Easing the Regulatory Burden

Sept. 1, 2010

To some, the EPA’s final rule on construction-and-development (C&D) effluent limitations guidelines might appear to be a case of costly, overly burdensome regulation. But landscape designers and permitting authorities would do well to recognize that familiarity with specifics of the new rule means that it need not be so burdensome to designers, contractors, and, ultimately, property owners.

A Summary of the Rule
The new final rule, “Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category,” is designed to strengthen the existing regulatory program for discharges from construction sites by establishing technology-based effluent limitations guidelines. (An EPA resource Web page with information about the rule is located at www.epa.gov/waterscience/guide/construction.)

Under the Clean Water Act, the EPA publishes an Effluent Guideline Program Plan every other year to announce the agency’s plans to develop new effluent guidelines and revise existing ones. Effluent guidelines were first developed for the C&D industry in the 2000 and 2002 effluent guidelines plans. A subsequent court decision ordered the EPA to publish proposed regulations specific to C&D in the Federal Register by December 1, 2008, and to publish final regulations for the C&D category by December 1, 2009. The EPA met both deadlines. A proposed rule was published in the Federal Register in November 2008, and comments were to be received in February 2009.

The EPA’s construction general permit (CGP), which is set to expire on July 31, 2011, will be updated to include the new requirements when reissued. Construction projects subject to the federal CGP will be subject to CGP guidelines that are at least as stringent as those in the final federal rule for sites of 20 acres or more as soon as August 1, 2011—18 months from the federal effective date—and for sites of 10 acres or more as soon as February 1, 2014—48 months from the federal effective date. The actual effective dates in a given state will depend upon the expiration of the state’s CGP.

The final rule adds to existing regulations a technology-based turbidity limit of 280 nephelometric turbidity units (NTUs) that applies nationally. The proposed rule had a limit of 13 NTUs based upon the use of active or advanced treatment systems (ATSs) consisting of polymer-assisted clarification followed by filtration; due to cost impacts and comments, the limit was changed to 280 NTUs using passive treatment systems, but active systems were also discussed in the proposed and final rules. To achieve the 280-NTU limit, construction site owners and operators can implement a range of erosion and sediment control best management practices (BMPs) to reduce pollutants in stormwater discharges and must monitor the turbidity. They must also implement pollution prevention measures to control discharges from such activities as dewatering and concrete washout. The rule also contains soil stabilization requirements. According to the EPA, the rule is projected to reduce the amount of sediment discharged from construction sites by about 4 billion pounds each year at an annual cost of about $953 million.

The proposed rule offered the combined use of flocculating polymers and active treatment systems to achieve a lower turbidity limit of 13 NTU under two options. Two main types of polymers are used: polyacrylamide (PAM) and chitosan. Both types have positively charged particles that attract negatively charged soil particles that are suspended in stormwater; combining the particles makes larger particles that settle out more easily, explains Shirley D. Morrow, CPESC, CISEC, president of ABC’s of BMP’s LLC in Lecompton, KS.

In addition, the rule requires minimum standards of design for sediment basins; however, alternatives that control sediment discharges in a manner equivalent to sediment basins would be authorized where approved by the permitting authority. In response to comments, the EPA deleted sediment basin sizing requirements in the final rule. More information about sediment basins is available in a development document posted on the EPA C&D resource page.

“I think that a good aspect of these regulations is that they’re going to mandate that if you have to dewater the basins—increasing the storage capacity after a storm event to get ready for the next storm event—you have to dewater the basin from the top, because the top water is the cleanest water,” says Morrow. “They’re mandating the use of skimmers.”

Jesse Pritts, environmental engineer with the EPA and the lead developer of the rule, points out that a couple of major components of the rule changed between the proposed and final stages. First, a provision exempting areas of the country with an annual Revised Universal Soil Loss Equation (RUSLE) R factor greater than 50 was dropped, making the rule applicable nationwide. Second, a requirement was dropped that would have required sediment basins to be installed on sites of 10 or more acres draining to a single water source.

