Construction & Development

Effluent Guidelines:

Regulations, Remand, and

Implications

USEPA Region 4
Water Protection Division
Atlanta, Georgia

Office of Water
Discussion Topics

ƒ Background
ƒ Compliance Dates
ƒ Non-Numeric
Requirements
ƒ Numeric Standards
ƒ Monitoring
ƒ Technologies for
Turbidity Control
ƒ Partial Remand – Most
Recent Developments
Overview
ƒ Construction site discharges regulated through
National Pollutant Discharge Elimination System
(NPDES) permits
ƒ 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
ƒ EPA promulgated new regulations for
construction and development (C&D) sites on
December 1, 2009.
Effluent Guidelines
ƒ Technology-based standards for control of wastewater
and stormwater discharges from various categories of
industry
ƒ Not risk-based, so we don’t set different standards for
different waterbodies – however, we can subcategorize
industry
ƒ Can be numeric standards (i.e., discharge limitations)
and/or Best Management Practices (BMPs) and process
changes
ƒ 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
ƒ EPA must periodically identify industries for
regulation (304(m))
ƒ EPA selected C&D industry in 2000
ƒ Proposed rule in 2002
ƒ Withdrawal of proposal in 2004
ƒ Litigated by environmental groups and states
ƒ Court found EPA has a mandatory duty to issue
ELGs identified in 304m
ƒ Court ordered deadlines
– December 1, 2008 proposal
– December 1, 2009 final rule
General Rule Requirements
ƒ All construction sites subject to permits must
implement erosion and sediment controls and
pollution prevention measures
ƒ 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
ƒ Disturbed area calculation is based on the entire
site and includes non-contiguous areas
Background
ƒ EPA issues permits in 4 states (MA, NM, NH, ID), territories and
certain tribal lands
– Other states issue their own permits
ƒ Permits are valid for 5 years – EPA and states must periodically
issue new permits
ƒ 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
ƒ Only after a permit has been issued with the new ELG
requirements is it applicable to existing and new construction
projects
State CGP Expirations
State Expiration Year
South Dakota, Maine, Alabama, Michigan, 2009 or already
Indiana, North Dakota, Pennsylvania expired
Connecticut, New York, Tennessee, Oregon, 2010
Washington, Mississippi
Delaware, Wyoming, South Carolina, Vermont, 2011
Wisconsin, Arkansas, Kansas, Montana, New
Hampshire, New Mexico, Idaho, Massachusetts,
North Carolina
Missouri, New Jersey, Colorado, Oklahoma, 2012
Nevada, Iowa, Hawaii, West Virginia, Nebraska
Arizona, Ohio, Texas, Utah, Georgia, Illinois, 2013
Minnesota, Rhode Island, Maryland
Florida, Kentucky, Virginia, California, Louisiana 2014
Non-Numeric Requirements
ƒ Erosion and Sediment
Controls

ƒ Soil Stabilization

ƒ Pollution Prevention
Measures

ƒ Prohibited Discharges

ƒ Surface Outlets Photos courtesy of USGS

and Dane County, WI
Erosion and Sediment Controls
ƒ Minimize erosion at outlets
and downstream channel
and streambank erosion;
ƒ Provide and maintain
natural buffers around
surface waters
ƒ Direct stormwater to
vegetated areas, unless
infeasible;
ƒ Minimize soil compaction
and, unless infeasible,
preserve topsoil.
Photo courtesy of NRCS
Soil Stabilization
ƒ 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.
ƒ Where vegetative stabilization is infeasible,
alternative stabilization measures must be
employed.
Pollution Prevention Requirements
ƒ Minimize the discharge of pollutants from
equipment and vehicle washing, wheel wash
water, and other wash waters.
ƒ 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;
ƒ Minimize the discharge of pollutants from spills
and leaks and implement chemical spill and leak
prevention and response procedures.
Prohibited Discharges

ƒ Wastewater from washout of concrete, unless

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

ƒ When discharging from basins and

impoundments, utilize outlet structures that
withdraw water from the surface, unless
infeasible.
– Skimmer
– Weir
– Flashboard riser

Photo courtesy of
http://www.fairclothskimmer.com/index.html
Turbidity Limitation and Monitoring
ƒ Permittees can phase land disturbing activities to
stay below the disturbed acreage threshold
ƒ 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
ƒ 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
ƒ 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)
ƒ Due to Court remand, State has the option of
establishing sampling and monitoring protocol
Areas where Permitting Authority Has Flexibility
ƒ Size of buffers around surface waters
ƒ Soil stabilization – time from initiation of stabilization
measures to completion
ƒ Soil stabilization requirements in arid and semi-arid
areas
ƒ Surface outlet requirements in areas where infeasible
ƒ Definition of what constitutes temporary stabilization
ƒ Sampling
– Frequency of sample collection
– Methods for sample collection and analysis
– Sampling locations for linear projects
– Data submission/reporting
ƒ Polymers and flocculants
– Specific products/formulations
– Dosage rates
– Residual testing requirements
– Specific technologies/applications
Technologies for Turbidity Control
ƒ Settling (sediment basins or channels with
check dams)
ƒ Filtration
– In-ground sand filter
– Geotextile bags
– Practices in channels (fiber check dams,
geotextile products)
ƒ 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
ƒ Liquid polymer can be added in
channels or inlets to sediment
basins
ƒ Solid polymer
– Land-applied
– Placed in channels (floc blocks, gel
socks)
– Applied to check dams or other
sediment containment structures
ƒ Key is to treat all of the water – flow
that bypasses dosing will lead to
high turbidity
ƒ Jar tests are important – need the
right polymer for the soils
Photos courtesy of StormKlear
Polymers and Flocculants
ƒ 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
ƒ If there is sediment in the water, the polymer will
attach to the sediment
ƒ Detention storage (basin) and/or filtration (sediment
bag) needed to remove flocculated solids
ƒ Residual field test available for chitosan – no current
field option for PAM (laboratory analysis)
Turbidity is Toxic to Aquatic Organisms

www.lakeaccess.org/russ/turbidity.htm
Keys to Compliance – Non-Numeric Portion of ELG

ƒ Source control
ƒ Phase construction
ƒ Minimize disturbance
ƒ Stabilize soils
ƒ Treatment train
ƒ Treat all of the water
ƒ Utilize vegetated areas for dispersion
ƒ Retain water on-site
ƒ 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

ƒ 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.)
ƒ 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.

ƒ 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.)
ƒ On August 24th, the Court
granted EPA’s motion
ƒ Unofficially, the numeric limit
portion of the C&D ELG has
been withdrawn.
ƒ It is anticipated that the
Agency will take action to
remove the numeric turbidity
limit from the effluent
guidelines.
ƒ The non-numeric
requirements of the
guidelines remain in effect
and must be incorporated
into permits upon reissuance
What Does the Report Actually Say
ƒ EPA improperly
interpreted the data used
to establish the 280 NTU
limit.
ƒ Re-evaluation of the data
may lead to a higher NTU
limit
ƒ Majority of data used from
west coast of US not
representative of majority
of country
ƒ 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

5. 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
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:
ƒ Erosion and Sediment
Controls
ƒ Soil Stabilization
ƒ Pollution Prevention
Measures
ƒ Prohibited Discharges
ƒ Surface Outlets
More Information

C&D Web Page

http://www.epa.gov/waterscience/guide/construction/

EPA Const. General Permit

EPA Region 4 Contact

Mike Mitchell
mitchell.michael@epa.gov
404-562-9303