Firms
For a given sector of construction activity, model projects are
assigned to model firms based on the each model firm's capacity to
perform projects. This capacity is measured in terms of annual acreage
of construction and is determined by multiplying the firm's estimated
revenue by an average acreage per million dollars of construction. For
residential construction activity, the acreage per million dollars was
derived from the Census Bureau's Census of Housing. For nonresidential
construction activity, information on project acreage and estimated
project value from Reed Construction Data is used to derive an average
number of acres developed per million dollars of value (Reed
Construction, March 2008; see DCN 51017). So for each construction
sector within each state, model projects were systematically assigned
to the firms with the most capacity for performing the work, until all
projects and their associated costs had been assigned. For more
information on the methodology for assigning projects to firms see
Section 6.1 of the Economic Analysis.
EPA was then able to assess the impact of the annual compliance
costs on key business ratios and other financial indicators.
Specifically, EPA examined impacts on the following measures: (1) Costs
to Revenue Ratio, (2) Pre-Tax Income to Total Assets Ratio, (3)
Earnings before Interest and Taxes (EBIT) to Interest Ratio, and (4)
change in business value. The first is a simple screening level measure
which is used for measuring the impact on small entities. The second
and third are financial measures reported by Risk Management Associates
(RMA) for median, lower and upper quartiles by sector and business size
that were used in constructing the baseline financial statements for
the model firms. The change in business value measure is based on
application of compliance costs to the model firm financial statements,
both as the estimated absolute dollar change in value and the fraction
of firms whose net business value becomes negative because of
compliance outlays. The impacts of the compliance costs were examined
by calculating the values of each ratio with and without the compliance
costs.
b. Project-Level Cost Multiplier
EPA accounted for the additional costs incurred by firms for
financing the compliance costs via debt and equity over the duration of
the project. For the firm-level impact analysis, these financing costs
are explicitly accounted for by each model firm's estimated cost of
debt and cost of equity, and then by the duration of the individual
projects that are assigned to it. However, for the housing
affordability analysis, and the estimation of social costs, EPA does
not go through the process of assigning projects to firms, so a
project-level cost multiplier was developed. This multiplier represents
how direct compliance costs translate into the change in the cost of
the final product being constructed. To develop this multiplier, EPA
created a baseline scenario that incorporated assumptions concerning
the costs incurred and revenue earned at each stage of land development
and construction. EPA has included the following three principal
development stages in developing the project-level multiplier.
(1) Land acquisition. The starting point is usually acquisition of
a parcel of land deemed suitable for the nature and scale of
development envisioned. The developer-builder puts together the
necessary financing to purchase the parcel.
(2) Land development. The developer-builder obtains all necessary
site approvals and prepares the site for the construction phase of the
project. Costs
[[Page 63034]]
incurred during this stage are divided among ``soft'' costs for
architectural and engineering services, legal work, permits, fees, and
testing, and ``hard'' costs such as land clearing, installing utilities
and roads, and preparing foundations or pads. The result of this phase
is a parcel with one or more finished lots ready for construction.
(3) Construction. The developer-builder undertakes the actual
construction activity. A substantial portion of this work may be
subcontracted out to specialty subcontractors (foundation, framing,
roofing, plumbing, electrical, painting, etc.). In the case of a
housing subdivision, marketing often begins prior to the start of this
phase, hence, the developer-builder may also incur some marketing costs
at this time.
The general approach used in establishing the baseline scenario is
to assume normal returns on invested capital and normal operating
profit margins to arrive at the sales price for the final product (for
example, completed new single-family homes in a residential housing
complex, or office space in a new office park). This multiplier was
then used to adjust the compliance cost estimates used for the housing
affordability analysis and the social cost analysis.
c. Cost Pass-Through
EPA analyzed the impact of today's final rule by adding in the
regulatory costs at the appropriate stage of the project life cycle. An
important consideration for assessing who ultimately bears the
financial burden of a new regulation is the ability of the regulated
entity to pass the incremental costs of the rule on to its customers.
If the developer-builder can pass all of its costs through to the
buyer, the impact of the rule on developer-builders is negligible and
the buyer bears all the impact. Conversely, if they are unable to pass
any of the cost to buyers through higher prices, then they must assume
the entire cost. For the economic impact analysis EPA uses three pass-
through cases: zero cost pass-through; full cost pass-through; and
partial cost pass-through (85% for residential and 71% for non-
residential).
Under the first case, the zero (0%) cost pass-through assumption,
the incremental regulatory costs are assumed to accrue entirely to the
builder-developer, and appear as a reduction in per-project profits.
The sale price of the constructed unit and surrounding lot remains the
same as the asking price in the baseline. Using the full (100%) cost
pass-through assumption, all incremental regulatory costs are passed
through to end consumers. Under this approach, the compliance costs are
also adjusted to reflect the developer's cost of debt, equity, and
overhead. Consumers experience the impact of the final regulatory
options in the form of a higher price for each new building or housing
unit. For the partial cost pass-through case, firms are assumed to pass
on part of the compliance outlay to other parties. For the partial cost
pass-through case, EPA assumes a cost pass-through rate of 85% for
residential sectors and 71% for non-residential and non-building
sectors. This is the expected average long-term level of cost pass-
through based on observed response of market supply and demand to
changes in prices for new construction. For more on the method used for
determining the level of cost pass-through see Section 8.2 of the
Economic Analysis, Analysis of Social Cost of the Economic Analysis.
When a sector is stressed, cost pass-through will tend to be below this
long-term average (i.e., more costs being borne by builders).
Conversely, when a sector is booming, most costs are likely to be
passed through.
Information in the record indicates that builders do pass through
much of the regulatory costs to customers. This is supported by the
academic literature and industry publications. However, the financial
impact analysis also calculates results under the two bounding cases,
no cost pass-through for firms and full cost pass-through for
customers, to assess the ability of these groups to absorb the impact
of the regulation under a worst case scenario. The two bounding cases
also provide an approximation of the sensitivity of impact estimates to
the partial cost pass-through assumptions used for the primary case.
EPA notes that under certain conditions developers might also
attempt to pass regulatory costs back to land sellers. For example, in
a depressed market, builders may argue successfully that a regulatory
cost increase would make a particular project unprofitable unless the
land costs can be reduced. If the land seller is convinced that a
residential subdivision project would not proceed, they may be willing
to accept a lower price for undeveloped land. The ability of developers
to pass such costs back would likely depend on the sophistication of
the land owner, their experience in land development projects,
knowledge of the local real estate market, and, in particular, their
understanding of the regulations and their likely cost. While evidence
of cost pass-back to land owners exists for fixed and readily
identifiable regulatory costs such as development impact fees, it is
unclear whether a builder's claim that costs would be higher due to
construction site control regulations would induce land owners to make
concessions.
3. Housing Market Impacts
EPA developed models to assess the potential impacts of the
regulations on the national housing market. Buyers of new
nonresidential properties will also be impacted as costs are passed
through to them. However, they account for a minority of the
construction projects considered and EPA assumes that this group of
customers is not as vulnerable to changes in prices as are households
in the market for new homes. Therefore, impacts to purchasers of new
nonresidential construction sites were not highlighted as part of the
financial impact assessment and are accounted for on a more general
basis as part of the analysis of impacts on the national economy.
To analyze the impacts of compliance costs on housing
affordability, EPA estimated the level of income that would be
necessary to purchase both the median and lower quartile priced new
home without the final regulation, and the change in income needed to
purchase the median and lower quartile priced new home under each of
the regulatory options. To assess how low-income home purchasers might
be affected, EPA also looked at the change in income needed for a
$100,000 priced home. The Agency then used income distribution data to
estimate the change in the number of households that would qualify to
purchase the median, lower quartile, and $100,000 priced new home under
each of the regulatory options. In this way, EPA attempted to estimate
the number of households that may not be able to afford the exact same
new home they could under baseline conditions. The housing market
analysis was performed at the level of the metropolitan statistical
area (MSA) to account for regional differences in housing prices and
income. The housing market analysis uses the full cost pass-through
assumption, to estimate the worst-case impacts on new single-family
home buyers.
When assessing the impact of the rule on housing affordability, EPA
acknowledges that even those buyers who are able to afford the same
newly built home at the new price may still experience an impact. Many
households would continue to qualify to purchase (or rent) a housing
unit of approximately the same price (or rent)
[[Page 63035]]
as before the C&D regulation, but might instead experience a reduction
in some desirable housing attributes.
4. Impacts on the National Economy
The market model generates an estimate of the change in the total
value of construction produced by the industry, i.e., industry output.
Two effects of the regulation are acting on the market value of
construction output. First, the cost of construction activity
increases, leading to a price rise and an increase in market value of
final projects. Second, the quantity of houses sold is reduced because
of the higher price due to compliance costs. The net effect on market
value may be either positive or negative, depending on whether the
elasticity of demand for housing is less than or greater than 1. There
are also secondary impacts in other markets, caused by the shift in
consumer spending, necessitated by the increased housing costs, from
other goods to housing.
Construction markets vary in the level of activity, structure of
the industry, and ultimately cost pass-through potential, from state-
to-state and region-to-region. The modeling approach used for the
national impact analysis captures such regional variation in the
impacts of the final regulatory options by estimating partial
equilibrium models at the state level for four major building
construction sectors (single-family, multi-family, commercial, and
industrial). EPA assumes that all costs for transportation projects are
passed through to governmental entities, and therefore there is no
reduction in overall construction activity in the transportation
sector. The analysis of state- and national-level economic impacts is
based on estimating changes to economic output, employment, and welfare
measures that result from the estimated baseline market equilibrium to
the estimated post-compliance market equilibrium for each construction
sector in each state.
A partial equilibrium analysis assumes that the final regulation
will only directly affect a single industry; in this case, the four
major construction sectors that were considered. Holding other
industries ``constant'' in this way is generally appropriate since the
compliance costs of the final regulatory options are expected to result
in only marginal changes in prices and quantities and the rule does not
directly affect the other industries (HUD, 2006; see DCN 52105).
For the partial equilibrium analysis, EPA uses estimated
elasticities of market supply and demand to calculate the impact of
incremental costs on the supply curve and, thus, on prices and
quantities of construction products under post-compliance conditions.
Economic impacts in the directly affected construction industry can
trigger further shifts in output and employment losses in the set of
broader U.S. industrial sectors as these changes pass through the
economy. The U.S. Department of Commerce uses input-output techniques
to derive ``multipliers'' which indicate, for a given change in one
industry's output, how output and employment in the whole U.S. economy
will respond. EPA has applied the multipliers from the Regional Input-
Output Modeling System, version 2 (RIMS II) to the change in output
estimated from the market model to estimate some of the anticipated
impacts on national output and employment.
D. Results
1. Project-Level Impacts
For most industries the closure of existing facilities and
impediments to the opening of new facilities are a good indication of
the impact of a regulation on overall industry activity. However, for
the construction industry, the permitted activity is a temporary
project rather than ongoing operations at a permanent facility. This is
an important distinction, in that it provides construction firms with
greater flexibility in how they respond to the rule. Not only can they
elect to use one or more technologies to ensure compliance with the
rule they can also choose to modify the dimensions and timing of the
project to further minimize the effects of the rule on project
profitability. Potential projects that are not profitable after
considering compliance costs will either be modified to avoid or lessen
compliance costs, or they will not be performed. Although EPA cannot
predict the number or characteristics of future projects that may not
occur due to today's rule, the agency has estimated the percent
reduction in total construction activity resulting from the rule,
expressed in terms of acreage. Under Option 4 the reduced level of
construction activity is 231 acres or 0.03% of the total estimated
level of activity. EPA does expect the rule to have an effect on
overall project characteristics by providing an incentive to minimize
disturbed areas, disturb them for shorter durations, and possibly
separating the activity into more phases so that fewer acres are
disturbed at any one time.
2. Firm-Level Impacts
EPA has estimated the economic impacts of the final rule at the
firm level by estimating the traditional factors considered by EPA
under the CWA in determining economic achievability: the number of firm
closures, and the number of lost jobs. Since in-scope firms are
predominantly small businesses EPA also thought it informative to
consider the effects on firm profitability, which is typically
considered as part of the RFA analysis. EPA also considered it
informative to assess the impact of the rule on the financial health of
firms. The construction industry is highly reliant on raising capital
to fund projects. A firm's ability to raise capital is based in large
part on its credit worthiness and the productivity of its assets. Both
of these factors can be affected by an increase in compliance costs.
Difficulty raising capital resulting from increased costs may not cause
a firm to close but it may cause its business to grow more slowly or
actually contract.
The economic impact analysis at the firm level looks at two cases.
The first, which is the worst-case scenario, assumes that none of the
incremental costs would be passed through to the final consumer, i.e.,
zero cost pass-through. The second, which is the primary analysis case,
considered pass-through. The Agency examined the economic achievability
of options assuming zero-pass through, because it presents the worst-
case scenario (i.e., the largest impacts to the firm). The second case
(partial cost pass-through) is the primary analysis case because EPA
believes this is more reflective of typical circumstances based on
EPA's review of the academic literature and its discussions with
industry officials who indicate that under normal business conditions
most costs are passed through to the final consumer and are not
absorbed by firms in the industry.
EPA analyzed economic impacts at the firm level. The firm is the
entity responsible for managing financial and economic information.
Moreover, the firm is responsible for maintaining and monitoring
financial accounts. For the C&D category, most of the business
establishments, as defined by the Census Bureau, are firms. Likewise, a
small number of establishments are entities within a larger firm. A
small percentage of firms have multiple establishments and some firms
are regional or national in scope.
Table XII-5 presents two economic indicators that measure impacts
to firms. These indicators are presented using the partial cost pass-
through case,
[[Page 63036]]
which represents the firms' expected ability to pass costs through to
buyers, and the no cost pass-through case.
Table XII-5--Firms Expected To Incur Financial Stress
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Firms Incurring Deterioration in Financial Performance (Partial Cost Pass-through)
----------------------------------------------------------------------------------------------------------------
Number Incurring Effect..................................... 31 1,181 5,398 169
% of All In-scope Firms..................................... 0.0% 1.4% 6.6% 0.2%
% of Firms Incurring Cost................................... 0.1% 3.9% 17.7% 0.6%
----------------------------------------------------------------------------------------------------------------
Firms Incurring Deterioration in Financial Performance (No Cost Pass-through)
----------------------------------------------------------------------------------------------------------------
Number Incurring Effect..................................... 123 2,448 18,461 534
% of All In-scope Firms..................................... 0.2% 3.0% 22.6% 0.7%
% of Firms Incurring Cost................................... 0.4% 8.0% 60.5% 1.8%
----------------------------------------------------------------------------------------------------------------
Potential Closures Due to Negative Net Business Value (Partial Cost Pass-through)
----------------------------------------------------------------------------------------------------------------
Number Incurring Effect..................................... 30 430 1,254 147
% of All In-scope Firms..................................... 0.0% 0.5% 1.5% 0.2%
% of Firms Incurring Cost................................... 0.1% 1.4% 4.1% 0.5%
Number of Jobs.............................................. 1,464 33,044 67,443 7,257
% of In-scope Firm Employees................................ 0.1% 1.8% 3.6% 0.4%
----------------------------------------------------------------------------------------------------------------
Potential Closures Due to Negative Net Business Value (No Cost Pass-through)
----------------------------------------------------------------------------------------------------------------
Number Incurring Effect..................................... 172 2,251 7,449 840
% of All In-scope Firms..................................... 0.2% 2.8% 9.1% 1.0%
% of Firms Incurring Cost................................... 0.6% 7.4% 24.4% 2.8%
Number of Jobs.............................................. 7,010 155,364 319,030 35,450
% of In-scope Firm Employees................................ 0.4% 8.4% 17.2% 1.9%
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
The first measure estimates the potential decrease in the number of
firms considered financially fit. Deterioration of firm financial
performance is based on assessing the impact of costs on two financial
measures (Pre-Tax Income/Total Assets and Earnings before Interest and
Taxes/Interest). EPA estimated the fraction of firms in the various
sector and revenue ranges whose financial indicators decline below the
lower quartile for these two measures, as reported by Risk Management
Associates (RMA). For each sector and revenue category, whichever of
the two measures have the greatest decline is used to represent the
impact on financial performance. For additional information on EPA's
analysis of the change in financial position, see Section 6.2,
Estimating the Change in Model Firm Financial Performance and
Condition, from the Economic Analysis.