Dr. Jerald S. Fifield, CPESC, CISEC, president of HydroDynamics Inc. in Parker, CO, which designs erosion and sediment control infrastructure, says that designers and reviewers, i.e., permitting authorities, now will have to focus on seven new areas of erosion and sediment control under the new rule. These items are the 280-NTU turbidity limit, better standards for erosion control, soil stabilization, dewatering, pollution prevention measures, prohibited discharges going into streams, and protection of outlet structures. The new rule is sending a strong message to designers and reviewers to be more accountable, Fifield says.

Total Disturbed Area: The Key
To Morrow, a provision that is nearly buried within the new rule will potentially allay all of the fears that some should have in regard to the new rule, at least for some projects. “There’s one sentence in this entire regulation that nobody is focusing on—it pretty much negates everything else,” she says. “That is, you don’t have to monitor if you can keep your total disturbed area to less than 10 acres.

“This creates an incentive for stabilization early in the process,” Morrow continues. “If we can work with the engineering and general contracting firms and change the way we construct things, there are two basic things that have to be met. The first is to design and fit the development to the site so we don’t have to move as much dirt around. The other aspect is stabilize as you go, and we’re not real good at doing that. We don’t focus on stabilization; we focus on building the building. When we’re putting our sequence of construction together, if we can sequence in the dirt movement and stabilization instead of bringing the landscaping company in at the very last and saying, OK, now provide stabilization to the entire site, then we’re reducing the area that has to be controlled with BMPs and we’re keeping your disturbance, if we can, to less than 10 acres.”

Pritts echoes the fact that the monitoring requirement will not take effect in all cases. “The one thing that’s really important is an understanding of when the turbidity limitation and monitoring will be triggered,” he says. “It only applies if you’ve got 10 or more acres disturbed at one time, so for sites that are able to phase their activities or stabilize one area of the site they’re working on before they start working on another area of the site, there’s the ability for them to not have that monitoring requirement apply. One of the most important things for people to know is that there are ways to limit the applicability of the rule if they’re able to keep their land disturbance under 10 acres at one time.”

Still, Morrow argues that potentially stricter erosion and sediment control regulations are being implemented while training and enforcement are generally lagging behind. “One of the public comments that was made was that the EPA is, in essence, mandating the use of polymers, which are toxic if not used properly.” Noting that sediment control has been required on construction sites since the National Pollutant Discharge Elimination System Phase I became effective in 1992, she says, “It’s very common to go across the country 18 years later and we still have people who don’t know how to properly install silt fence, they don’t do inspections, we have engineering firms that don’t know how to prepare a compliant stormwater pollution prevention plan, and our contractors don’t know how to implement the plan,” says Morrow. “Instead of enforcing the regulations we currently have to make people do what they’re supposed to be doing, we just add more burden with the use of toxic chemicals. If I’ve got a general contractor who doesn’t know how to use silt fence, do you really think that in 18 months he’s going to learn how to properly use a toxic chemical?”

Fifield suspects that the EPA could be sued by an environmental group that attempts to get the 10-acre criterion changed to 1 acre or more. Pritts points out that the 10-acre criterion was selected for multiple reasons. “It was partially for cost, it was partially to avoid overwhelming the system by forcing the smaller construction sites to do monitoring and compliance—those were the two main reasons,” he says. Still, Pritts adds, one environmental group is attempting to join a lawsuit filed in federal court by the National Association of Home Builders (NAHB), the Wisconsin Builders Association (WBA), and the Utility Water Act Group (UWAG), the latter of which is an association of utility companies and utility trade associations. He suspects that the environmental group will challenge the 10-acre criterion.

NAHB sent the EPA a petition to reconsider the rule on April 20, 2010—after the rule was finalized. Citing Section 553(e) of the Administrative Procedure Act, NAHB argues that the limit is costly, difficult to implement, and based on factual errors, likely because the public did not have an opportunity to comment on the data or the methodology used. NAHB asked the EPA to use the information in the petition to propose a new ELG.

