New EPA Construction Site Effluent Rule

Those who read this blog are aware of my coverage of new numerical standards for nutrient pollution the EPA is enacting in Florida. Well that is not the only place they are putting numerical criteria into effect. Below is a news alert from two attorneys at my firm, Ralph Ferrara and Jennifer Simon Lento. Ralph is the head of our construction law practice, and Jennifer is an associate in our environmental department (who also has an excellent blog on off-shore wind farms that you can find here). So without further ado:

On February 1, 2010, the U.S. Environmental Protection Agency (EPA) made effective a new final rule that imposes national monitoring requirements and enforceable numeric limitations on storm water discharges at all construction sites larger than one acre.

Under both the present and past regulatory schemes, all construction activities that could result in the discharge of pollutants into nearby bodies of water require the owner or operator to obtain permit coverage pursuant to the EPA’s National Pollutant Discharge Elimination System (NPDES) program or through a state administered analog program.

The new limitations, which include new effluent limitations guidelines (ELGs) and new source performance standards (NSPS), must be incorporated into all permits issued under EPA’s NPDES program or under analog programs administered by state agencies.

Compliance with the new rule will be staggered over the next four years. As of the effective date, construction site owners and operators that disturb one or more acres must use “best management practices” (BMP) to ensure that soil disturbed during construction activity does not pollute nearby water resources.

Specific numerical limitations will take effect in 2011 and 2014 for sites larger than 20 acres and 10 acres respectively. These sites must sample stormwater discharges, and meet a limitation of 280 NTU (nephelometric turbidity units). Sites larger than 20 acres must begin monitoring and sampling discharges to comply with the new limitations beginning on August 1, 2011. Sites larger than 10 acres will become subject to the same monitoring, sampling and compliance obligations on February 2, 2014.

These requirements will apply both to EPA’s Construction General Permit (CGP) and to individual permits issued by the states or by EPA. New Jersey, Pennsylvania and Delaware issue their own CGPs and individual permits. The new requirements must be incorporated into any new general permits issued after February 1, 2010. However, any CGP or individual permits issued by a state or by EPA prior to February 1, 2010 will remain valid until their expiration dates, and need not comply with the new final rule.

This rule is further evidence that the once sleeping EPA is now becoming active. And I believe we can expect this trend to continue into the foreseeable future.

ps. Please note that this is a brief summary of the new rule and there are other changes not discussed here which may impact specific situations. If you have a specific construction matter that you are concerned may be impacted by this new rule, please contact either Ralph or Jennifer to discuss it.