Browse by Year
/ 2002
/ June
/ Monday, June 24, 2002
[Federal Register: June 24, 2002 (Volume 67, Number 121)]
[Proposed Rules]
[Page 42643-42686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn02-28]
[[Page 42643]]
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Part III
Environmental Protection Agency
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40 CFR Parts 122 and 450
Effluent Limitation Guidelines and New Source Performance Standards for
the Construction and Development Category; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 450
[FRL-7217-1]
RIN 2040-AD42
Effluent Limitation Guidelines and New Source Performance
Standards for the Construction and Development Category; Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a range of options to address storm water
discharges from construction sites. As one option, EPA is proposing
technology-based effluent limitation guidelines and standards (ELGs)
for storm water discharges from construction sites required to obtain
National Pollutant Discharge Elimination System (NPDES) permits. As
another option, EPA is proposing not to establish ELGs for storm water
discharges from those sites, but to allow technology-based permit
requirements to continue to be established based upon the best
professional judgment of the permit authority A third option would
establish inspection and certification requirements that would be
incorporated into the storm water permits issued by EPA and States,
with other permit requirements based on the best professional judgment
of the permit authority. This proposal, if implemented, is expected to
significantly reduce the amount of sediment discharged from
construction sites. The deposition of sediment from construction site
runoff has contributed to the loss of capacity in small streams, lakes,
and reservoirs, leading to the necessity for mitigation efforts such as
dredging or replacement. Today's document also requests comment and
information on several variations on these options and several other
significant aspects of the proposal, such as technologies, costs, and
economics.
DATES: EPA must receive comments on the proposal by October 22, 2002.
EPA will conduct public meetings for this proposed rule on July 9,
2002; July 23, 2002; July 30, 2002 and additional dates to be announced
later.
ADDRESSES: Submit written comments to: Comment Clerk, Water Docket
(4101), US EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. (See
next paragraph regarding addresses for hand deliveries.) Please refer
to Docket No. W-02-06. EPA requests an original and three copies of
your comments and enclosures (including references). Commenters who
want EPA to acknowledge receipt of their comments should enclose a
self-addressed, stamped envelope. No facsimiles (faxes) will be
accepted. Comments may also be sent via e-mail to ow-docket@epa.gov.
For additional information on how to submit electronic comments see
``SUPPLEMENTARY INFORMATION, How to Submit Comments.''
EPA will be holding public meetings on today's proposal on five
separate dates. The first three meetings are listed below; EPA will
announce the remaining meetings in a subsequent Federal Register
document and on its website at http://www.epa.gov/waterscience/guide/
construction/. No registration is required for these meetings. Seating
will be provided on a first-come, first-served basis.
Tuesday, July 9, 2002, 9 a.m.-noon, Hyatt Regency Hotel--San
Francisco Airport, 1333 Bayshore Highway, Burlingame, CA, Phone 650-
347-1234.
Tuesday, July 23, 2002, 9 a.m.-noon, Wyndham Garden Hotel--
Dallas Park Central, 8051 LBJ Freeway (I-635), Dallas, TX, Phone 972-
680-3000.
Tuesday, July 30, 2002, 9 a.m.-noon, Holiday Inn Chicago--
Elmhurst, 624 N. York Rd., Elmhurst, IL, Phone 630-279-1100.
Meeting Access: If you need special accommodations at this meeting,
including wheelchair access, you should contact the Eastern Research
Group Conference Registration Line at 781-674-7374, at least five
business days before the meeting so that appropriate arrangements can
be made. See ``Public Meeting Information'' below for additional
meeting details.
EPA established the public record for this proposed rulemaking
under docket number W-02-06. The record is currently located in the
Water Docket, Room EB 57, Waterside Mall, 401 M Street, SW.,
Washington, DC. The record is available for inspection from 9 a.m. to 4
p.m., Monday through Friday, excluding legal holidays. For access to
the docket materials, call 202-260-3027 to schedule an appointment. You
may have to pay a reasonable fee for copying. Please note that several
of the support documents are available at no charge on EPA's website;
see ``Supporting Documentation'' below. The Water Docket will be moving
to a new office location in August 2002. For hand deliveries of
comments through August, submit to the above address. Please call the
above number for details on the new location.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
today's proposed rule, contact Mr. Jesse Pritts at 202-566-1038 or Mr.
Eric Strassler at 202-566-1026. For economic information contact Mr.
George Denning at 202-566-1067.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action include:
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North American
Industry
Category Examples of Classification
regulated entities System (NAICS)
code
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Industry.......................... Construction site operators
disturbing 1 or more acres of land
and performing the following
activities:
Building, Developing 233
and General
Contracting.
Heavy Construction.. 234
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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 proposed
rule and the definition of ``construction activity'' and ``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 entity,
consult one of the persons listed for technical information in the
preceding FOR FURTHER INFORMATION CONTACT section.
How To Submit Comments
The public may submit comments in written or electronic form. (See
the ADDRESSES section above.) Electronic comments must be identified by
the docket number W-02-06 and must be submitted as a WordPerfect, MS
Word or ASCII text file, avoiding the use of special characters and any
form of encryption. EPA requests that any graphics included in
electronic comments also be provided in hard-copy form. EPA also will
accept comments and data on disks in the aforementioned file formats.
Electronic comments received on this notice may be filed online at many
Federal
[[Page 42645]]
Depository Libraries. No confidential business information (CBI) should
be sent by e-mail.
Public Meeting Information
See the ADDRESSES section of this document for dates and locations
of public meetings. During the meetings, EPA will present information
on the applicability of the proposed regulation, the technology options
selected as the basis for the proposed limitations and standards, and
the compliance costs and pollutant reductions. EPA will also allow time
for questions and answers during these sessions. These meetings are not
public hearings for the purpose of obtaining comment on the proposal.
EPA will not generate a transcript of the meetings. The public may
submit comments in writing or electronically as described above.
Supporting Documentation
Several key documents support the proposed regulations:
1. ``Development Document for Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-821-R-
02-007. (``Development Document'') This document presents EPA's
methodology and technical conclusions concerning the C&D category.
2. ``Economic Analysis of Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-EPA-821-
R-02-008. (``Economic Analysis'') This document presents the
methodology employed to assess economic and environmental impacts of
the proposed rule and the results of the analysis.
3. ``Environmental Assessment for Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-EPA-821-
R-02-009. (``Environmental Assessment'')
Major supporting documents are available in hard copy from the
National Service Center for Environmental Publications (NSCEP), U.S.
EPA/NSCEP, P.O. Box 42419, Cincinnati, Ohio, USA 45242-2419, telephone
800-490-9198, http://www.epa.gov/ncepihom/. You can obtain electronic
copies of this preamble and proposed rule as well as the technical and
economic support documents for today's proposal at EPA's website for
the C&D rule, http://www.epa.gov/waterscience/guide/construction.
Overview
The preamble describes the terms, acronyms, and abbreviations used
in this notice; the background documents that support these proposed
regulations; the legal authority of these rules; a summary of the
proposal; background information; and the technical and economic
methodologies used by the Agency to develop these regulations. This
preamble also solicits comment and data on specific areas of interest.
Table of Contents
I. Legal Authority
II. Purpose & Summary of Proposed Rule
III. Background
A. Clean Water Act
B. NPDES Storm Water Permit Program
1. Storm Water Permits for Construction: General and Individual
a. General Permits
b. EPA Construction General Permit
c. State Construction General Permits
d. Individual Permits
2. Municipal Storm Water Permits and Local Government Regulation
of Construction Activity
a. NPDES Requirements
b. EPA Guidance to Municipalities
C. Other State and Local Storm Water Requirements
D. Effluent Guidelines and Standards Program
1. Best Practicable Control Technology Currently Available (BPT)
2. Best Available Technology Economically Achievable (BAT)
3. Best Conventional Pollutant Control Technology (BCT)
4. New Source Performance Standards (NSPS)
5. Pretreatment Standards
6. Effluent Guidelines Plan and Consent Decree
E. Pollution Prevention Act
IV. Scope of Proposal
V. Summary of Data Collection Activities
A. Existing Data Sources
B. Storm Water Discharge Sampling and Site Visits
C. Industry-Supplied Data
D. Summary of Public Participation
VI. Industry Profile
A. Affected Industry Sectors
B. Construction and Development Activities Affecting Water
Quality
1. Planning and Site Design
2. Clearing, Excavating and Grading
3. Erosion and Sediment Control
4. Control of Other Pollutants
5. Final Stabilization and Long-Term Storm Water Management
VII. Storm Water Discharge Characteristics
VIII. Description of Available Technologies
A. Introduction
B. Erosion and Sediment Controls and Other Site Management
Practices
1. Goals
2. Major Categories of Best Management Practices
C. Long-Term Storm Water Management Control
1. Goals
2. Major Categories of Best Management Practices
IX. Development of Effluent Limitation Guidelines and Standards
A. Industry Subcategorization
1. Subcategorization by Site Size
2. Subcategorization by Industry
3. Subcategorization by Builder/Developer Size
4. Subcategorization Based on Hydrology, Soil Loss Potential or
Other Geographic Factors
5. Subcategorization Based on Past Land Use
B. Regulatory Options Considered
1. Overview of Regulatory Options: Erosion and Sediment Controls
and Other Temporary BMPs
2. Overview of Regulatory Options: Certification and Inspection
3. Overview of Regulatory Options: Continued Reliance on State
and Local ESC Programs
4. Overview of Regulatory Options Considered: Long-term Storm
Water Management
X. Determination of Best Practicable Control Technology Currently
Available (BPT), Best Conventional Pollutant Control Technology
(BCT), Best Available Technology Economically Achievable (BAT), and
New Source Performance Standards (NSPS)
A. Rationale for Selected BPT Option
B. BCT Determination
1. July 9, 1986 BCT Methodology
2. Consideration of BCT Option
C. BAT and NSPS
D. Summary of Provisions in Today's Proposed Rule
1. General Provisions and SWPPP Preparation
2. Design and Installation of Erosion and Sediment Controls
3. Inspection and Certification Provisions
4. Maintenance
XI. Methodology for Estimating Costs
A. Costs to the Construction and Development Category
B. Costs to Permit Authorities
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
3. Housing Market Impacts
4. Impacts on the National Economy
D. Results
1. Firm-Level Impacts
2. Impacts on Governments
3. Community-Level Impacts
4. Foreign Trade Impacts
5. Impacts on New Facilities
6. Social Costs
7. Small Business Impacts
XIII. Cost-Effectiveness Analysis
XIV. Non-Water Quality Environmental Impacts
A. Air Pollution
B. Solid Waste
C. Energy Usage
D. By-Products from BMPs
XV. Environmental Assessment
A. Introduction
B. Methodology for Estimating Environmental Impacts and
Pollutant Reductions
C. Potential Loading Reductions of Proposed Options
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XVI. Benefit Analysis
A. Benefits Categories Estimated
B. Quantification of Benefits
XVII. Benefit-Cost Comparison
XVIII. Regulatory Implementation
A. Compliance Dates
B. Relationship of Effluent Guidelines to NPDES Permits
C. Upset and Bypass Provisions
D. Variances and Waivers
1. Fundamentally Different Factors Variance
2. Low Soil Loss Potential Waiver
E. Other Clean Water Act Requirements
XIX. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Paperwork Reduction Act
B. Unfunded Mandates Reform Act (UMRA)
C. Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
1. Introduction
2. Summary of Panel Recommendations
D. Executive Order 12866: Regulatory Planning and Review
E. Executive Order 13132: Federalism
F. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. National Technology Transfer and Advancement Act
I. Plain Language Directive
J. Executive Order 13211 (Energy Effects)
XX. Solicitation of Data and Comments
A. Specific Solicitation of Comments and Data
B. General Solicitation of Comment
I. Legal Authority
EPA is proposing this regulation under the authorities of sections
301, 304, 306, 308, 402 and 501 of the Clean Water Act (CWA), 33 U.S.C.