NAHB argues that existing regulations are sufficient to address disputes the EPA’s cost impact estimate, contending instead that the rule will cost nearly $10 billion annually, hurting small businesses and driving up housing costs, while yielding little additional environmental benefit. NAHB also claims that it discovered several technical errors that should cause the EPA to raise the turbidity limit to more than 500 NTUs and reduce the burden on contractors and owners. Additionally, NAHB claims, the EPA set the limit using data from ATSs rather than passive treatment systems. According to NAHB, if the EPA had excluded the ATSs from the calculation, the standard could be as high as 800 NTUs.

The association adds that using ATSs instead of passive systems accounts for the major difference in cost-impact estimates. Another disagreement that NAHB has with the new rule is the size of the regulated sites: It advocates increasing the minimum size to 30 acres, which would lessen the threat of residual polymers polluting waters beyond regulated construction sites while also reducing the engineering expertise requirements and cost burden for small firms. Dropping the RUSLE R-factor waiver also forces firms working in areas with relatively low rainfall totals to set up elaborate stormwater treatment systems with little resulting benefits, NAHB adds.

Fifield questions the logic of the new rule as it concerns the turbidity of site runoff relative to that of surrounding waters. “The way the rule is written right now, 280 NTUs is an absolute,” he says. “If I have 280 NTUs, that may be cleaner water than what’s in a nearby river. There are two arguments here, I think. One of them is, we shouldn’t have cleaner water than what surrounds our site.” Fifield indicates that ensuring cleaner runoff than naturally occurring water in a given area is a recipe for unduly burdensome regulation. “Why should I, with my development, be better than what nature’s going to do in my local area? Those are the arguments you’re going to start hearing. The other argument is, we should probably have 280 NTUs because that improves the situation,” he adds.

Fifield notes that the use of polymers carries risks to aquatic life. Some research indicates that when excessive amounts of cationic PAMs are used, their positive ions can build up on the gills of fish and may attract negative ion suspended colloidal particles, resulting in possible suffocation of the fish.

The Future
Pritts notes that the WBA’s concerns are similar to those of NAHB, while the UWAG is concerned about the applicability and cost impacts of the new rule on its members’ construction activities, which are characterized by linear sites. It is possible that the EPA could lose a court decision and be ordered to correct the rule or submit a new final rule, Pritts says. However, as of May 2010, the EPA was not planning either course of action but, rather, awaiting the industry groups’ filing of briefs in federal court, Pritts reports.

Although he was not aware of any plans specifically addressing training on practices to adhere to the new rule, or stepped-up enforcement of it as of May 2010, Pritts notes that its effective date is not uniform nationwide. He also reported that the EPA plans state-level written guidance on monitoring, implementation, and technologies for turbidity control by the end of the year. A “Development Document for Final Effluent Guidelines and Standards for the Construction and Development Category” containing information about sediment basin design is posted on the C&D resource page.

The key concept in the new rule, to Fifield, is accountability. “Designers are going to have to start looking at how the whole picture works,” he says. “EPA’s throwing down the gauntlet and saying it’s time to be doing the job the way it’s supposed to be done rather than talking about it.” He hints that erosion and sediment control designers and reviewers should prepare themselves for adhering to the new rule. Assume that challenges to the rule will reach the Supreme Court, which will rule in favor of the 280-NTU limit, he says. “Can we reach 280 NTUs? Yes, we can, but a couple of things need to be done. Number one, designers, reviewers, and contractors have got to start working together. What we’re looking at is a better way of doing construction activities. Will this be more costly? Yes. Will this solve the problem? Perhaps.”