The second measure indicates the number of firms who are no longer
profitable as a result of the rule. This is an indicator of the number
of likely firm closures and is a commonly used measure of economic
impacts under the CWA. These numbers represent the impact on firms with
thin profit margins who are most vulnerable to impacts from cost
increases, and they do not represent the effects of a reduction in the
overall quantity of construction activity as a result of the C&D rule.
Both phenomena can result in reduced activity and job losses, but they
are two separate measures of impact that are not necessarily wholly
additive or overlapping.
Construction is a highly competitive industry that is characterized
by many small firms with a relatively high turnover and low barriers to
entry. Firms routinely expand and contract their workforce in response
to work load and as a result many workers laid off when a firm closes
are rehired by new and other existing more financially healthy firms.
Therefore, job losses due to firm closures are in many cases a
temporary displacement of the workforce. By contrast, job losses due to
market contraction result from an overall reduction in the volume of
construction and not necessarily from the closure of a firm. Table XII-
6 shows the estimated number of job losses within the construction
industry resulting from a reduction in overall construction activity
due to each of the options considered. These job losses can be
considered a more lasting effect until market conditions change again.
Table XII-6--Change in Employment Levels Due to Decreased Industry Activity, Assuming Partial Cost Pass-Through
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Employment Effect from Reduced C&D Industry Output
----------------------------------------------------------------------------------------------------------------
Estimated Permanent Reduction in Construction Jobs.......... 83 3,370 5,802 560
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
[[Page 63037]]
For more information on job losses due to market contraction, see
Chapter 9 Economy-wide Analysis in the Economic Analysis.
Table XII-7 presents one economic indicator, the relationship of
compliance cost to firms' annual revenue. A comparison between costs
and revenues is typically done prior to any consideration of the pass-
through of costs to buyers. This comparison provides a simple measure
of possible impacts on firm profitability and it is used under the RFA
to determine if a rule has the potential to have a significant impact
on a substantial number of small entities. Even under the more severe
No Cost Pass-through case, firms whose costs exceed 1% of revenue are
only 0.3 percent of the approximately 82 thousand in-scope firms for
the selected Option 4. Furthermore, there are no firms whose costs
exceed 3% of revenue for the selected Option 4.
Table XII-7--Cost to Revenue
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs exceeding 1% revenue Costs exceeding 3% revenue
-----------------------------------------------------------------------------------------------
Percent of Percent of
Option Number of Percent of firms Number of Percent of firms
firms firms in-scope incurring firms firms in-scope incurring
costs costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Partial Cost Pass-through Case
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option 1................................................ 0 0.0 0.0 0 0.0 0.0
Option 2................................................ 873 1.1 2.9 81 0.1 0.3
Option 3................................................ 3,573 4.4 11.7 225 0.3 0.7
Option 4................................................ 0 0.0 0.0 0 0.0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
No Cost Pass-through Case
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option 1................................................ 0 0.0 0.0 0 0.0 0.0
Option 2................................................ 4,717 5.8 15.5 2,399 2.9 7.9
Option 3................................................ 14,021 17.2 46.0 9,126 11.2 29.9
Option 4................................................ 276 0.3 0.9 0 0.0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
The construction industry has historically been a relatively
volatile sector, and is subject to wider swings of economic performance
than the economy as a whole. EPA has used historical financial and
census data for the construction industry to discern long-term trends
within the market fluctuations. EPA based its primary economic analysis
on data that reflects average long-term performance rather than a
temporary high or low. The industry is currently experiencing a period
of weakness that is likely to persist until residential markets work
through the current inventory of unsold homes, credit markets improve,
and the general economy returns to a better condition. As such, there
will continue to be considerable uncertainty regarding the likely
length and severity of the current slump in the construction industry.
EPA realizes that the rule will be promulgated during this low period
for the industry, and there may be concerns that additional compliance
costs, associated with the rule, could have a greater than normal
impact on construction firms and potentially slow the industry
recovery. To some degree, this will be offset, by the four year phase
in of the numeric limitation and monitoring requirements, which is part
of today's rule. Additionally, the rule will not be fully implemented,
with the associated costs to the industry, until 5 years after the
effective date of this rule, sometime in 2015, when all EPA and state
construction general permits have gone through their five year permit
cycle and new permits are issued incorporating the requirements of this
rule. See CWA section 402(b)(1)(B). The time period could be longer if
it takes permitting authorities more time to issue revised permits.
However, using historical census and financial data for the industry
EPA identified periods of weakness for various industry sectors and
used them to develop a secondary analysis that represents potential
impacts of additional compliance costs during a period of adverse
economic circumstances. Three key assumptions EPA used to represent
adverse conditions for the industry were that there would be a
contraction in overall market activity, firms would finance projects
under less favorable terms and no costs incurred by the firm as a
result of compliance would be passed through to the buyer. Table XII-8
below shows the results of the adverse analysis case. The number of
firms experiencing impacts reflects the market contraction, so they are
not directly comparable to the primary analysis case, since they
represent differing levels of regulated activity. However, the adverse
case analysis shows that the percentage of in-scope firms incurring
financial stress is 0.5% of in-scope firms and the percentage of in-
scope firms at risk of closure in the adverse case is 0.9%. However,
even with the greater impacts seen under the adverse analysis case, the
percentage of total firms experiencing financial hardship is very small
under any of the metrics considered, with respect to the final option.
Another important consideration for the adverse analysis case is that
under the no-cost pass through assumption, there are no secondary
impacts on small builders or affordability effects for buyers.
Table XII-8--Adverse Impact Analysis Results
----------------------------------------------------------------------------------------------------------------
Impact analysis concept Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Costs Exceeding 1 Percent of Revenue:
Number of Firms....................... 0............................ 2,037 6,960 105
% of Firms In-Scope................... 0.0%......................... 3.5% 11.8% 0.2%
[[Page 63038]]
% of Firms Incurring Cost............. 0.0%......................... 11.6% 39.8% 0.6%
Costs Exceeding 3 Percent of Revenue:
Number of Firms....................... 0............................ 751 3,401 0
% of Firms In-Scope................... 0.0%......................... 1.3% 5.8% 0.0%
% of Firms Incurring Cost............. 0.0%......................... 4.3% 19.4% 0.0%
Firms Incurring Financial Stress:
Number of Firms....................... 71........................... 3,163 8,168 315
% of Firms In-Scope................... 0.1%......................... 5.4% 13.9% 0.5%
% of Firms Incurring Cost............. 0.4%......................... 18.1% 46.7% 1.8%
Firms With Negative Business Value
(Potential Closures):
Number of Firms....................... 180.......................... 1,041 2,966 547
% of Firms In-Scope................... 0.3%......................... 1.8% 5.0% 0.9%
% of Firms Incurring Cost............. 1.0%......................... 6.0% 17.0% 3.1%
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
Since EPA expects that the effluent guidelines requirements will be
implemented over time as states revise their general permits (EPA
expects full implementation within five years of the effective date of
the final rule, in 2015), EPA has used macroeconomic forecasts of
construction activity to assess when the industry is likely to return
to its long-term trend. (Global Insight, ``U.S. Economic Service,''
July, 2009) Based on these forecasts, EPA anticipates that the industry
activity will have recovered to the long-term trend during the period
when the rule is being fully implemented.
3. Impacts on Governments
EPA has analyzed the impacts of today's final rule on government
entities. This analysis includes the cost to governments for compliance
at government-owned construction project sites (construction-related).
For construction-related costs, EPA assumed that 100 percent of the
incremental compliance costs that contractors incur at government-owned
construction sites are passed through to the government. EPA also
estimated the additional administrative costs that government entities
would incur for reviewing the additional monitoring reports associated
with the turbidity monitoring requirements of Options 2, 3, and 4.
Table XII-9 shows the costs that government entities are expected to
incur at federal, state, and local levels.
Table XII-9--Total Costs by Government Unit
[Millions 2008 $]
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Compliance Costs
Federal................................................. $3.8 $87.1 $166.9 $17.7
State................................................... 8.1 178.1 323.0 35.3
Local................................................... 46.2 1,022.3 1,854.0 202.4
Administrative Costs
Federal................................................. 0.0 0.0 0.0 0.0
State................................................... 0.0 2.2 6.2 6.2
Local................................................... 0.0 0.0 0.0 0.0
Total Costs
Federal................................................. 3.8 87.1 166.9 17.7
State................................................... 8.1 180.3 329.2 41.5
Local................................................... 46.2 1,022.3 1,854.0 202.4
State Government Total Revenues......................... 1,097,829 1,097,829 1,097,829 1,097,829
Total Costs as % of Total Revenues...................... 0.00 0.02 0.03 0.00
Local Government Total Revenues......................... 1,083,129 1,083,129 1,083,129 1,083,129
Total Costs as % of Total Revenues...................... 0.00 0.09 0.17 0.02
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
The additional government costs associated with today's rule are
not expected to have a significant impact on state and local
governments as they account for less than a tenth of a percent of state
government revenues and less than a tenth of a percent of estimated
local government revenues. For additional information on the effect of
the rule on government entities see the UMRA analysis in Chapter 14 of
the Economic Analysis.
4. Community-Level Impacts
EPA has estimated community-level impacts based upon the
incremental costs of the final rule at the household level. The
household impacts are those that would affect local communities in
terms of the costs of housing. EPA's analysis considers the impacts on
the price of housing based on the increase/decrease in the price of
three representative houses (median, lower quartile, and $100,000).
Table XII-10 shows the change by selected option in the price per
house. It is important to note that these costs would not apply to all
new houses built in the U.S., but rather only to those houses that are
part of construction projects that are subject to the given regulatory
option. Each of the options are assumed to affect all new homes sales,
which are approximately 12.6 percent of total annual home sales. This
is a slight over estimate because it includes those new
[[Page 63039]]
houses built in projects less than 1 acre and those that are built in
localities where erosion and sediment controls are more stringent than
the ones being promulgated today.
The table also provides estimates of the expected change in monthly
payments under each option for the median and lower quartile priced
home. The monthly mortgage payments were calculated using the median
and lower quartile priced house for each Metropolitan Statistical Area
(MSA) in the country. For the MSA's, the weighted average median price
for a home is $356,000, the 5th percentile is $117,000, and the 95th
percentile is $498,000. For the lower quartile priced home, the
weighted average is $251,000, the 5th percentile is $70,000, and the
95th percentile is $371,000. The U.S. Census does not report lot sizes
for the upper or lower quartile. Instead the Census reports the median
for all new single-family homes and the median for new single-family
homes that are attached (townhomes). Housing census data indicates that
lower-priced homes have a greater likelihood of having a smaller lot
size (U.S. Census Characteristics of New Housing, 2006). To account for
this factor, EPA performed the affordability analysis for the lower-
quartile price home twice, using both the median lot size for all
single family homes and the median lot size for attached single family
homes. To assess the impacts on those households that were just able to
afford a house at the low end of the housing market, EPA also included
an analysis of the expected change in monthly payments for a new house
valued at $100,000.
Table XII-10--Change in Monthly Mortgage Payment for New Single-Family Home (Full Cost Pass-Through)
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
New Single-Family Median Priced Home on Median Sized Lot
----------------------------------------------------------------------------------------------------------------
Price Change New Single-Family Home on Median Sized Lot..... $59 $2,231 $4,093 $415
Baseline Mortgage Payment ($/month)......................... $1,953 $1,953 $1,953 $1,953
New Mortgage Payment ($/month).............................. $1,954 $1,969 $1,982 $1,956
% Change.................................................... 0.02% 0.80% 1.45% 0.14%
----------------------------------------------------------------------------------------------------------------
New Single-Family Lower Quartile Priced Home on Median Sized Lot
----------------------------------------------------------------------------------------------------------------
Price Change New Single-Family Home on Median Sized Lot..... $59 $2,231 $4,093 $415
Baseline Mortgage Payment ($/month)......................... $1,352 $1,352 $1,352 $1,352
New Mortgage Payment ($/month).............................. $1,352 $1,367 $1,380 $1,355
% Change.................................................... 0.03% 1.15% 2.10% 0.21%
----------------------------------------------------------------------------------------------------------------
New Single-Family Lower Quartile Priced Home on Median Sized Attached Lot
----------------------------------------------------------------------------------------------------------------
Price Change New Single-Family Home on Median Sized Attached $20 $745 $1,367 $139
Lot........................................................
Baseline Mortgage Payment ($/month)......................... $1,352 $1,352 $1,352 $1,352
New Mortgage Payment ($/month).............................. $1,352 $1,357 $1,361 $1,353
% Change.................................................... 0.01% 0.38% 0.70% 0.07%
----------------------------------------------------------------------------------------------------------------
New Single-Family $100,000 Priced Home on Median Sized Lot for Attached Single-Family Home
----------------------------------------------------------------------------------------------------------------
Price Change New Single-Family Home on Median Sized Attached $20 $745 $1,367 $139
Lot........................................................
Baseline Mortgage Payment ($/month)......................... $681 $681 $681 $681
New Mortgage Payment ($/month).............................. $681 $686 $691 $682
% Change.................................................... 0.02% 0.76% 1.39% 0.14%
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
The increase in mortgage payments attributable to the final options
compared to the estimated mortgage payment for the median price of a
new house in the U.S., currently about $1,953, is a small percentage of
the overall payment. For these costs, the average monthly mortgage
payment would increase by $1, $16, $29, and $3 per month for Options 1,
2, 3, and 4, respectively. For the analysis, EPA assumes that buyers
finance approximately 80% of the home purchase price using a 30-year
conventional fixed rate mortgage with an interest rate of 7.39%.
EPA also estimated how the change in home prices would affect
mortgage availability. EPA estimated that 1,249 prospective home
purchasers seeking to buy a new median priced single-family home would
be affected by the final rule, of which 354 would no longer qualify
using a 29% housing payment-to-income ratio. At the lower end of the
housing market, 518 prospective home purchasers seeking to buy a new
$100,000 priced single-family attached home would be affected by the
final rule, of which 246 would no longer qualify using a 29% housing
payment-to-income ratio. However, these are only specific points along
the spectrum of housing prices and therefore do not represent the total
number of households that would have to make a different homebuying
decision as a result of the rule. For more information on the
affordability analysis see Section 7, Analysis of Single-Family Housing
Affordability Impacts, of the Economic Analysis.