1311, 1314, 1316, 1318, 1342 and 1361 and pursuant to the Pollution
Prevention Act of 1990, 42 U.S.C. 13101 et seq.
II. Purpose and Summary of Proposed Rule
Construction and development (C&D) activity affecting water quality
typically involves site selection and planning, and land-disturbing
tasks during construction such as clearing, excavating and grading.
Disturbed soil, if not managed properly, can be easily washed off-site
during storm events. Storm water discharges generated during
construction activities can cause an array of physical, chemical and
biological impacts. Water quality impairment may result, in part,
because a number of pollutants are preferentially absorbed onto mineral
or organic particles found in fine sediment. The interconnected process
of erosion (detachment of the soil particles), sediment transport, and
delivery is the primary pathway for introducing pollutants from
construction sites into aquatic systems.
A primary concern at most construction 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 this material to water bodies. Although streams and rivers
naturally carry sediment loads, erosion from construction sites and
runoff from developed areas can elevate these loads to levels above
those in undisturbed watersheds.
Existing national storm water regulations require construction site
operators to implement controls to manage construction site runoff, but
do not require any specific level of control. One of today's proposed
approaches (Option 2) would establish effluent limitation guidelines in
the form of minimum standards for design and implementation of erosion
and sediment controls used during the active phase of construction.
This approach would cover sites with five or more acres of disturbed
land, and would establish minimum requirements for conducting site
inspections and providing certification as to the design and completion
of various aspects of those controls.
EPA acknowledges that many State and local governments have
existing standards for temporary controls. Today's proposed effluent
guidelines are intended to work in concert with existing requirements
where equivalent, and would not supercede more stringent requirements.
In addition, EPA is proposing two alternatives that would not set
national standards for control of storm water discharges from
construction sites subject to permit requirements under section 402 of
the CWA. Both of these approaches would rely instead on a combination
of existing State and local requirements and additional requirements
based on the best professional judgement (BPJ) of the permitting
authority. Under one of these alternatives (Option 1), the proposal
would establish minimum requirements for conducting site inspections
and providing certification as to design and completion of controls
required by the permit authority in its NPDES permit. These
requirements are similar to the inspection and certification
requirements in Option 2. Existing compliance determination practices
for construction site storm water controls rely principally on site
inspections by local governments, however, enforcement efforts are
reported to be uneven nationwide, largely due to limited enforcement
resources at the Federal, State and local levels. The inspection and
certification requirements in today's proposed rule could strengthen
the current permit program.
Under another alternative (Option 3), no new requirements would be
established under this option. Both the control requirements and the
certification requirements would be left to the best professional
judgement of the permitting authority in order to allow them to be
better tailored to local conditions. These proposed options are
discussed in more detail in sections IX and X of today's notice. At
this time, EPA is co-proposing all three options because it sees
advantages to each.
III. Background
A. Clean Water Act
Congress adopted the Clean Water Act (CWA) 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 prohibits the discharge of pollutants into navigable
waters except in compliance with the statute. CWA section 402 requires
``point source'' discharges to obtain a permit under the National
Pollutant Discharge Elimination System (NPDES). These permits are
issued by EPA regional offices or authorized State agencies.
Following enactment of the Federal Water Pollution Control
Amendments of 1972 (Public Law 92-500, October 18, 1972), EPA and the
States issued NPDES permits to thousands of dischargers, both
industrial (e.g. manufacturing, energy and mining facilities) and
municipal (sewage treatment plants). As required under Title III of the
Act, EPA promulgated effluent limitation guidelines and standards for
many industrial categories, and these requirements are incorporated
into the permits.
The Water Quality Act of 1987 (Public Law 100-4, February 4, 1987)
amended the CWA. The NPDES program was expanded by defining municipal
and industrial storm water discharges as point sources. Industrial
storm water dischargers, municipal separate storm sewer systems and
other storm water dischargers designated by EPA must obtain NPDES
permits pursuant to section 402(p) (33 U.S.C. 1342(p)).
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B. NPDES Storm Water Permit Program
EPA's initial storm water regulations, promulgated in 1990,
identified construction as one of several types of industrial activity
requiring an NPDES permit. These ``Phase I'' storm water regulations
require operators of large construction sites to apply for permits (40
CFR 122.26(b)(14)(x)). A large-site construction activity is one that:
Will disturb five acres or greater; or
Will disturb less than five acres but is part of a larger
common plan of development or sale whose total land disturbing
activities total five acres or greater (or is designated by the NPDES
permitting authority); and
Will discharge storm water runoff from the construction
site through a municipal separate storm sewer system (MS4) or otherwise
to waters of the United States.
The Phase II storm water rule, promulgated in 1999, generally extends
permit coverage to sites one acre or greater (40 CFR 122.26(b)(15)).
In addition to requiring permits for construction site discharges,
the NPDES regulations require permits for certain MS4s. The local
governments responsible for the MS4s must operate a storm water
management program. The local programs regulate a variety of business
activities that affect storm water runoff, including construction, and
the components of these programs are described in section III.B.2 of
today's document.
1. Storm Water Permits for Construction: General and Individual
Pursuant to the NPDES Phase I storm water regulations at 40 CFR
122.26, EPA and the States began issuing permits for storm water
discharges from large construction sites in 1992. The Phase II rule
requires that permits for smaller sites be obtained starting in 2003. A
general description of the basic requirements for the Phase I and Phase
II regulations follows.
a. General Permits. The vast majority of construction sites are
covered by general permits. EPA and States use general permits to cover
a group of similar dischargers under one permit. See 40 CFR 122.28.
General permits simplify the application process for the industry,
provide uniform requirements across covered sites, and reduce
administrative workload for the permit authorities. EPA and the States
have published documents containing the construction general permits,
along with forms and related procedures. To obtain coverage under a
general permit, the permittee--either the developer, builder or
contractor for a construction project--submits a Notice of Intent (NOI)
to the permit authority. The NOI takes the place of a lengthier
application package that generally would be used for an individual
NPDES permit. By submitting the NOI, the permittee agrees to the
conditions in the published permit. The permittee may begin land
disturbance after a specified interval (typically 48 hours) following
NOI submission unless otherwise notified or specified by the permit
authority.
b. EPA Construction General Permit. EPA's Construction General
Permit (CGP) covers construction activities in six states, the District
of Columbia, Puerto Rico, U.S. territories, and specifically designated
portions of other states such as Indian Country and Federal facilities.
The ``national'' CGP, covering all the EPA Regions except Regions 4, 5
and 6, was published on February 17, 1998 (63 FR 7898). EPA has placed
a copy of the ``national'' CGP in the docket for today's proposal.
Slightly different versions of the permit for Regions 4 and 6 were
published on April 28, 2000 (65 FR 25122) and July 6, 1998 (63 FR
36490) respectively. (EPA does not issue NPDES permits for states
within Region 5.) EPA intends to issue a revised CGP later in 2002 to
incorporate requirements promulgated in the Phase II rule.
The principal requirement in the CGP is the preparation of a storm
water pollution prevention plan (SWPPP) before submission of the NOI.
EPA's guidance manual, ``Storm Water Management for Construction
Activities: Developing Pollution Prevention Plans and Best Management
Practices,'' (EPA 832/R-92-005, October 1, 1992; available on EPA's
website at http://www.epa.gov/npdes/stormwater) describes the SWPPP
process in detail. The plan must include a description of the site,
with maps showing drainage, discharge points, and location of runoff
controls; a description of the ``best management practices'' (BMPs) \1\
used; inspection procedures and reports. A copy of the plan must be
kept on the construction site from the date of project initiation to
the date of final stabilization. Permittees do not routinely submit
plans to the permit authority, but a copy must be readily available to
authorized inspectors during normal business hours. EPA's construction
general permit does not require that specific BMPs be contained in the
SWPPP, except that temporary sediment basins shall be used on sites
with 10 or more acres disturbed at one time. Rather, the permit
describes the general areas the plan must address (e.g., minimization
of erosion, containment of sediment on the site, proper handling of
chemicals and debris, etc.) and leaves it to the operator to develop
appropriate site-specific measures to accomplish these purposes.
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\1\ The term ``best management practices'' (BMP) is mentioned in
a few sections of the Clean Water Act, and is used extensively in
EPA regulations, guidance documents, state and local government
documents, and many other technical publications. The term has a
variety of meanings within the water quality literature, and is used
in situations involving both point sources and nonpoint sources.
BMPs can be procedures for operation and maintenance of municipal or
industrial treatment plants, training courses for plant employees,
public notification procedures, or agricultural waste handling
practices, as well as both structural and non-structural techniques
for controlling storm water discharges from any source. Within the
storm water field, some publications use the term ``BMPs'' when
referring to erosion and sediment controls. To avoid confusion, in
today's document EPA is using the terms ``erosion and sediment
controls'' (ESC) and ``temporary BMPs'' to describe the temporary
controls used by construction site operators during the period of
land disturbance, and ``storm water management BMPs'' to refer to
the techniques and technologies designed and installed by operators
for long-term control of storm water discharges.
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EPA encourages multiple operators at a construction site to develop
a comprehensive SWPPP. Other requirements in the CGP include conducting
regular inspections and reporting releases of reportable quantities of
hazardous substances.
To discontinue permit coverage, an operator must complete final
stabilization of the site, transfer responsibility to another party
(e.g., a developer transferring land to a home builder), or for a
residential property, complete temporary stabilization and transfer to
the homeowner. The permittee submits a Notice of Termination (NOT) Form
to the permit authority upon satisfying the appropriate permit
conditions described in the CGP.
c. State Construction General Permits. For the most part, the state
general permits have followed EPA's format. Some states have modified
requirements in their permits. For example, California has added
discharge monitoring requirements for sites where the receiving water
body is listed as impaired (water quality-limited) for sedimentation.
(California State Water Resources Control Board, Resolution No. 2001-
046, April 26, 2001; http://www.swrcb.ca.gov/resdec/resltn/2001/
01res.html) and Georgia has added monitoring requirements for all sites
(Georgia Department of Natural Resources, Environmental Protection
Division, General NPDES Permit For Storm Water Discharges From
Construction Activities, No. GAR100000, June 12, 2000; http://
[[Page 42648]]
www.DNR.State.Ga.US/dnr/environ/techguide--files/techguide.htm).
d. Individual Permits. A permit authority may require any site to
apply for an individual permit rather than using the general permit.
The individual permit is most often used for complex projects and/or
projects located in sensitive watersheds. State storm water permit
coordinators have informed EPA that this provision has been rarely used
for construction activities.