Contractors have three choices in managing stormwater runoff from a hypothetical 100-acre construction site, Fifield argues. The potential for highly turbid runoff is even higher on sites with clay soils; sediment containment system, aka sediment basins or ponds, must be used. First, the contractor can attempt to prevent runoff from leaving the site in the first place by retaining all inflows. This is not practical, because a subsequent storm may cause the structure to overflow, Fifield points out. Second, the water could be detained and gradually discharged while the suspended solids settle out—the process that occurs with most of these structures. But, Fifield notes, each of the mechanisms used to settle out the solids still has problems. Turbid water may overflow from spillways—and perforated riser pipes extending through sediment-laden water column also discharges turbid waters. Skimmers, which remove contained water from within 3 to 6 inches of the surface, figure among the more efficient ways to discharge contained waters. However, they will also discharge sediment-laden waters found near the surface of a pond. In situations where large-diameter sediments have been captured but turbidity still exceeds the 280-NTU limit, a third option comes into play: using polymers to combine particles and facilitate their removal. “This is where the design community, the contracting community, and the reviewers are really going to have to be careful,” Fifield says.

Landscape and stormwater management designers should be most affected by the new rule, Fifield indicates. Despite the fact that soils vary from one region to another, they often design sites with a one-size-fits-all approach, he argues. “The idea is that one technique is going to fit all types of construction sites,” he says. “What I commonly call ‘cookie-stamp design plans’ just will not work. This is where I say to designers, ‘You’re going to have to be accountable for what you’re doing.’” Simply specifying a particular type of polymer on sites with clay soils can put a designer in legal jeopardy, given the potential for problems inherent in using polymers. The legal jeopardy is what will hold designers accountable, Fifield argues.

Not only do soils vary across the nation, but construction site terrain and soils vary even within regions, Fifield points out, adding that the new rule ought to create greater demand for soil testing. Designers will not even be able to count on soil testing alone, however. “What the new rule is implying is that designers are going to have to periodically go out on that site and check on what’s going on at that site and be accountable,” Fifield says. “What it’s also saying is that designers cannot design something and expect the earthmoving contractor to know what to do. Either the designer is going to have to be involved, or there will have to be companies that will be accountable for taking samples and modifying whatever mechanisms are used for introducing polymers into the system. All the polymers are doing is ensuring that the suspended clay particles combine—flocculation occurs.”

Fifield reiterates his feeling that the rule will be a good thing in the long run. “I’m glad to see that something’s happening for one very big reason: It is finally going to make the design community and, I hope, the reviewing community accountable for what they’re doing,” he says. “Right now, if something bad happens, everybody thinks it’s the contractor’s fault. Well, no, it isn’t—the contractors are putting in what they see in approved plans. The designers will have to do a much, much better job of knowing what to do.” He agrees with Morrow that comprehensive site planning and early soil stabilization could minimize cost increases on new homes, for example, which is the homebuilders associations’ main concern. “I hope the whole building industry as well as the departments of transportation, federal highway administration, everybody, looks at the big picture,” says Fifield. “If, indeed, we stabilize the land in a timely manner, we’ll reduce our maintenance costs, and we may actually save money if we do it right.”

It is doubtful that designers and reviewers will get trained on the new requirements in as soon as 18 months, Fifield concedes. But “we can fight it all we want to,” he says. “My assessment on it is, let’s take a look at the new rule, and, if it doesn’t work, let’s fix it so that it does work.” He adds that the threat of litigation will prompt reviewers to pursue the necessary training to ensure that the new rule is followed. “It’s so sad that it has to go that way,” he says. “The only ones who win in a court case are attorneys.” Reviewers will have to enforce the rule and assess fines if necessary, Fifield adds, lamenting the fact that this threat will be necessary to get contractors to change their ways. “Logically, if we all decided to work this thing together and do a better job of communicating, we can do this job—we can improve the environment. But everybody’s got to change their thought patterns. Yes, it’s going to cost money for us to do this, but it also means savings when less maintenance needs to be done.

“What’s being proposed is doable if we work together—that’s the bottom line,” Fifield concludes. “This can of worms is not as bad as everybody envisions it to be if we all work together.”

About the Author

Don Talend

Don Talend specializes in covering sustainability, technology, and innovation.