5. Foreign Trade Impacts
As part of its economic analysis, EPA has evaluated the potential
for changes in U.S. trade (imports, exports) of construction-related
goods and services. A significant component of the U.S. C&D category
operates internationally, and, in addition, numerous foreign firms that
participate in this category also operate in the U.S. EPA judged that
the potential for U.S. construction firms to be differentially affected
by the final rule is negligible. The final rule will be implemented at
the project level, not the firm level, and will affect projects within
the U.S. only. All firms undertaking such projects, domestic or
[[Page 63040]]
foreign, will be subject to the final rule. U.S. firms doing business
outside the U.S. will not be differentially affected compared to
foreign firms, nor will foreign firms doing business in the U.S.
This final rule could theoretically stimulate or depress demand for
some construction-related goods. To the extent that the final rule acts
to depress the overall construction market, demand for conventional
construction-related products may decline. This decline may be offset
by purchase of goods and services related to erosion and sediment
control. Overall, EPA does not anticipate that any shifts in demand for
such goods and services resulting from the rule would have a
significant implication for U.S. and foreign trade.
6. Impacts on New Firms
The construction sector is a relatively fluid industry, as
documented in the industry profile, with low barriers to entry and
considerable entry and exit activity from year to year. As a result,
the potential employment losses or capital idling effects of weakness
in a specific firm are likely to be offset by changing levels of
activity in other existing firms or entry of new firms into the local
market. In addition, existing firms would need to meet the same
requirement, and therefore would not obtain a competitive advantage
over new entrants.
EPA conducted an analysis to assess the impacts on new firms that
choose to enter the C&D point source category. This analysis uses a
method called ``barrier to entry'' and is relevant to determining BADT
for NSPS. EPA examined the ratio of compliance costs to current and
total assets to determine if new market entrants could find it more
difficult to assemble the capital requirements to start a project than
would existing firms. The methodology is conservative, because it
doesn't account for the fact that a firm would typically be expected to
finance 20 percent of the incremental compliance costs from their own
financial resource to obtain the loan, not the full amount as assumed
here.
For the selected regulatory option (Option 4), the increase in
financing requirement varies from approximately 0.0 percent to 4.1
percent of baseline assets depending on the firms size and business
sectors. This comparison assumes that the new firm's compliance outlay
would be financed and recorded on its balance sheet. To the extent that
the compliance outlay is financed and recorded not on the firm's
baseline sheet but as part of a separate project-based financing for
each individual project, this comparison is likely to be overstated,
perhaps substantially. EPA does not consider the increase in financing
requirements to pose a significant barrier to entry for potential
businesses and projects.
This analysis likely overstates the costs that will need to be
financed by new entrants to the industry. For the economic analysis,
industry firms were grouped into one of seven revenue ranges. Firms
with higher revenues are considered to be more capable of performing
larger projects. This assumption formed the basis for assigning model
projects and their associated compliance costs to model firms. Under
Option 4, compliance costs for projects under 10 acres are considerably
less than they are for projects 10 acres and above. EPA believes that
most new entrants will likely be small firms starting in one of the
lower revenue ranges considered for the economic analysis, and so they
will likely be performing projects less than 10 acres.
7. Social Costs
EPA's analysis of social costs for each option contains three cost
components: (1) Firm compliance costs; (2) incremental increase in
government administrative costs; and (3) deadweight loss (loss of
economic efficiency in the construction market). When summed, these
three cost categories comprise the total social costs for each option.
EPA has conducted a social cost analysis for each option. The
Economic Analysis provides the complete social cost analysis for the
final regulation. The firm-level estimate compliance cost, however,
does not account for the potential affect of the final options on the
quantity of construction activity/units performed in the various
construction markets. Compliance costs for each final option have the
effect of increasing builder/developer costs, which can cause a
leftward shift in the market's supply curve. Part of the increased
costs may raise the price of new housing, with the balance of increased
costs being absorbed by the builder, depending on the relative
elasticities of supply and demand. The resulting shift in market
equilibrium may also reduce the quantity of construction units produced
in a given market.
EPA has estimated a state-by-state linear partial equilibrium
market model for each construction building sector to estimate this
potential market effect on the quantity of output. The estimated change
in the quantity of output produced in each construction market segment
is then used to not only adjust the firm-level resource cost of
compliance, but also to compute the economic value of the reduction in
construction output, and estimate the total loss of consumer and
producer surplus, referred to as the deadweight loss. Table XII-11
shows the change in cost due to the quantity effect (i.e. reduction in
market activity), the dead weight loss, and their combined effect on
total costs.
Table XII-11--Total Social Cost of Options [Millions of $2008]
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Total Costs, Unadjusted for Quantity Effect................. $176 $4,866 $9,090 $953
Change in Costs Due to Quantity Effect...................... 0.01 10 31 0.29
Total Costs, Adjusted for Quantity Effect................... 176 4,856 9,059 952
Total Dead Weight Loss...................................... 0.0 5.0 15.5 0.15
Additional Government Administrative Costs.................. 0.0 2.2 6.2 6.2
Total Social Cost of the Regulation......................... 175.7 4,863.1 9,081.1 958.7
----------------------------------------------------------------------------------------------------------------
8. Small Business Impacts
Section XX.C of today's notice provides EPA's Regulatory
Flexibility Analysis (RFA) analyzing the effects of the rule on small
entities. For purposes of assessing the economic impacts of today's
final rule on small entities, small entity is defined by the US Small
Business Administration (SBA) size standards for small businesses and
RFA default definitions for small governmental jurisdictions. The small
entities regulated by this final rule are small land developers, small
residential construction firms, small commercial, institutional,
industrial and manufacturing building firms, and small heavy
construction firms.
[[Page 63041]]
Table XII-12 shows the impacts of the final rule using the one
percent and three percent revenue tests, a method used by EPA to
estimate the impacts on small businesses for the regulatory options.
Table XII-12--Small Business Analysis for Options, 1% and 3% Revenue Tests
----------------------------------------------------------------------------------------------------------------
1% revenue test 3% revenue test
---------------------------------------------------------------
Option Number of Percent of Number of Percent of
small firms small firms small firms small firms
----------------------------------------------------------------------------------------------------------------
Partial Cost Pass-through Case
----------------------------------------------------------------------------------------------------------------
;Option 1....................................... 0 0.0 0 0.0
Option 2........................................ 593 0.8 60 0.1
Option 3........................................ 3,008 3.9 187 0.2
Option 4........................................ 0 0.0 0 0.0
----------------------------------------------------------------------------------------------------------------
No Cost Pass-through Case
----------------------------------------------------------------------------------------------------------------
Option 1........................................ 0 0.0 0 0.0
Option 2........................................ 3,454 4.5 1,843 2.4
Option 3........................................ 11,889 15.4 8,106 10.5
Option 4........................................ 230 0.3 0 0.0
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
Under the No Cost Pass-through case, Table XII-12 shows that for
the selected option (Option 4), less than a thousand small firms would
be likely to incur direct costs exceeding one percent of revenue, which
accounts for less than one percent of the approximately 78 thousand
small in-scope firms. Therefore, EPA does not consider the selected
option to have the potential to cause a significant economic impact on
a substantial number of small entities. EPA acknowledges that
additional small builders may experience secondary impacts in the form
of higher lot prices as larger developers attempt to pass some of their
compliance costs through to them. The ability of large developers to
pass-through costs to builders will vary based on market conditions in
the same manner that the pass-through rate to the purchaser of the
finished construction can vary. Additionally, as noted above, some of
these small builders may also be copermittees who are required to be in
compliance with these standards. To the extent they are copermittees,
they are not accounted for in the firms incurring costs. However, all
costs have been attributed to firms. Allocating costs over a broader
number of firms may or may not increase the estimated impacts, but
spreads the costs over a larger number of firms.
XIII. Cost-Effectiveness Analysis
For many effluent limitations guidelines, EPA performs a cost-
effectiveness (C-E) analysis using toxic-weighted pound equivalents.
The C-E analysis is useful for describing the relative efficiency of
different technologies. The pollutant removals estimated for today's
final rule are all based on sediment and sediment bound nutrients.
While EPA expects that today's rule would also result in a significant
reduction of other pollutants associated with sediment at construction
sites, such as turbidity, metals, organics, oil and grease, pesticides
and herbicides, the Agency has not quantified these reductions. The
Agency does not have a methodology for converting sediment, measured as
TSS or turbidity, into toxic-weighted pound equivalents for a C-E
analysis. Instead, EPA compared the cost of each regulatory option to
the pounds of sediment removed. This unweighted pollutant removal
analysis is meaningful because it allows EPA to compare the cost
effectiveness of one option against another, and to other sediment
reduction efforts. Table XIII-1 shows a comparison of the cost-
effectiveness of the options for controlling sediment discharges.
Details on the estimates of sediment reductions can be found in Section
XV.B.
Table XIII-1--Cost-Effectiveness of Options
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Compliance Cost (millions 2008$)............................ $176 $4,866 $9,090 $953
Sediment Removed (million lbs/yr)........................... 1,743 3,616 4,507 3,971
Cost per Pound Removed ($/lb)............................... 0.10 1.35 2.02 0.24
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
XIV. Non-Water Quality Environmental Impacts
Under sections 304(b) and 306(b) of the CWA, EPA is to consider the
``non-water quality environmental impacts'' (NWQEI) when promulgating
ELGs and NSPSs. EPA used various methods to estimate the NWQEI for each
of the options considered for today's final rule.
A. Air Pollution
EPA estimates that today's final rule would have no significant
effect on air pollution because the final rule would not significantly
alter the use of heavy equipment at construction sites. Accordingly,
the levels of exhaust emissions from diesel-powered heavy construction
equipment and fugitive dust emissions generated by construction
activities would not change substantially from current conditions as a
result of the final rule. The final rule, which relies on the use of
passive treatment, typically does not utilize large diesel-powered or
gasoline pumps. The only anticipated use of pumps would be due to the
use of small metering pumps to introduce polymer in certain situations.
These pumps
[[Page 63042]]
would only use a trivial amount of energy and would produce only a
trivial amount of air emissions. On certain sites, it may be necessary
to remove accumulated sediment from basins and traps. In these cases,
construction equipment may need to periodically remove accumulated
sediment. In these cases, additional emissions due to construction
equipment may occur. EPA estimates that the final rule will result in
the removal of approximately 1,986,000 tons of sediment annually. EPA
estimates that increased emissions from construction equipment to
remove this quantity of sediment would be approximately 0.0009 percent
of current industry emissions. Table XIV-1 shows the expected emissions
due to the final rule.
Table XIV-1--Air Emissions Due to Final Rule
------------------------------------------------------------------------
Emissions
Parameter (pounds/year)
------------------------------------------------------------------------
Reactive organic gases.................................. 4,707
Carbon monoxide......................................... 15,335
Nitrogen oxides......................................... 43,970
Sulfuric oxides......................................... 45
Particulate matter...................................... 1,809
Carbon dioxide.......................................... 4,167,800
Methane................................................. 424
------------------------------------------------------------------------
B. Solid Waste Generation
Generation of solid waste could be affected under today's final
rule because of the large volumes of sediment containing polymers or
other chemicals that may accumulate in sediment basins and traps and
behind check dams and other sediment control structures. Where
permittees are using polymers or other chemicals to treat stormwater,
then sediment accumulated in sediment basins, traps or in drainage
channels may need to be handled as solid waste, depending on the nature
of the chemical used. However, most permittees using chemical additives
are expected to select polymers that would enable the operator to apply
solids (i.e., sediment) on-site as fill material to avoid the
transportation and disposal costs associated with hauling off-site.
C. Energy Usage
The consumption of energy as a result of today's final rule is not
expected to be significant because the operations that currently
consume energy (both direct fossil fuel use and electricity) will not
be changing to any substantial degree during land disturbance. PTS
utilize little or no energy, hence no significant increase in fuel
consumption by the industry is anticipated. However, removal of
accumulated sediment would require use of construction equipment, which
would increase diesel fuel and gasoline consumption by the industry.
However the additional fuel consumption for these activities is
expected to be small compared to current consumption for this industry.
EPA estimates that gasoline and diesel fuel consumption due sediment
removal would be approximately 76,000 gallons per year as a result of
the final rule. This represents an increase in fuel usage by the
industry of approximately 0.0009 percent over current usage, which was
estimated at approximately 8.3 billion gallons per year in 2002 (2002
Economic Census, U.S. Census Bureau). In addition, polymers such as
polyacrylamide are produced from petroleum, so additional
polyacrylamide usage to treat construction site stormwater discharges
would result in increased petroleum consumption. However, usage on
construction sites is not expected to significantly increase demand for
acrylamide. U.S. acrylamide demand in 2001 was estimated to be
approximately 253 million pounds, and additional usage on construction
sites would be approximately 4.56 million pounds per year if all
discharges from all regulated sites were to use PAM at a dosage of 2
mg/L. Therefore, additional petroleum and energy consumption due to PAM
production and usage is expected to be small. See section 11 of the TDD
for additional discussion.
XV. Environmental Assessment
A. Surface Water Impacts From Discharges Associated With Construction
Activity
In its Environmental Assessment (see ``Supporting Documentation''),
EPA evaluated environmental impacts from stormwater discharges
associated with construction activity.
As discussed in Section VIII, stormwater discharges associated with
construction activity have been documented to increase the loadings of
several pollutants to receiving surface waters. The most prominent and
widespread pollutant discharges from construction sites are turbidity
and sediment. Discharges of metals, nutrients, and petroleum
hydrocarbons have also been documented. Other pollutants discharged
from construction sites include polycyclic aromatic hydrocarbons (PAHs)
and other toxic organic compounds.
Pollutants other than sediment and turbidity derive from
construction equipment and materials, natural soil constituents, and
contamination existing prior to the start of construction activity at a
site. Construction activities mobilize sediments and other pollutants
by disturbing soil and altering stormwater discharge quantity and
patterns during precipitation events and from exposure of rainfall and
runoff to construction materials. Excavation dewatering and irrigation
of revegetation areas, if not properly managed, can mobilize pollutants
during dry weather.
Surface water effects from construction site discharges include
physical, chemical and biological changes. Physical and chemical
changes include modified stream flow and elevated levels of turbidity,
suspended solids and other pollutants. Biological changes include
reduced organism abundance, modified species composition, and reduced
species diversity.
Sediment and turbidity are the primary pollutants in discharges
associated with construction activity and are also significant sources
of water quality impairment. Nitrogen and phosphorus, also present in
construction site discharges, contribute significantly to water quality
impairment as well. EPA's Wadeable Streams Assessment (2006) is a
statistical survey of the smaller perennial streams and rivers that
comprise 90 percent of all perennial stream miles in the coterminous
United States. Excess nitrogen, phosphorus, and streambed sedimentation
are among the most widespread stressors examined in the survey.
According to the survey, 25 percent of streams have ``poor'' streambed
sediment condition, 31 percent have ``poor'' phosphorus condition, and
32 percent have ``poor'' nitrogen condition relative to reference
streams. The risk of having poor biological condition was two times
greater for streams scoring ``poor'' for nutrient or streambed sediment
condition than for streams that scored ``good.''
In addition, EPA's Assessment TMDL Tracking and Implementation
System (ATTAINS) provides information on water quality conditions
reported by the states to EPA under Sections 305(b) and 303(d) of the
Clean Water Act. According to ATTAINS (as of September 17, 2009),
turbidity contributes to impairment of 26,278 miles of assessed rivers
and streams, 1,008,276 acres of assessed lakes, and reservoirs, and 240
square miles of assessed bays and estuaries. The total area of impaired
surface waters due to turbidity is probably underestimated due to the
low percentage of surface waters that have been assessed. See the
Environmental Assessment for
[[Page 63043]]
additional information on the Wadeable Streams Assessment and ATTAINS.
