[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Proposed Rules]
[Pages 72562-72614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27848]
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Part II
Environmental Protection Agency
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40 CFR Part 450
Effluent Limitations Guidelines and Standards for the Construction and
Development Point Source Category; Proposed Rule
Federal Register / Vol. 73, No. 230 / Friday, November 28, 2008 /
Proposed Rules
[[Page 72562]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 450
[EPA-HQ-OW-2008-0465; FRL-8744-1]
RIN 2040-AE91
Effluent Limitations Guidelines and Standards for the
Construction and Development Point Source Category
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing a regulation
that would strengthen the existing regulatory program for discharges
from construction sites by establishing technology-based Effluent
Limitations Guidelines and New Source Performance Standards for the
Construction and Development (C&D) point source category. This
proposal, if implemented, would significantly reduce the amount of
sediment and other pollutants discharged from construction sites. EPA
estimates that this proposed rule would cost $1.9 billion dollars per
year with annual monetized benefits of $332.9 million. This proposed
rule requests comment and information on the proposed regulation and an
alternate option with a different numeric limit based on different
technologies, as well as specific aspects of the proposal such as
technologies, costs, loading reductions, and economic achievability.
DATES: Comments must be received on or before February 26, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2008-0465, by one of the following methods:
http://www.regulations.gov: This is EPA's preferred
approach, although you may use the alternatives presented below. Follow
the on-line instructions for submitting comments.
E-mail: [email protected].
Mail: USEPA Docket Center, Environmental Protection
Agency, Docket Number EPA-HQ-OW-2008-0465, Mailcode 2822T, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: USEPA Docket Center, Public Reading Room,
1301 Constitution Ave., NW., Room 3334, EPA West Building, Washington
DC 20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2008-
0465. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the USEPA Docket
Center, Public Reading Room, Room 3334, EPA West Building, 1301
Constitution Ave., NW., Washington DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the EPA Docket Center is (202)
566-2426. Please note that several of the support documents are
available at no charge on EPA's Web site; see Supporting Documentation
below.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
today's proposed rule, contact Mr. Jesse W. Pritts at 202-566-1038
([email protected]). For economic information contact Mr. Todd Doley
at 202-566-1160 ([email protected]).
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action include:
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North American
Industry
Category Examples of regulated Classification
entities System (NAICS)
code
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Industry Construction activities required to obtain
NPDES permit coverage and performing the
following activities:
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Construction of 236
buildings, including
building, developing
and general
contracting.
Heavy and civil 237
engineering
construction,
including land
subdivision.
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EPA does not intend the preceding table to be exhaustive, but
provides it as a guide for readers regarding entities likely to be
regulated by this action. This table lists the types of entities that
EPA is now aware could potentially be regulated by this action. Other
types of entities not listed in the table could also be regulated. To
determine whether your facility is regulated by this action, you should
carefully examine the applicability criteria in Sec. 450.10 of today's
proposed rule and the definition of ``construction activity'' and
``small construction activity'' in existing EPA regulations at 40 CFR
122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have questions
regarding the
[[Page 72563]]
applicability of this action to a particular entity, consult one of the
persons listed for technical information in the preceding FOR FURTHER
INFORMATION CONTACT section.
Supporting Documentation
Several key documents support the proposed regulation:
1. ``Development Document for Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-821-R-
08-007. (``Development Document'') This document presents EPA's
methodology and technical conclusions concerning the C&D category.
2. ``Economic Analysis for Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-821-R-
08-008. (``Economic Analysis'') This document presents the methodology
employed to assess economic impacts of the proposed rule and the
results of the analysis.
3. ``Environmental Impact and Benefits Assessment for Proposed
Effluent Guidelines and Standards for the Construction and Development
Category,'' EPA-821-R-08-009 (``Environmental Assessment''). This
document presents the methodology to assess environmental impacts and
benefits of the proposed rule and the results of the analysis.
Major supporting documents are available in hard copy from the
National Service Center for Environmental Publications (NSCEP), U.S.
EPA/NSCEP, P.O. Box 42419, Cincinnati, Ohio, USA 45242-2419, telephone
800-490-9198, http://www.epa.gov/ncepihom/. You can obtain electronic
copies of this preamble and proposed rule as well as the technical and
economic support documents for today's proposal at EPA's Web site for
the C&D rule, http://www.epa.gov/waterscience/guide/construction.
Overview
This preamble describes the terms, acronyms, and abbreviations used
in this document; the background documents that support these proposed
regulations; the legal authority of this proposed rule; a summary of
the proposal; background information; and the technical and economic
methodologies used by the Agency to develop this proposed regulation.
While EPA solicits comments on this entire proposal, EPA emphasizes
specific areas of interest where we would particularly like comments,
information and data.
Table of Contents
I. Legal Authority
II. Purpose & Summary of the Proposed Rule
III. Background on Existing Regulatory Program
A. Clean Water Act
B. NPDES Stormwater Permit Program
C. Other State and Local Stormwater Requirements
D. Technology-Based Effluent Limitations Guidelines and
Standards
IV. Scope of the Proposal
V. Overview of the Construction and Development Industry and
Construction Activities
VI. Summary of Data Collection Activities
A. State Data
B. National Land Cover Dataset (NLCD)
C. Enhanced River Reach File 1.2 (ERF1)
D. NPDES Notice of Intent (NOI) Data
E. Soils Data
F. NOAA Rainfall Data
G. Parameter Elevation Regressions on Independent Slopes Model
(PRISM)
H. Revised Universal Soil Loss Equation (RUSLE) R Factors
I. Economic Data
VII. Characteristics of Discharges From Construction Activity
VIII. Description of Available Technologies
A. Introduction
B. Erosion Control Measures
C. Sediment Control Measures
D. Other Construction and Development Site Management Practices
IX. Development of Effluent Limitations Guidelines and Standards
A. Description of the Regulatory Options Considered
B. Effluent Limitations Included in All Regulatory Options
C. Options for BPT, BCT, BAT and NSPS
D. Option Selection Rationale for BPT
E. Option Selection Rationale for BAT and NSPS
F. Option Selection Rationale for BCT
X. Methodology for Estimating Costs to the Construction and
Development Industry
XI. Economic Impact and Social Cost Analysis
A. Introduction
B. Description of Economic Activity
C. Method for Estimating Economic Impacts
D. Results
XII. Cost-Effectiveness Analysis
XIII. Non Water-Quality Environmental Impacts
A. Air Pollution
B. Solid Waste Generation
C. Energy Usage
XIV. Environmental Assessment
A. Introduction
B. Methodology for Estimating Environmental Impacts and
Pollutant Reductions
XV. Benefit Analysis
A. Benefits Categories Estimated
B. Quantification of Benefits
XVI. Monetized Benefit-Cost Comparison
XVII. Approach to Determining Long-Term Averages, Variability
Factors, and Effluent Limitations and Standards
A. Definitions
B. Data Selection
C. Statistical Percentile Basis for Limitations
D. Daily Maximum Limitations
E. Engineering Review of Limitations
F. Monthly Average Limitations
XVIII. Regulatory Implementation
A. Relationship of Effluent Guidelines to NPDES Permits and ELG
Compliance Dates
B. Upset and Bypass Provisions
C. Variances and Waivers
D. Other Clean Water Act Requirements
XIX. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211 (Energy Effects)
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations.
XX. Solicitation of Data and Comments
A. General Solicitation of Comment
B. Specific Solicitation of Comments and Data
C. Guidelines for Submission of Analytical Data
I. Legal Authority
EPA is proposing this regulation under the authorities of sections
301, 304, 306, 308, 402, 501 and 510 of the Clean Water Act (CWA), 33
U.S.C. 1311, 1314, 1316, 1318, 1342, 1361 and 1370 and pursuant to the
Pollution Prevention Act of 1990, 42 U.S.C. 13101 et seq.
II. Purpose & Summary of the Proposed Rule
Despite substantial improvements in the nation's water quality
since the inception of the Clean Water Act, 45 percent of assessed
river and stream miles, 47 percent of assessed lake acres, and 32
percent of assessed square miles of estuaries show impairments from a
wide range of sources. Improper control of stormwater discharges from
construction activity is among the many contributors of sediment which
is one of the major remaining water quality problems throughout the
United States. Sediment is the leading cause of water quality
impairment for streams and rivers. It is also one of the leading causes
of lake and reservoir water quality impairment and wetland degradation.
Turbidity and suspended solids are also major sources of water quality
impairment nationwide. Turbidity or suspended solids impair 695,133
miles of streams nationwide. In
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addition, 376,832 acres of lakes and reservoirs have been documented as
impaired by turbidity or suspended solids nationwide. The sediment and
turbidity entrained in stormwater discharges from construction activity
contributes to harm in aquatic ecosystems, increases drinking water
treatment costs, and contributes to impairment to recreational uses of
impacted waters. Sediment can also accumulate in rivers, lakes, and
reservoirs, leading to the need for dredging or other mitigation.