2. Municipal Storm Water Permits and Local Government Regulation of
Construction Activity
Many local governments, as MS4 permittees, have a role in the co-
regulation of construction industries along with States and EPA, and
are responsible for overseeing long-term maintenance of storm water
management facilities. This section describes regulatory programs
operated by MS4s.
a. NPDES Requirements. The NPDES storm water regulations require
that MS4s apply for permits. In general, the Phase I rule covers MS4s
serving populations of 100,000 or more. The Phase II rule extends
coverage to most other MS4s in urbanized areas, and NPDES agencies may
designate additional MS4s outside of urbanized areas for permit
coverage based on State-specific criteria.
The regulations contemplate that each MS4 generally will operate a
local storm water management program in order to properly control
discharges into, and hence out of, its MS4. The Phase II MS4
regulations specifically anticipate a local program for regulating
storm water discharges from construction activity and managing ``post-
construction'' (long-term) runoff. Permits for Phase I MS4s, while not
specifically required by the regulations to do so, typically administer
such programs as well. See 40 CFR 122.26(d) for Phase I MS4s and 40 CFR
122.34(a) for Phase II MS4s. EPA has provided guidance to the NPDES
agencies and MS4s that recommends components and activities for a well-
operated local storm water management program.
b. EPA Guidance to Municipalities. EPA has issued several guidance
documents to municipalities to implement the NPDES Phase II rule.
National Menu of BMPs (http://www.epa.gov/npdes/
menuofbmps/menu.htm). This document provides guidance to regulated
small MS4s as to the types of practices they could use to develop and
implement their storm water management programs. The menu includes
descriptions of BMPs that local programs can implement to reduce
impacts of storm water discharges from construction activities and
long-term runoff.
Measurable Goals Guidance (http://www.epa.gov/npdes/storm
water/measurablegoals). This document assists small MS4s in defining
performance targets for each of the six minimum measures described
above. Included in the guidance are examples of goals for BMPs to
control storm water discharges from construction activities and urban
runoff.
Storm Water Phase II Compliance Assistance Guide (EPA 833-
R-00-002, March 2000, http://cfpub.epa.gov/npdes/stormwater/
smms4.cfm?program--id=6). The guide provides an overview of compliance
responsibilities for MS4s, small construction sites, and certain other
industrial storm water discharges affected by the Phase II rule.
Fact Sheets on various storm water 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) and swales (EPA 832-F-99-006), wet
detention ponds (EPA 832-F-99-048). (All fact sheets published 1999.
Available at http://www.epa.gov/npdes/stormwater/ ; click on
``Publications.'')
C. Other State and Local Storm Water Requirements
States and municipalities may have other requirements for flood
control, erosion and sediment (E&S) control, and in many cases, storm
water quality. Many of these provisions were enacted before the
promulgation of the EPA Phase I storm water rule. All states have laws
for E&S control, and these are often implemented by MS4's. A summary of
existing state and local requirements is provided in the Development
Document.
D. Effluent Guidelines and Standards Program
Effluent limitation guidelines and standards (hereinafter referred
to as ``effluent guidelines'' or ``ELGs'') are technology-based
requirements for categories of point source dischargers. These
limitations are subsequently incorporated into NPDES permits. The
effluent guidelines are based on the degree of control that can be
achieved using various levels of pollution control technology, as
defined in Title III of the CWA and outlined below.
1. Best Practicable Control Technology Currently Available (BPT)
In guidelines for a point source category, EPA may define BPT
effluent limits for conventional, toxic,\2\ and non-conventional
pollutants. In specifying BPT, EPA looks at a number of factors. EPA
first considers the cost of achieving effluent reductions in relation
to the effluent reduction benefits. The Agency also considers the age
of the equipment and facilities, the processes employed and any
required process changes, engineering aspects of the control
technologies, non-water quality environmental impacts (including energy
requirements), and such other factors as the Agency 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
practically applied. See ``A Legislative History of the Federal Water
Pollution Control Act Amendments of 1972,'' U.S. Senate Committee of
Public Works, Serial No. 93-1, January 1973, p. 1468.
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\2\ In the initial stages of EPA CWA regulation, EPA efforts
emphasized the achievement of BPT limitations for control of the
``classical'' pollutants (e.g., TSS, pH, BOD5). However,
nothing on the face of the statute explicitly restricted BPT
limitation to such pollutants. Following passage of the Clean Water
Act of 1977 (Public Law 95-217, December 27, 1977) with its
requirement for point sources to achieve best available technology
limitations to control discharges of toxic pollutants, EPA shifted
its focus to developing BAT limitations for the listed priority
toxic pollutants.
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In addition, the Act requires a cost-reasonableness assessment for
BPT limitations. In determining the BPT limits, EPA considers the total
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
unless the required additional reductions are ``wholly out of
proportion to the costs of achieving such marginal level of
reduction.'' See Legislative History, op. cit., p. 170. Moreover, the
inquiry does not require the Agency to quantify benefits in monetary
terms. See, for example, American Iron and Steel Institute v. EPA, 526
F. 2d 1027 (3rd Cir., 1975).
In balancing costs against the benefits of effluent reduction, EPA
considers the volume and nature of expected discharges after
application of BPT, the
[[Page 42649]]
general environmental effects of pollutants, and the cost and economic
impacts of the required level of pollution control. In past effluent
limitation guidelines and standards, BPT cost-reasonableness removal
figures have ranged from $0.21 to $33.71 per pound removed in year 2000
dollars. In developing guidelines, the Act does not require
consideration of water quality problems attributable to particular
point sources, or water quality improvements in particular bodies of
water. Accordingly, EPA has not considered these factors in developing
the limitations being proposed today. See Weyerhaeuser Company v.
Costle, 590 F. 2d 1011 (D.C. Cir. 1978).
2. Best Available Technology Economically Achievable (BAT)
In general, BAT effluent guidelines (CWA section 304(b)(2))
represent the best existing economically achievable performance of
direct discharging plants in the subcategory or category. The factors
considered in assessing BAT include the cost of achieving BAT effluent
reductions, the age of equipment and facilities involved, the processes
employed, 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. The Agency retains considerable discretion in assigning
the weight to be accorded to these factors. An additional statutory
factor considered in setting BAT is ``economic achievability.''
Generally, EPA determines the economic achievability on the basis of
the total cost to the subcategory and the overall effect of the rule on
the industry's financial health. The Agency may base BAT limitations
upon effluent reductions attainable through changes in a facility's
processes and operations. As with BPT, where existing performance is
uniformly inadequate, EPA may base BAT upon technology transferred from
a different subcategory or from another category. In addition, the
Agency may base BAT upon manufacturing process changes or internal
controls, even when these technologies are not common industry
practice.
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 section 304(b)(4)(B), the CWA 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).
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. The
Administrator designated oil and grease as an additional conventional
pollutant on July 30, 1979 (44 FR 44501). A primary pollutant of
concern at construction sites, sediment, is measured as TSS.
4. New Source Performance Standards (NSPS)
NSPS reflect effluent reductions that are achievable based on the
best available demonstrated control technology. New facilities 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
for all pollutants (i.e., conventional, non-conventional, and priority
pollutants). In establishing NSPS, CWA section 306 directs EPA to take
into consideration 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 are
Pretreatment Standards for Existing Sources (PSES) and Pretreatment
Standards for New Sources (PSNS) under section 307(b). Because EPA has
identified no deliberate discharges directly to POTWs, EPA is not
proposing PSES or PSNS for the Construction and Development Category.
The information reviewed by the Agency indicates that the vast majority
of construction sites discharge either directly to waters of the U.S.
or through MS4s. In some urban areas, construction sites discharge to
combined sewer systems (i.e., sewers carrying both storm water and
domestic sewage through a single pipe) which lead to POTWs. Sediment is
susceptible to treatment in POTWs, using technologies commonly employed
such as primary clarification, and EPA has no evidence of interference,
pollutant pass-through or sludge contamination.
6. Effluent Guidelines Plan and Consent Decree
Clean Water Act section 304(m) requires EPA to publish a plan every
two years that consists of three elements. First, under section
304(m)(1)(A), EPA is required to establish a schedule for the annual
review and revision of existing effluent guidelines in accordance with
section 304(b). Section 304(b) applies to ELGs for direct dischargers
and requires EPA to revise such regulations as appropriate. Second,
under section 304(m)(1)(B), EPA must identify categories of sources
discharging toxic or nonconventional pollutants for which EPA has not
published BAT ELGs under section 304(b)(2) or new source performance
standards under section 306. Finally, under section 304(m)(1)(C), EPA
must establish a schedule for the promulgation of BAT and NSPS for the
categories identified under subparagraph (B) not later than three years
after being identified in the 304(m) plan. Section 304(m) does not
apply to pretreatment standards for indirect dischargers, which EPA
promulgates pursuant to section 307(b) and 307(c) of the Act.
On October 30, 1989, Natural Resources Defense Council, Inc.
(NRDC), and Public Citizen, Inc., filed an action against EPA in which
they alleged, among other things, that EPA had failed to comply with
section 304(m). Plaintiffs and EPA agreed to a settlement of that
action in a consent decree entered on January 31, 1992. (Natural
Resources Defense Council et al v. Whitman, D.D.C. Civil Action No. 89-
2980). The consent decree, which has been modified several times,
established a schedule by which EPA is to propose and take final action
for eleven point source categories identified by name in the decree and
for eight other point source categories identified only as new or
revised rules, numbered 5 through 12. EPA selected the Construction and
Development category as the subject for New or Revised Rule
10. The decree, as modified, calls for the Administrator to
sign a proposed ELG for the C&D category no later than May 15, 2002,
and to take final action on that proposal no later than March 31, 2004.
A settlement agreement between the parties, signed on June 28, 2000,
requires that EPA develop regulatory options applicable to discharges
from construction, development and redevelopment, covering site sizes
included in the Phase I and Phase II
[[Page 42650]]
NPDES storm water rules (i.e. one acre or greater). EPA is required to
develop options including numeric effluent limitations for
sedimentation and turbidity; control of construction site pollutants
other than sedimentation and turbidity (e.g. discarded building
materials, concrete truck washout, trash); BMPs for controlling post-
construction runoff; BMPs for construction sites; and requirements to
design storm water controls to maintain pre-development runoff
conditions where practicable. The settlement also requires EPA to issue
guidance to MS4s and other permittees on maintenance of post-
construction BMPs identified in the proposed ELGs. Further discussion
of approaches not pursued by EPA at this time may be found in the
docket for today's proposal.
E. Pollution Prevention Act
The Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13101 et
seq., Public Law 101-508, November 5, 1990) makes pollution prevention
the national policy of the United States. The PPA identifies an
environmental management hierarchy in which pollution ``should be
prevented or reduced whenever feasible; pollution that cannot be
prevented should be recycled in an environmentally safe manner,
whenever feasible; pollution that cannot be prevented or recycled
should be treated in an environmentally safe manner whenever feasible;
and disposal or release into the environment should be employed only as
a last resort * * *'' (42 U.S.C. 13103). In short, preventing pollution
before it is created is preferable to trying to manage, treat or
dispose of it after it is created. According to the PPA, source
reduction reduces the generation and release of hazardous substances,
pollutants, wastes, contaminants or residuals at the source, usually
within a process. The term source reduction ``* * * includes equipment
or technology modifications, process or procedure modifications,
reformulation or redesign of products, substitution of raw materials,
and improvements in housekeeping, maintenance, training, or inventory
control. The term 'source reduction' does not include any practice
which alters the physical, chemical, or biological characteristics or
the volume of a hazardous substance, pollutant, or contaminant through
a process or activity which itself is not integral to or necessary for
the production of a product or the providing of a service.'' In effect,
source reduction means reducing the amount of a pollutant that enters a
waste stream or that is otherwise released into the environment prior
to out-of-process recycling, treatment, or disposal.