Discharges from construction sites impair or place additional
stress on already impaired surface waters. Multiple states have
identified construction activity as a source of impairment for surface
waters within their jurisdiction.
Ecological impacts from sediment and turbidity discharges to
surface waters can be acute or chronic and vary in severity depending
on the quantity of sediment and turbidity discharged, the nature of the
receiving waterbody and aquatic community, and the length of time over
which discharges take place. Sediment and turbidity can depress aquatic
organism growth, reproduction, and survival, leading to declines in
organism abundance and changes in community species composition.
Threatened and Endangered (T&E) and other special status species are
particularly susceptible to adverse habitat impacts. According to the
United States Fish and Wildlife Service, increased sedimentation is one
of the main contributors to the demise of some fish, plants, and
invertebrates.
There are numerous ways in which sediment and turbidity affect
aquatic communities. Sediment deposition on waterbody beds can bury
benthic communities, smothering fish eggs and other benthic organisms
and severing connections to organisms in the water column.
Sedimentation also modifies some benthic habitats by filling crevices
and burying hard substrates, making recolonization by the previously
existing community difficult unless the sediment is removed.
In the water column, elevated turbidity levels block light needed
for photosynthesis by submerged aquatic vegetation (SAV), resulting in
its reduced growth or death. Because SAV is a primary producer depended
upon by many other organisms in aquatic ecosystems, its loss or
reduction can create a cascade of impacts through aquatic communities,
lowering community health and productivity. Increased turbidity also
impairs the ability of visual predators (e.g., many fish species) to
forage successfully. Increased sediment concentrations in the water
column can impair fish gill function, reducing the ability of fish to
breathe. These and other processes by which sediment and turbidity
discharges impair aquatic ecosystems are discussed in more detail in
the Environmental Assessment.
Increased sediment and turbidity levels in surface waters also
adversely affect direct human uses of water resources. These uses
include navigation channels, reservoirs, drinking water supply,
industrial process water supply, agricultural water supply, and
recreational use. Property values also depend in part on the quality of
nearby surface waters, though these may reflect the values already
discussed and not necessarily represent a separate benefit.
Sediment deposition on riverbeds and in harbors can fill and impede
use of navigable channels. Between 1995 and 2008, the U.S. Army Corps
of Engineers (USACE) funded nearly 3,400 dredging projects at a cost of
more than $9 billion (2008 dollars) to remove more than 2.6 billion
cubic yards of sediment from U.S. navigable waters (United States Army
Corps of Engineers Dredging Database 2009). Reservoirs and lakes serve
a variety of functions, including drinking water storage, hydropower
supply, flood control, and recreation. Sediment deposition on reservoir
and lake beds reduces their capacity to serve these functions. An
increase in sedimentation rate reduces the useful life of these waters
unless measures are taken to reclaim their capacity. In waters serving
as a drinking water source, elevated turbidity, suspended sediment, and
other pollutants degrade water quality, and may require increased
treatment levels.
Sediment can also have negative effects on industrial activities.
Suspended sediment increases the rate at which hydraulic equipment,
pumps, and other equipment wear out, causing accelerated depreciation
of capital equipment. Sediment can also clog water intakes at power
plants and other industrial facilities and drinking water intakes.
Elevated levels of sediment and other pollutants in irrigation
water used for agriculture can harm crops and reduce agricultural
productivity. Suspended sediment can form a crust over a field,
reducing water absorption, inhibiting soil aeration, and preventing
emergence of seedlings. Sediment can also coat plant leaves, inhibiting
plant growth and reducing crop value and marketability. Other
pollutants can damage soil quality.
Sediment deposition in river channels, ditches, stormwater basins
and culverts reduces their capacity and can increase flood levels and
frequency, increasing the level of adjoining property damage from
flooding. Sediment and turbidity can degrade surface water appearance,
lowering property values near impacted surface waters and the
desirability of surface waters for recreational activities such as
boating, fishing, and swimming.
Sediment and turbidity are the primary pollutants known to be
associated with construction activity, but as stated earlier in this
section, other pollutants such as nitrogen, phosphorus and metals are
also discharged from construction sites. These pollutants can also harm
aquatic ecosystems. Additional qualitative information on the
environmental impacts associated with all pollutants from construction
sites is provided in the Environmental Assessment. The remaining
discussion in this section describes EPA's quantitative analysis of
discharge levels and water quality impacts associated with sediment,
nitrogen, and phosphorus from construction sites.
B. Quantification of Sediment Discharges Associated With Construction
Activity
EPA used a model project approach to estimate baseline sediment
loads and to estimate loading reductions for the C&D industry under the
regulatory options evaluated. EPA used RUSLE to estimate loads and load
reductions at the RF1 scale. This approach consisted of the following
steps:
Developing a series of model projects of differing sizes,
durations and types based on an analysis of NOI data;
Determining RF1-level estimates for RUSLE and hydrologic
parameters using national GIS data layers, supplemented with BPJ
estimates of parameters for which data were not available;
Estimating baseline and option-specific estimates of
sediment loads for each RF1. For Option 1, estimates were developed
based on changes in the RUSLE practice factors and cover factors from
baseline. For Options 2, 3 and 4, estimates were developed using a
concentration approach for acres subject to turbidity limitations, and
the Option 1 approach for acres not subject to turbidity limitations;
and
Summing RF1 loads to the national level.
For Options 2 and 3, EPA used a TSS value of 25 mg/L as an
approximation of the level of sediment contained in discharges
following ATS. For Option 4, EPA used a TSS value of 250 mg/L as an
approximation of the level of sediment contained in discharges
following the application of passive treatment. EPA calculated removals
based on the change in concentration between baseline conditions and
the respective level under the regulatory options. Under baseline
conditions, modeled TSS concentrations for RF1s ranged from
approximately 8 to 8,200 mg/L, with a median value of approximately
1,550 mg/L. Estimated
[[Page 63044]]
sediment loading reductions for the options can be found in Table XIII-
1.
C. Quantification of Surface Water Quality Improvement From Reducing
Discharges Associated With Construction and Development Activity
This section describes the methodology EPA used to quantitatively
assess national water quality impacts from construction activity
sediment, nitrogen, and phosphorus discharges and the water quality
benefits expected from today's rule. This analysis has been revised
since the proposed rule in that it expands the quantitative analysis of
the water quality benefits beyond sediment reductions to include
reductions in nitrogen and phosphorus discharges from construction
sites. Other pollutant discharges associated with construction activity
(e.g., toxic organic compounds and metals) also create water quality
impacts, but the information available to EPA on their discharge is
insufficient to quantitatively analyze their impacts. These pollutants
are instead discussed qualitatively in the Environmental Assessment
document.
The water quality impact analysis utilized estimates of sediment
discharges from construction sites throughout the coterminous United
States. EPA estimated discharges under current conditions as well as
under the requirements set forth in today's rule.
To estimate improvements to water quality from reducing
construction site discharges, EPA used SPARROW models. SPARROW is a
statistically-based modeling approach developed by the United States
Geological Survey that relates surface water quality component levels
to attributes of contributing watersheds. EPA used national versions of
the models that allow quantification of water quality in the RF1
surface water network which encompasses approximately 700,000 miles of
the largest, perennial rivers and streams and associated lakes,
reservoirs, and estuarine waters in the coterminous United States. The
sediment, nitrogen, and phosphorus versions of SPARROW allowed EPA to
estimate baseline concentrations of suspended sediment, nitrogen, and
phosphorus, respectively, in these surface waters, as well as levels of
sediment accumulation in reservoirs.
Following estimation of baseline water quality conditions, EPA used
the SPARROW sediment model to quantify the reductions in surface water
suspended sediment concentrations and sediment accumulation in
reservoirs associated with reducing sediment discharges from
construction sites under today's rule. To quantify water quality
improvements from reducing nitrogen and phosphorus discharges, EPA used
results from the SPARROW sediment, nitrogen, and phosphorus models'
estimation of baseline water quality conditions to estimate watershed-
level relationships between suspended sediment and nitrogen and
phosphorus loading from land-related sources. EPA used these
relationships to estimate the surface water reductions in nitrogen and
phosphorus associated with surface water sediment reductions as
estimated by the SPARROW sediment model for conditions under today's
rule. Additional description of this analysis is provided in the
Environmental Assessment.
For certain estuarine waters, EPA also used the Dissolved
Concentration Potential (DCP) approach developed by the National
Oceanic and Atmospheric Administration (NOAA) to estimate suspended
sediment concentrations. This model estimates ambient concentrations of
conserved contaminants that are subject to mixing and dilution when
introduced to estuaries. EPA used the DCP approach for those estuarine
waters for which available data on flow was insufficient to estimate
suspended sediment concentrations. NOAA has provided DCP factors for
most major estuaries in the coterminous United States. These factors
allow estimation of estuarine TSS concentrations without detailed
numerical simulation modeling. Additional description of this analysis
is provided in the Environmental Assessment.
Construction activity in the United States is unevenly distributed
among watersheds. It is highly concentrated in some areas and is sparse
or absent in others. For this reason, EPA presents in this discussion
the results of its water quality analysis for two different sets of
watersheds. The first set includes all RF1 watersheds containing more
than 1 acre of annual construction activity, or 93% of all construction
acres. This set contains all RF1 watersheds for which EPA estimated
reductions in construction site sediment discharges and encompasses
approximately 412,000 RF1 surface water miles (``All''). The second set
contains the 10 percent of RF1 watersheds in ``All'' with the highest
number of construction acres (``Top 10%''). This set encompasses 58
percent of all construction activity and therefore reflects conditions
associated with the majority of construction activity in the
coterminous United States. This set encompasses approximately 64,000
RF1 surface water network miles.
EPA estimates that construction sites in ``All'' RF1 watersheds
discharge approximately 5.2 billion pounds of sediment per year under
current conditions. Construction discharges elevate suspended sediment,
nitrogen, and phosphorus levels, on average, 2.4 mg/L, 0.02 mg/L, and
0.0060 mg/L, respectively, beyond what they would otherwise be in
412,000 RFI surface water miles. They also cause deposition of 1.7
million cubic yards of sediment in reservoirs each year.
The rule will reduce construction site sediment discharges from
``All'' RF1 watersheds by approximately 4 billion pounds per year. TSS,
nitrogen, and phosphorus concentrations in affected surface waters are
expected to decrease approximately 2 mg/L, 0.015 mg/L, and 0.0058 mg/L
respectively, on average. Sediment deposition in reservoirs is expected
to fall by more than 1.3 million cubic yards annually. In the ``Top
10%'' set of watersheds, TSS, nitrogen, and phosphorus levels are
expected to decrease approximately 4 mg/L, 0.049 mg/L, and 0.024 mg/L
respectively, on average. Average TSS, nitrogen, and phosphorus
concentration reductions are greater for ``Top 10%'' watersheds because
construction sites exert a stronger influence on water quality in these
areas. Current median concentrations of TSS, nitrogen, and phosphorus
in RF1 reaches receiving construction site discharges are 289 mg/L,
1.65 mg/L, and 0.25 mg/L, respectively.
Because surface waters transport pollutants downstream, water
quality will also improve in additional reaches downstream of those
reaches directly receiving construction site pollutants. EPA's analysis
indicates that today's rule will improve water quality in more than
431,000 miles of surface waters, or approximately 69% of the more than
627,000 miles in the RF1 surface water network for the coterminous
United States assessed in EPA's analysis.
The numbers above reflect average surface water conditions over
very large geographic areas and long time scales. They do not convey
the spatial and temporal variability in pollutant concentrations seen
in actual surface waters. Construction sites are dispersed throughout
the United States, but they comprise only approximately 0.04% of total
land area in the coterminous United States on an annual basis. In
addition, as described earlier in this section, construction acreage
concentrates in a relatively small number of watersheds. It is notable
that, despite their small land area, construction sites impact a large
proportion of the nation's surface
[[Page 63045]]
waters. Temporally, most construction site discharges are driven by
precipitation events and are therefore highly episodic. In-stream
turbidity, TSS, nitrogen, phosphorus and other pollutant concentrations
in surface waters deriving from construction site discharges are
typically higher during and shortly after precipitation events and
lower during periods in between precipitation events. For these
reasons, the most highly visible impacts from construction sites are
observed in surface waters immediately downstream of construction sites
during and immediately following precipitation events. During these
periods, suspended sediment levels can rise from several to hundreds of
milligrams per liter above those observed immediately upstream of
construction sites. Likewise, turbidity levels can rise from tens to
hundreds of NTUs. With the cessation of precipitation and movement and
dilution of pollutants as water flows downstream, suspended pollutant
concentrations decline (deposited sediment and associated pollutants,
however, can persist). EPA's quantification of water quality impacts
from construction site discharges reflects an averaging of these
discharge events both over time and over the 412,000 miles of surface
waters directly impacted by construction site discharges in today's
rule.
EPA did not attempt to quantify pollutant discharges from other
construction site sources, such as discharges from dewatering
activities, vehicle and equipment washing, and erosion and deposition
by wind. Since these discharges may occur at any time during the
construction project and are not necessarily tied to storm events, EPA
expects that these discharges would influence receiving water quality
during inter-event periods and that benefits would accrue if these
discharges were reduced from baseline levels. EPA, however, lacked data
and an appropriate methodology for quantifying the nature and extent of
these potential discharges.
Estimates from EPA's national quantitative analysis of water
quality impacts were used for a quantitative analysis of the economic
benefits of today's rule. This analysis is discussed in Section XVI.
XVI. Benefit Analysis
EPA has assessed the potential benefits associated with the final
rule by identifying various types of benefits that can result from
reducing the level of turbidity, sediment and other pollutants being
discharged from construction sites. Where possible, EPA has attempted
to quantify and monetize benefits attributable to the regulatory
options. Section III of the Environmental Impact and Benefits
Assessment, describes in more detail the analytical framework for the
benefits analysis.
A. Benefits Categories Estimated
Discharges of turbidity, sediment, nutrients, and other pollutants
from construction activity can have a wide range of effects on down
stream water resources. As discussed in Section XV, there are numerous
potential impacts to local aquatic environments, but there are also
consequences for human welfare, which are discussed here. Human
activities and uses affected by construction discharge-related
environmental changes include recreation, commercial fishing, public
and private property values, navigation, and water supply and use.
Sediments, nutrients, and other pollutants in discharges from C&D sites
can also cause environmental changes that affect the non-use values
(values that do not depend on use of the resource) that individuals
have from knowing that environmental resources are in good condition.
These existence services, sometimes described as ``ecological
benefits,'' are reflected under the Clean Water Act as aquatic life,
wildlife, and habitat designated uses.
Stormwater control measures reduce the amount of sediment that
reaches waterways from C&D sites. As sediment loads are reduced, TSS,
nutrient, and turbidity levels in adjacent waters decline, which in
turn increases the production of environmental services that people and
industry value. These environmental services valued by industry and the
public include: Recreation, public and private property ownership,
navigation, water supply and use, and existence services. Table XVI-1
provides a summary of various water related activities and their
associated environmental services potentially impacted by discharges of
sediment from C&D sites.
Table XVI-1--Summary of Benefits From Reducing Sediment Runoff From Construction Sites
----------------------------------------------------------------------------------------------------------------
Environmental service
potentially affected by
Activity runoff from construction Benefits category
sites
----------------------------------------------------------------------------------------------------------------
Recreation: Aesthetics, water clarity, Non-market direct use.
--Outings water safety, degree of
--Boating sedimentation, weed growth,
--Swimming fish and shellfish
--Fishing populations.