Construction activity typically involves site selection and
planning, and land-disturbing tasks such as clearing, excavating and
grading. Disturbed soil, if not managed properly, can be easily washed
off-site during storm events. Stormwater discharges generated during
construction activities can cause an array of physical, chemical and
biological impacts. Sediment discharges can cause an array of physical
and biological impacts on receiving waters. In addition to sediment, a
number of other pollutants (e.g., metals and nutrients) are
preferentially absorbed or adsorbed onto mineral or organic particles
found in fine sediment. These pollutants can cause an array of chemical
and biological water quality impairments. The interconnected processes
of erosion (i.e., detachment of soil particles by water), sediment
transport, and delivery to receiving waters are the primary pathways
for the addition of pollutants from construction and development (C&D)
sites into aquatic systems.
A primary concern at most C&D sites is the erosion and transport
process related to fine sediment because rain splash, rills (small
channels typically less than one foot deep) and sheetwash (thin sheets
of water flowing across a surface) encourage the detachment and
transport of sediment to water bodies. Although streams and rivers
naturally carry sediment loads, discharges from construction activity
can elevate these loads to levels above those in undisturbed
watersheds.
Existing national stormwater regulations at 40 CFR 122.26 require
permittees to implement control measures to manage discharges
associated with construction activity. Today's proposal would establish
a technology-based ``floor'' or minimum requirements on a national
basis. This rule would constitute the nationally applicable,
technology-based effluent limitations guidelines (ELGs) and new source
performance standards (NSPS) (referred to collectively in this notice
as ``ELGs'' or ``effluent limitations guidelines,'' unless specifically
referencing NSPS), applicable to all dischargers currently required to
obtain a National Pollutant Discharge Elimination System (NPDES) permit
pursuant to 40 CFR 122.26(b)(14)(x) and 122.26(b)(15). The proposed
ELGs would require stormwater discharges from certain C&D sites to meet
effluent limitations designed to reduce the amount of sediment,
turbidity, Total Suspended Solids (TSS) and other pollutants in
stormwater discharges from the site. EPA acknowledges that many state
and local governments have existing effluent limitations and standards
for controlling stormwater and wastewater discharges from construction
sites. Today's proposed ELGs are intended to work in concert with these
existing state and local programs. Today's proposed regulation would
establish a numeric effluent limit for turbidity in discharges from
some C&D sites. EPA envisions these turbidity effluent limits as
requiring an additional layer of management practices and/or treatment
above what most state and local programs are currently requiring.
Permitting authorities would be required to incorporate these turbidity
limitations into their permits and permittees would be required to
implement control measures to meet a numeric turbidity limit in
discharges of stormwater from their C&D sites. EPA is not dictating
that a specific technology be used to meet the numeric limit, but is
specifying the maximum turbidity level that can be present in
discharges from C&D sites. However, EPA's proposed limits are based on
its assessment of what specific technologies can reliably achieve.
Permittees would have the flexibility to select management practices
that are best suited to site-specific conditions present on each
individual C&D site if they are able to consistently meet the limits.
III. Background on Existing Regulatory Program
A. Clean Water Act
Congress passed the Federal Water Pollution Control Act of 1972
(Pub. L. 92-500, October 18, 1972) (hereinafter the Clean Water Act or
CWA), 33 U.S.C. 1251 et seq., with the stated objectives to ``restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Section 101(a), 33 U.S.C. 1251(a). To achieve this
goal, the CWA provides that ``the discharge of any pollutant by any
person shall be unlawful'' except in compliance with other provisions
of the statute. CWA section 301(a). U.S.C. 1311. The CWA defines
``discharge of a pollutant'' broadly to include ``any addition of any
pollutant to navigable waters from any point source.'' CWA section
502(12). 33 U.S.C. 1362(12). EPA is authorized under CWA section 402(a)
to issue a National Pollutant Discharge Elimination System (NPDES)
permit for the discharge of any pollutant from a point source
notwithstanding Section 301(a). These NPDES permits are issued by EPA
regional offices or NPDES authorized state or tribal agencies. Since
1972, EPA and the states have issued NPDES permits to thousands of
dischargers, both industrial (e.g., manufacturing, energy and mining
facilities) and municipal (e.g., sewage treatment plants). As required
under Title III of the CWA, EPA has promulgated ELGs and standards for
many industrial point source categories, and these requirements are
incorporated into the permits.
The Water Quality Act of 1987 (Pub. L. 100-4, February 4, 1987)
amended the CWA, adding CWA section 402(p) to require implementation of
a comprehensive program for addressing stormwater discharges. 33 U.S.C.
1342(p). The NPDES program was expanded by requiring EPA or NPDES
authorized states or tribes to issue NPDES permits for stormwater
discharges listed under Section 402(p)(2), which include municipal and
industrial stormwater discharges. Industrial stormwater dischargers,
municipal separate storm sewer systems and other stormwater dischargers
designated by EPA must obtain NPDES permits pursuant to CWA section
402(p). Stormwater discharges associated with industrial activity must
meet all applicable provisions of CWA sections 301 and 402, including
meeting technology-based effluent limitations.
B. NPDES Stormwater Permit Program
EPA's Phase I stormwater regulations promulgated in 1990 identified
stormwater discharges associated with construction activity as one of
several types of industrial activity requiring an NPDES permit.
Dischargers must apply for and obtain authorization to discharge (or
``permit coverage'') (40 CFR 122.26(b)(14)(x) and (c)(1)). As described
in the Phase I regulations, a permit is required for discharges
associated with construction activity, including clearing, grading, and
excavation, if the construction activity:
Will disturb five acres or greater; or
Will disturb less than five acres but is part of a larger
common plan of development or sale whose total land disturbing
activities total five acres or greater.
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EPA defines these ``large'' construction sites as one of the eleven
categories of stormwater dischargers associated with industrial
activity. (See 40 CFR 122.26(b)(14)).
The Phase II stormwater regulations, promulgated in 1999, extended
permit coverage to construction activity that results in land
disturbance of one acre or greater (40 CFR 122.26(b)(15)), including
sites less than one acre that are part of a larger common plan of
development or sale whose total land disturbing activities total more
than an acre. EPA's NPDES regulations define these sites, i.e., sites
disturbing between one and five acres, as ``small'' construction sites.
In addition to requiring permits for discharges associated with
construction activity, the NPDES regulations require permits for
certain municipal separate storm sewer systems (MS4s). Operators of
these MS4s, typically local governments, must develop and implement a
stormwater management program, including a requirement to address
stormwater discharges from construction activity. More details on the
requirements of MS4 programs are described in section III.B.2.
1. Stormwater Permits for Construction Activity
The NPDES regulations provide two options for obtaining
authorization to discharge or ``permit coverage'': General permits and
individual permits. A brief description of these types of permits as
they apply to construction sites follows.
a. General NPDES Permits
The vast majority of discharges from construction activity are
covered under NPDES general permits. EPA, states and tribes use general
permits to cover a group of similar dischargers under one permit. See
40 CFR 122.28. General permits simplify the process for dischargers to
obtain authorization to discharge, provide permit requirements for any
discharger that files a notice of intent to be covered, and reduce the
administrative workload for NPDES permitting authorities. General
permits, including a fact sheet describing the rationale for permit
conditions, are issued by NPDES permitting authorities through public
notice. Typically, to obtain authorization to discharge under a
construction general permit, a discharger (typically, a developer,
builder, or contractor) submits to the permitting authority a Notice of
Intent (NOI) to be covered under the general permit. By submitting the
NOI, the discharger acknowledges that it is eligible for coverage under
the general permit and agrees to the conditions in the published
general permit. Discharges from the construction activity are
authorized consistent with the terms and conditions established in the
general permit.
EPA regulations allow NPDES permitting authorities to regulate
discharges from small C&D sites under a general permit without the
discharger submitting an NOI if the permitting authority determines an
NOI is inappropriate and the general permit includes language
acknowledging that an NOI is unnecessary (40 CFR 122.28(b)(2)(v)). To
implement such a requirement, the permitting authority must specify in
the public notice of the general permit any reasons why an NOI is not
required. In these instances, any stormwater discharges associated with
small construction activity are automatically covered under an
applicable general permit and the discharger is required to comply with
the terms, conditions and effluent limitations of such permit.
Similarly, EPA, states and tribes have the authority to notify a
C&D site operator that it is covered by a general permit, even if that
operator has not submitted an NOI (40 CFR 122.28(b)(2)(vi)). In these
instances, the operator is given the opportunity to request coverage
under an individual permit. Individual permits are discussed in section
III.B.1.d.
b. EPA Construction General Permit
Since 1992, EPA has issued a series of ``national'' Construction
General Permits (CGP) that cover areas where EPA is the NPDES
permitting authority. At present, EPA is the permitting authority in
five states (Alaska, Idaho, Massachusetts, New Hampshire, and New
Mexico), the District of Columbia, Puerto Rico, all other U.S.
territories with the exception of the Virgin Islands, federal
facilities in four states (Colorado, Delaware, Vermont, and
Washington), most Indian lands and a couple of other specifically
designated activities in specific states (e.g., oil and gas activities
in Texas and Oklahoma). EPA issued a final ``national'' CGP on July 1,
2003 (63 FR 7898), modified on November 22, 2004 (changes effective
January 21, 2005). EPA's current CGP became effective on June 30, 2008
(see 74 FR 40338). Following promulgation of the effluent limitations
guidelines, EPA will issue a revised CGP incorporating the new ELGs.
