Construction Sites to be Impacted by New EPA Effluent Limits

January 8, 2010
by MICHAEL GROSS
Client Alert Newsletter Forecast 2010

On December 1, 2009, the U.S. Environmental Protection Agency ("EPA") published its final Construction & Development Effluent Limit Guidelines (the "Guidelines"). The Guidelines, which went into effect on February 1, 2010, represent the first time that EPA has established nationwide performance standards and enforceable numeric limits on the turbidity of stormwater discharges from construction sites. Specifically, the Guidelines impact all construction sites disturbing more than one acre by imposing non-numeric effluent limitations on stormwater discharges from these sites. For construction sites disturbing more than ten acres, the Guidelines require compliance with specific numeric effluent limits within approximately four years, which will require certain construction site owners and operators to sample stormwater discharges. All construction projects covered by the Guidelines must install best practicable control technologies. In addition, the Guidelines require the implementation of various pollution prevention measures to minimize runoff from certain activities such as dewatering and concrete washout, and impose stringent requirements for soil stabilization.

EPA states that "the final rule is intended to work in concert with existing state and local programs, adding a technology-based floor that establishes minimum requirements that apply nationally." Accordingly, state and local permitting authorities must revise requirements in National Pollutant Discharge Elimination System ("NPDES") permits to ensure compliance with the new effluent limitations and monitoring requirements in the Guidelines. EPA estimates that the Guidelines will impact approximately 82,000 businesses within the construction and development sector, including residential and commercial construction companies and engineering firms, at an annual cost of $953 million. Due to the broad scope of the Guidelines and the enforceable numeric limitations set forth therein, the Guidelines will increase the time and cost of managing and monitoring stormwater runoff at construction sites.