Commercial Fishing and Shellfishing. Fish and shellfish Markets.
populations.
Property Ownership.................. Aesthetics, safety of Markets.
property from flooding,
property value.
Water Conveyance and Supply: Turbidity, degree of Avoided Costs.
--Water conveyance sedimentation.
--Water storage
--Water treatment
Transportation...................... Degree of sedimentation..... Avoided Costs.
Water Use: Turbidity................... Avoided Costs.
--Industrial
--Municipal
--Agricultural
Knowledge (No Direct Uses).......... Environmental health and Non-market non-use value.
ecosystem function.
----------------------------------------------------------------------------------------------------------------
However, not all of the changes in these services can be readily
quantified as it requires a thorough understanding of the relationship
between changes in water pollutant loads and production of
environmental services. This problem is exacerbated by the fact that
both the pollutant source and load reductions are relatively small,
sporadic, numerous,
[[Page 63046]]
and dispersed over a wide area when compared to more traditional
sources of pollutants, such as a wastewater treatment plant. As a
result of the difficulty in assessing changes in each environmental
service associated with an activity listed in Table XVI-1, EPA chose to
focus on two main categories of benefits: Avoided costs and non-market
benefits. The specific categories of avoided costs considered were:
reservoir dredging, navigable waterway dredging, and drinking water
treatment and sludge disposal. Non-market benefits considered were
improvements in recreational activities and existence value from
improvements in the health of aquatic environments.
B. Quantification of Benefits
Reduced costs for water treatment, water storage, and navigational
dredging are three benefit categories that EPA is using to estimate the
benefits of the final rule. EPA used estimates of changes in sediment
deposition and in-stream TSS concentrations from the SPARROW model runs
to quantify the reduction in the amount of sediment that would need to
be dredged from reservoirs and the reduction in the amount of TSS that
must be removed from the source water used for the production of
potable water. The SPARROW results provided these changes for each
waterbody in the RF1 network (approximately 60,000 stream segments).
This allowed EPA to associate these changes with data from the US Army
Corps of Engineers on navigable waterways that are routinely dredged;
EPA data on source water for drinking water treatment plants; and USGS
data on the location of reservoirs used for hydroelectric power, flood
control, a source for drinking water, and recreation.
SPARROW results also allowed for the estimated change in TSS and
nutrient concentrations in the RF1 network to be mapped to a Water
Quality Index (WQI). The index is used to map changes in pollutant
parameters, such as TSS and nutrients, to effects on human uses and
support for aquatic and terrestrial species habitat. Implementation of
the WQI involves the transformation of parameter measurements into
subindex values that express water quality conditions on a common scale
of 0 to 100. For the pollutant TSS, a unique subindex curve was
developed for each of the 85 Level III ecoregions using baseline TSS
concentrations calculated in SPARROW at the RF1 reach-level. The
SPARROW generated concentration change estimates for sediment and
sediment-bound nutrients were used to measure improvement along the WQI
for each RF1 watershed. Section 10.1.1 of the Environmental Assessment
Document provides detail on the WQI index and its application to the
benefits analysis for the C&D regulation. The WQI presents water
quality by linking to suitability for various human uses, but does not
in itself identify associated changes in human behavior. Behavioral
changes and associated welfare effects are implied in the benefit
transfer approach for measuring economic values. The use of benefit
transfer allows the results from economic valuation studies in the
published literature to be used to generate WTP estimates associated
with changes in the WQI. For more on the benefit transfer approach see
Appendix G Meta-Analysis Results from the Environmental Impact and
Benefits Assessment.
The benefits analysis results are shown in Table XVI-2. The
NMBi terms are included to demonstrate that the monetized
benefits represent an unknown portion of total benefits of the rule,
and are likely to vary with the options.
Table XVI-2--Annual Benefits (Million 2008 $) For Options
----------------------------------------------------------------------------------------------------------------
Regulatory Options
---------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Avoided Costs:
Reservoir Dredging.......................... $1.4 $2.9 $3.6 $3.2
Navigable Waterway Dredging................. 1.3 2.6 3.3 2.9
Drinking Water Treatment.................... 1.2 1.8 2.1 1.8
Total Avoided Costs \a\......................... 3.8 7.2 8.9 7.9
Welfare Improvements............................ 210.3 352.9 413.4 361.0
Total Annual Benefits \a\ \b\................... 214.1+NMB1 360.1+NMB2 422.3+NMB3 368.9+NMB4
----------------------------------------------------------------------------------------------------------------
\a\ Totals may not add due to rounding.
\b\ NMBi are the non-monetized benefits of the ith Option.
Source: Economic Analysis; Environmental Assessment.
XVII. Benefit-Cost Comparison
EPA has conducted a comparison of monetized benefits to costs of
the C&D effluent guidelines detailed in today's notice. The benefit-
cost analysis may be found in the complete set of support documents.
Sections XII, XV, and XVI of this notice provide additional details of
the benefit-cost analysis. Table XVII-1 provides the results of the
benefit-cost analysis. A discount rate of 3% was used to annualize
costs and benefits.
Table XVII-1--Total Annualized Benefits and Costs of Options (Year 2008
$)
------------------------------------------------------------------------
Social costs
(2008 $ Benefits \a\ (2008 $
Option millions per millions per year)
year)
------------------------------------------------------------------------
Option 1....................... $175.8 $214.1 + NMB1
Option 2....................... 4,863.1 $360.1 + NMB2
Option 3....................... 9,081.1 $422.3 + NMB3
Option 4....................... 958.7 $368.9 + NMB4
------------------------------------------------------------------------
\a\ NMBi are the non-monetized benefits of the ith Option.
Source: Economic Analysis; Environmental Assessment.
XVIII. Approach To Determining Effluent Limitations and Standards
The same basic procedures apply to the calculation of all effluent
limitations guidelines and standards for this industry, regardless of
whether the technology basis is BAT or NSPS. For simplicity, the
following discussion refers only to effluent limitations guidelines;
however, the discussion also applies to new source performance
standards. The numeric limitation is 280 NTU, expressed as a maximum
daily discharge limitation. Chapter 6 of the TDD provides a detailed
description of the data and methodology used to develop the long-term
average,
[[Page 63047]]
variability factor, and limitation and standard for today's final rule.
A. Definitions
The limitation for turbidity, as presented in today's notice, is
expressed as a maximum daily discharge limitation. Definitions provided
in 40 CFR 122.2 state that the ``maximum daily discharge limitation''
is the ``highest allowable `daily discharge.' '' Daily discharge is
defined as the `` `discharge of a pollutant' measured during a calendar
day or any 24-hour period that reasonably represents the calendar day
for purposes of sampling.''
B. Percentile Basis for Limitations, Not Compliance
EPA promulgates limitations that sites are capable of complying
with at all times by properly operating and maintaining their processes
and treatment technologies. EPA established these limitations on the
basis of percentiles estimated using data from sites with well-operated
and controlled processes and treatment systems. However, because EPA
uses a percentile basis, the issue of exceedances (i.e., values that
exceed the limitations) or excursions is often raised in public
comments on limitations. For example, comments often suggest that EPA
include a provision that allows a facility to be considered in
compliance with permit limitations if its discharge exceeds the
specified daily average limitation one day out of 100. As explained in
Section 6 of the TDD, the limitation was never intended to have the
rigid probabilistic interpretation implied by such comments. The
following discussion provides a brief overview of EPA's position on
this issue.
EPA expects that all sites subject to the limitation will design
and operate their treatment systems to achieve the long-term average
performance level on a consistent basis because sites using well-
designed and operated treatment systems have demonstrated that this can
be done. Sites that are designed and operated to achieve the long-term
average effluent levels used in developing the limitation should be
capable of compliance with the limitation at all times, because the
limitation incorporates an allowance for variability in effluent levels
about the long-term average. The allowance for variability is based on
control of treatment variability demonstrated in normal operations.
EPA recognizes that, as a result of the requirements in 40 CFR part
450, some dischargers may need to improve treatment systems, process
controls, and/or treatment system operations in order to consistently
meet the new effluent limitation and/or standard. As noted previously,
however, given the fact that the promulgated limitation reflects an
allowance for variability and the demonstrated ability of sites to
achieve the LTA, the limitation is achievable.
XIX. Regulatory Implementation
A. Monitoring Requirements
EPA is requiring the monitoring of turbidity in stormwater
discharges from C&D sites subject to the numeric limitation in order to
determine whether the numeric limitation is being met. The NRC report
highlighted that one of the weakest areas of the stormwater program is
the lack of monitoring. NRC at 329. Until today, EPA has not required
any monitoring requirements beyond visual inspections for discharges
associated with construction activity, although some NPDES-authorized
states (e.g., California, Georgia, Oregon, Vermont, and Washington)
have imposed monitoring requirements on construction operators in their
permits. See relevant state permit requirements in the rulemaking
record (DCNs 42104, 42108-42111). Now that EPA is adopting a numeric
effluent limitation for turbidity for certain construction sites,
permits authorizing discharges associated with construction activity
from those sites are required to include monitoring requirements in
NPDES permits for discharges associated with construction activity.
Pursuant to the NPDES regulations, the permit must specify the type,
interval, and frequency of sampling ``sufficient to yield data which
are representative of the monitored activity'' and must require
monitoring for specific pollutants that are limited in the permit. 40
CFR 122.48(b); see also 122.44(j)(1)(i). While the final rule does not
enumerate the specific requirements (i.e., frequency, location, etc.)
regarding the monitoring of turbidity in discharges from construction
sites EPA emphasizes that compliance monitoring is required of
permittees and that pursuant to EPA's NPDES regulations permitting
authorities must specify requirements and procedures in their NPDES
permits for representative sampling to ensure effective monitoring.
While monitoring is routine in industrial discharge permits, EPA
acknowledges that for most permitting authorities, including EPA, the
inclusion of monitoring requirements in individual or general
construction permits is new. EPA also recognizes that while it is
appropriate to provide sufficient flexibility for permitting
authorities to design monitoring protocols that are appropriate for
their specific permits, given the particular circumstances in their
jurisdiction, it will be important for EPA to provide additional
guidance on monitoring of stormwater discharges from construction sites
so that permitting authorities have a general sense of how to structure
requirements that are consistent with today's rule. For that reason,
EPA intends to provide monitoring guidance prior to the issuance of the
next EPA CGP to provide a technical resource guide to permit writers in
establishing monitoring requirements in their construction permits.
The following is a discussion of a number of significant issues
implicated by the numeric turbidity limitation and the requirement to
monitor discharges from certain construction activities:
Applicability of Numeric Turbidity Limitation and Monitoring
Requirements: The turbidity limitation and monitoring requirements
apply to construction activities that disturb 10 or more acres of total
land area at one time. The 10-acre disturbance threshold includes non-
contiguous land disturbances that take place at the same time and are
part of a larger common plan of development or sale. Smaller
construction activities occurring at the same time, but in separate and
distinct areas of a project site, which together disturb 10 or more
acres of land, are also required to meet the sampling requirements.
This clarification is consistent with EPA's NPDES stormwater
regulations, which require permits for smaller scale disturbances that
are part of a common plan of development or sale. See definition of
large and small construction activities at 40 CFR 122.26(b)(14)(x) and
(15), respectively.
The numeric limitation and monitoring requirements only apply when
the total disturbed area is 10 or more acres. Therefore, when
stabilization of disturbed areas reduces the amount of total
disturbances to less than 10 acres, the numeric limitation no longer
applies and monitoring of discharges is no longer required. This
provision creates an incentive for large sites to stabilize disturbed
areas as quickly as possible, thereby reducing the turbidity in
stormwater discharges from the site. This is also an incentive to phase
construction activities so that less than 10 acres are disturbed at any
one time. EPA recognizes that as construction activity progresses, less
area of the construction site will consist of disturbed land. At
present under the
[[Page 63048]]
EPA CGP, the Agency regulates stormwater discharges associated with
construction activity until the owners or operators file a Notice of
Termination to cease permit coverage. Often owners or operators must
stabilize the construction site before a Notice of Termination is
submitted to terminate permit coverage. Therefore, EPA is applying the
numeric limitation to sites that disturb 10 or more acres at one time
until such time as the site has stabilized disturbed areas bringing the
total disturbance below 10 acres, recognizing that discharges may
continue after this time. The non-numeric effluent limitations, at 40
CFR 450.21, of this rule would still apply to any continuing
discharges. With this threshold, EPA expects that the turbidity
limitation may not apply at some sites during some periods of
construction activity when less than 10 acres are disturbed at one
time. EPA has made this determination for various reasons (see section
X.G) while still controlling the discharge of pollutants from C&D sites
during the majority of land disturbing activities.
EPA emphasizes that the applicability of the turbidity limitation
is tied to acres disturbed at one time, not to the ultimate amount of
land disturbance on a site. Thus, the applicability of the numeric
effluent limitation and monitoring based on a size threshold of
disturbed land differs from the applicability provisions of the NPDES
regulations at 40 CFR 122.26(b)(14) and (15) that determine whether
discharges associated with construction activity need NPDES permit
coverage. Under the 40 CFR 122.26 permit coverage is required for any
site that will result in land disturbance of equal to or greater than
one acre or will result in disturbance of less than one acre of total
land area that is part of a larger common plan of development or sale
if the larger common plan will ultimately disturb equal to or greater
than one acre. For example, a construction site that ultimately
disturbs over 1 acre at any point during the construction activity must
obtain NPDES permit coverage, even if at all points during construction
activity the total disturbed land area at one time is less than 1 acre.
However, for purposes of the applicability of the numeric effluent
limitation and monitoring requirement in the final rule a construction
site could ultimately disturb 10 or more acres, but as long as that
site does not disturb 10 or more acres at one time, monitoring and
compliance with the turbidity limitation would not be required.
An example may help to illustrate how EPA will implement the 10-
acre threshold trigger for requiring sampling.
Examples of when individual disturbances of less than 10 acres are
required to sample:
If construction activities as part of a large residential
subdivision that disturb 5 acres of land in one lot, and, at the same
time, 5 acres of land in another lot, and the two lots are not adjacent
to one another, samples of the discharges from these sites would be
required pursuant to 40 CFR 450.22(a). Sampling is required under this
scenario because together the two land disturbances measure 10 or more
acres, and they are considered part of the same common plan of
development or sale. However, no discharge sampling would be required
if the two construction projects under this same scenario disturb less
than 10 acres of land total at the same time.
Alternatively, if one of the 5-acre projects occurs at a
different time than the other, such that at no time are 10 or more
acres being disturbed at the same time, then sampling is not required
for these activities. In the same way, if one of the 5-acre projects
has achieved final stabilization in accordance with 40 CFR 450.21(b) by
the time the other 5-acre project commences, then no sampling is
required because the combined acreage of ground disturbance at one time
is less than 10 acres.
Daily Maximum Limitation: EPA's numeric effluent limitation is a
daily maximum limitation; meaning that permittees may sample the
turbidity in their discharges multiple times over the course of a day
and the average of all measurements may not exceed the limitation.
During any given day, samples may be averaged to determine the average
turbidity for the day. It is this average daily value that must be
below the limitation specified in the rule. If one or more individual
samples are above the limitation, but the average turbidity for the day
is below the limitation, then discharges for that day are deemed to be
in compliance with the limitation. This takes into consideration the
variability of the discharge and allows higher levels of turbidity to
be discharged temporarily, such as may occur during an intense period
of rainfall. As explained previously, if a site has difficulty
complying with the limitation on an ongoing basis, then the site should
improve its controls, operations, and/or maintenance.