The key component of EPA's CGP is the requirement to minimize
discharges of pollutants in stormwater discharges using control
measures that reflect best engineering practices. Dischargers must
minimize their discharge of pollutants in stormwater using appropriate
erosion and sediment control ``best management practices'' (BMPs) and
control measures for other pollutants such as litter, construction
debris, and construction chemicals that could be exposed to stormwater
and other wastewater. The 2008 CGP requires dischargers to develop and
implement a stormwater pollution prevention plan (SWPPP) to document
the steps they will take to comply with the terms, conditions and
effluent limitations of the permit. EPA's guidance manual, ``Developing
Your Stormwater Pollution Prevention Plan: A Guide for Construction
Sites,'' (EPA 833/R-060-04, May 2007; available on EPA's Web site at
http://www.epa.gov/npdes/stormwater) describes the SWPPP process in
detail. As detailed in EPA's CGP, the SWPPP must include a description
of the C&D site with maps showing drainage patterns, discharge points,
and locations of runoff controls; a description of the control measures
used; and inspection procedures. A copy of the SWPPP must be kept on
the construction site from the date of project initiation to the date
of final stabilization. The CGP does not require permittees to submit a
SWPPP to the permitting authority; however a copy must be readily
available to authorized inspectors during normal business hours.
Other requirements in the CGP include conducting regular
inspections and reporting releases of reportable quantities of
hazardous substances.
To discontinue permit coverage, a discharger must either complete
final stabilization of the site, transfer responsibility to another
party (e.g., a developer transferring land to a home builder), or for a
residential property, complete temporary stabilization and transfer the
property to the homeowner. The permittee submits a Notice of
Termination (NOT) Form to the permitting authority upon satisfying the
appropriate permit termination conditions described in the CGP.
c. State Construction General Permits
Whether EPA, a state or a tribe issues the general permit, the CWA
requires that NPDES permits must include technology-based effluent
limitations. In addition, where technology-based effluent limitations
are insufficient for the discharge to meet applicable water quality
standards, the permit must contain water quality-based effluent
limitations as necessary to meet those standards. See sections 301,
304, 303, 306, and 402 of the CWA. PUD No. 1 of Jefferson County v.
Washington Department of Ecology, 511 U.S. 700, 704-705 (1994).
[[Page 72566]]
For the most part, state-issued general permits for stormwater
discharges from construction activity have followed EPA's CGP format
and content, starting with EPA's first CGP issued in 1992 (57 FR 41176;
September 9, 1992). Over time, some states have changed components of
their permits to better address the specific conditions encountered at
construction sites within their jurisdiction (e.g., soil types,
topographic or climatic characteristics, or other relevant factors).
For example, Washington, Oregon and Vermont's CGPs include turbidity
action levels and discharge monitoring requirements for C&D sites
applicable to all or a subset of construction sites.
d. Individual NPDES Permits
A permitting authority may require any C&D site to apply for an
individual permit rather than using the general permit. Likewise, any
discharger may request to be covered under an individual permit rather
than seek coverage under an otherwise applicable general permit (40 CFR
122.28(b)(3)). Unlike a general permit, an individual permit is
intended to be issued to one permittee, or a few co-permittees.
Individual permits for stormwater discharges from construction sites
are rarely used, but when done so, are most often used for very large
projects or projects located in sensitive watersheds. EPA estimates
that fewer than one half of one percent (< 0.5%) of all construction
sites are covered under individual permits.
2. Municipal Stormwater Permits and Local Government Regulation of
Stormwater Discharges Associated With Construction Activity
Many local governments, as MS4 permittees, have a role to play in
the regulation of construction activities. This section provides an
overview of MS4 responsibilities associated with controlling stormwater
discharges from construction activity.
a. NPDES Requirements
A municipal separate storm sewer system (MS4) is a conveyance or
system of conveyances designed or used for collecting or conveying
stormwater. These systems are not combined sewers and not part of a
Publicly Owned Treatment Works (POTW). See 40 CFR 122.26(b)(8). A
municipal separate storm sewer system (MS4) is all large, medium, and
small municipal storm sewers or those designated as such under the
regulations. See 40 CFR 122.26(b)) (18). The NPDES stormwater
regulations require many MS4s to apply for permits. In general, the
1990 Phase I rule requires MS4s serving populations of 100,000 or more
to obtain coverage under an MS4 individual permit. See 40 CFR
122.26(a)(3). The 1999 Phase II rule requires most small MS4s located
in urbanized areas also to obtain coverage. See 40 CFR 122.33. The
Phase II regulations also provide permitting authorities with the
authority to designate any additional MS4s located outside of urbanized
areas for permit coverage where the permitting authority determines
that storm water controls are needed for the discharge based on
wasteload allocations that are part of total maximum daily loads that
address pollutants of concern or the permitting authority or the EPA
Regional Administrator determines that the discharge, or category of
discharges within a geographic area, contributes to a violation of a
water quality standard or is a significant contributor of pollutants to
waters of the United States. 40 CFR 122.26(9)(i)(C) and (D). Regardless
of the type of permit, MS4s are required to develop stormwater
management programs that detail the procedures they will use to control
discharges of pollutants in stormwater from the MS4.
Both the Phase I and II rules require regulated municipalities to
develop comprehensive stormwater management programs which include,
among other elements, the regulation of discharges from construction
sites. The Phase I regulations require medium and large MS4s to
implement and maintain a program to reduce pollutants in stormwater
runoff from construction sites, including procedures for site planning,
requirements for structural and non-structural BMPs, procedures for
identifying priorities for inspecting sites and enforcing control
measures, and development and dissemination of appropriate educational
and training materials. In general, the Phase II regulations require
small MS4s to develop, implement, and enforce a program to control
pollutants in stormwater runoff from construction activities which
includes developing an ordinance to require implementation of erosion
and sediment control practices, to control waste and to have procedures
for site plan review and site inspections. Thus, as described above,
both the Phase I and Phase II regulations specifically anticipate a
local program for regulating stormwater discharges from construction
activity. See 40 CFR 122.26(d)(2)(iv)(D) for Phase I MS4s and 40 CFR
122.34(b)(4) for Phase II MS4s. EPA has provided many guidance
materials to the NPDES permitting authorities and MS4s that recommend
components and activities for a well-operated local stormwater
management program.
EPA promulgated two provisions intended to minimize potential
duplication of requirements or inconsistencies between requirements.
First, 40 CFR 122.35 provides that a small MS4 is allowed to rely on
another entity to satisfy its NPDES permit obligations, including
construction site control, provided the other entity implements a
program that is at least as stringent as the corresponding NPDES permit
requirements and the other entity agrees to implement the control
measures on the small MS4's behalf. Thus, for example, where a county
implements a construction site stormwater control program already, and
that program is at least as stringent as the controls required by a
small MS4's NPDES permit, the MS4 may reference that program in the
Notice of Intent to be covered by a general permit, or in its permit
application, rather than developing and implementing a new program to
require control of construction site stormwater within its
jurisdiction.
Similarly, EPA or the state permitting authority may substitute
certain aspects of the requirements of the EPA or state permit by
incorporating by reference the requirements of a ``qualifying local
program'' in the EPA or state CGP. A ``qualifying local program'' is an
existing sediment and erosion control program that meets the minimum
requirements as established in 40 CFR 122.44(s). By incorporating a
qualifying local, state or tribal program into the EPA or state CGP,
construction sites covered by the qualifying program in that
jurisdiction would simply follow the incorporated local requirements in
order to meet the corresponding requirements of the EPA or state CGP.
b. EPA Guidance to Municipalities
EPA developed several guidance documents for municipalities to
implement the NPDES Phase II rule.
National Menu of BMPs (http://www.epa.gov/npdes/menuofbmps/menu.htm). This document provides guidance to regulated MS4s
as to the types of practices they could use to develop and implement
their stormwater management programs. The menu includes descriptions of
practices that local programs can implement to reduce impacts of
stormwater discharges from construction activities.
Measurable Goals Guidance for Phase II MS4s (http://www.epa.gov/npdes/stormwater/measurablegoals). This document assists
small MS4s in defining performance targets and
[[Page 72567]]
includes examples of goals for practices to control stormwater
discharges from construction activities.
Storm Water Phase II Compliance Assistance Guide (EPA 833-
R-00-002, March 2000, http://cfpub.epa.gov/npdes/stormwater/smms4.cfm?program_id=6). The guide provides an overview of compliance
responsibilities for MS4s, small construction sites, and certain other
industrial stormwater discharges affected by the Phase II rule.
Fact Sheets on various stormwater control technologies,
including hydrodynamic separators (EPA 832-F-99-017), infiltrative
practices (EPA 832-F-99-018 and EPA 832-F-99-019), modular treatment
systems (EPA 832-F-99-044), porous pavement (EPA 832-F-99-023), sand
filters (EPA 832-F-99-007), turf reinforcement mats (EPA 832-F-99-002),
vegetative covers (EPA 832-F-99-027), swales (EPA 832-F-99-006) and wet
detention ponds (EPA 832-F-99-048). (Available at http://www.epa.gov/npdes/stormwater/; click on ``Publications.'')