Although the PPA does not explicitly address storm water discharges
or discharges from construction sites, the principles of the PPA are
implicit in many of the practices used to reduce pollutant discharges
from construction sites. These include controls that minimize the
potential for erosion such as proper phasing of construction, retention
of on-site vegetation and stabilization of disturbed areas as soon as
practicable. These controls and practices are described in section IX.A
of today's document.
IV. Scope of Proposal
EPA is proposing three options, and soliciting comment on
variations on these options, for further control of the discharge of
pollutants in storm water associated with construction and development
activities.
One proposed option (Option 2) would establish C&D effluent
guidelines that would apply to construction site operators at sites
with 5 acres or more of disturbed area. Under this option, an operator
would be required to:
Design, install and maintain erosion and sediment
controls;
Prepare a storm water pollution prevention plan;
Inspect the site throughout the land-disturbance period;
and
Certify that the controls meet the regulatory design
criteria or permit conditions, as applicable.
These provisions are explained in section X.D. of today's document.
Today's proposal does not include requirements regarding the selection
or implementation of long-term storm water controls at the sites using
permanent BMPs. Under the NPDES storm water permit program, State and
local governments are responsible for establishing requirements for
permanent storm water controls, and for the maintenance of those
permanent storm water controls. Today's proposed rule would not alter
that responsibility. EPA has collected a significant body of technical
information on the design and effectiveness of various permanent storm
water controls that may assist State and local governments as they
establish their requirements for construction and development activity.
EPA anticipates releasing this document sometime after this proposal.
EPA is also preparing a guidance manual on storm water BMP maintenance
procedures to assist State and local governments and property owners.
EPA anticipates releasing a final version of this document at the time
of final action on this proposal in March of 2004. A draft of the
document is included in the rulemaking record of this proposal.
EPA is also considering a variation on this option that would
establish C&D effluent guidelines that would apply to construction site
operators at sites with five acres or more of disturbed area. Under
this variation an operator would be required to:
Design, install and maintain erosion and sediment
controls; and
Prepare a storm water pollution prevention plan.
Under this variation Federal inspection and certification requirements
would not be established; those provisions could be addressed at the
local level.
Another proposed option (Option 1) would not establish C&D effluent
guidelines, but rather would amend the NPDES storm water requirements
for construction site operators subject to NPDES storm water
requirements, i.e., operators of construction sites with one acre or
more of disturbed area. (See section III.B of today's document for a
summary of current permit requirements.) Under this option, an operator
would be required to:
Inspect the site throughout the land-disturbance period;
and
Certify that the controls meet the regulatory design
criteria established by the Federal, Tribal, State or local government.
These provisions are explained in section X.D of today's document.
The final proposed option (Option 3) would not establish C&D
effluent guidelines or amend the NPDES storm water requirements for
construction site operators. Rather, this option would continue to rely
on control practices and any certification and inspection requirements
tailored to local conditions that established by the permitting
authority on a BPJ basis.
V. Summary of Data Collection Activities
A. Existing Data Sources
In developing today's proposal, EPA collected and reviewed existing
data from a variety of sources, including technical and professional
literature; the National Storm Water Best Management Practices Database
developed by the American Society of Civil Engineers (ASCE); the
Agency's economic analysis for the Phase II NPDES storm water rule;
State storm water and erosion and sediment control manuals and
handbooks; EPA and State databases on construction general permits; the
United States Department of Agriculture (USDA) National Resources
Inventory; the Census of Construction; and the U.S. Army Corps of
Engineers evaluation of
[[Page 42651]]
BMPs for small construction sites. Other information sources included
Federal agencies such as the Securities and Exchange Commission and
Small Business Administration (SBA); industry and trade association
publications; university and nonprofit organization research centers;
interviews with State and local officials; and interviews with industry
representatives and consultants. EPA did not conduct any questionnaire
surveys of the construction and development industry in preparing
today's proposal.
EPA drew heavily on the mass of data related to erosion and
sediment control, and storm water technology and BMP applicability and
efficiency contained in the technical and scientific literature in
order to develop today's proposal. Data sources collected and evaluated
include published papers and journal articles, ASCE and International
Erosion Control Association (IECA) conference proceedings, research
reports from state and federal agencies such as USDA, U.S. Department
of Transportation, State Departments of Transportation, and the
Transportation Research Board. EPA conducted a detailed assessment of
these data sources, the results of which are summarized in the
Development Document for the Construction and Development Effluent
Guidelines (see ``Supporting Documentation''). The document summarizes
efficiency data for most of the erosion and sediment controls in common
usage. This literature and data summary was the main source of data
used to evaluate BMP efficiency and applicability for today's proposal.
EPA also augmented these data sources with data contained in the
National Storm Water BMP Database. This database is a comprehensive
data storage and evaluation system developed by ASCE in cooperation
with EPA. The database contains monitoring studies on storm water BMPs
in a consistent and transferrable format in order to allow for a
comprehensive evaluation and comparison of various BMP designs.
Representative information provided for each BMP includes test site
location, researcher contact data, watershed characteristics, regional
climate statistics, BMP design parameters, monitoring equipment types,
and monitoring data such as precipitation, flow and water quality. The
database can be accessed at http://www.bmpdatabase.org.
The U.S. Census Bureau conducted the most recent Census of
Construction in 1997. The Census provides data on the number, size, and
geographic distribution of establishments; employment and payroll;
financial information (such as revenues and expenses); specialization
by type of construction; and amount and type of work subcontracted out.
EPA relied on additional Census Bureau programs for data on market
conditions in the industry. The Building Permits Program provided
monthly data on the number of building permits issued for new
residential construction. The annual Survey of Construction provided
data on number of housing starts, completions, and units sold;
characteristics of new homes (including size of home and building lot
size); and value of construction put in place.
While the Census Bureau programs provide substantial data on
business establishment characteristics and industry output, there is a
noticeable lack of information linking establishment data to output
measures. For example, the Census of Construction provides average and
median revenues and value of construction for all establishments and
for establishments by employment size class, but does not provide a
distribution of establishments by number of housing units started or
completed, number of construction permits issued, or number of acres
developed. For EPA's economic analysis this was a significant data gap,
since the proposed regulations would be implemented at the project
level and the Agency developed its compliance cost estimates on a per-
acre basis. This led EPA to develop a method for estimating the number
of acres disturbed per establishment.
EPA was able to partially fill these data gaps using information
contained in a special Census Bureau report (``1997 Economic Census;
Construction Sector Special Study Housing Starts Statistics; A Profile
of the Homebuilding Industry,'' July 2000). This report contains
estimates of the number of homebuilding establishments by number of
housing units built each year. EPA combined this information with data
on the average lot size for new homes to estimate a distribution of
establishments by number of acres disturbed. EPA also used data from
this report to determine the number of small builders who are likely to
disturb less than one acre of land per year and who therefore are not
covered by the storm water permit program.
Another data source was important for further clarifying the size
of the industry that is covered by the storm water permit program. The
single-family and multi-family housing construction industries (NAICS
23321 and 23322) include establishments that are engaged in new
construction as well as renovation of existing construction. Since
renovation and remodeling activities generally do not disturb one acre
or more of land per site, renovation and remodeling contractors would
not be subject to the requirements being proposed today. To estimate
the number of such contractors, EPA used data from a recent study
completed by the Joint Center for Housing Studies at Harvard
University. This report classified establishments that derive at least
half of their revenues from remodeling activities as remodelers. Based
on this definition, the Agency concluded that a substantial portion of
the single-family and multifamily housing construction sector may not
be affected by today's proposal. EPA requests comment on its assumption
that firms which derive at least half their revenues from remodeling
will not be affected by today's proposal.
EPA obtained information on home ownership rates, mortgage
affordability, and interest rates from sources such as Fannie Mae and
the Federal Housing Finance Board. Data on average costs of
construction for various types of projects were obtained from R.S.
Means Co. publications and the National Association of Home Builders
(NAHB).
EPA obtained data on the amount of land converted from undeveloped
to developed status from the National Resources Inventory (NRI). This
is a statistical sampling program conducted by USDA every five years
that defines geographic sampling points in terms of their land use
status. The most recent NRI indicates that during the period 1992 to
1997, each year over 2.2 million acres of land previously classified as
undeveloped were converted to developed status. For developed land, the
NRI does not specify the type of use (i.e., single family homes,
roadways, commercial or industrial sites). In order to estimate the
number of acres converted by type of development, EPA used actual data
or estimates of the number of projects permitted and the average size
of projects, by type. For example, to determine the number of acres
converted to residential housing development EPA multiplied the number
of new homes permitted for construction each year by the average lot
size for new construction. For non-residential construction, EPA had to
fill a data gap created when the Census Bureau ceased, in 1995,
collecting information on the number of nonresidential building permits
issued. The Agency used historical (pre-1995) data on nonresidential
starts to establish a relationship between residential and
nonresidential starts from which current nonresidential activity could
be
[[Page 42652]]
estimated. To stratify the aggregate amount of land converted to
developed status by size of development project, EPA used data on
construction project size collected from 14 municipalities in support
of the NPDES Phase II storm water regulations (Economic Analysis of the
Phase II Storm Water Rule, Final Report, October 1999.)
B. Storm Water Discharge Sampling and Site Visits
At the time of this proposal, EPA is planning to conduct sampling
and analysis of discharges at a number of construction sites in order
to better characterize the pollutants commonly found in construction
site runoff. EPA has also funded several cooperative agreements
evaluating construction site pollutant loadings, erosion and sediment
control effectiveness, and receiving water impacts of land development
activities.
C. Industry-Supplied Data
EPA has reviewed reference publications and data prepared by
industry organizations including NAHB, the Construction Financial
Management Association and the Urban Land Institute. The Agency
received cost data and comments from several construction and
development businesses during the Small Business Advocacy Review
conducted in 2001. (This review is described in section XIX.C of
today's document.)
NAHB submitted a report that presents an independent evaluation of
the data contained in the initial release of the National Stormwater
BMP Database. (National Association of Home Builders, ``Erosion and
Sediment Control Best Management Practices Research Project.''
Washington, DC, 2000). The report is included in the rulemaking record.
D. Summary of Public Participation
EPA conducted an introductory public meeting in April 1999
describing the effluent guidelines development process and the
regulatory issues being considered for the C&D rule. In the Summer of
2001 EPA conducted two additional meetings to provide an update of
progress on the rule development.
Since the beginning of the rule project in 1998, EPA has held
meetings with industry associations, State and local government
officials, professional organizations and citizen groups on the C&D
rule. In 2000-01, EPA conducted interviews and group discussions with
builders and developers to learn about the land development process,
builder-developer organizational structures, operational and business
practices, and business trends in greater detail.
In 2001 EPA conducted a Small Business Advocacy Review panel
pursuant to the Small Business Regulatory Enforcement Fairness Act
(SBREFA). A discussion of this process and findings are discussed in
section XIX.C of today's document.