If the permitting authority samples the discharge, those samples
may be averaged with the measurements taken by the permittee for the
same discharge event. For example, if the permittee takes three samples
and the permitting authority takes one sample, then these four samples
may be averaged to determine the daily value. As another example, if
the permitting authority takes a sample or samples, but the discharger
did not sample, then the permitting authority can use its sample or
samples for determining compliance.
Sampling Frequency: EPA is leaving the specific monitoring
requirements to the discretion of each permitting authority, including
such issues as the sampling frequency during any one discharge event
and the number of discharge events that must be sampled. EPA would,
however, discourage the practice of allowing the number of monitoring
samples to vary arbitrarily merely to allow a site to achieve a desired
average concentration, i.e., a value below the limitation that day.
Additionally, as discussed above, EPA's NPDES regulations state that
the permit must specify the type, interval, and frequency of sampling
sufficient to yield data which are representative of the monitored
activity. EPA expects that enforcement authorities would prefer, or
even require, monitoring samples at some regular, pre-determined
frequency. In general, EPA expects that, at a minimum, three samples
per day will need to be collected at each discharge point while a
discharge is occurring. In reviewing its data used as a basis for the
limitation, EPA notes that 95 percent of daily values are based upon
three or more samples per day which demonstrates the need for multiple
samples. The recently-issued California Construction General Permit
offers one method of ensuring that at least three samples are collected
from the discharge event by requiring that turbidity samples be
collected three times per day for the duration of the discharge event.
See State Water Resources Control Board NPDES General Permit for Storm
Water Discharges Associated with Construction Activities, Attachment E,
p. 12. Permitting authorities may require more frequent monitoring than
three samples per day in order to obtain representative sampling, and
permittees may elect to perform more frequent monitoring. For example,
the permit could specify that sampling must begin within one hour of
the start of the discharge, and must continue until the discharge ends
or until the end of the working day. The permit could also include
exceptions to the minimum sampling frequency for circumstances such as
adverse weather conditions (such as high winds or lightning) or intense
rainfall, which would cause a reasonable person to believe that the
safety of the sample collection personnel would be in jeopardy. In such
[[Page 63049]]
instances, the permit might specify that sampling be conducted as soon
as it is deemed safe by the sampling personnel. If, at the start of the
next working day, there continues to be a discharge, then sampling
should resume until the discharge ends or until the end of the working
day.
NPDES permitting authorities will also need to determine the
minimum number of discharge events during which monitoring is required.
It is EPA's general view that any storm event or snowmelt that
generates a discharge from the construction site should be monitored
since this is the surest way to determine the effectiveness of the
site's passive controls during all phases of active construction.
Testing Methodology: The permitting authority must specify in NPDES
permits the requirements concerning the proper use, maintenance, and
installation, when appropriate, of monitoring equipment or methods
used. 40 CFR 122.48(a). Thus, permittees may elect to use automated
samplers and/or turbidity meters with data loggers, if approved by the
permitting authority. Each sample must be analyzed for turbidity using
methods approved by the permitting authority, but EPA expects that the
use of a properly calibrated field turbidimeter is sufficient. EPA is
also leaving up to the permitting authority the applicable reporting
requirements on the permitees sampling of their discharges from C&D
sites.
Monitoring from Linear Construction Activities: EPA believes that
the permitting authority should exercise discretion when determining
the monitoring locations and monitoring frequency for linear
construction projects. For instance, the permitting authority might
choose, for example, to utilize representative sampling at certain
discharge locations that are representative of the discharge
characteristics of other locations. EPA views the use of representative
sampling points as being acceptable for linear projects due to the
potential unique nature of these projects. Because of the size of
linear projects, there may be dozens or more discharge points spaced
over a large geographic area. In addition, accessing certain areas of
the project during a storm event (such as areas that have recently been
stabilized) may not be possible without significant disruption of the
stabilization measures in place (such as might occur if it would be
necessary to drive a vehicle over an area that has been recently
stabilized in order to access the discharge point). EPA would generally
recommend that permitting authorities concentrate on those areas of
linear projects that are actively being constructed and not concentrate
on areas that have been completed and stabilized. An example, for a
project such as a pipeline or underground utilities, would be those
areas where trenching activities are occurring.
Exception for Larger Storm Events: The numeric limitation applies
to all discharges from the site except on days when total precipitation
during that day exceeds the local 2-year, 24-hour storm event. Even
when total precipitation during the day exceeds the local 2-year, 24-
hour storm permittees must comply with the non-numeric effluent
limitations Sec. 450.22(c) through Sec. 450.22(h). If the total
precipitation on a day exceeds this amount, then the turbidity
limitation would not apply to discharges for that day. However, the
numeric effluent limitation is applicable to all discharges from the
site on subsequent days if there is no local 2-year, 24-hour storm
event during those days. Although the limitation would not apply on
days with precipitation greater than the 2-year, 24-hour event,
permittees would still be expected to monitor discharges during that
day. Permitting authorities may extend the standard to larger or less
frequent storm events if it is determined that the 2-year, 24-hour
storm is not adequate for a particular project or larger geographic
area. Controls would then need to be designed to handle these less
frequent storm events and the corresponding larger volumes of
stormwater.
Although the numeric limitation would not apply on days where
precipitation exceeds the 2-year, 24-hour event, permittees must still
complywith the non-numeric effluent limitations Sec. 450.22(c) through
Sec. 450.22(h). Also, permittees would still be required to manage the
discharges from the site, and if passive treatment techniques are being
utilized, permittees would still be expected to utilize those
techniques. So for example, if a polymer dosing system is being
utilized, permittees would be expected to continue dosing polymer and
to continue managing the stormwater after the point at which the 2-
year, 24-hour storm precipitation amount was exceeded. The limited
short-term exemption from the numeric effluent limitation is not an
exemption from the requirement to manage discharges. In addition, it
would be inappropriate for permittees to intentionally discharge large
volumes of stormwater on these days, or to bypass treatment in addition
to likely not being in compliance with the non-numeric effluent
limitations in 40 CFR 450.21 and thus their NPDES permit. If a basin is
being utilized, it is expected that the primary outlet would be
utilized for the discharge (unless overflow occurs). Intentionally
bypassing the primary outlet would be inconsistent with the non-numeric
effluent limitations of the rule.
EPA selected the 2-year, 24-hour storm event as the limiting event
for determining compliance in recognition of the fact that passive
controls can only be expected to consistently meet a numeric limitation
to the level that they are designed to function. Typically,
construction site controls are designed to manage stormwater up to a
certain design storm event. For larger storm events, basins will likely
overflow. Likewise, channels and conveyances will overtop and may begin
to erode unless they are armored with materials such as flexible
channel liners. EPA considered basing compliance on a 1-year storm, a
2-year storm and a 5-year storm. A 1-year storm has a 100% chance of
occurring in any given 12 month period, a 2-year storm has a 50% chance
of occurring in any 12 month period and a 5-year storm has a 20% chance
of occurring in any 12 month period. To EPA's knowledge, designing for
a 5-year storm is not common practice on construction sites, with the
exception of emergency spillways on basins. However, many states
require that basins and other controls be designed to manage a 2-year
storm. Given that designing controls to manage runoff from a 2-year 24-
hour storm provides a reasonable compromise between designing for a
larger storm (at more expense) and allowing multiple discharges per
year to potentially exceed the limitation (as would be the case with a
smaller storm) EPA selected the 2-year storm as the maximum compliance
storm event.
Monitoring Locations: The numeric limitation applies to all
discharges from C&D sites. However, diffuse stormwater, such as non-
channelized flow through a silt fence or other perimeter control that
infiltrates into a vegetated area, and does not then discharge to
surface waters, would not generally require sampling. EPA is
encouraging (although not requiring) permittees to utilize dispersion
of stormwater to vegetated areas and infiltration of stormwater instead
of discharging it from the site. EPA encourages increased usage of such
techniques, where appropriate. This is consistent with the concept of
Low Impact Development (LID) techniques as well as the zero discharge
goal of the Clean Water Act. Some projects present unique monitoring
challenges, such as projects that are adjacent to or actually within
waterbodies. Examples include
[[Page 63050]]
locks, dams, piers, and stream stabilization activities. For these
types of projects, permitting authorities may need to exercise
discretion when considering appropriate monitoring locations for
discharges.
Sampling Times: Although EPA has left the issue of when sampling is
required during any given discharge event to the discretion of the
permitting authority, it is EPA's general view that sampling should be
conducted, at a minimum, during normal business hours at a project.
This can generally be considered to be between the hours of 6 a.m. and
6 p.m., or when workers are normally present on the construction site.
The exception would be if unsafe conditions, such as heavy rain or
lightning, would cause a reasonable person to determine that sampling
would be dangerous.
Notification to Permitting Authorities: Although not a requirement
in today's rule, permitting authorities may want to consider
requirements in their permits and consider mechanisms by which
permittees would notify the permitting authority when they have
exceeded the 10 acre disturbed land threshold and monitoring would be
required at a particular project.
B. Implementation
While pursuant to the CRA this entire rule is effective February 1,
2010 the numeric effluent limitation and the associated monitoring
requirements for sites with 20 or more acres of land disturbed at one
time will become applicable to discharges associated with construction
activity 18 months following the effective date of this final rule on
August 2, 2010. The numeric effluent limitation and the associated
monitoring requirements for sites with 10 or more acres of land
disturbed at one time will become applicable to discharges associated
with construction activity four years following the effective date of
this final rule on February 2, 2014. The non-numeric effluent
limitations in Option 4 will become applicable when the rule is
effective or 60 days after the final rule is published in the Federal
Register on February 1, 2010.
Once EPA has promulgated effluent limitations and standards under
CWA sections 301 and 306, and those limitations and standards become
effective, the permitting authority must incorporate those limitations
into NPDES permits as effluent limitations. 40 CFR 122.43-44. For
discharges associated with construction activity, once the ELGs and
NSPSs become effective the permitting authority must include permit
limitations at least as stringent as those promulgated in this
regulation in any individual NPDES permits or in the next construction
general permit issued after the effective date of this regulation. EPA
anticipates that the permitting authorities, particularly those whose
construction general permits will expire within the next 18 months,
would like time to develop guidance on the new requirements given the
change in focus from past construction permits of non-numeric effluent
limitations and BMPs to numeric limitations and monitoring
requirements. EPA is aware of at least 10 states whose construction
general permits are scheduled to expire within the first 18 months
after the effective date of this final rule, in addition to the 4
states and other jurisdictions who are permitted by the EPA CGP,
proposed to expire on June 30, 2011. In order to provide permitting
authorities time to develop guidance on the requirements of this rule,
including monitoring requirements, EPA is providing a 18 month lead
time for the permitting authorities between the effective date of this
final rule and when the numeric limitation and monitoring requirements
are applicable to stormwater discharges associated with construction
activity. The C&D ELG, including the numeric limitations and monitoring
requirements, will be effective February 1, 2010, even though the
numeric limit will not be applicable to discharges for 18 months from
the effective date of this rule for sites with 20 or more acres of land
disturbed at one time and four years after the effective date for sites
with 10 or more acres of land disturbed at one time. Thus, the
permitting authorities whose construction general permits will expire
after the effective date of the C&D ELG must still incorporate the
numeric limitation and monitoring requirements into their newly issued
CGPs even though it will not be applicable until 18 months from the
effective date for sites with 20 or more acres of land disturbed at one
time and four years after the effective date for sites with 10 or more
acres of land disturbed at one time. After the effective date of this
rule, permitting authorities must incorporate the requirements into
newly issued permits. Without an 18 month lead time in the
applicability of the numeric limitation and monitoring requirements
permitting authorities and the permittees in those states would have,
what EPA believes, an unreasonably short time period to digest these
new requirements and plan accordingly. While it is impossible to
determine exactly how much time is necessary for permitting authorities
and permittees, EPA weighed the need to provide enough time, for the
reasons stated below, against the desire to apply these important
numeric limitations and monitoring requirements in a timely manner in
order to achieve important reductions in pollutant discharges from C&D
sites and determined that 18 months for sites with 20 or more acres of
land disturbed at one time and four years for sites with 10 or more
acres of land disturbed at one time are reasonable periods of time.
In this rule EPA has determined that passive treatment technologies
and a numeric effluent limitation with monitoring requirements is BAT
and NSPS. As discussed above, it is clear that passive technologies are
technologically available, as they are used widely throughout the U.S.,
however before this rule there were no nationwide numeric limitations
or monitoring requirements connected with the construction industry,
and particularly with the use of passive treatment technology at C&D
sites. Monitoring requirements are a critical part of any numeric
limitation. Given the sea change to the regulated industry there may be
implementation issues associated with incorporation of monitoring
requirements into permits, for example, permitting authorities may
specify the frequency of monitoring; the location of monitoring; The
duration of monitoring in relation to storm events; the samples that
will be representative of the flow and characteristics of the
discharges from the C&D site; whether it will approve the use of
automated samplers and/or turbidity meters with data loggers; and
establish procedures for analyzing the sample for turbidity and
appropriate quality assurance/quality control procedures. The 18 month
period will also allow permitting authorities to develop any necessary
training or certification programs. An important factor in the
effective implementation and compliance with this rule will be the
permitting authority being able to digest the numeric limitation and
monitoring requirements and developing guidance and outreach to the
regulated community to provide assistance so the requirements are
understood and can be effectively met by owners and operators of C&D
sites. This will provide the regulated industry with the guidance,
knowledge and tools necessary in order to effectively monitor their
discharges in order to ensure they are meeting the numeric limitation.
In addition to the reasons stated above regarding the permitting
authority having the time to develop guidance to assist C&D site
operators, for this industry, it is necessary to allow it a
[[Page 63051]]
period of time to become accustomed to monitoring discharges and
understand how different passive approaches impact the level of
turbidity in their stormwater discharges. Allowing a phase-in of the
monitoring requirements and turbidity limitation will allow the
industry time to adjust their controls to determine what the most
effective passive technology or combination of technologies are to
reduce levels of turbidity, and to train personnel on any new
techniques or technologies implemented at the site, how to sample and
analyze stormwater discharges, and how to correctly apply polymers or
treatment chemicals, if necessary, without causing environmental harm.
As noted previously, the monitoring requirements are a critical part of
the numeric limitation developed as BAT and NSPS and the establishment
of a numeric limitation and monitoring requirements for discharges
associated with the construction industry represents a sea change for
the industry and permitting authorities. This change is in line with
the technology forcing nature of the CWA; however, it may require
significant time and resources for many construction firms to adapt
their operations in light of the new stormwater control measures.
Learning how to use what for many firms will be new control
techniques will likely require some initial period of adjustment,
modification, and revision to ensure that the selected control measures
achieve the required discharge limitation. EPA would expect that most
of the firms affected in the first phase will be relatively large firms
with in-house expertise or access to the necessary resources to
implement passive treatment technologies. Because, as noted, the final
rule requires a significant change in the controls necessary for the
discharges associated with construction activity from current practices
for many firms, there may be, at least in the near term, a limited
universe of available expertise in passive treatment in the form of
available guidance information and trained engineering personnel
specialized in these treatment measures. EPA also expects that
expertise and understanding will grow over time and that technologies
may well both improve and decrease in cost. In these circumstances,
phasing in the application of the numeric limitations provides time to
facilitate the efficient development and transfer of this expertise,
and allows the industry to explore opportunities for cost savings.
EPA estimates that sites which disturb 20 or more acres at any one
time represent 48 percent of all sites subject to the numeric limits.