C. Other State and Local Stormwater Requirements
States and municipalities may have other requirements for flood
control, erosion and sediment control, and in many cases, stormwater
management. Many of these provisions were enacted before the
promulgation of the EPA Phase I stormwater rule although many have been
updated since. An EPA analysis found that all states have laws for
erosion and sediment control measures, with these laws implemented by
state, county, or local governments. A summary of existing state
requirements is provided in the Development Document.
D. Technology-Based Effluent Limitations Guidelines and Standards
Effluent limitation guidelines and new source performance standards
are technology-based effluent limitations required by CWA sections 301
and 306 for categories or subcategories of point source dischargers.
These limitations, which can be either numeric or non-numeric, along
with water quality-based effluent limitations, if necessary, are
incorporated into NPDES permits. ELGs and NSPS are based on the degree
of control that can be achieved using various levels of pollutant
control technology, as defined in Title III of the CWA and outlined
below.
1. Best Practicable Control Technology Currently Available (BPT)
In establishing effluent guidelines for a point source category,
the CWA requires EPA to specify BPT effluent limits for conventional,
toxic, and nonconventional pollutants. In doing so, EPA is required to
determine what level of control is technologically available and
economically practicable. CWA section 301(b)(1)(A). In specifying BPT,
the CWA requires EPA to look at a number of factors. EPA considers the
cost of achieving effluent reductions in relation to the effluent
reduction benefits. The Agency also considers the age of the equipment
and facilities, the processes employed and any required process
changes, engineering aspects of the control technologies, non-water
quality environmental impacts (including energy requirements), and such
other factors as the Administrator deems appropriate. CWA section
304(b)(1)(B). Traditionally, EPA establishes BPT effluent limitations
based on the average of the best performance of facilities within the
category of various ages, sizes, processes or other common
characteristics. Where existing performance is uniformly inadequate,
EPA may require higher levels of control than currently in place in a
category if the Agency determines that the technology can be
practicably applied. See e.g., American Frozen Foods Inst. v. Train,
539 F.2d 107, 117 (D.C. Cir. 1976).
EPA assesses cost-reasonableness of BPT limitations by considering
the cost of treatment technologies in relation to the effluent
reduction benefits achieved. This inquiry does not limit EPA's broad
discretion to adopt BPT limitations that are achievable with available
technology unless the required additional reductions are ``wholly out
of proportion to the costs of achieving such marginal level of
reduction.'' Moreover, the inquiry does not require the Agency to
quantify benefits in monetary terms. See, e.g., American Iron and Steel
Institute v. EPA, 526 F. 2d 1027, 1051 (3rd Cir. 1975).
In balancing costs against the effluent reduction, EPA considers
the volume and nature of expected discharges after application of BPT,
the general environmental effects of pollutants, and the cost and
economic impacts of the required level of pollution control. In past
effluent limitation guidelines, BPT cost-reasonableness comparisons
ranged from $0.26 to $41.44 per pound removed in year 2008 dollars.
This range is not inclusive of all categories regulated by BPT, but
nonetheless represents a very broad range of cost-reasonableness
values. About half of the cost-reasonableness values represented by
this range are less than $2.50 per pound (in 2001 dollars). In
developing guidelines, the Act does not require consideration of water
quality problems attributable to particular point sources, nor does it
require consideration of water quality improvements in particular
bodies of water. See American Frozen Foods Inst. v. Train, 539 F.2d
107, 117 (D.C. Cir. 1976); Weyerhaeuser Company v. Costle, 590 F. 2d
1011, 1036, 1041-44 (D.C. Cir. 1978).
2. Best Available Technology Economically Achievable (BAT)
BAT effluent guidelines are applicable to toxic (priority) and
nonconventional pollutants. EPA has identified 65 pollutants and
classes of pollutants as toxic pollutants, of which 126 specific
substances have been designated priority toxic pollutants. 40 CFR
401.15 and 40 CFR part 423, Appendix A. In general, BAT represents the
best available performance of direct discharging facilities in the
subcategory or category. CWA section 304(b)(2)(A). The factors
considered in assessing BAT include the cost of achieving BAT effluent
reductions, the age of equipment and facilities involved, the processes
employed, engineering aspects of the control technology, potential
process changes, non-water quality environmental impacts (including
energy requirements), and such factors as the Administrator deems
appropriate. CWA section 304(b)(2). The Agency retains considerable
discretion in assigning the weight to be accorded to these factors.
Natural Resources Defense Council v. EPA, 863 F.2d 1420, 1426 (9th Cir.
1988). An additional statutory factor considered in setting BAT is
``economic achievability.'' EPA may determine the economic
achievability of an option on the basis of the total cost to the
subcategory and the overall effect of the rule on the industry's
financial health. The Agency may base BAT limitations upon effluent
reductions attainable through changes in a facility's processes and
operations. See Texas Oil & Gas Ass'n v. EPA, 161 F.3d 923, 928 (5th
Cir. 1998) (citing ``process changes'' as one factor EPA must consider
in determining BAT); see also, American Meat Institute v. EPA, 526 F.2d
442, 464 (7th Cir. 1975). As with BPT, where existing performance is
uniformly inadequate, EPA may base BAT upon technology transferred from
a different subcategory or from another category. See CPC International
Inc. v. Train, 515 F.2d 1032, 1048 (8th Cir. 1975) (established
criteria EPA must consider in determining whether technology from one
industry can be applied to another); see also, Tanners' Council of
America, Inc. v. Train, 540 F.2d 1188 (4th Cir. 1976). In addition,
[[Page 72568]]
the Agency may base BAT upon manufacturing process changes or internal
controls, even when these technologies are not common industry
practice. See American Frozen Foods Inst. v. Train, 539 F.2d 107, 132
(D.C. Cir. 1976).
3. Best Conventional Pollutant Control Technology (BCT)
The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with BCT
technology for discharges from existing point sources. BCT is not an
additional limitation, but replaces Best Available Technology (BAT) for
control of conventional pollutants. In addition to other factors
specified in CWA section 304(b)(4)(B), the Act requires that EPA
establish BCT limitations after consideration of a two-part ``cost-
reasonableness'' test. EPA explained its methodology for the
development of BCT limitations in July 1986 (51 FR 24974).
Section 304(a)(4) designates the following as conventional
pollutants: Biochemical oxygen demand (BOD5), total suspended solids
(TSS), fecal coliform, pH, and any additional pollutants defined by the
Administrator as conventional. 40 CFR 401.16. The Administrator
designated oil and grease as an additional conventional pollutant on
July 30, 1979 (44 FR 44501).
4. New Source Performance Standards (NSPS)
NSPS reflect effluent reductions that are achievable based on the
best available demonstrated control technology. New sources, as defined
in CWA section 306, have the opportunity to install the best and most
efficient production processes and wastewater treatment technologies.
As a result, NSPS should represent the greatest degree of effluent
reduction attainable through the application of the best available
demonstrated control technology for all pollutants (i.e., conventional,
nonconventional, and priority pollutants). In establishing NSPS, CWA
section 306 directs EPA to take into consideration the cost of
achieving the effluent reduction and any non-water quality
environmental impacts and energy requirements.
5. Pretreatment Standards
The CWA also defines standards for indirect discharges, i.e.,
discharges into publicly owned treatment works (POTWs). These standards
are known as Pretreatment Standards for Existing Sources (PSES) and
Pretreatment Standards for New Sources (PSNS), and are promulgated
under CWA section 307(b). EPA has no data indicating that construction
sites typically discharge directly to POTWs. Therefore, EPA is not
proposing PSES or PSNS for the C&D category. EPA determined that the
majority of construction sites discharge either directly to waters of
the U.S. or through MS4s. In some urban areas, construction sites may
discharge to combined sewer systems (i.e., sewers carrying both
stormwater and domestic sewage through a single pipe) which lead to
POTWs. Sediment and turbidity, which are the primary pollutants
associated with construction site discharges, are susceptible to
treatment in POTWs, using technologies commonly employed such as
primary clarification. EPA has no evidence that construction site
discharges to POTWs would cause interference, pollutant pass-through or
sludge contamination.
6. EPA Authority to Promulgate Non-Numeric Effluent Limitations
The regulatory options proposed today include non-numeric effluent
limitations that will control the discharge of pollutants from C&D
sites. It is well established that EPA has the authority to promulgate
non-numeric effluent limitations in addition to or in lieu of numeric
limits. The CWA does not mandate the use of numeric limitations only
and EPA's position finds support in the language of the CWA. The
definition of ``effluent limitation'' means ``any restriction * * * on
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents * * *'' CWA section 502(11).
