EPA Submits Permit for Construction Sites Minus Turbidity Limits for Stormwater Runoff

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By Amena H. Saiyid  

A final general permit for stormwater discharges from construction that does not include turbidity limits has been submitted for White House review by the Environmental Protection Agency.

At the same time, the agency is seeking more data to correct an error that resulted in a faulty turbidity limit established in the 2009 effluent limitations guidelines. In August 2010, a federal appeals court gave EPA time to revise the turbidity limit.

The National Pollutant Discharge Elimination System permit being issued under the Clean Water Act's stormwater program will replace a general permit issued in 2008 for construction-related runoff.

The 2012 permit will cover stormwater discharges from construction activities, such as clearing, grading, excavating, and stockpiling, that disturb one or more acres or smaller sites that are part of a larger common plan of development or sale.

Final Permit Expected by Feb. 15

The final revised NPDES general permit is currently at the White House Office of Management and Budget for interagency review, EPA confirmed in a Jan. 5 e-mail to Bloomberg BNA.

“The agency anticipates issuing the final permit prior to the expiration of the 2008 [construction general permit] on February 15, 2012,” the e-mail said.

The draft final rule was submitted Dec. 23 to the White House, according to OMB's website.

The discharge limits contained in the NPDES permit are based upon effective effluent limitations guidelines. In the upcoming general permit, EPA said it is including the 2009 effluent limitations guidelines that require contractors, builders, and developers to use best management practices to stabilize soils and control erosion and sediment, among other control and monitoring provisions, from construction sites (228 DEN A-3, 12/1/09)(40 ER 2776, 12/4/09)

These 2009 effluent guidelines were not present in the 2008 construction general permit.

Numerical Turbidity Limit to be Excluded

In its e-mail, EPA also said that it is excluding the numerical turbidity limit of 280 nephelometric units from the 2012 NPDES permit because the limit was based on a faulty calculation.

“Because the numeric limit has been stayed and EPA continues to work on a new one, the [construction general permit] cannot include the numeric limit or related provisions (monitoring, reporting, etc.),” EPA said.

EPA's final 2012 NPDES general construction permit would be implemented in four states—Idaho, Massachusetts, New Hampshire, and New Mexico—as well as the District of Columbia, Puerto Rico, most Indian lands, and the U.S. territories.

According to Alexandra Dunn, executive director of the Association of Clean Water Administrators, the remaining 46 states can incorporate the new permit conditions into their existing construction permits.

EPA reiterated that “states are no longer required to incorporate the numeric turbidity limitation and monitoring requirements.”

At the same time, EPA issued a notice Jan. 3 seeking more data to revise the turbidity limit (77 Fed. Reg. 112). The notice seeking further comment was sent to OMB in November (225 DEN A-4, 11/22/11).

More Data Sought on Limits

EPA is seeking more data on turbidity limits because it had sought and was granted permission by the U.S. Court of Appeals for the Seventh Circuit in August 2010 to revise the faulty turbidity limit, which was pointed out in a petition filed by the National Association of Home Builders (Wisconsin Builders Association v. EPA, 7th Cir., No. 09-4113, 8/24/10; 164 DEN A-9, 8/26/10).

Specifically, EPA is seeking comment on what sort of technology constitutes passive and semi-passive treatment systems as well as which of these passive or semi-passive treatment could be representative of best available technology as described in the 2009 effluent guidelines to meet turbidity limits.

The agency is seeking comment on the types of technologies because what it considered “passive technology” was successfully challenged in the builders' lawsuit as an active treatment process, resulting in a faulty turbidity limit in the 2009 effluent guidelines.

A passive treatment technique is one in which a polymer chemical is added to a water channel to remove sediment and turbidity, while a semi-passive technique involves the use of pumps to move the water through a channel or manifold containing the chemical where the water will be treated for sediment and turbidity removal.

In fact, EPA emphasized that it is “especially interested in receiving data on the performance of passive and semi-passive treatment approaches” as well as data collected both before treatment and after treatment practices.

EPA Seeking Cost, Feasibility Data

EPA also is interested in knowing the costs, effectiveness, and feasibility of different technologies to control total suspended solids, settled solids, suspended sediment and turbidity in construction site stormwater.

It is also seeking comment on whether it would be “practical” to require developers of large electric utility transmission line projects to identify all discharge points and whether to require monitoring from all these points. Moreover, it wants data from developers of small sites that are part of larger plans to provide comment on how they would determine how to control runoff from such sites.

EPA said it will receive comments identified by Docket ID No. EPA-HQ-2010-0884 until March 5 at http://www.regulations.gov

For more information, contact Jesse Pritts in EPA's Office of Water's Engineering and Analysis Division at (202) 566-1038 or at pritts.jesse@epa.gov .  


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