VI. Industry Profile
A. Affected Industry Sectors
The construction and development category covers establishments
classified by the Census Bureau into two subsectors.
The Building, Developing and General Contracting subsector
(NAICS 233) includes land subdivision and development, and building
construction (residential and nonresidential). Land developers select
construction sites, conduct site planning and design activities, and
carry out other tasks such as financing and marketing. General
contractors build residential, industrial, commercial and other
buildings.
Heavy Construction contractors (NAICS 234) build sewers
and other utilities, roads, highways, bridges and tunnels.
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.
The residential building industries have their own variety of
operational relationships. Many home building projects are initiated
and managed by a developer, using one or more general contractors to
supervise and/or carry out the physical construction activities. Other
projects are operated by ``merchant'' builders. A merchant builder is a
firm that develops property, constructs homes, and markets the final
product within the same company. Although these functions may be
conducted by different entities, the merchant builder conducts all of
these activities within the same firm. In the past, industry members
used the term ``operative builder'' to refer to a firm that conducts
these activities within the same firm. The merchant builder is
organized into divisions or departments within the firm and each
division or department is responsible for different functions, e.g.
land development, construction, marketing.
Most builders and developers are separate entities. Typically, the
developer acquires property and moves the project from raw land to
finished lots. The lots are usually sold to builders who construct
houses, commercial/shopping centers, office and industrial parks, and
other products for the final consumer. In some situations home builders
will construct speculatively without a contract. In other cases the
home buyer will contract with a builder for a specific house. The
builder hires subcontractors for carpentry, plumbing, electrical, and
other services.
Some of the operating characteristics of the heavy construction
subsector include: (1) Usually government agency clients rather than
private customers, (2) public sector clients typically issue
specifications to cover many projects (e.g., a highway agency publishes
road construction standards for all projects in its jurisdiction), and
(3) frequent use of unit price contracts (e.g., a local public works
agency contracts for installation of a quantity of sewer pipeline). The
relationship between the heavy construction firm and the public
customer is typically established through a competitive bid process.
Private sector customers may initiate projects through negotiated
contracts.
EPA understands that in typical construction projects the firms
identifying themselves as ``operators'' under a construction general
permit are general building contractors and/or developers.\3\ While
such projects may use the services of specialty contractors such as
excavation companies, these firms are typically subcontractors to the
general building contractor and are not identified as operators in the
storm water permit. Other classes of subcontractors such as carpentry,
painting, plumbing and electrical services typically do not apply for,
nor receive, NPDES permits and EPA is not including these businesses in
its population estimates for the purpose of today's proposed rule. EPA
is also excluding businesses classified by the Census Bureau as ``non-
employer'' establishments. These establishments tend to be
proprietorships with the owner providing individual construction
services to the industry, and they are primarily engaged in activities,
such as remodeling, that disturb little if any land.
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\3\ Under the CGP, a property owner who is not a developer or
contractor, e.g., a corporation erecting an office building for its
own use, may be designated as a co-permittee if it retains control
over site plans.
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B. Construction and Development Activities Affecting Water Quality
1. Planning and Site Design
Land development tasks that can affect pollutant discharges
typically include the following activities:
[[Page 42653]]
Site selection and analysis;
Design of subdivision and lot sizes in residential and
mixed-use projects;
Design of infrastructure (roads, sewers, utility lines,
etc.).
In many cases, particularly on smaller projects, a land owner may
manage these tasks directly without the involvement of a real estate
developer. In larger projects, real estate developers usually manage
the project, especially when local government requirements and approval
processes are complex. This is often the case for residential
developments, mixed-use projects (involving housing, commercial and/or
other land uses), shopping centers and large office buildings and
complexes.
A real estate developer initiating a project will typically have a
particular kind of project in mind (such as residential or commercial),
but may not have identified a particular site. The developer may
formulate a conceptual plan for the project and then search for sites
that could accommodate such a plan. During the site selection process
many factors are taken into consideration by the developer, and
included among these may be the presence of water bodies on or near the
site. For example, the developer may consider on-site water features to
be an amenity that can add value to the site. On-site water body
characteristics may dictate how structures can be located on the site
to avoid flooding. Some properties may have limitations if on-site or
adjacent water bodies have regulatory designations such as riparian
buffers, flood plains and wetlands.
Once a site has been selected and control of the property is
obtained (through purchase, lease, option to purchase, etc.), the
developer can proceed with site analysis, design and initial proposals
for local government approval. Site analysis includes examination of
topography, soils, and hydrology. Site design tasks depend on the
planned uses for the land (residential, commercial, institutional,
etc.) and may involve subdivision of the site into individual home
lots; locating commercial, institutional or industrial buildings;
locating streets, sidewalks and/or parking areas; and placement of
utilities, including storm drainage systems. Planning for storm water
management during the early stages of project formulation allows for
consideration of site designs that can reduce the overall water quality
impacts of the site. One such planning strategy, ``Conservation
Design,'' includes avoiding natural wetland areas, preserving existing
trees and vegetation, maintaining stream buffers, limiting the extent
of clearing and grading activities, and identifying highly infiltrative
soil areas for preservation. (See ``Growing Green,'' Natural Lands
Trust, Inc., Media, PA. Available at http://www.natlands.org/planning/
planning.html.) The site design is subject to local government
approval, and multiple agencies may be involved, depending on the size
and complexity of the site and the requirements of master planning or
zoning agencies. Once the appropriate government approvals have been
obtained, the permittee may proceed with ground breaking activities.
(D. Linda Kone, ``Land Development,'' Washington, DC: Home Builders
Press, 2000).
2. Clearing, Excavating and Grading
Construction 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 must be hauled away by
tractor-pulled wagons, dump trucks or articulated trucks.
Clearing activities involve the movement of materials from one area
of the site to another or complete removal from the site. Equipment
used for lifting excavated and cleared materials include aerial-work
platforms, forwarders cranes, rough-terrain forklifts, and truck-
mounted cranes. Truck loaders are used for digging and dumping earth.
Excavation and grading may be performed by several different types
of machines. They can also be done by hand, but this is generally more
labor-intensive and more expensive. When grading a site, builders
typically take measures to ensure that new grades are as close to the
original grade as possible, so as not to create a dis-equilibrium,
especially to avoid erosion and storm water runoff. Proper grade also
ensures a flat surface for development and is designed to attain proper
drainage away from the constructed buildings.
Equipment used during excavation and grading include backhoes,
bulldozers, loaders, directional drilling rigs, hydraulic excavators,
motor graders, scrapers, skid-steer loaders, soil stabilizers, tool
carriers, trenchers, wheel loaders and pipeliners. The type of
equipment used generally depends on the functions to be performed and
on specific site conditions.
Shaping and compacting 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. Compaction is most often accomplished
with various types of rollers.
For removal of rock from the site, the contractor must first loosen
and break the rock into small pieces. This can be accomplished by
drilling or blasting. Drilling equipment includes jackhammers, wagon
drills, drifters, churn rills, and rotary drills. Dynamite and other
explosives can be used to loosen rock.
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.
3. Erosion and Sediment Control
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, soil and sand
particles may be easily picked up by wind and/or washed away by rain or
snow melt. This process is called erosion. The water carrying these
particles eventually reaches a water body. The particles are deposited
in the water body, a process called sedimentation. Descriptions of the
environmental impacts of construction site runoff are provided in
section XV of today's document.
Contractors use erosion and sediment controls (ESCs) to mitigate
these impacts. Erosion controls include mulching, vegetative filter
strips, diversion berms and conveyance channels, slope drains, bonded
fiber matrices, and rolled products such as turf reinforcement mats.
These materials and methods are intended to reduce erosion where soil
particles can be initially dislodged on a construction site, either
from rainfall, snow melt or up-slope runoff. Erosion controls may not
be completely effective, and sediment controls are typically employed
in addition. Sediment controls include sediment basins, ponds, and
traps; and barrier methods such as silt fences, straw bales and rock
barriers. ESCs are further described in section VIII of today's
document.
[[Page 42654]]
4. Control of Other Pollutants
Construction activity generates a variety of waste materials. These
materials may include concrete truck rinsate, trash, and other
pollutants. Construction site operators utilize various practices to
manage these wastes and minimize discharges to surface waters,
including:
Neat and orderly storage of chemicals, pesticides,
fertilizers, and fuels that are being stored on the site;
Regular collection and disposal of trash and sanitary
waste;
Prompt cleanup of spills of liquid or dry materials.
These procedures are described in EPA's 1992 guidance, ``Storm
Water Management for Construction Activities: Developing Pollution
Prevention Plans and Best Management Practices'' (op. cit.), State and
local government documents pertaining to construction sites, and in
section VIII of today's document.
5. Final Stabilization and Long-Term Storm Water Management
Construction activities on previously undeveloped land areas can
significantly alter the hydrology of a site. In order to avoid flooding
on the site and protect the newly constructed structures, the builder
must design drainage facilities. The builder's site plans, as approved
by the local government, specify the location of buildings and other
structures, and typically indicate the site's drainage patterns and
facilities for long-term storm water management. The plans may specify
permanent storm water management facilities (or BMPs) to be constructed
on the site, to control flooding, and in some cases, to protect
receiving water quality. No single BMP type can address all storm water
problems. Each type has certain limitations based on the drainage area
served, available land space, cost, pollutant removal efficiency, as
well as a variety of site-specific factors such as soil types, slope
and depth of groundwater table. Storm water management BMPs are further
described in section VIII of today's document.
VII. Storm Water Discharge Characteristics
Since 1972, EPA and the States have made good progress in issuing
discharge permits for a wide range of point sources dischargers. These
permits have made dramatic improvements in water quality conditions and
are largely responsible for much of the success in reducing water
pollution. Most of these permits are for continuous discharges with
predictable effluent quality and quantity that occur in both wet and
dry weather conditions.
Construction disturbance activities can generate a broad range of
environmental impacts by altering the physical characteristics of the
affected land area. Construction activities typically involve the
clearing, surface stripping, grading, and excavation of existing
vegetation followed by the active construction period when the affected
land is usually left denuded and the soil compacted, often leading to
an increase in storm water runoff and higher rates of erosion. The most
significant pollutant associated with construction activity at most
sites is sediment. Total suspended solids (TSS) concentrations from
uncontrolled construction sites have been found to be up to 150 times
greater than concentrations from undeveloped land.\4\ If the denuded
and exposed areas contain contaminants, such as nutrients, pathogens,
metals or organic compounds, they are likely to be carried at increased
rates to surrounding water bodies via storm water runoff. The denuded
construction site is only a temporary state, often less than six
months. When the land is restored with the replanting of vegetation
after construction is completed, the hydrology of the site may be
altered. For example, the completed construction site may have a
greater proportion of impervious surface than prior to site
development, leading to changes in the volume and velocity, and in some
cases temperature, of storm water runoff.
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\4\ TSS is an ``indicator'' parameter used to measure sediment
discharges. The analytical test procedure for TSS is called
``Residue-Nonfilterable.'' EPA-approved analytical methods for TSS
are listed in 40 CFR part 136, Table I.B.
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VIII. Description of Available Technologies
A. Introduction
Construction and development activities have the potential to
discharge pollutants to surface waters due to poor or inadequate site
design, planning and BMP implementation. These impacts can be mitigated
by the application of design techniques to preserve or avoid areas
prone to erosion and through the use of erosion and sediment controls.