Federal courts have recognized the CWA does not mandate that EPA
use numeric effluent limitations. In Citizens Coal Council v. U.S. EPA,
447 F3d 879, 895-96 (6th Cir. 2006), the Sixth Circuit, in upholding
EPA's use of non-numeric effluent limitations, agreed with EPA that it
derives authority under CWA sections 402(a), 304(b) and 502(11) to
incorporate non-numeric effluent limitations for conventional and non-
conventional pollutants. The Sixth Circuit further held as reasonable
the Agency position that CWA sections 304(b), 304(e) and 502(11), read
together, allow non-numeric effluent limitations to supplement CWA
section 304(b), or can stand as effluent limitations themselves. See
also, Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 496-97, 502
(2d Cir. 2005) (EPA use of non-numerical effluent limitations in the
form of best management practices are effluent limitations under the
CWA); Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C.
Cir. 1982) (``section 502(11) [of the CWA] defines 'effluent
limitation' as 'any restriction' on the amounts of pollutants
discharged, not just a numerical restriction.''); Natural Res. Def.
Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (in determining
EPA did not have the authority to exclude a particular point source
from the NPDES program, the Court held ``when numerical effluent
limitations are infeasible, EPA may issue permits with conditions
designed to reduce the level of effluent discharges to acceptable
levels. This may well mean opting for a gross reduction in pollutant
discharge rather than fine-tuning suggested by numerical
limitations.'')
EPA's NPDES regulations reflect EPA's long standing interpretation,
as supported by federal court decisions, that the CWA allows for non-
numeric effluent limitations. 40 CFR 122.44(k).
7. 2002 Construction and Development Proposal and Subsequent Litigation
EPA identified the C&D industry in its CWA section 304(m) plan in
2000 as an industrial point source category for which EPA intended to
conduct rulemaking. 65 FR at 53,008 and 53,011 (August 31, 2000). On
June 24, 2002, EPA published a proposed rule that contained several
options for the control of stormwater discharges from construction
sites, including ELGs and NSPS. (67 FR 42644; June 24, 2002).
On April 26, 2004, EPA determined that national effluent
limitations guidelines would not be the most effective way to control
discharges from construction sites, and instead chose to rely on the
range of existing programs, regulations, and initiatives that already
existed at the federal, state and local level. (69 FR 22472; April 26,
2004).
On October 6, 2004, the Natural Resources Defense Council, Inc. and
additional plaintiffs filed a complaint in district court alleging that
EPA's decision not to promulgate ELGs and NSPSs for the C&D industry
violated a mandatory duty under the CWA. The district court, in NRDC v.
EPA, 437 F.Supp.2d 1137, 1139 (C.D. Cal. 2006), held that CWA section
304(m) imposes on EPA a mandatory duty to promulgate ELGs and NSPSs for
new industrial point source categories named in a CWA section 304(m)
plan. The district court enjoined EPA to propose ELGs and NSPSs for the
C&D industry by December 1, 2008 and to promulgate ELGs and NSPSs as
soon as practicable, but in no event later than December 1, 2009. On
appeal, the Ninth Circuit in NRDC v. EPA, 2008 WL 4253944 (9th Cir.
2008) affirmed the district court's
[[Page 72569]]
decision holding that ``* * * the CWA is unambiguous that the EPA must
promulgate ELGs and NSPSs for the point-source categories listed in a
plan pursuant to [section] 304(m) * * *'' The deadline to seek re-
hearing in the Ninth Circuit was November 3, 2008. The Agency requested
a 30-day extension of the re-hearing deadline, which was granted, thus
the new deadline for EPA to seek re-hearing is December 3, 2008.
IV. Scope of the Proposal
EPA is proposing a regulation that would strengthen the existing
controls on discharges from construction activity by establishing
technology-based effluent limitations guidelines and new source
performance standards for the C&D point source category. This proposal,
if implemented, would significantly reduce the amount of sediment, TSS,
turbidity and other pollutants discharged from construction sites due
to construction activities. EPA estimates that today's proposed rule
would cost $1.9 billion dollars per year. These estimates do not
include costs for Alaska, Hawaii and the U.S. territories because EPA
lacked data on the amount of construction occurring in these areas.
However, EPA does expect that some construction sites in these areas
would incur compliance costs as a result of today's proposal. EPA
solicits data that can be used to estimate the number of acres of
construction activity that occurs annually in these areas.
The proposed rule would establish a set of non-numeric effluent
limitations requiring dischargers to provide and maintain effective
erosion control measures, sediment control measures, and other
pollution prevention measures to minimize and control the discharge of
pollutants in stormwater and other wastewater from construction sites.
The rule would specify particular minimum BMPs to meet the effluent
limitations requiring effective erosion control and pollution
prevention.
In addition, reflecting current requirements in the EPA CGP, sites
disturbing 10 or more acres at one time would be required to install a
sediment basin to contain and settle sediment from stormwater runoff.
The proposed rule would require 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.
Finally, reflecting the BAT and NSPS levels of control, for certain
large sites located in areas of high rainfall energy and with soils
with significant clay content, discharges of stormwater from the site
would be required to meet a numeric effluent limit on the allowable
level of turbidity. The numeric turbidity limit is 13 nephelometric
turbidity units (NTUs). The turbidity limit is intended to remove fine-
grained and slowly settling or non-settleable particles contained in
stormwater. Particles such as clays and fine silts contained in
stormwater discharges from C&D sites typically cannot be effectively
removed by conventional stormwater BMPs (such as sediment basins and
sediment traps) that rely solely on settling unless sufficient
detention time or additives are implemented. The technology basis for
the turbidity limit is active treatment systems (ATS), which consists
of polymer-assisted clarification followed by filtration.
In addition to this proposed option, EPA is specifically soliciting
comment on setting a turbidity limit in the range of 50 to 150 NTUs (or
some other number) based on passive treatment, instead of ATS. See
section IX.A.5.a of today's proposal for additional discussion of this
alternative approach.
EPA considered several other regulatory approaches while developing
this proposed rule, such as specifying certain design criteria for
sediment basins, or using different site size, rainfall, or soil type
thresholds for determining which sites would be required to comply with
a turbidity limit. EPA also considered setting BAT and NSPS equal to
the proposed BPT level of control, based on non-numeric BMP-based
effluent limitations, as well as an expanded version of today's
proposed rule. EPA requests comment on these alternative regulatory
approaches. Details of the proposed rule and alternative approaches
considered are described in this notice, the Development Document,
Economic Analysis, and Environmental Assessment (see the Supporting
Documentation section of this notice) and additional documentation is
contained in the record.
V. Overview of the Construction and Development Industry and
Construction Activities
The C&D point source category covers firms classified by the Census
Bureau into two North American Industry Classification System (NAICS)
codes.
Construction of Buildings (NAICS 236) includes
residential, nonresidential, industrial, commercial and institutional
building construction.
Heavy and Civil Engineering Construction (NAICS 237)
includes utility systems construction (water and sewer lines, oil and
gas pipelines, power and communication lines); land subdivision;
highway, street, and bridge construction; and other heavy and civil
engineering construction.
Other types of entities not included in this list could also be
regulated.
A single construction project may involve many firms from both
subsectors. The number of firms involved and their financial and
operational relationships may vary greatly from project to project. In
typical construction projects, the firms identifying themselves as
``operators'' under a construction general permit are usually general
building contractors or developers. While the projects often engage the
services of specialty contractors such as excavation companies, these
specialty firms are typically subcontractors to the general building
contractor and are not separately identified as operators in stormwater
permits. Other classes of subcontractors such as carpentry, painting,
plumbing and electrical services typically do not apply for, nor
receive, NPDES permits. The types and numbers of firms in the
construction industry are described in more detail in the Development
Document and the Economic Analysis.
Construction on any size parcel of land almost always calls for a
remodeling of the earth. Therefore, actual site construction typically
begins with site clearing and grading. Earthwork activities are
important in site preparation because they ensure that a sufficient
layer of organic material (ground cover and other vegetation,
especially roots) is removed. The size of the site, extent of water
present, the types of soils, topography and weather determine the types
of equipment that will be needed during site clearing and grading.
Material that will not be used on the site may be hauled away. Clearing
activities involve the movement of materials from one area of the site
to another or complete removal from the site. When grading a site,
builders typically take measures to ensure that new grades are as close
to the original grade as possible to reduce erosion and stormwater
runoff. Proper grade also ensures a flat surface for development and is
designed to attain proper drainage away from the constructed buildings.
A wide variety of equipment is often used during excavation and
grading. The type of equipment used generally depends on the functions
to be performed and on specific site conditions. Shaping and compacting
the earth is an important part of site preparation. Earthwork
activities might require that fill material be used on the site. In
such cases, the
[[Page 72570]]
fill must be spread in uniform, thick layers and compacted to a
specific density. An optimum moisture content must also be reached.
Graders and bulldozers are the most common earth-spreading machines,
and compaction is often accomplished with various types of rollers. If
rock is to be removed from the site, the contractor must first loosen
and break the rock into small pieces using various types of drilling
equipment or explosives. (Adapted from Peurifoy, Robert L. and
Oberlender, Garold D. (1989). Estimating Construction Costs (4th ed.).
New York: McGraw Hill Book Company.)