The pollutant reduction associated with these sites is estimated to
represent 69 percent of the pollutants discharged by construction
sites. Expanding the application of the numeric limit after two and a
half years to sites that disturb 10 or more acres at any one time will
achieve a 77 percent sediment reduction over baseline discharges. EPA
has determined that phasing the application of the limitation ensures
that effective progress is made towards achieving the pollutant
reductions and benefits associated with BAT and BADT while providing
the construction industry with additional time to implement the
regulation in recognition of the current economic downturn.
EPA plans to work closely with states and industry to ensure
effective implementation of this rule. EPA will also monitor progress
with respect to a range of variables, including appropriate
technologies and their performance, costs, and overall industry
conditions, with the ability to make adjustments if warranted.
C. Upset and Bypass Provisions
A ``bypass'' is an intentional diversion of the streams from any
portion of a treatment facility. An ``upset'' is an exceptional
incident in which there is unintentional and temporary noncompliance
with technology-based permit effluent limitations because of factors
beyond the reasonable control of the permittee. EPA's regulations
concerning bypasses and upsets for direct dischargers are set forth at
40 CFR 122.41(m) and (n).
Because much of today's rule includes requirements for the design,
installation, and maintenance of erosion and sediment controls, EPA
considered the need for an additional bypass-type provision in regard
to large storm events. However, EPA did not specifically include such a
provision in the text of the regulation because the rule only requires
dischargers to meet a numeric turbidity limitation for discharges on
days with storm events smaller than the 2-year, 24-hour storm. Because
EPA is not establishing requirements for control of larger storm
events, specific bypass provisions were not necessary. Standard upset
and bypass provisions are generally included in all NPDES permits, and
EPA expects this will be the case for construction stormwater permits
issued after this rule becomes effective.
D. Variances and Waivers
The CWA requires application of effluent limitation guidelines
established pursuant to section 301 to all direct dischargers. However,
the statute provides for the modification of these national
requirements in a limited number of circumstances. Moreover, the Agency
has established administrative mechanisms to provide an opportunity for
relief from the application of ELGs for categories of existing sources
for toxic, conventional, and nonconventional pollutants. ``Ability to
Pay'' and ``water quality'' waivers do not apply to conventional or
toxic pollutants (e.g., TSS, PCBs) and, therefore, do not apply to
today's rule. However, the variance for Fundamentally Different Factors
(FDFs) may apply in some circumstances.
EPA will develop effluent limitations or standards different from
the otherwise applicable requirements if an individual discharging
facility is fundamentally different with respect to factors considered
in establishing the limitation of standards applicable to the
individual facility. Such a modification is known as a ``fundamentally
different factors'' (FDF) variance.
Early on, EPA, by regulation provided for the FDF modifications
from the BPT and BAT limitations for toxic and nonconventional
pollutants and BPT limitations for conventional pollutants for direct
dischargers. For indirect dischargers, EPA provided for modifications
for PSES. FDF variances for toxic pollutants were challenged judicially
and ultimately sustained by the Supreme Court. Chemical Manufacturers
Assn v. NRDC, 479 U.S. 116 (1985).
Subsequently, in the Water Quality Act of 1987, Congress added new
section 301(n) of the Act explicitly to authorize modifications of the
otherwise applicable BAT effluent limitations or categorical
pretreatment standards for existing sources if a facility is
fundamentally different with respect to the factors specified in
section 304 (other than costs) from those considered by EPA in
establishing the effluent limitations or pretreatment standard. Section
301(n) also defined the conditions under which EPA may establish
alternative requirements. Under section 301(n), an application for
approval of a FDF variance must be based solely on (1) information
submitted during rulemaking raising the factors that are fundamentally
different or (2) information the applicant did not have an opportunity
to submit. The alternate limitation or standard must be no less
stringent than justified by the difference and must not result in
markedly more adverse non-water quality environmental impacts than the
national limitation or standard.
[[Page 63052]]
EPA regulations at 40 CFR part 125, subpart D, authorizing the
Regional Administrators to establish alternative limitations and
standards, further detail the substantive criteria used to evaluate FDF
variance requests for direct dischargers. Thus, 40 CFR 125.31(d)
identifies six factors (e.g., volume of process wastewater, age and
size of a discharger's facility) that may be considered in determining
if a facility is fundamentally different. The Agency must determine
whether, on the basis of one or more of these factors, the facility in
question is fundamentally different from the facilities and factors
considered by EPA in developing the nationally applicable effluent
guidelines. The regulation also lists four other factors (e.g.,
infeasibility of installation within the time allowed or a discharger's
ability to pay) that may not provide a basis for an FDF variance. In
addition, under 40 CFR 125.31(b)(3), a request for limitations less
stringent than the national limitation may be approved only if
compliance with the national limitations would result in either (a) a
removal cost wholly out of proportion to the removal cost considered
during development of the national limitations, or (b) a non-water
quality environmental impact (including energy requirements)
fundamentally more adverse than the impact considered during
development of the national limitations. EPA regulations provide for an
FDF variance for indirect dischargers at 40 CFR 403.13. The conditions
for approval of a request to modify applicable pretreatment standards
and factors considered are the same as those for direct dischargers.
The legislative history of section 301(n) underscores the necessity
for the FDF variance applicant to establish eligibility for the
variance. EPA's regulations at 40 CFR 125.32(b)(1) are explicit in
imposing this burden upon the applicant. The applicant must show that
the factors relating to the discharge controlled by the applicant's
permit which are claimed to be fundamentally different are, in fact,
fundamentally different from those factors considered by the EPA in
establishing the applicable guidelines. An FDF variance is not
available to a new source subject to NSPS. See E.I. du Pont de Nemours
v. Train, 430 U.S. 112, 138-39 (1977).
E. Safe Drinking Water Act Requirements
EPA is encouraging the use of stormwater dispersion and
infiltration to manage stormwater discharges from construction
activity. By using dispersion and infiltration techniques, permittees
may be able to significantly reduce or even eliminate discharges in
certain situations. While permittees may choose to utilize infiltration
practices such as infiltration trenches and wells to manage
postconstruction stormwater discharges, EPA does not expect that
permittees will utilize these practices to any great degree during the
construction phase because sediment may cause clogging of these
practices and therefore reduce their useful life. However, it is
important to note that certain types of infiltration practices used to
manage stormwater from construction activity may be subject to
regulation under the Safe Drinking Water Act's (SDWA) Underground
Injection Control (UIC) program and EPA's implementing regulations at
40 CFR parts 144-147. SDWA established the UIC program to provide
safeguards so that injection wells do not endanger current and future
underground sources of drinking water (USDWs) (42 U.S.C. 300h). The UIC
program is implemented by Federal and state government agencies that
oversee underground injection activities in order to prevent
contamination of USDWs.
Some infiltration practices may involve injection into a well,
which is defined as a bored, drilled, driven shaft, or dug hole that is
deeper than its widest surface dimension, or an improved sinkhole, or a
subsurface fluid distribution system (40 CFR 144.3). In those cases,
the infiltration practices would be regulated under the UIC program as
a Class V well. For example, an infiltration trench that includes an
assemblage of perforated pipes, drain tiles, or similar mechanism
intended to distribute fluids below the surface would probably be
considered a Class V injection well. Also, commercially manufactured
stormwater infiltration devices such as pre-cast or pre-built
proprietary subsurface detention vaults, chambers or other devices
designed to capture and infiltrate stormwater runoff are generally
considered Class V wells. Drywells, seepage pits, and improved
sinkholes are also generally considered to be Class V wells if water is
directed to them and their depth is greater than their widest surface
dimension or they are connected to a subsurface fluid distribution
system.
Typically, Class V wells are authorized by rule and do not require
a permit if the owner or operator submits inventory information to the
State, if it has primary enforcement responsibility for the UIC Class V
program, or EPA, and complies with the other requirements for Class V
wells. The state or EPA regional UIC program director with primacy for
the UIC Class V program should be contacted when these types of
infiltration practices are planned to assist in determining whether
they are Class V wells.
There are some geologic settings that are so sensitive that
contaminated stormwater may move too rapidly through the soil profile
for sufficient pollution removal. As a result, USDWs may be threatened.
The source water assessments required under the 1996 Amendments to the
Safe Drinking Water Act are good sources of information on sensitive
geologic settings for public water supplies, as is EPA's Source Water
Practices Bulletin: Managing Stormwater Runoff to Prevent Contamination
of Drinking Water (Office of Water, EPA 816-F-007, July 2009).
F. Other Clean Water Act Requirements
Compliance with the provisions of this rule would not exempt a
discharger from any other requirements of the CWA.
XX. Related Acts of Congress, Executive Orders, and Agency Initiatives
A. Executive Order 12866: Regulatory Planning and Review
Under section 3(f)(1) of Executive Order 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
Section 8.3, Comparison of Social Cost and Monetized Benefits in
Chapter 8 of the Economic Analysis. A copy of the analysis is available
in the docket for this action and the analysis is briefly summarized
here. Table XX-1 provides the results of the benefit-cost analysis.
Table XX-1--Total Annualized Benefits and Costs of the Regulatory
Options
------------------------------------------------------------------------
Social costs
(2008 $ Benefits \a\ (2008 $
Option millions per millions per year)
year)
------------------------------------------------------------------------
Option 1....................... $175.8 $214.1 + (NMB)1
Option 2....................... 4,863.1 360.1 + (NMB)2
Option 3....................... 9,081.1 422.3 + (NMB)3
[[Page 63053]]
Option 4....................... 958.7 368.9 + (NMB)4
------------------------------------------------------------------------
\a\ NMBi are the non-monetized benefits of the i\th\ Option.
Source: Economic Analysis; Environmental Assessment.
B. Paperwork Reduction Act
The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
EPA is establishing mandatory monitoring requirements for
construction sites under authority of Clean Water Act (CWA) Section 308
to demonstrate compliance with effluent limitations and standards for
turbidity promulgated under today's rule. Sediment, created as a result
of construction activity and measured by turbidity, is the primary
pollutant that causes water quality impairment for streams and rivers.
It is also one of the leading causes of lake and reservoir water
quality impairment and wetland degradation. The sediment entrained in
stormwater discharges from construction activity can harm aquatic
ecosystems, increase drinking water treatment costs, and degrade
recreational uses of impacted waters. Sediment can also accumulate in
rivers, lakes, and reservoirs, leading to the need for dredging or
other mitigation. Additionally, Section 402(a)(2) of the CWA directs
EPA to prescribe permit conditions to assure compliance with
requirements ``including conditions on data and information collection,
reporting and such other requirements as [the Administrator] deems
appropriate.''
EPA estimates a total annual burden to regulated construction sites
larger than 10 acres and regulatory authorities, as a result of the
monitoring requirements of this final rule, of 3,018,750 hours and
average annual costs of $91,978,103. These are based on the following
assumptions:
Total number of projects ongoing at some point in a year,
but not necessarily active for the entire year: 39,361.
Average reporting frequency: monthly.
Average number of monitoring reports submitted per year:
7.07.
Total number of DMR reports submitted per year: 278,251.
Average burden hours per response: 10.85 (10.30 hours per
permittee, 0.55 hour per permitting authority).
These estimates account for full implementation of the monitoring
requirements which will not occur for 4 years after the effective date
of this rule. EPA will submit an Information Collection Request (ICR)
to the Office of Management and Budget for approval which requests
approval for only a portion of this burden reflecting the
implementation of the rule over the next three years. Upon expiration
of that ICR, EPA will update the clearance request to reflect full
implementation of the numeric limitations in the subsequent request.
In addition, EPA estimates annual capital costs to the industry of
$7,085,890. The capital cost to the industry is based on the use of one
turbidimeter per active site per year (28,922) and the annual purchase
of a turbidimeter calibration kit, for a total annual cost of $245 per
project. For the states, EPA estimates start-up costs of $1,564,000,
based on an average expected cost of $31,280 per state for equipment
purchases and program set-up. Annualized over 10 years, this cost is
$3,667 per state. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For the purposes of assessing the impacts of today's rule on small
entities, small entity is defined as either a: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field. EPA does not anticipate any impacts on
small organizations and impacts on small governments are discussed
under the UMRA analysis section. The RFA provides that EPA generally
define small businesses according to the size standards established by
the Small Business Administration (SBA). The SBA established criteria
for identifying small businesses is based on either the number of
employees or annual revenues (13 CFR 121). These size standards vary by
NAICS (North American Industrial Classification System) code. For the
C&D industry NAICS categories (236 and 237) the small business annual
revenue threshold is set at $33.5 million. The SBA sets the small
business threshold for NAICS 2372 (Land Subdivision of NAICS 237) at $7
million. However, for the purpose of the economic analysis, EPA
allocated this sector amongst the four primary building construction
sectors: Single-family housing, multifamily housing, industrial
building, and commercial and institutional building construction. By
merging the land subdivision sector with sectors that have a higher
small business revenue threshold, there is likely to be an overestimate
of the number of these firms considered small businesses. However,
according to the 2002 Economic Census, 93 percent of firms in the land
subdivision sector made less than $5 million annually, and 98 percent
made less than $10 million. So nearly all the firms in this sector
would already be considered a small
[[Page 63054]]
business under $7 million threshold, and merging this sector with the
four primary building construction sectors, will not have a meaningful
affect on the estimate of small businesses for this industry.
In order to gather more information on the potential impacts of
today's rule on small businesses, EPA used the discretion afforded to
it under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), to
convene a Small Business Advocacy Review (SBAR) Panel for this
rulemaking on September 10, 2008. EPA held an outreach meeting with
Small Entity Representative (SERs) on September 17, 2008. A list of
SERs and the outreach materials sent to SERs are included in the docket
(see DCN 41115-41133). EPA prepared a report that summarizes
information obtained from the Panel, which is also included in the
docket. (see DCN 41136).
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Overall, EPA
estimates that in a typical year there will be 82,000 in-scope firms,
and of this total, approximately 78,000, or about 96 percent, are
defined as small businesses. Under Option 4, EPA estimates that only
230 small businesses would experience costs exceeding 1 percent of
revenue and no small businesses would incur costs exceeding 3 percent
of revenue. Both numbers represent very small percentages of the in-
scope small firms. The 230 firms estimated to incur costs exceeding 1
percent of revenue represent about 0.3 percent of all estimated
potentially in-scope small businesses. Therefore, EPA does not consider
the selected option to have the potential to cause a significant
economic impact on a substantial number of small entities.
All of the options considered for the final rule require the use of
BMPs. As the rule applies to construction projects and not directly to
firms, the most effective way for EPA to minimize impacts to small
firms was by crafting options that did not impose significant costs on
small projects. EPA's final rule does this by establishing an acreage
threshold for the numeric turbidity limitation.
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. EPA has determined that this rule contains a Federal mandate
that may result in expenditures of $100 million or more for State,
local, and tribal governments, in the aggregate, or the private sector
in any one year. Accordingly, EPA has prepared under section 202 of the
UMRA a written statement which is summarized below.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and to adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. Moreover, section 205 allows
EPA to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Of the four options considered for the final rule option,
one was the least costly. However, EPA concluded that option one was
not technology forcing and did not reflect ; therefore, it did not meet
CWA objectives. Of the remaining three options, EPA selected the least
costly, most cost-effective or least burdensome option, satisfying
section 205 requirements.