The use of good site design and planning techniques also can reduce
pollution control costs and improve the effectiveness of pollution
control strategies and practices. Good site design can also integrate,
to the extent appropriate, practices to control erosion and
sedimentation at active construction sites with practices to control
post-construction runoff. For example, site plans may provide for the
conversion of short-term sediment control practices such as sediment
basins into extended detention wet ponds or other long-term structural
BMPs.
A discussion of technologies and BMPs is contained in the following
sections of today's document. Some states and local governments have
also published detailed manuals for ESC and or storm water management
controls. Links to on-line publications are available on EPA's website
at http://www.epa/gov/OST/guide/construction.
B. Erosion and Sediment Controls and Other Site Management Practices
1. Goals
Construction site activities should be managed to reduce erosion,
and to the extent practical, retain sediment on the 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, that 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 can be prevented or minimized by various methods and
practices. 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 and overall erosion and sediment
control costs. After land has been disturbed, exposed soils should be
covered as soon as possible and runoff should be actively managed to
prevent run-on flows from off-site areas and uncontrolled runoff from
the disturbed area(s). In addition, runoff should be managed to prevent
high runoff velocities and concentrated flows that are erosive. The
continued effectiveness of erosion controls also is dependent on
frequent inspections of erosion control practices to identify
maintenance needs.
The control of sediment detached and mobilized through erosional
processes requires a separate set of management practices. Several
mechanisms can be used to remove suspended sediments in runoff. They
include: filtration, settling and chemical precipitation. These
mechanisms are used to trap, filter or
[[Page 42655]]
settle soil particles so they do not enter surface waters.
More detailed descriptions of sediment and erosion controls can be
found in the Development Document.
2. Major Categories of Best Management Practices
Planning is the most critical element in designing an effective
strategy to control erosion and sedimentation on construction sites.
The protection of areas prone to erosion, the selection and siting of
erosion and sediment control practices and the continued effectiveness
of these systems will depend on a well defined plan.
Erosion and sediment control (ESC) plans and site plans provide the
blueprints for the protective activities that will occur on the
construction site. The ESC and site plans may also contain descriptions
of temporary practices such as sediment basins that will be converted
into long-term storm water management practices.
Several general objectives should be addressed in an effective ESC
plan:
Minimize clearing and grading activities;
Protect waterways and stabilize drainage ways;
Phase construction to limit soil exposure;
Stabilize soils as soon as practicable;
Protect steep slopes and cuts;
Install perimeter controls to filter sediment;
Employ sediment settling controls.
To ensure that builders and contractors implement effective ESC
plans, MS4s may employ several other program elements. These elements
include an ESC plan review process; contractor education; training,
licensing and certification programs, and an inspection and enforcement
process. See EPA's MS4 ``Menu of BMPs'' website at http://www.epa.gov/
npdes/menuofbmps/menu.htm for descriptions of these activities.
The use of erosion controls is widely recognized as being the most
cost-effective way of managing sediment on construction sites. Typical
practices used to prevent and reduce soil movement include: reducing
the overall area of disturbed land, minimizing the time soils are
exposed to precipitation, scheduling clearing and grading events to
reduce the probability that bare soils will be exposed to rainfall,
preventing off-site and on-site runoff from eroding soils through the
use of berms, conveyances or energy dissipation devices, covering soils
or stockpiles, stabilizing exposed soils as soon as possible, and
inspecting and maintaining erosion controls on a periodic basis, e.g.,
after each storm event. Vegetative stabilization using annual grasses
is the most common practice used to control erosion. Polymers, physical
barriers such as geotextiles, straw, and mulch are other common methods
of controlling erosion.
Despite the proper use of erosion controls, some sediment
detachment and movement is inevitable. Sediment controls are used to
control (direct) and trap sediment that is entrained in runoff. Typical
sediment controls include perimeter controls such as silt fences
constructed with filter fabric, straw bale dikes, berms or swales.
Trapping devices such as sediment traps and basins and inlet protectors
are examples of in-line sediment controls. Sediment traps and basins
are the primary method used to treat and settle out sediment for small
and large disturbed areas.
Construction site operators manage building materials and waste to
reduce and eliminate potential water quality impacts. Construction
materials and chemicals should be handled, stored and disposed of
properly to avoid contamination of runoff. Site management plans
typically include elements such as spill prevention and remediation
plans, nutrient management plans for vegetative stabilization efforts,
and provisions for human waste disposal, e.g., portable toilets.
C. Long-Term Storm Water Management Control
1. Goals
After completion of construction, a variety of measures have been
adopted to prevent flooding and achieve local resource protection
goals, such as groundwater recharge or maintaining stream stability.
For example, BMPs are often integrated into the overall site design,
and generally approved by the local government. A number of States have
developed storm water BMP selection and design criteria for use in
their state. In addition, the Water Environment Federation (WEF) and
the American Society of Civil Engineers (ASCE) have developed a
methodology for storm water BMP design. (Water Environment Federation
and the American Society of Civil Engineers, ``Urban Runoff Quality
Management.'' 1998. WEF Manual of Practice No. 23 and ASCE Manual and
Report on Engineering Practice No. 87. Available for purchase at http:/
/www.wef.org and http://www.asce.org).
2. Major Categories of Best Management Practices
Planning and site design are important to ensure the selection of
site designs that will meet the needs of the owner and be compatible
with local infrastructure. State and local governments have a primary
role in ensuring proper planning and the design of structural storm
water runoff conveyance and treatment systems.
Under any design approach, runoff flow paths are designed to route
the runoff though functional landscaped areas or structural BMPs that
store, infiltrate, evaporate, and slow the velocity of the runoff.
Storage basins, swales, bioretention cells (highly permeable engineered
soils planted with vegetation), grading to alter topography, increase
infiltration and decrease erosion, and depression storage are the most
typical practices used to manage runoff and reduce pollutant loadings.
More innovative practices include rooftop storage, ``green'' roofs
(landscaped roof systems designed to store and treat storm water), re-
vegetation, rainwater capture and reuse, street filters (systems for
treatment of street and highway runoff), and soil amendments.\5\
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\5\ Low Impact Development (LID) is a site design approach that
incorporates conservation techniques along with an integrated set of
small site-level landscape runoff treatment and control features
that are uniformly distributed throughout the site in order to
prevent runoff pollution and reduce the impacts of development and
redevelopment activities on water resources. (``Low Impact
Development Design Strategies: An Integrated Design Approach,'' EPA
841-B-00-003, January 2000. Available on EPA's website at http://
www.epa.gov/owow/nps/urban.html). Approaches similar to LID,
although sometimes using different terminology, include ``Better
Site Design'' (``Introduction to Better Site Design.'' Article no.
45 in The Practice of Watershed Protection. Center for Watershed
Protection, Ellicott City, MD, 2000. http://
www.stormwatercenter.net) and ``Infiltration Approach'' (``Start at
the Source: Design Guidance Manual for Stormwater Quality
Protection,'' Bay Area Stormwater Management Agencies Association,
Oakland, CA, 1999).
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Pollution prevention practices are often called source reduction
practices or ``non-structural'' BMPs. Education, training as well as
proper inspections and maintenance are the primary methods to achieving
pollution prevention objectives. Information dissemination via outreach
efforts, professional training, licensing and certification combined
with effective voluntary incentives, enforcement and compliance efforts
are essential to good practice. Product substitution or the use of
alternative methods and practices are also considered facets of
pollution prevention.
[[Page 42656]]
IX. Development of Effluent Limitation Guidelines and Standards
A. Industry Subcategorization
EPA may divide a point source category into groupings called
``subcategories'' to provide a method for addressing variations between
products, processes, and other factors which result in distinctly
different effluent characteristics. Regulation of a category by using
formal subcategories provides that each subcategory has a uniform set
of effluent limitations that take into account technological
achievability and economic impacts unique to that subcategory. In some
cases, effluent limitations within a subcategory may be different based
on consideration of these same factors which are identified in section
304(b)(2)(B) of the CWA, 33 U.S.C. 1314(b)(2)(B). The CWA requires EPA,
in developing effluent limitation guidelines and pretreatment
standards, to consider a number of different factors, which are also
relevant for subcategorization. The statute also authorizes EPA to take
into account other factors that the Agency deems appropriate. One
potential benefit of grouping similar facilities into subcategories is
the increased likelihood that the regulations will be practicable, and
it diminishes the need to address variations between facilities through
a variance process (Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1053
(D.C. Cir. 1978)).
In preparing today's proposal, EPA considered several ways of
subcategorizing the construction and development industry. Methods
considered by the Agency include subcategorization by site size (such
as disturbed acreage), development type (such as residential,
commercial, industrial and transportation), re-development vs.
``greenfield'' development (development on rural or agricultural land),
geography and hydrology (such as average annual rainfall and soil
erosivity), as well as builder or developer size (in terms of annual
revenue, annual units constructed, annual land disturbance, etc.).
1. Subcategorization by Site Size
EPA is not proposing to subcategorize site sizes of 10 acres or
more. EPA is concerned, however, that as site sizes decrease below 10
acres the choice of controls within site design parameters may become
more limited. For this reason, EPA is proposing in Option 2 to
establish slightly modified requirements that provide greater
flexibility for sites disturbing less than 10 acres. Specifically, EPA
is proposing to require sediment basins where attainable for sites
disturbing 10 acres or more, while leaving greater flexibility in the
choice of sediment controls for sites disturbing less than 10 acres.
EPA requests comment on this proposed subcategorization.
Under today's proposal, Option 2, which includes both control
requirements and certification and inspection requirements, would apply
to sites disturbing 5 or more acres, while Option 1, which includes
certification and inspection requirements only, would apply to sites
disturbing 1 acre or more. EPA is not proposing control requirements
for sites less than 5 acres at this time in order to allow the maximum
flexibility to the States in balancing the costs, availability, and
effectiveness of erosion and sediment controls and to provide time for
the States to demonstrate the effectiveness of permits to control
discharge of pollutants associated with construction activity
disturbing one to 5 acres under Phase II. EPA recognizes that this same
logic may apply to the certification and inspection requirements and
requests comment on adopting Option 1, but with a cutoff of 5 acres
rather than 1 acre. More generally, EPA requests comment on the
appropriate acreage cutoff for both Options 1 and 2.
2. Subcategorization by Industry
EPA is not, at this time, proposing subcategorization by industry
or industry group (i.e. residential building, non-residential building,
heavy construction). EPA recognizes that there are profit differentials
between industry groups that could affect their economic and financial
status. Based upon EPA's current cost estimates for the options being
proposed today, EPA has found these options to be economically
achievable for all industry groups. EPA is concerned about the
practical difficulty in defining an appropriate industry portion to be
subject to alternative standards, or an appropriate industry portion
for whom the controls being employed today would be technically or
economically infeasible. Since a large number of development projects
(especially larger projects) can consist of mixed land uses (such as a
large residential subdivision built along with a commercial/retail
center), a subcategorization by industry may also present
implementation challenges. EPA requests comment on possible industry
subcategorization and how to address the implementation issues
associated with such subcategorization.