Once materials have been excavated and removed and the ground has
been cleared and graded, the site is ready for construction of
buildings, roads, and/or other structures. During construction
activity, the disturbed land can remain exposed without vegetative
cover for a substantial period of time. Where the soil surface is
unprotected, soil particles and other pollutants are particularly
susceptible to erosion and may be easily washed away by rain or snow
melt and discharged from the site. Permittees typically use a
combination of erosion and sediment control measures designed to
prevent mobilization of the soil particles and capture of those
particles that do mobilize and become entrained in stormwater from the
C&D site. In most cases these control measures take the form of BMPs,
but in some cases construction sites actively treat a portion of the
discharge using filtration or other treatment technologies. Erosion and
sediment control measures are described further in the Development
Document.
VI. Summary of Data Collection Activities
In developing today's proposal, EPA gathered and evaluated
technical and economic data from various sources. EPA also used data
collected previously to develop the 2002 proposed C&D rule and the 2004
withdrawal of the proposed rule.
EPA used these data to estimate costs, pollutant loading
reductions, environmental benefits and economic impacts of various
regulatory options. This section summarizes EPA's data collection
efforts.
A. State Data
EPA compiled and evaluated existing state program information about
the control of construction site stormwater. EPA collected data by
reviewing state construction general permits, Web sites, summary
references, state regulations, and erosion and sediment control design
and guidance manuals. A summary of criteria and standards for
construction site stormwater erosion and sediment control that are
implemented by states are presented in Appendix A of the Development
Document for this proposed rulemaking. EPA did not collect information
from counties or municipalities regarding current construction site
stormwater requirements. EPA relied on state-level requirements to
characterize requirements in all areas of the state. So, if county or
municipal requirements are more stringent than state-level requirements
for control of construction site stormwater discharges, EPA's baseline
estimates of costs and pollutant reductions would not reflect these
more stringent requirements currently in place. Therefore, certain
components of EPA's cost and loadings estimates for the regulatory
options may be overestimates. In addition, EPA did not account for
those sites that would already be required to meet a turbidity limit.
For example, some construction sites around the country are already
required to meet numeric effluent limits for turbidity that are
comparable to EPA's proposed turbidity limit. EPA has not accounted for
these sites in its analysis of costs and loading reductions, although
the number of these sites is likely to be only a small fraction of
construction sites nationwide.
B. National Land Cover Dataset (NLCD)
The NLCD provides a national source of data on land cover. EPA used
these data to estimate the amount of land across the U.S. that was
converted to development (e.g., from forest or farmland to residential
communities), which in turn was used to estimate the amount of acreage
that may be subject to the requirements of the C&D rule.
The Multi-Resolution Land Characteristics Consortium (MRLC) has
produced the NLCD datasets that created a 30-meter resolution land
cover data layer over the conterminous United States using remote
sensing data. There are approximately 24 billion data points from
remote sensing data that comprise the NLCD database. NLCD data is
publicly available for the years 1992 and 2001.
Due to new developments in mapping methodology, new sources of
input data, and changes in the mapping legend for the 2001 National
Land Cover Database (NLCD 2001), direct comparison between NLCD 2001
and the 1992 National Land Cover Dataset (NLCD 1992) is difficult.
Thus, MRLC prepared the NLCD 1992/2001 Land Cover Change Product (see
http://www.mrlc.gov/change_detection.asp). The NLCD 1992/2001 Land
Cover Change Product was developed to offer more accurate direct change
analysis between the two products. This land cover change map and all
documents pertaining to it are considered ``provisional'' until a
formal accuracy assessment can be conducted. Detailed definitions and
discussion of the NLCD 1992/2001 Land Cover Change Product is
summarized in the Development Document.
EPA estimated the annual number of acres of land converted to
development in the U.S. and used that estimate as a surrogate measure
of the acres of construction activities subject to national effluent
guidelines regulations, since no national database of the number and
size of construction activities exists. EPA used estimates of the
amount of construction activity occurring in each state based on NLCD
data as a basis for calculating state-level compliance costs. NLCD data
was also used to estimate the amount of construction activity occurring
in each of the watersheds in the U.S. based on the EPA Reach File
cataloging system (discussed below). Watershed level data (along with
other data sources) was used to estimate the quantity of construction
activities and the associated pollutant loads occurring in each
watershed and to link these loads to stream reaches for modeling of
water quality improvements and benefits estimates.
C. Enhanced River Reach File 1.2 (ERF1)
EPA used the EPA Reach File 1.2 dataset (ERF1) to summarize land
cover change in drainage area units (or watersheds). ERF1 for the
Conterminous United States is a vector database of approximately
700,000 miles of streams and open waters in the conterminous United
States. ERF1 was prepared by EPA in 1982 from National Oceanographic
and Atmospheric Administration (NOAA) aeronautical charts having a
scale of 1:500,000. ERF1 contains 67,171 watersheds with a minimum size
of 247 acres (1 km\2\) and an average size of 30,182 acres (122 km\2\).
ERF1 serves as the foundation for SPARROW (Spatially Referenced
Regressions [of nutrient transport] on Watershed) modeling (see Section
XIV of this proposal for a discussion of SPARROW).
D. NPDES Notice of Intent (NOI) Data
As stated above, when a discharger wishes to be authorized to
discharge under a general permit, it files a NOI to be covered under
the general permit. EPA used NOI data to estimate the distribution of
construction activity by site size and development type. Using NOI
data, EPA broadly characterized the
[[Page 72571]]
construction industry into three land use types (residential
construction, non-residential construction and road/highway
construction). Differentiation of construction activities by site size
and project type was also done for EPA's technical and economic
analyses. EPA used NOI data from approximately 138,000 permit
applications, containing data from 38 States for construction
activities occurring primarily between the mid-1990s and 2006.
Depending on the state, the number of NOI records available ranged from
fewer than 10 to more than 10,000. The data are available either from a
database of permits processed directly by EPA (referred to as the EPA
NOI database) or from per-state databases obtained independently.
E. Soils Data
EPA used the State Soil Geographic (STATSGO) data compiled by Penn
State University (http://www.soilinfo.psu.edu/) in order to estimate
variation in soil types nationwide. The variation in soil types found
within the United States is a significant factor in estimating sediment
discharges, pollutant load reductions, and stormwater pollution
prevention costs for construction sites. EPA used the STATSGO soils
data in support of the loadings and removal estimates for this
proposal. EPA used the Revised Universal Soil Loss Equation (RUSLE) in
combination with the soils data to determine soil erosion rates from
model construction sites in different areas of the country. EPA used
these estimates, in combination with estimates of pollutant removal
efficiencies for the various technologies evaluated, to estimate
sediment discharges from C&D sites under baseline conditions and under
each regulatory option evaluated. Although EPA was not able to find a
national database of measured sediment concentrations in treated and
untreated construction site stormwater runoff, EPA did find monitoring
data from several states and compared these measured concentrations to
the estimate concentration based on RUSLE. A discussion of this
comparison is provided below in section IX. F. Additional details on
the soil data collected can be found in the Development Document.
F. NOAA Rainfall Data
Variations in rainfall depth and intensity are also important
factors in determining erosion rates, sediment discharges, pollutant
load reductions and control technology costs for construction sites. In
order to account for variations in rainfall patterns, EPA collected
rainfall data for one indicator city within each of the 48 conterminous
states. Data for each of these indicator cities were used as point
estimates for estimating rainfall depths and intensities for
construction activities for the entire state. A major urban area was
chosen as the indicator city in each state; which in most cases was the
capital city.
For each indicator city, precipitation data was gathered and
analyzed using the National Oceanic and Atmospheric Administration
(NOAA) National Weather Service (NWS) Precipitation Frequency Data
Server (PFDS), NOAA Atlas 14, a series of maps presented in older NWS
publications, and NOAA Atlas 2 (Precipitation Frequency Atlas of the
Western United States (1973)). Alaska and Hawaii, as well as the U.S.
territories, were not included in this analysis because EPA lacked
sufficient data on the annual amount of construction occurring in these
areas. More details on EPA's analysis can be found in the Development
Document.
G. Parameter Elevation Regressions on Independent Slopes Model (PRISM)
PRISM is a climate mapping system that was used to estimate the
annual acres that would be subject to the regulatory options given
various annual rainfall cutoffs. Using PRISM GIS layers of average
annual precipitation along with RF1-level estimates of annual acres of
new construction, EPA was able to estimate acres that would be subject
to various regulatory options given various average annual
precipitation cutoffs.
H. Revised Universal Soil Loss Equation (RUSLE) R Factors
EPA used maps of rainfall-runoff erosivity factors (or R factors)
contained in the RUSLE documentation. These maps, in GIS form, along
with RF1-level estimates of annual acres of new construction, were used
to estimate acres that would be subject to regulations given various R
factor values.
I. Economic Data
EPA utilized various economic data sources in developing today's
proposal. The primary data source is the 2002 Economic Census,
conducted every five years by the U.S. Census Bureau. The U.S. Small
Business Administration (SBA) and Census Bureau also provide important
information in Statistics of U.S. Business (SUSB). SUSB provides firm-
level data that is particularly important for the firm and industry
impact assessment and for the small entity analysis. An important
source of project level data is Reed Construction, a commercial
construction industry data service that collects and reports
information on multifamily, commercial/institutional, and industrial
construction projects undertaken nationally. EPA assigned baseline
financial characteristics--balance sheet, income statement, and metrics
of financial performance and condition--to each of the model firms as
defined by NAICS sector and revenue size range, from financial
statement information reported by Risk Management Association's (RMA)
publication, Annual Statement Studies. The Census Bureau's 2006
American Community Survey (ACS) was used to characterize new home
prices and lot sizes (2006 was chosen because it is the most recent
year for which the required Metropolitan Statistical Area (MSA)-level
data are available from the Census).