As part of the financial impact analysis, EPA looked specifically
at the impact on government entities resulting from both compliance
with construction site requirements and from administering the
additional monitoring reports submitted by in-scope firms. Table XX-2
shows the results of this analysis. The estimated administrative costs
are conservative, as they do not take into account that part of the
NPDES permit program is administered by the federal government. For
more information on how this analysis was performed, see Section 14-1
Assessing Costs to Government Entities in Chapter 14 of the Economic
Analysis.
Table XX-2--Impacts of Regulatory Options on State & Local Governments (million 2008 $)
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Compliance Costs:
Federal................................................. $3.8 $87.1 $166.9 $17.7
State................................................... 8.1 178.1 323.0 35.3
Local................................................... 46.2 1,022.3 1,854.0 202.4
Administrative Costs:
Federal................................................. 0.0 0.0 0.0 0.0
State................................................... 0.0 2.2 6.2 6.2
Local................................................... 0.0 0.0 0.0 0.0
Total Costs:
Federal................................................. 3.8 87.1 166.9 17.7
State................................................... 8.1 180.3 329.2 41.5
Local................................................... 46.2 1,022.3 1,854.0 202.4
---------------------------------------------------
Total............................................... 58.1 1,289.7 2,350.1 261.6
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant
[[Page 63055]]
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
After performing an assessment of the economic impacts on small
government entities, EPA determined that the rule would not
significantly or uniquely affect small governments, and therefore did
not develop a small government agency plan as specified in UMRA. This
rule does not impose any requirements uniquely on small governments.
The assessment of impacts on small governmental entities involved three
steps: (1) Identifying small government entities (i.e., those serving
populations of less than 50,000, (5 U.S.C. 601[5])), (2) estimating the
share of total government costs for the regulatory options incurred by
small governments, and (3) estimating the potential impact from these
costs based on comparison of small government compliance costs with
small government revenue and outlays. For details of this analysis see
Section 14.2 Assessing Costs and Impacts on Small Government Entities
in Chapter 14 of the Economic Analysis. Table XX-3 has the results of
the small government entity impact analysis. The table shows that under
Option 4, total small government costs are estimated to be only 0.08%
of total small government revenue, and under no option considered did
total small government costs exceed 1% of total small government
revenues.
Table XX-3--Impacts of Regulatory Options on Small Government Units (Million 2008 $)
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4
----------------------------------------------------------------------------------------------------------------
Compliance Costs:
Small Government Entities............................... $21.7 $480.5 $871.4 $95.1
Administrative Costs:
Small Government Entities............................... 0.0 0.0 0.0 0.0
Total Costs:
Small Government Entities............................... 21.7 480.5 871.4 95.1
Small Government Impact Analysis Concepts:
Total Revenues.......................................... 125,515 125,515 125,515 125,515
Total Costs as % of Total Revenues...................... 0.02% 0.38% 0.69% 0.08%
Capital Outlay.......................................... 13,455 13,455 13,455 13,455
Total Costs as % of Total Capital Outlay................ 0.16% 3.57% 6.48% 0.71%
Construction Outlay Only................................ 8,529 8,529 8,529 8,529
Total Costs as % of Total Construction Outlay........... 0.25% 5.63% 10.22% 1.12%
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA, EPA initiated consultations with the
governmental entities affected by this rule. EPA took and responded to
comments from government entities on the earlier proposed C&D rule and
on this rule. To help characterize the potential impacts to government
entities, EPA has gathered state government data regarding NOI
submissions, and from U.S. Census data and Reed Construction Data. EPA
has compiled information on how much construction activity is
undertaken by government entities. EPA has routinely consulted with EPA
regional offices who maintain direct and regular contact with state
entities. Finally, EPA met directly with and solicited data from all
the state Stormwater Coordinators who attended EPA's Annual Stormwater
Conference in 2007. During 2008 and 2009, EPA attended several
conferences and workshops to present information on the Agency's C&D
rule. These meetings were open to the public and widely attended.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), directs agencies to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
Although EPA expects the final rule would have little effect on the
relationship between, or the distribution of power and responsibilities
among, the federal and state governments, EPA has concluded that this
final rule has federalism implications as defined by the Executive
Order. As previously noted, it is estimated to impose substantial
direct compliance costs on State and local governments combined.
Accordingly, EPA provides the following federalism summary impact
statement as required by section 6(b) of Executive Order 13132. As
noted in the UMRA section above, EPA consulted with State and local
governments early in the process of developing the proposed action to
permit them to have meaningful and timely input into its development.
While EPA did not consult with State and local elected officials, the
Agency did consult with all of the state Stormwater Coordinators in
attendance at EPA's Annual Stormwater Coordinator's conferences in 2008
and 2009. EPA also attended several conferences where governmental
officials were present, such as the International Erosion Control
Association (IECA) conference in February 2009, the MAC-IECA conference
in September 2009, and the Northwest Environmental Business Council
meeting in March of 2009. In general, the concerns EPA heard included
the costs of the regulation as related to publicly funded projects,
increased burden and the lack of dedicated funding sources for
permitting authorities to implement and enforce the new requirements
given that permitting authorities are already over-burdened.
EPA also tried to mitigate compliance costs on State and local
governments by incorporating a disturbed acreage threshold of 10 acres
for applicability of the turbidity limitation. Although EPA does not
have comprehensive data on construction projects conducted by state and
local governments, EPA believes that a large proportion of building
projects undertaking by these entities are likely to fall below this
threshold. Building projects constructed by local governments are
typically projects such as schools, libraries, recreation centers,
parks, office buildings, etc., which EPA believes would tend to have
construction footprints smaller than 10 acres. And like private
projects, those that are bigger may be able to use sequencing to
prevent more than 10 acres from being disturbed at one time. Likewise,
many local government non-building projects are likely to have smaller
construction footprints as well. EPA expects that the majority of local
government non-building projects
[[Page 63056]]
would be activities such as small-scale road improvements, sewer and
water line repair projects, and other miscellaneous construction
activities with smaller amounts of land disturbance. With respect to
state government projects, highway construction projects are the one
category of construction undertaken by state governments that are
likely to be the most significantly impacted by the final rule
requirements, since many of these projects may exceed 10 acres
disturbed at one time. However, as highway projects constitute a
significant portion of construction projects nationwide, EPA has no
reasonable basis for exempting these projects from regulation. As
discussed above, EPA has included a number of provisions to facilitate
compliance with the numeric limitation, including phase-in of the
limitation, an exemption from the limitation on days when precipitation
exceeds the 2-year, 24-hour storm event, and averaging of monitoring
samples over a full day for determining compliance with the limitation.
EPA expects that many state government building projects would fall
below the 10 acres disturbed threshold.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
``Policies that have Tribal implications'' is defined in the
Executive Order to include regulations that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and the Indian Tribes, or on the distribution of
power and responsibilities between the Federal government and Indian
Tribes. This final rule does not have tribal implications. It will not
have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes as specified in Executive Order 13175.
Today's final rule contains no Federal mandates for Tribal governments
and does not impose any enforceable duties on Tribal governments. Thus,
Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to Executive Order 13045 because it
does not concern an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. This
rule is based on technology performance, not health or safety risks.
H. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Additional fuel may be required for construction equipment conducting
excavation and soil moving activities. EPA determined that the
additional fuel usage would be very small, relative to the total fuel
consumption at construction sites and the total annual U.S. fuel
consumption.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Pub. L. 104-113, section 12(d); 15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The Agency is not aware of any consensus-based technical standards
for the types of controls contained in final rule and did not receive
any comments to this effect from the public.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The final rule will reduce the negative effects of
discharges from construction sites in the nation's waters to benefit
all of society, including minority communities.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 1, 2010.
L. Judicial Review
In accordance with 40 CFR 23.2, today's rule is considered
promulgated
[[Page 63057]]
for the purposes of judicial review as of 1 p.m. Eastern Standard Time,
December 15, 2009. Under Section 509(b)(1) of the Clean Water Act
(CWA), judicial review of today's effluent limitations guidelines and
new source performance standards may be obtained by filing a petition
in the United States Circuit Court of Appeals for review within 120
days from the date of promulgation of these guidelines and standards.
Under Section 509(b)(2) of the CWA, the requirements of this regulation
may not be challenged later in civil or criminal proceedings brought to
enforce these requirements.
List of Subjects in 40 CFR Part 450
Environmental protection, Construction industry, Land development,
Erosion, Sediment, Stormwater, Water pollution control.
Dated: November 23, 2009.
Lisa P. Jackson,
Administrator.
0
40 CFR part 450 is added as follows:
PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY
Subpart A--General Provisions
Sec.
450.10 Applicability.
450.11 General definitions.
Subpart B--Construction and Development Effluent Guidelines
450.21 Effluent limitations reflecting the best practicable
technology currently available (BPT).
450.22 Effluent limitations reflecting the best available technology
economically achievable (BAT).
450.23 Effluent limitations reflecting the best conventional
pollutant control technology (BCT).
450.24 New source performance standards reflecting the best
available demonstrated control technology (NSPS).
Authority: 42 U.S.C 101, 301, 304, 306, 308, 401, 402, 501 and
510.
Subpart A--General Provisions
Sec. 450.10 Applicability.
(a) This part applies to discharges associated with construction
activity required to obtain NPDES permit coverage pursuant to 40 CFR
122.26(b)(14)(x) and (b)(15).
(b) The provisions of Sec. 450.22(a) do not apply to discharges
associated with interstate natural gas pipeline construction activity.
(c) The New Source Performance Standards at Sec. 450.24 apply to
all new sources and are effective February 1, 2010.
(d) The BPT, BCT and BAT effluent limitations at Sec. 450.21
through 450.23 apply to all sources not otherwise covered by paragraph
(c) of this section and are effective February 1, 2010.
Sec. 450.11 General definitions.
(a) New Source. New source means any source, whose discharges are
defined in 40 CFR 122.26(b)(14)(x) and (b)(15), that commences
construction activity after the effective date of this rule.
(b) [Reserved]
Subpart B--Construction and Development Effluent Guidelines
Sec. 450.21 Effluent limitations reflecting the best practicable
technology currently available (BPT).
Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve, at a minimum, the
following effluent limitations representing the degree of effluent
reduction attainable by application of the best practicable control
technology currently available (BPT).
(a) Erosion and Sediment Controls. Design, install and maintain
effective erosion controls and sediment controls to minimize the
discharge of pollutants. At a minimum, such controls must be designed,
installed and maintained to:
(1) Control stormwater volume and velocity within the site to
minimize soil erosion;
(2) Control stormwater discharges, including both peak flowrates
and total stormwater volume, to minimize erosion at outlets and to
minimize downstream channel and streambank erosion;
(3) Minimize the amount of soil exposed during construction
activity;
(4) Minimize the disturbance of steep slopes;
(5) Minimize sediment discharges from the site. The design,
installation and maintenance of erosion and sediment controls must
address factors such as the amount, frequency, intensity and duration
of precipitation, the nature of resulting stormwater runoff, and soil
characteristics, including the range of soil particle sizes expected to
be present on the site;
(6) Provide and maintain natural buffers around surface waters,
direct stormwater to vegetated areas to increase sediment removal and
maximize stormwater infiltration, unless infeasible; and
(7) Minimize soil compaction and, unless infeasible, preserve
topsoil.
(b) Soil Stabilization. Stabilization of disturbed areas must, at a
minimum, be initiated immediately whenever any clearing, grading,
excavating or other earth disturbing activities have permanently ceased
on any portion of the site, or temporarily ceased on any portion of the
site and will not resume for a period exceeding 14 calendar days.
Stabilization must be completed within a period of time determined by
the permitting authority. In arid, semiarid, and drought-stricken areas
where initiating vegetative stabilization measures immediately is
infeasible, alternative stabilization measures must be employed as
specified by the permitting authority.
(c) Dewatering. Discharges from dewatering activities, including
discharges from dewatering of trenches and excavations, are prohibited
unless managed by appropriate controls.
(d) Pollution Prevention Measures. Design, install, implement, and
maintain effective pollution prevention measures to minimize the
discharge of pollutants. At a minimum, such measures must be designed,
installed, implemented and maintained to:
(1) Minimize the discharge of pollutants from equipment and vehicle
washing, wheel wash water, and other wash waters. Wash waters must be
treated in a sediment basin or alternative control that provides
equivalent or better treatment prior to discharge;
(2) Minimize the exposure of building materials, building products,
construction wastes, trash, landscape materials, fertilizers,
pesticides, herbicides, detergents, sanitary waste and other materials
present on the site to precipitation and to stormwater; and
(3) Minimize the discharge of pollutants from spills and leaks and
implement chemical spill and leak prevention and response procedures.
(e) Prohibited Discharges. The following discharges are prohibited:
(1) Wastewater from washout of concrete, unless managed by an
appropriate control;
(2) Wastewater from washout and cleanout of stucco, paint, form
release oils, curing compounds and other construction materials;
(3) Fuels, oils, or other pollutants used in vehicle and equipment
operation and maintenance; and
(4) Soaps or solvents used in vehicle and equipment washing.
(f) Surface Outlets. When discharging from basins and impoundments,
utilize outlet structures that withdraw water from the surface, unless
infeasible.
Sec. 450.22 Effluent limitations reflecting the best available
technology economically achievable (BAT).
Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve, at a
[[Page 63058]]
minimum, the following effluent limitations representing the degree of
effluent reduction attainable by application of the best available
technology economically achievable (BAT).
(a) Beginning no later than August 2, 2010 during construction
activity that disturbs 20 or more acres of land at one time, including
non-contiguous land disturbances that take place at the same time and
are part of a larger common plan of development or sale; and no later
than February 2, 2014 during construction activity that disturbs ten or
more acres of land area at one time, including non-contiguous land
disturbances that take place at the same time and are part of a larger
common plan of development or sale, the following requirements apply:
(1) Except as provided by paragraph (b) of this section, the
average turbidity of any discharge for any day must not exceed the
value listed in the following table:
------------------------------------------------------------------------
Daily maximum
Pollutant value (NTU)\1\
------------------------------------------------------------------------
Turbidity............................................... 280
------------------------------------------------------------------------
\1\ Nephelometric turbidity units.
(2) Conduct monitoring consistent with requirements established by
the permitting authority. Each sample must be analyzed for turbidity in
accordance with methods specified by the permitting authority.
(b) If stormwater discharges in any day occur as a result of a
storm event in that same day that is larger than the local 2-year, 24-
hour storm, the effluent limitation in paragraph (a)(1) of this section
does not apply for that day.
(c) Erosion and Sediment Controls. The limitations are described at
Sec. 450.21(a).
(d) Soil Stabilization. The limitations are described at Sec.
450.21(b).
(e) Dewatering. The limitations are described at Sec. 450.21(c).
(f) Pollution Prevention Measures. The limitations are described at
Sec. 450.21(d).
(g) Prohibited Discharges. The limitations are described at Sec.
450.21(e).
(h) Surface Outlets. The limitations are described at Sec.
450.21(f).
Sec. 450.23 Effluent limitations reflecting the best conventional
pollutant control technology (BCT).
Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve, at a minimum, the
following effluent limitations representing the degree of effluent
reduction attainable by application of the best conventional pollutant
control technology (BCT). The effluent limitations are described at
Sec. 450.21.
Sec. 450.24 New source performance standards reflecting the best
available demonstrated control technology (NSPS).
Any new source subject to this subpart must achieve, at a minimum,
the following new source performance standards representing the degree
of effluent reduction attainable by application of the best available
demonstrated control technology (NSPS): The standards are described at
Sec. 450.22.
[FR Doc. E9-28446 Filed 11-30-09; 8:45 am]
BILLING CODE 6560-50-P