3. Subcategorization by Builder/Developer Size
EPA is not, at this time, proposing subcategorization by builder,
developer or contractor firm size (in terms of annual construction
output, revenue, or acreage disturbed). Since the dollar value of a
project or revenue of a builder or developer is not necessarily related
to site size or disturbed area (due, in part, to differences in various
markets), EPA has not found a direct correlation between any of these
factors and the amount of pollutants in storm water discharges to
receiving waters.
4. Subcategorization Based on Hydrology, Soil Loss Potential or Other
Geographic Factors
EPA also considered subcategorizing the industry based on hydrology
and potential for soil loss, but determined that the existing soil loss
waiver included in the NPDES Phase II regulations (40 CFR
122.26(b)(15)(i)(A)) is sufficient for exempting sites with low
expected soil loss.
Geographic factors that may be appropriate for subcategorizing the
industry are based on low expected rainfall, defined periods of dry and
wet weather, and/or construction during cold weather where the ground
is frozen. On sites with these characteristics, the Agency expects soil
erosion to be minimal. Option 2 in today's proposal would continue the
provision in EPA's current CGP for delaying implementation of site
stabilization due to these geographic factors. See Sec. 450.21(h).
5. Subcategorization Based on Past Land Use
EPA considered subcategorization of the industry based on past land
use, such as classifying redevelopment sites differently from
``greenfield'' projects. Redevelopment projects present some
significant challenges in terms of erosion and sediment control due to
the potential for site constraints and conflicts such as size,
location, proximity to existing development, pre-development site
contamination issues, land costs, as well as the nature of surrounding
development. In addition, redevelopment projects are commonly perceived
to be preferable to greenfield development, due to the proximity of
redevelopment sites to existing infrastructure, the need to revitalize
older neighborhoods, and the potential for providing significant
economic stimulus to existing neighborhoods. As a result, many
communities offer incentives in order to encourage redevelopment
projects and to make the
[[Page 42657]]
economics of the project viable. Imposition of expensive storm water
and erosion control requirements in such cases, in light of the
constraints present, may inflict costs that render some projects to be
economically unattractive to a developer. EPA does not believe that the
level of controls being proposed in Option 2 today will be a
significant disincentive to redevelopment. Much of the redevelopment
occurring in urban areas involves sites of less than 5 acres in
disturbed land. For the redevelopment that exceeds that site size, EPA
believes that it is appropriate to require a comparable level of
erosion and sediment control as is provided at greenfield sites. The
design and implementation of those controls, while comparable, may be
very different for a site that has the advantage of existing stormwater
management infrastructure than for other sites. In either case, EPA
believes that the requirements being proposed provide sufficient
flexibility to allow affordable choices for both greenfield development
and redevelopment activities.
B. Regulatory Options Considered
In developing today's proposal, EPA initially evaluated several
regulatory options for both erosion and sediment control and other
temporary BMPs, storm water management, and options that would not
establish effluent limitation guidelines regulations. The erosion and
sediment control (ESC) options represent the controls that are
typically temporary and are used during the land-disturbing activities.
The storm water management options represent the long-term (permanent)
storm water controls that are designed and installed by the C&D
industry at the time of construction but are intended to reduce long-
term storm water impacts.
The following sections of today's document discuss the regulatory
options that EPA considered for today's proposal. Section X describes
the specific options contained in today's proposal.
1. Overview of Regulatory Options: Erosion and Sediment Controls and
Other Temporary BMPs
For erosion and sediment control and other temporary BMPs, EPA
considered a series of regulatory options. These options are designed
to control the discharge of sediment, storm water and other pollutants
from sites when construction is taking place. Construction and
development activity involves land disturbed from previous uses such as
agriculture or forest lands, or occurs as redevelopment of existing
rural or urban areas. During the construction process, vegetation or
surface cover is typically removed and soils become more available for
transport and discharge from construction sites. Today's proposal
provides regulatory tools to improve management and control on
construction sites to reduce and minimize soil, storm water, and
pollutant transport and discharge from construction sites.
EPA initially considered a range of options that incorporate
varying levels of management and various control strategies for sites
of 1 acre or more. During the Agency's outreach activities in advance
of proposal, small entity representatives expressed concern over the
complexity of overlapping and potentially inconsistent Federal, State,
and local storm water regulations. These individuals questioned whether
it was appropriate to be considering additional Federal storm water
regulations at such an early stage in implementation of the existing
storm water program. They further questioned EPA's assumptions
regarding the level of control that would be achieved by sites less
than 5 acres under the NPDES Phase II requirements, pointing out that
the compliance deadline for those sites has not yet passed.
As EPA evaluated the options for erosion and sediment controls and
other temporary BMPs, the Agency examined the merit of excluding sites
less than 5 acres at this time. EPA estimates that while only 30
percent of sites developed each year are 5 acres or more, these sites
represent over 80 percent of the disturbed acreage. The Agency believes
that the phased approach to issuing permits for construction and
development has allowed, and will continue to allow, EPA and States to
improve coordination, communication, and implementation of requirements
in a more strategic way. By focusing first on the larger sites, EPA and
the States are focusing resources on the universe of sites that have
the greatest potential for reducing discharge of pollutants to surface
waters. These sites generally have more control alternatives than
smaller sites, and greater flexibility in designing erosion and
sediment controls that work within overall site parameters.
Implementation of erosion and sediment controls under the NPDES Phase I
storm water rule has demonstrated that even though controls may be more
limited for sites as small as 5 acres, sufficient alternatives are
available to provide significant control. Indeed, while many of the
erosion and sediment control practices are not dependent on site size,
others (such as sediment basins) are not always appropriate for smaller
sites. Other factors also affect the availability of certain control
practices. As the site size decreases, the proportion of sites that are
``in-fill'' projects constructed between currently-developed
properties, or redevelopment of existing properties, likely increases.
These projects present some significant challenges in terms of erosion
and sediment control due to the potential for site constraints, land
availability and costs, proximity to existing development, as well as
the nature of surrounding development. EPA is proposing not to
establish effluent limitation guidelines for sites smaller than 5 acres
at this time in order to allow the maximum flexibility to the States in
balancing the costs, availability, and effectiveness of erosion and
sediment controls and to provide time for the States to demonstrate the
effectiveness of permits to control discharge of pollutants associated
with construction activity disturbing one to 5 acres under Phase II.
The following discussion presents the options that EPA considered for
erosion and sediment controls and other temporary BMPs.
Codify the EPA Construction General Permit
EPA considered an option (a variation on Option 2 being proposed
today) that would essentially codify the provisions contained in EPA's
construction general permit (CGP) as minimum national standards for
erosion and sediment control (i.e., for all states, not only those with
EPA as permitting authority). The CGP requirements that would be
codified include preparing a Storm Water Pollution Prevention Plan
(SWPPP) or equivalent, provisions for installing and sizing sediment
basins on sites with more than 10 acres of disturbed land, requirements
for providing cover on exposed soil areas within 14 days after
construction activity has ceased, and installation and maintenance of
other erosion and sediment control practices and other temporary BMPs
on all construction sites.
Codify the EPA Construction General Permit, Require Self-
Inspection and Certification
EPA considered an option (being proposed today as Option 2) that
would essentially codify the provisions contained in EPA's construction
general permit (CGP) as minimum national standards for erosion and
sediment control and add inspection and certification requirements to
improve operator accountability. The CGP requirements that would be
codified are
[[Page 42658]]
the same as in the previous option. In addition, EPA incorporated
mandatory site inspection, maintenance and reporting provisions by site
owners and operators in order to improve confidence in the
implementation and performance of construction site erosion and
sediment controls in this option. These certification provisions may be
accomplished either through self-inspection by a qualified employee of
the owner and operator (such as a professional engineer or person
trained in erosion and sediment control techniques) or inspection by a
third-party (such as a consulting firm). The certification provisions
would consist of a checklist-type certification form that the permittee
would be required to complete at various stages of the project to
certify that the provisions contained in the permittee's SWPPP are
being implemented. Permittees would be required to conduct periodic
inspections in order to confirm that the permittee is conducting the
maintenance necessary to maintain the functionality of BMPs. The
specific activities requiring certification include: SWPPP preparation;
installation of perimeter controls and sediment controls; site
inspections every 14 days; final stabilization of exposed soils and
removal of temporary erosion & sediment controls. The certification and
inspection forms would be retained on the site, and made available to
the permitting authority and the public upon request. This option is
being proposed as Option 2 in today's document (see section X).
Numerical Design Requirements
EPA considered an option that would establish numerical
requirements for the design of sediment basins and traps that would
vary based on local or regional rainfall patterns and site-specific
soil types. However, EPA determined that there were insufficient data
available to establish national criteria of this type, and therefore
did not include this requirement in today's proposed rule. In addition,
this approach would be a significant departure from the current CGP
sizing requirements, which establishes a requirement a calculated
volume of runoff from a 2-year, 2-hour storm, or for 3,600 cubic feet
of storage per acre, for all sites of 10 or more acres.
Numerical Pollutant Removal Requirements
EPA considered options that would contain numerical requirements
for the removal of specific pollutants from construction site runoff.
EPA initially considered targeting a variety of pollutants including
sediment, TSS, turbidity, nutrients, metals and other priority
pollutants. EPA considered a regulatory option that would establish
numerical removal criteria for sediment, or an associated indicator
parameter such as total suspended solids (TSS), suspended sediment
concentration, settleable solids, or turbidity. This option could be
expressed as either a percent removal through sediment controls (such
as sediment basins or traps), or as a total site reduction
(incorporating consideration of sheet flow and diffuse runoff in
addition to discrete conveyances). However, EPA did not consider this
approach to be a viable regulatory option due to several factors. The
stochastic nature of rainfall and runoff makes verification of the
design standards difficult. In some cases, the nature of local rainfall
and runoff characteristics make it difficult to even design BMPs to a
specified performance level. In addition, site-specific soil conditions
greatly influence the amount of sediment mobilized during runoff
events, and the soil settling characteristics greatly influence the
performance of sediment controls. Designing an entire suite of erosion
and sediment controls for a site to perform to a specified level would
likely require the use of a computer model, which could add significant
costs with little assurance of increased effectiveness. Similarly,
monitoring to verify attainment of numerical requirements can also be
very difficult (see ``Discharge Monitoring,'' below) with little
demonstrated benefits. As a result, EPA did not consider numeric
pollutant control requirements a viable option.
In addition to establishing numerical requirements for the control
of sediment, EPA preliminarily considered establishing requirements for
removing fine-grained and slowly-or non-settleable particles contained
in construction-site runoff (such as turbidity). This option would
likely have relied primarily on chemical treatment of soils or
construction site runoff using polymers or coagulants such as alum in
order to prevent the non-settleable fractions of solids from being
transported off-site. EPA did not pursue this option due to the concern
over possible adverse environmental effects of widespread usage of
chemical or polymer treatment of soils and, therefore, does not present
costs, pollutant removals, or economic impacts associated with such an
option. However, EPA recognizes that at some sites use of chemical
treatment may be appropriate based on a site-specific determination.
The Agency solicits comment and data on the possible long-term
environmental effects associated with this option.