VII. Characteristics of Discharges From Construction Activity
The nature of construction activity is that it changes, often
significantly, many elements of the natural environment. Typically,
construction activities involve clearing the land of vegetation,
digging, earth moving and grading, followed by the active construction
period when the affected land is usually left denuded and the soil
compacted, often leading to an increase in the peak discharge rate and
the total volume of stormwater discharged and higher rates of erosion.
During the land disturbance period, affected land is generally exposed
after removal of grass, rocks, pavement and other protective ground
covers. Where the soil surface is unprotected, soil and sand particles
may be easily picked up by wind and/or washed away by rain or snow
melt. Typically, the water carrying these particles eventually reaches
a water body.
Discharges from construction activity have been documented to
increase the loadings of several pollutants in the receiving
waterbodies. The most prominent and most widespread pollutant
discharged from C&D sites is sediment. The level of sediment is often
identified through the measurement of the pollutants' turbidity,
suspended solids, total suspended solids (TSS), suspended sediment
concentration (SSC), and/or settleable solids. CWA section 304(a)(4)
identified suspended solids as a conventional pollutant and in 1978 EPA
defined ``suspended solids'' as ``total suspended solids (non-
filterable) (TSS)'' and stated that TSS ``is a laboratory measure of
the organic and inorganic particulate matter in wastewater which does
not pass through a specified glass filter disk.'' See 40 CFR
[[Page 72572]]
401.16; 43 FR 32857, 32858 (July 28, 1978). Turbidity and settleable
solids are non-conventional pollutants. See CWA section 301(b)(2)(F);
304(a)(4); Rybachek v. EPA, 904 F.2d 1276, 1291-92 (9th Cir. 1990). The
Agency defined ``turbidity'' as ``an expression of the optical property
that causes light to be scattered and absorbed rather than transmitted
with no change in direction of flux level through the sample * * *
caused by suspended and colloidal matter such as clay, silt, finely
divided organic and inorganic matter and plankton and other microscopic
organisms.'' 40 CFR 136.3; 72 FR 11200, 11247 (March 12, 2007). (See
Section IX for a discussion of why EPA proposes turbidity as the
desired pollutant to control in determining the appropriate
technology).
Stormwater discharges can have highly variable levels of
pollutants. Available data show that turbidity levels range from as low
as 10-50 NTU to several thousand NTU. When the denuded and exposed
areas contain nutrients, pathogens, metals or organic compounds, these
other pollutants are likely to be carried at increased rates (relative
to discharges from undisturbed areas) to surrounding waterbodies via
stormwater and other discharges (e.g., inadequately controlled
construction equipment wash water). Discharges of these pollutants from
construction activities can cause changes in the physical
characteristics of waterbodies, such as pH, water temperature, or
stream flow velocity, as well as changes in biological characteristics
such as aquatic species abundance and composition.
Actions taken to stabilize disturbed areas of the C&D site can
include seeding to restore vegetative cover. When fertilizers or
herbicides are applied to these areas, a portion of the chemicals
applied may become entrained in stormwater and will be discharged from
the site. Fertilizers contribute nutrients such as nitrogen and
phosphorus to the wastestream.
Discharges from construction activity are expected to contain
varying concentrations of metals, some of which may be contributed by
equipment used onsite for grading and other construction activities.
Metals are also naturally present in soils and, by removing vegetative
cover and increasing erosion and sediment loss, there will likely be an
increase in the amount of metals discharged from the C&D site. Metals
present as a contaminant or additive in fertilizers and other soil
amendments may serve as another source of pollutants in the stormwater
discharge.
Fuels and lubricants are maintained onsite to refuel and maintain
vehicles and equipment used during construction activities. These
products, should they come in contact with stormwater and other site
discharges, would contribute toxic organic pollutants. Pathogenic
pollutants can be present in stormwater that comes into contact with
sanitary wastes where portable sanitation facilities are poorly located
or maintained.
The environmental impacts associated with discharges from
construction sites are described in section XIV.
VIII. Description of Available Technologies
A. Introduction
As described in Section VII, construction activity results in the
discharge of pollutants to waters of the U.S. These discharges can be
controlled by applying site design techniques that preserve or avoid
areas prone to erosion and through the effective use of a combination
of erosion and sediment control measures. Construction activities
should be managed to reduce erosion and retain sediment on the C&D
site. Erosion and sedimentation are two separate processes and the
practices to control them differ. Erosion is the process of wearing
away of the land surface by water, wind, ice, gravity, or other
geologic agents. Sedimentation is the deposition of soil particles,
both mineral and organic, which have been transported by water, wind,
air, gravity or ice (adapted from North Carolina Erosion and Sediment
Control Planning and Design Manual, September 1, 1988).
Erosion control measures are intended to minimize dislodging and
mobilizing of sediment particles. Sediment control measures are
controls that serve to capture particles that have mobilized and are
entrained in stormwater, with the objective of removing sediment and
other pollutants from the stormwater discharge. An overview of
available technologies and practices is presented below; see the
Development Document for more complete descriptions. Many states and
local governments and other entities have also published detailed
manuals for erosion and sediment control measures, and other stormwater
management practices.
B. Erosion Control Measures
The use of erosion control measures is widely recognized as the
most important means of limiting soil detachment and mobilization of
sediment. The controls described in this notice are designed to reduce
mobilization of soil particles and minimize the amount of sediment and
other pollutants entrained in discharges from construction activity.
Erosion can be minimized by a variety of practices. The selection of
control measures that will be most effective for a particular site is
dictated by site-specific conditions (e.g., topography, soil type,
rainfall patterns). The main strategies used to reduce erosion include
minimizing the time bare soil is exposed, preventing the detachment of
soil and reducing the mobilization and transportation of soil particles
off-site.
Decreasing the amount of land disturbed can significantly reduce
sediment detachment and mobilization, as well as overall erosion and
sediment control costs. This can be accomplished by reducing the
overall area of disturbed land or by phasing construction so that only
a portion of the site is disturbed at a time. Another effective
approach is to schedule clearing and grading events to reduce the
probability that bare soils will be exposed to rainfall.
Managing stormwater flows on the site can be highly effective at
reducing erosion. Typical practices include actively managing off-site
and on-site stormwater using diversion berms, conveyance channels and
slope drains to avoid stormwater contact with disturbed areas. In
addition, stormwater should be managed using energy dissipation
approaches to prevent high runoff velocities and concentrated flows
that are erosive. Vegetative filter strips are often considered as
sediment controls, but they can also be quite effective at dissipating
energy and reducing the velocity (and thus erosive power) of
stormwater.
After land has been disturbed and construction activity has ceased
on any portion of the site, exposed soils should be covered and
stabilized immediately. Vegetative stabilization using annual grasses
is a common practice used to control erosion. Polymers, physical
barriers such as geotextiles, straw, rolled erosion control products
and mulch are other common methods of controlling erosion. These
materials and methods are intended to reduce erosion where soil
particles can be initially dislodged on a C&D site, either from
rainfall, snow melt or up-slope runoff.
The effectiveness of erosion control measures is dependent on
periodic inspection and identification and correction of deficiencies
(e.g., after each storm event). Erosion control measures alone will not
eliminate the mobilization of soil particles and such controls must be
used in conjunction with sediment control measures.
[[Page 72573]]
C. Sediment Control Measures
Despite the proper use of erosion control measures, some sediment
detachment and movement is inevitable. Sediment control measures are
used to control and trap sediment that is entrained in stormwater
runoff. Typical sediment controls include perimeter controls such as
silt fences constructed with filter fabric, straw bale dikes, berms or
swales. Trapping devices such as sediment traps and basins and inlet
protectors are examples of in-line sediment controls. Sediment traps
and basins are commonly used approaches for settling out sediment
eroded from small and large disturbed areas. Their performance can be
enhanced using baffles and skimmers and active treatment processes such
as electrocoagulation, filtration, and chemically enhanced settling
(e.g., polymer addition).
Active treatment systems are typically used in conjunction with
other sediment controls to improve pollutant removals, especially to
improve removals of fine-grained and slowly settling or non-settleable
particles and turbidity contained in stormwater. Unless sufficient
detention time is provided or additives are implemented, particles such
as clays and fine silts contained in stormwater discharges from
construction sites typically cannot be effectively removed by
conventional stormwater BMPs (such as sediment basins and sediment
traps) that rely solely on gravity settling. EPA has identified several
demonstrated technologies capable of achieving significant reductions
of these particles. Based on the information in the record,
electrocoagulation, polymer clarification, and chitosan-enhanced
filtration treatment technologies are demonstrated as being capable of
achieving low levels of turbidity in stormwater discharges.
