Construction & Development Effluent Guidelines: Regulations, Remand, and Implications

USEPA Region 4 Water Protection Division Atlanta, Georgia

Office of Water

Discussion Topics
Background Compliance Dates Non-Numeric Requirements Numeric Standards Monitoring Technologies for Turbidity Control Partial Remand – Most Recent Developments

Construction site discharges regulated through National Pollutant Discharge Elimination System (NPDES) permits All construction sites disturbing 1 or more acres of land are required to obtain permits
– Stand-alone projects – Projects that are part of a common plan of development or sale

EPA promulgated new regulations for construction and development (C&D) sites on December 1, 2009.

Effluent Guidelines
Technology-based standards for control of wastewater and stormwater discharges from various categories of industry Not risk-based, so we don’t set different standards for different waterbodies – however, we can subcategorize industry Can be numeric standards (i.e., discharge limitations) and/or Best Management Practices (BMPs) and process changes ELGs are incorporated into permits and serve as the national technology “floor” for all dischargers. Where ELGs are not sufficient to meet water quality, water quality based effluent limitations may apply.

C&D ELG History
EPA must periodically identify industries for regulation (304(m)) EPA selected C&D industry in 2000 Proposed rule in 2002 Withdrawal of proposal in 2004 Litigated by environmental groups and states Court found EPA has a mandatory duty to issue ELGs identified in 304m Court ordered deadlines
– December 1, 2008 proposal – December 1, 2009 final rule

General Rule Requirements
All construction sites subject to permits must implement erosion and sediment controls and pollution prevention measures Phase-in requirement for sites to sample stormwater discharges and comply with a numeric effluent limitation (NEL) of 280 nephelometric turbidity units (NTU).
– Beginning August 1, 2011 sites disturbing 20+ acres at once – Beginning February 2, 2014 sites disturbing 10+ acres at once

Disturbed area calculation is based on the entire site and includes non-contiguous areas

EPA issues permits in 4 states (MA, NM, NH, ID), territories and certain tribal lands
– Other states issue their own permits

Permits are valid for 5 years – EPA and states must periodically issue new permits EPA and States must incorporate the new requirements into any general or individual permits issued after February 1, 2010
– EPA will issue a new CGP prior to July 2011, incorporating the new ELG requirements – State permits have varying expiration dates - whenever a given state permit expires and is reissued, that permit must include the ELG requirements – States are not required to reopen their existing permits prior to expiration, but may choose to do so

Only after a permit has been issued with the new ELG requirements is it applicable to existing and new construction projects

State CGP Expirations
South Dakota, Maine, Alabama, Michigan, Indiana, North Dakota, Pennsylvania Connecticut, New York, Tennessee, Oregon, Washington, Mississippi Delaware, Wyoming, South Carolina, Vermont, Wisconsin, Arkansas, Kansas, Montana, New Hampshire, New Mexico, Idaho, Massachusetts, North Carolina Missouri, New Jersey, Colorado, Oklahoma, Nevada, Iowa, Hawaii, West Virginia, Nebraska Arizona, Ohio, Texas, Utah, Georgia, Illinois, Minnesota, Rhode Island, Maryland Florida, Kentucky, Virginia, California, Louisiana

Expiration Year
2009 or already expired 2010 2011

2012 2013 2014

Non-Numeric Requirements
Erosion and Sediment Controls Soil Stabilization Pollution Prevention Measures Prohibited Discharges Surface Outlets
Photos courtesy of USGS and Dane County, WI

Erosion and Sediment Controls
Minimize erosion at outlets and downstream channel and streambank erosion; Provide and maintain natural buffers around surface waters Direct stormwater to vegetated areas, unless infeasible; Minimize soil compaction and, unless infeasible, preserve topsoil.
Photo courtesy of NRCS

Soil Stabilization
Initiate stabilization of disturbed areas immediately
– whenever any clearing, grading, excavating or other earth disturbing activities have permanently ceased, – when earth disturbing activities have temporarily ceased and will not resume for a period exceeding 14 calendar days.

Where vegetative stabilization is infeasible, alternative stabilization measures must be employed.

Pollution Prevention Requirements
Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste and other materials present on the site to precipitation and to stormwater; Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures.

Prohibited Discharges
Wastewater from washout of concrete, unless managed by an appropriate control; Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds and other construction materials; Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; and Soaps or solvents used in vehicle and equipment washing.

Surface Outlets
When discharging from basins and impoundments, utilize outlet structures that withdraw water from the surface, unless infeasible.
– Skimmer – Weir – Flashboard riser

Photo courtesy of

Turbidity Limitation and Monitoring
Permittees can phase land disturbing activities to stay below the disturbed acreage threshold Areas that are temporarily or permanently stabilized do not count towards the disturbed acreage threshold – permitting authorities will need to define what constitutes stabilization

Turbidity Limitation and Monitoring
Protocols and methods for sample collection are up to the permitting authority, but EPA envisions that use of a properly calibrated field turbidity meter is adequate
– Grab samples – Automated samplers – Single-stage samplers

Monitoring frequency is to be determined by the permitting authority, but EPA recommends at least 3 grab samples per day at each discharge point (during normal working hours) Due to Court remand, State has the option of establishing sampling and monitoring protocol

Areas where Permitting Authority Has Flexibility
Size of buffers around surface waters Soil stabilization – time from initiation of stabilization measures to completion Soil stabilization requirements in arid and semi-arid areas Surface outlet requirements in areas where infeasible Definition of what constitutes temporary stabilization Sampling
– – – – – – – – Frequency of sample collection Methods for sample collection and analysis Sampling locations for linear projects Data submission/reporting Specific products/formulations Dosage rates Residual testing requirements Specific technologies/applications

