EPA Proposes New Standards for Controlling Storm Water at Construction Sites

December 17, 2008
MGKF Special Alert

On November 28, 2008, the United States Environmental Protection Agency (EPA) published for public comment new regulations to control storm water discharged from construction sites. If adopted, these new regulations would require developers, construction companies and others to install controls on their discharges of storm water to reduce sediments leaving a construction site and entering adjacent waterways. EPA estimates that the proposed rule, if adopted, would cost $1.9 billion dollars per year nationally to implement.

The proposed regulations would establish a national, technology-based floor on the measures earth disturbers would need to implement to control sediments from construction sites. In essence, the technology-based standard would require the implementation of best management practices, or BMPs, at every construction site, which could include measures such as a permit-required phasing of construction work to disturb only small amounts of a larger site at one time.

For larger construction sites, the proposed rule includes additional requirements. For construction sites greater than 10 acres, the proposed rule would require the earth disturber to install sedimentation basins, and route storm water through these basins. For sites greater than 30 acres in size which are located in areas with soils having high clay content and significant rainfalls, the proposed rule would establish numeric limits for the turbidity found in the storm water discharge. To meet the proposed limit of 13 nephelumetric turbidity units (NTUs), earth disturbers might be required to provide chemical treatment and/or filtration of the storm water discharged from construction sites. EPA is also specifically requesting comment on a higher turbidity limit, in the range of 50-150 NTUs, which could be achieved by passive treatment.

EPA is under a court order to issue the final rule by December 1, 2009. The proposed rules can be found at http://edocket.access.gpo.gov/2008/E8-27848.htm, and comments on the proposal are due by February 26, 2009. The environmental groups that brought the lawsuit that caused EPA to propose this new rule have already criticized the proposal as too lax. If adopted, states which have been delegated the authority to issue NPDES permits may have to revise their regulations to be no less stringent than the new requirements.

If you or your company is interested in submitting comments to EPA on the proposed rule, or if you want more information on storm water permitting, please contact Jonathan Rinde at Manko, Gold, Katcher & Fox, LLP at 484-430-2325 or jrinde@mgkflaw.com.