EPA Withdraws Proposal to Revise Numeric Turbidity Limit for Construction

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The Environmental Protection Agency has withdrawn a proposed rule that would have revised the numeric turbidity limit for stormwater runoff from construction sites, and plans to seek additional data, an agency spokeswoman said Aug. 16.

Spokeswoman Enesta Jones said in an e-mail to BNA that the agency withdrew the proposal Aug. 12 from review by the White House Office Management and Budget in order to collect additional data “on treatment performance from construction and development sites.”

Jones said the agency plans to publish a Federal Register notice soliciting data “in the near future.”

The agency had sent the revised rule on turbidity limits for review by OMB in December 2010.

Glynn Rountree, a policy analyst with the National Association of Home Builders (NAHB), told BNA Aug. 16 that builders and contractors had been meeting with EPA officials to discuss their concerns over a numeric limit for turbidity.

A final rule with the numeric limit on turbidity for construction runoff was issued Dec. 1, 2009, at 40 C.F.R. Part 450, and became effective Feb. 1, 2010. Under the construction and development rule, discharges associated with construction activity at certain sites disturbing 10 acres or more may not exceed an average turbidity for any day of 280 nephelometric turbidity units (228 DEN A-3, 12/1/09).

The 2010 rule was the first in which EPA had included a numeric limit for stormwater construction runoff. After finalizing the rule, the agency received two petitions for reconsideration that pointed out a potential error in the calculation of the numeric limit. EPA then examined the data and admitted it misconstrued data on stormwater runoff from construction sites.

EPA Sought Court Remand

In August 2010, a federal appeals court granted EPA's request for remand of certain portions of the final rule.

EPA said it would re-examine the numeric turbidity limit “through a narrowly tailored notice-and-comment rulemaking, and, if necessary, revise that portion of the limit” (Wisconsin Builders Association v. EPA, 7th Cir., No. 09-4113, 8/24/10; 164 DEN A-9, 8/26/10).

In November 2010, EPA Administrator Lisa Jackson signed a direct final rule to formally stay the numeric limit of 280 nephelometric turbidity units while the agency made the correction.

The rule affects about 82,000 companies, including residential and commercial construction companies and engineering firms involved in highway, street, and bridge construction. According to EPA, the final rule was designed to reduce the amount of sediment and other pollutants discharged from construction and development sites by approximately 4 billion pounds per year.

Builders Oppose Numeric Limit

Rountree said NAHB has argued that the previously proposed limit was nearly impossible to meet. That number was near to drinking water standards, he said, and the industry would have had to use chemicals “or buy big machines” to achieve that limit. … It was extremely problematic,” he said.

Builders also objected to the monitoring they would have had to conduct to ensure the limit was met, he said. Such monitoring is difficult at construction sites, because limits can change swiftly with the weather. Instead, he said, NAHB has argued for best management practices rather than a numeric limit, he said.

Rountree said he does not know what number EPA was intending to propose under the revised rule.

Nick Goldstein, vice president of environmental and regulatory affairs for the American Road & Transportation Builders Association, told BNA Aug. 16 that officials at his association also have expressed their objections to EPA.

Linear projects differ from fixed development project—a numeric limit simply would not work, he said. In addition, Goldstein said, a “one-size-fit-all” limit is not feasible because of varying climates throughout the country. For example, he said, stormwater issues in western Washington state, where it rains frequently, are far different from those in Texas.

Like NAHB and other industry groups, Goldstein said the road builders association supports best management practices, which he described as a more “flexible” way to address problems associated with stormwater runoff.

By Linda Roeder