AGC recently joined with a coalition of industrial, municipal and construction-related groups focused on Clean Water Act issues to respond to the U.S. Environmental Protection Agency’s new memorandum recommending the use of numeric effluent limits “where feasible.”
This directive amounts to a dramatic shift away from the longstanding presumption that best management practices (BMPs) provide a more flexible, efficient and effective approach to stormwater management.
As a member of the Washington, D.C.-based Federal Storm Water Association (FSWA) coalition, AGC recently submitted comments to EPA on a controversial November 2010 memo that would change the way stormwater sources – including construction sites – are controlled in NPDES (National Pollutant Discharge Elimination System) discharge permits and watershed clean-up plans (called Total Maximum Daily Loads or TMDLs).
Specifically, EPA asserts in its new memo, without justification or supporting documentation, that a numeric approach is feasible and that permitting authorities should abandon EPA’s prior 2002 guidance and a more flexible BMP approach. FSWA’s letter maintains that it is improper for EPA to issue this new directive through a memorandum, which until mid-March 2011 was deemed final, was not subject to any public process and was not subject to notice-and-comment procedures as required by the Administrative Procedures Act.
FSWA had several opportunities to raise the coalition’s concerns with EPA staff over the past several months. In addition, FSWA interacted with other stakeholders, including the Association of State and Interstate Pollution Control Administrators (the state NPDES permit program administrators), to help push for a more public review and comment process before EPA implemented the new November 2010 memorandum. EPA staff elevated FSWA’s issues “to the highest levels of the Agency” and, as a result, EPA ultimately accepted public comment on the memorandum.
FSWA’s letter expresses concerns that EPA has provided no basis or justification for how permitting authorities would develop stormwater-specific effluent limits or how they would establish a monitoring protocol that accounts for rain-event variability, pollutant transport, background levels of pollutants or a myriad of other issues that must be addressed to make sure any limit program is fair and appropriate.
EPA has attempted to develop a technology-based numeric limit for a single pollutant (TSS or Turbidity) from a single operation (active land disturbance associated with construction) for more than 10 years and has not yet been successful. The legality of implementing enforceable numeric limits on stormwater discharges from construction sites has repeatedly been challenged in litigation by industry.
To suddenly adopt a water quality-based numeric approach for impaired waters (and elsewhere) through the November 2010 memorandum would create significant confusion and liability for permittees. Though the agency had promised monitoring guidance for construction sites as part of its Construction and Development Effluent Limitations Guideline rulemaking, it recently said it does not have enough resources to complete the job. That will leave it up to the individual permitting authorities to develop their own guidance on how to monitor construction activities for their stormwater discharges. See related article on EPA’s current efforts to develop a recalculated numeric turbidity limit – along with sampling protocol and analysis – to be incorporated into a reissued CGP.
For more information, please contact Leah Pilconis at firstname.lastname@example.org.