Polymers and flocculants

Technologies for Turbidity Control
Settling (sediment basins or channels with check dams) Filtration
– In-ground sand filter – Geotextile bags – Practices in channels (fiber check dams, geotextile products)

In many cases polymer or flocculant addition may be necessary, particularly if fine silts and clays are present – common flocculants include PAM, chitosan and alum

Chemical Treatment
Liquid polymer can be added in channels or inlets to sediment basins Solid polymer
– Land-applied – Placed in channels (floc blocks, gel socks) – Applied to check dams or other sediment containment structures

Key is to treat all of the water – flow that bypasses dosing will lead to high turbidity Jar tests are important – need the right polymer for the soils
Photos courtesy of StormKlear

Polymers and Flocculants
What about toxicity of polymers?
– Acute toxicity level of anionic PAM is orders of magnitude greater than the effective dose (1-2 ppm)
– LC50 for daphnia (water flea) >400 mg/L – LC50 for minnows and rainbow trout >100 mg/L

– Chronic toxicity for fish is also low

If there is sediment in the water, the polymer will attach to the sediment Detention storage (basin) and/or filtration (sediment bag) needed to remove flocculated solids Residual field test available for chitosan – no current field option for PAM (laboratory analysis)

Turbidity is Toxic to Aquatic Organisms

Keys to Compliance – Non-Numeric Portion of ELG Source control Phase construction Minimize disturbance Stabilize soils Treatment train Treat all of the water Utilize vegetated areas for dispersion Retain water on-site Utilize flocculants properly

EPA Partial Remand
• Petitions filed by the Wisconsin Builder’s Association, the National Association of Homebuilders (NAHB), and the United Water Act were consolidated by the Seventh Circuit Court of Appeals. • In June, 2010, the NAHB also filed a petition for administrative reconsideration with EPA by incorporating by reference the Small Business Administration’s (SBA) argument regarding the deficiencies in data underlying the 280 NTU limit August 12, 2010 - EPA filed a motion with the 7th Circuit Court of Appeals, requesting the Court issue an order vacating and remanding limited portions of the final C&D ELG regulation.

EPA Partial Remand (cont’d.)
• On August 13, 2010, EPA filed its "Unopposed Motion for Partial Vacature of the Final Rule, Remand of the Record, to Vacate Briefing Schedule, and to Hold the Case in Abeyance” • This essentially requires EPA to vacate the numeric standard, remand the related record, and issue a new rule by February 15, 2011 – The Seventh Circuit Court of Appeals issued an unclear order on August 24, 2010. NAHB is seeking clarification of that order.

EPA Partial Remand (cont’d.)
To address the specific issues raised by petitioners, the motion also provides that EPA: – “may address (and if necessary take further regulatory action on) certain impacts of the final rule specific to linear gas and electricity utility projects.” – will “solicit site specific information regarding the applicability of a numeric limit” to cold weather sites and to small sites that are part of a larger plan of development that is subject to the numeric limit. The non-numeric erosion and sediment control requirements which became effective in February, will continue to be in effect. EPA intends to complete a correction of the numeric limitation by February 15, 2012.

EPA Partial Remand (cont’d.)
On August 24th, the Court granted EPA’s motion Unofficially, the numeric limit portion of the C&D ELG has been withdrawn. It is anticipated that the Agency will take action to remove the numeric turbidity limit from the effluent guidelines. The non-numeric requirements of the guidelines remain in effect and must be incorporated into permits upon reissuance

What Does the Report Actually Say
EPA improperly interpreted the data used to establish the 280 NTU limit. Re-evaluation of the data may lead to a higher NTU limit Majority of data used from west coast of US not representative of majority of country Only three sites in data sets representative of true Passive Treatment Systems

What Does the Report Actually Say
1. For the Final Rule, EPA never demonstrated how the ATS systems represented “Passive Treatment” 2. An evaluation of capabilities present in ATS Pretreatment demonstrates that the technologies exceed “Passive Treatment” 3. Existing ATS influent data does not support EPA’s assertion that influent turbidity to ATS was sufficient to evaluate removal effectiveness 4. ATS operations database indicate many instances of active operator intervention to lower pretreatment turbidity levels

What Does the Report Actually Say
The Morrisville sites not used by EPA better represent site conditions outside of the Seattle area, and contain some elements of passive technology 6. Data for the King County Sea Tac site represents only three pretreatment systems, and are not passive technology 7. True PTS is susceptible to damage during hard rain events; corrective actions most often cannot be undertaken after the event is over 8. The systems chosen by EPA for the NEL calculation are nearly all from Seattle, where conditions differ greatly from the rest of the country 5.

Impact of Remand on States Issuing CGPs States can exercise several options:
1. Issue the CGP with the non-numeric portions of the rule intact
– State can include as much as possible in the permit the more aggressive portions of the rule, e.g., monitoring, reporting, corrective actions

2. Build into permit a place holder on the numeric standard, and include as much as possible in the permit the more aggressive portions of the rule, e.g., monitoring, reporting, corrective actions 3. If States choose at this time to include a limit, it will have to defend the position to include a limit.

Effective Now for Permit Inclusion
Non–numeric Limits: Erosion and Sediment Controls Soil Stabilization Pollution Prevention Measures Prohibited Discharges Surface Outlets

More Information
C&D Web Page

EPA Const. General Permit
EPA Region 4 Contact Mike Mitchell 404-562-9303