EPA also evaluated the inclusion of separate requirements for
controlling priority toxic pollutants, pesticides and pathogens in
construction site runoff. If these pollutants are present as a result
of construction activities themselves, the most appropriate means of
control is typically through the use of source control and pollution
prevention BMPs, which are already addressed in the existing NPDES
regulations through the MS4 permit requirements. The Agency has been
unable to identify any additional BMPs that are technically and
economically feasible for use at construction sites that would remove
these pollutants once they are in the water column. Therefore EPA does
not present costs, pollutant removals, or economic impacts associated
with such a separate option. Hence, EPA proposes to control the
discharge of any such pollutants that may be associated with
construction activity only to the extent that control of TSS will also
control these pollutants. EPA is, however, planning to conduct
additional sampling activities to evaluate the frequency of occurrence
and levels of these pollutants and their sources in construction site
runoff for the final rule. EPA solicits data and comments on the
frequency of occurrence and levels of pollutants found in construction
site runoff, as well as BMPs that can cost-effectively remove these
pollutants from runoff when present.
Discharge Monitoring
EPA considered the inclusion of monitoring requirements for
evaluating the effectiveness of erosion and sediment controls.
Monitoring of storm water discharges from construction sites could be
used to evaluate the effectiveness of individual sediment controls
(such as sediment basins), or monitoring the receiving water above and
below construction sites could be used to monitor the effects of an
entire site on ambient water quality. Monitoring requirements could be
incorporated with any of the previously discussed regulatory options
considered. Since EPA's preferred approach for addressing construction
site storm water does not rely on the performance of individual
sediment controls but rather on the combined performance of a suite of
erosion and sediment controls, monitoring the effectiveness of
individual controls is not appropriate. Monitoring the effectiveness of
the overall erosion and sediment control requirements specified in
today's proposal would be very difficult at the majority of
construction
[[Page 42659]]
sites. In order to demonstrate that the erosion and sediment control
provisions at the site are achieving a stated overall percent reduction
in sediment discharge would likely require monitoring of every
discharge point on the site, or monitoring the receiving water above
and below the construction site. The high degree of variability in site
parameters, regional and site-specific rainfall, and erosion and
sediment control effectiveness would, in all likelihood, make
specification of standard storm water monitoring requirements
impractical for a national regulation. The constantly-changing state of
construction sites due to the action of construction equipment would
present significant challenges in terms of monitoring equipment set-up
and maintenance. The stochastic nature of storm events would likely
require a dedicated staffing effort on the part of the construction
site operator in order to ensure preparedness of the sampling equipment
for capturing runoff events. In addition, many sites discharge to an
existing storm drain system, making monitoring of the receiving water
infeasible. All of these factors would add significant expense to the
construction process, with little or no added assurance in the
effectiveness of control measures or expected environmental benefits.
As a result, EPA is not including discharge monitoring with today's
proposal. Permitting authorities may include discharge monitoring
requirements in permits, where it may be practical to specify sampling
and monitoring procedures that are appropriate for local conditions.
2. Overview of Regulatory Options: Certification and Inspection
During the Agency's outreach activities, EPA received many comments
that an effluent guideline was unnecessary for sites covered by the
NPDES Phase I storm water regulations, and untimely for sites that
would be covered by the Phase II requirements. These commenters
believed that the erosion and sediment control requirements currently
being established through best professional judgement by the permitting
authorities are appropriate in that they can be more effectively
tailored to regional and local conditions and respect traditional State
and local authority over land use management. Some of the commenters
stated, however, that implementation of these State and local
requirements is not uniform. These commenters expressed concern that
State and local government resources are insufficient to provide
compliance monitoring on a timely basis, particularly where inspections
by government officials are the primary mechanism for ensuring that
controls are installed and maintained. As a result, according to this
view, the effectiveness of the program hinges on the amount of
attention and oversight provided by the operator, and the knowledge and
training that the operator has received.
As a result of these comments, EPA considered an option that would
not establish ELGs at this time, but would rather require site
inspection, maintenance and reporting by site owners and operators in
order to improve confidence in the implementation and performance of
construction site erosion and sediment controls. This option would
include a maintenance record of site activities, including
certification that plans required by the permit meet all erosion and
sediment control requirements, certification that inspection,
stabilization and maintenance requirements have been satisfied, and
certification by a qualified professional that BMPs have been
adequately designed, sized and installed. This option would also
include a requirement that the operator or designated agent conduct
regular inspections to ensure that erosion and sediment control BMPs
are maintained in working order. The certification and inspection forms
would be retained on the site, and made available to the permitting
authority upon request. (See section XVIII of today's document for more
information on compliance paperwork and implementation.)
EPA developed this option as a mechanism that might improve
implementation of existing requirements. During Agency outreach
conducted in advance of today's proposal, some small entity
representatives commented that the problem with existing erosion and
sediment control requirements is not the lack of standards, but rather
the lack of adequate implementation and enforcement, including
education, bid solicitation and evaluation, proper design,
installation, and maintenance of BMPs, and inspection. One small entity
representative cited a recent article,\6\ which found that contractors
are not following good installation and maintenance practices, and
recommended more inspection and education be instituted to remedy the
problems, instead of additional substantive regulatory requirements.
EPA believes that one way to implement this recommendation is by
increasing site accountability for implementation to ensure that
corrective steps are taken as appropriate to ensure that practices
perform as designed. For example, inspection of perimeter silt fences
can identify sections in need of repair or replacement to ensure
sediment containment. Because this option is not linked to specific
levels of performance, but applicable to any requirements that are
established by the permit writer, EPA believes that it may be
appropriate for sites between one and five acres as well as for sites
of five acres or more. This option is proposed today for all sites of
one acre or more as Option 1, and would amend the NPDES permit
regulations at 40 CFR 122.44. See section X for a description of the
options proposed. EPA also recognizes that this option may impose
disproportionate costs on small operators who may have to rely on
outside consultants to perform certifications and inspections. One way
to reduce overall burden, including burden on small operators, while
covering the majority of disturbed acreage would be to limit the scope
of this option to sites of 5 acres or more. This would establish
certification and inspection requirements for 80 percent of the
disturbed acres. EPA thus solicits comment on limiting the scope of
this option to sites of five acres and above. Under this approach,
sites below 5 acres would continue to be governed by certification and/
or inspection requirements based on the BPJ of the permitting
authority.
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\6\ Robert G. Paterson, ``Construction Practices: The Good, The
Bad and the Ugly.'' Article no. 60 in The Practice of Watershed
Protection. Center for Watershed Protection, Ellicott City, MD,
2000. Available at http://www.stormwatercenter.net.
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3. Overview of Regulatory Options: Continued Reliance on State and
Local ESC Programs
EPA is also proposing an option under which no additional national
regulations would be established at this time. Rather, EPA would
continue to rely on existing State and local programs to establish
appropriate sediment and erosion control requirements for permitted
construction sites, either on a BPJ basis or in accordance with
applicable regulations, ordinances, land use plans, etc. Under this
option, EPA could provide additional support for training and education
of construction and development operators, municipalities and State
regulators, in order to improve the effectiveness of existing programs.
This would build on the existing regulatory framework by preserving
State and local flexibility to tailor specific requirements to regional
and local conditions while at the same time benefitting from enhanced
technical
[[Page 42660]]
assistance and the latest information about emerging ESC technologies
and their effectiveness. This option is being proposed as Option 3.
4. Overview of Regulatory Options Considered: Long-Term Storm Water
Management
EPA evaluated several regulatory options for control of long-term
storm water discharges from development projects. These options are
designed to control the discharge of sediment, storm water and other
pollutants from sites after construction is completed. EPA specifically
considered numerical design standards for the removal of specific
pollutants (e.g., 80 percent TSS removal), limitations on post-
development flows (e.g., maintain peak flows at pre-development
levels), and BMPs to address thermal loadings to sensitive cold water
streams. EPA is not proposing any of these options today. The choice of
such controls, whether at a specific site or through regional storm
water management infrastructure, has historically been left to State
and local governments. These governments use a variety of regulatory
and non-regulatory programs (such as land use planning) to address
post-construction storm water flows in order to protect infrastructure
and achieve local resource goals. A summary of existing State programs
is included in the rulemaking record. Some States and municipalities
rely on traditional approaches, such as retention ponds and
infiltration basins. Other States and municipalities are pursuing
approaches that will encourage regional planning, lower impact
development, and other progressive programs to reduce not only the
pollutant run-off from the site, but to protect receiving streams from
the intensity of runoff that has accompanied urbanization. Many of
these approaches do not lend themselves to uniform standards, but
require integration with land use decisions and site design. EPA
supports these approaches, and does not want to limit the flexibility
that can be afforded at the local level while advances are being made.
Moreover, the options EPA explored for a national ELG would have been
very expensive if calculated on a total industry cost basis. Given the
variety of approaches being attempted across the country and the
expense of imposing uniform post-construction controls, EPA considers
it inappropriate to propose an ELG for long-term storm water management
at this time. Instead, EPA has decided to confine the proposed ELG to
controls on discharge of pollutants associated with construction
activity during the active construction phase, and to maintain the
traditional reliance on State and local programs to control long-term
storm water management. At the same time, EPA is concerned that States
and municipalities be provided the tools to assess the variety of
practices that are available today for long-term storm water
management. Much of the technical data that EPA collected in evaluating
these options will be made available in the rulemaking record.
X. Determination of Best Practicable Control Technology Currently
Available (BPT), Best Conventional Pollutant Control Technology (BCT),
Best Available Technology Economically Achievable (BAT), and New Source
Performance Standards (NSPS)
As discussed in section III.D of today's document, in the
guidelines for an industry category, EPA defines BPT effluent limits
for conventional, toxic (priority), and non-conventional pollutants for
direct discharging facilities. For the BPT cost-reasonableness
assessment in today's proposal, EPA used the total pounds of TSS
removed.
A. Rationale for Selected BPT Option
EPA estimates that construction sites annually discharge 80 million
tons of TSS into the surface waters of the United States. As a result
of the quantity of pollutants currently discharged directly to the
nation's waters and the adverse environmental effects of these
discharges (see section VIII.B of today's document), EPA determined
that there may be a need for BPT regulation for the construction and
development category.
At the same time, EPA recognizes that many States are examining the
permit requirements they are establishing in light of their experience
with the storm water program to date. EPA's estimates of pollutant
discharges today are significantly lower than estimates at the time EPA
issued the CGP. EPA is therefore co-proposing not to establish BPT
requirements for the C&D category, but to allow and encourage fuller
implementation of the current storm water program. This co-proposal
takes two forms, one in which EPA essentially codifies the inspection
and certification provisions discussed in section IX (hereinafter
called Option 1), and one in which EPA does not amend the national
storm water regulations at this time, but instead continues to rely on
BPJ requirements tailored to regional and local conditions as
determined by the permitting authority (hereinafter called Option 3).
As one option, the Agency is proposing codification of the CGP with
inspection and certification as the basis for BPT (Option 2). EPA's
decision to co-propose BPT limitations based on this option reflects
the following primary factors: (1) The degree of effluent reductions
attainable, (2) the total cost of the proposed option in relation to
the effluent reductions achieved, and (3) the maturity of the NPDES
program as it pertains to construction activity at sites of 5 acres or
greater. EPA estimates that this option will reduce pollutant
discharges to waters of the United States by 22 billion pounds per year
at a cost of $505 million. EPA believes this option does not create
unacceptable deleterious non-water quality environmental impacts.
EPA has not identified a basis for formulating different BPT |