The active treatment systems EPA has evaluated operate by
destabilizing the suspended particles by various mechanisms,
aggregating them into larger particles that are easier to remove
through settling or filtering. In addition to physical characteristics
(e.g., particle surface area, density) that impede timely settling by
gravity, these small particles (often clay particles) typically are
substantially influenced by net electrical repulsive forces at particle
surfaces that prevent the particles from joining together. Coagulation
refers to the process whereby these repulsive electrical forces are
reduced, allowing particles to come into contact with one another.
Flocculation refers to the agglomeration of the destabilized particles
by joining and bridging to form larger particles. Following
coagulation/flocculation, the densified floc can more easily and
effectively be removed via gravitational settling or media filtration
(e.g., sand, gravel, bag, or cartridge filters).
Electrocoagulation treatment uses an electrical field to disturb
the natural electrical charges of the colloidal particles suspended in
stormwater, enabling the particles to coagulate and flocculate, and
facilitating gravity settling. This settling may be followed by
filtration prior to discharge of the stormwater.
Polymer clarification can operate as a batch process whereby a
polymer is added to stormwater contained in a basin. The polymer causes
clays and other fine particles to flocculate and gravity settle. Once
the turbidity reaches the necessary value and other permit requirements
are met, the stormwater is discharged from the basin. Polymer
clarification can also be used in flow-through systems. In this
application, liquid polymer is injected into the influent to the
sediment basin or gel or solid polymer is added by placing polymer-
filled socks or ``floc logs'' in channels or pipes carrying sediment-
laded runoff into the basin. Stormwater flowing over the socks or logs
dissolves the solid polymer, and turbulence at the basin inflow point
facilitates mixing and aids in the coagulation/flocculation process.
Chitosan-enhanced filtration is a process that adds a polymer (in
this instance, a polymer produced from the chitin in crab shells) to
the stormwater to promote flocculation. The flocculated stormwater is
then passed through one or more filtration steps and, if permit
conditions are met, can be discharged.
These active treatment systems are often equipped with automated
instrumentation to monitor stormwater quality, flow rate, and dosage
control for both influent and effluent flows.
It has been suggested that, while operating active treatment
systems that use polymers to reduce the turbidity of stormwater,
construction site dischargers may overuse polymers and, in doing so,
introduce toxicity or cause other adverse effects. EPA believes toxic
effects from discharges treated to meet a turbidity limit should not be
occurring and such events would be indicative of a poorly operated
treatment system. Polymers are widely used at a variety of wastewater
treatment systems and facilities throughout the country, and EPA is not
aware of any studies indicating that polymer addition to treat
stormwater from construction sites using ATS has been found to pose a
significant risk to water quality at those facilities. There are ample
regulatory (i.e., enforcement actions) and financial (e.g., chemical
costs) disincentives for dischargers to willfully overuse polymers in
their treatment systems. In addition, vendors have indicated that
dosages of polymers are carefully metered in ATS systems. Upon closer
review of the matter, it appears that this concern has been raised due
to anecdotal suggestions, rather than documented evidence of actual
discharge events causing toxic effects. To date, EPA has not identified
any documented cases where the use of a polymer to treat C&D stormwater
discharges caused an adverse effect in the receiving waters. Also,
Washington and other States have researched toxicity of some polymers
and established a sound basis for testing and significant controls on
dosage and usage. For example, Washington State has established
protocols for residual chemical and toxicity testing for ATS systems
and has required vendors to receive state approval. However,
California, in a draft permit fact sheet describing chemical treatment,
states the following:
``These systems can be very effective in reducing the sediment
in storm water runoff, but the systems that use additives/polymers
to enhance sedimentation also pose a potential risk to water quality
(e.g., operational failure, equipment failure, additive/polymer
release, etc.). We are concerned about the potential acute and
chronic impacts that the polymers and other chemical additives may
have on fish and aquatic organisms if released in sufficient
quantities or concentrations. In addition to anecdotal evidence of
polymer releases causing aquatic toxicity in California, the
literature supports this concern. For example, cationic polymers
have been shown to bind with the negatively charged gills of fish,
resulting in mechanical suffocation. Due to potential toxicity
impacts, which may be caused by the release of additives/polymers
into receiving waters, residual polymer monitoring and toxicity
requirements have been established in this General Permit for
discharges from construction sites that utilize an ATS in order to
protect receiving water quality and beneficial uses.'' (see DCN
41137).
Therefore, EPA recognizes the merits of ensuring that chemical
additives are properly used. EPA solicits information and data that
quantify the number of instances where overuse of polymers occurred,
the circumstances resulting in such overuse, and the actual or
potential environmental impacts associated with such events. In
addition, EPA solicits comments on the need for approaches (either
voluntary or regulatory) to prevent or minimize the potential for such
instances and the need for EPA to
[[Page 72574]]
develop guidance on use of polymers at construction sites.
More detailed descriptions of sediment and erosion control measures
can be found in the Development Document.
D. Other Construction and Development Site Management Practices
Construction activity generates a variety of wastes and wastewater,
including concrete truck rinsate, municipal solid waste (MSW), trash,
and other pollutants. Construction materials and chemicals should be
handled, stored and disposed of properly to avoid contamination of
runoff. Dischargers utilize various practices to manage these wastes
and minimize discharges to surface waters, including:
Protecting construction materials, chemicals and fuels and
lubricants from exposure to rainfall;
Limiting exposure of freshly placed concrete to rainfall;
Segregating stormwater and other wastewaters from fuels,
lubricants, sanitary wastes, and chemicals such as fertilizers,
pesticides and herbicides;
Neat and orderly storage of chemicals, pesticides,
fertilizers, and fuels that are being stored on the site;
Prompt collection and management of trash and sanitary
waste;
Prompt cleanup of spills of liquid or dry materials.
IX. Development of Effluent Limitations Guidelines and Standards
A. Description of the Regulatory Options Considered
In developing today's proposal, EPA evaluated several different
options for reducing pollutant discharges from construction activity.
The options evaluated by EPA are intended to control the discharge of
sediment, turbidity and other pollutants in stormwater and other
wastewater from C&D sites. Construction activity typically involves
clearing, grading and excavating of land areas. Prior to construction,
these land areas may have been agricultural, forested or other
undeveloped lands. Construction can also occur as redevelopment of
existing rural or urban areas, or infill development on open space
within existing developed areas. During the C&D process, vegetation or
surface cover is typically removed and underlying soils become more
susceptible to detachment by rainfall and erosion by stormwater runoff.
Soil is often compacted by construction equipment, reducing the
infiltration capacity of underlying soils and increasing stormwater
discharge rates. Sediments and other pollutants contained in stormwater
can and often are transported off-site and discharged from construction
sites. Today's proposal provides regulatory tools to improve erosion
and sediment control measures and pollution prevention measures on C&D
sites to minimize and control stormwater and other discharges from
construction activity.
Certain limitations being proposed today are common to each
regulatory option. These common requirements consist of a set of non-
numeric effluent limitations that require dischargers to provide and
maintain effective erosion control measures, sediment control measures,
and other pollution prevention measures to minimize the discharge of
pollutants in stormwater and other wastewater from construction sites.
These non-numeric effluent limitations included in each regulatory
option are described in Section IX.B below.
B. Effluent Limitations Included in All Regulatory Options
EPA's preferred approach is twofold: First, prevent the discharges
of sediment and other pollutants from occurring through the use of
effective site-specific planning, erosion control measures and
pollution prevention measures; and second, control discharges that do
occur through the use of effective sediment control measures. Under
each regulatory option, dischargers would be required to meet non-
numeric effluent limitations requiring them to minimize and control
discharges from the site by providing and maintaining effective erosion
and sediment control measures and pollution prevention measures.
Dischargers would be required to prevent soil erosion and minimize
the discharge of sediment from all areas of the site by providing and
maintaining effective erosion control measures. Erosion controls are
considered effective when bare soil is uniformly and evenly covered
with vegetation or other suitable materials, stormwater is controlled
so that rills and gullies are not visible, and channels and streambanks
are not eroding. Dischargers would be required to provide and maintain
recognized and accepted erosion control measures, including stabilizing
disturbed soils immediately after clearing, grading, or excavating
activities have permanently or temporarily ceased (i.e., when such
activities have been stopped on a portion of the site and will not
resume for a period exceeding 14 calendar days). In addition,
dischargers would be required to minimize the amount of soil exposed
and control stormwater within the site to prevent soil erosion by using
effective erosion control measures. Stormwater discharges leaving the
site would also need to be controlled to prevent channel and streambank
erosion and erosion at outlets.
The following list of principles and practices are generally
recognized and accepted as effective erosion controls and would be
provided in the rule to help guide the selection, design, and
implementation of control measures to meet the effluent limitations on
individual construction sites.
Preserve topsoil and natural vegetation.
Minimize soil compaction.
Sequence or phase construction activities to minimize the
areas disturbed at any one time.
Stabilize disturbed areas using temporary or permanent
vegetation, and controls such as mulch, geotextiles, or sod.
Minimize the disturbance of steep slopes, and where such
slopes are disturbed implement erosion controls designed to control
soil erosion on slopes.
Establish and maintain natural buffers around surface
waters.
Minimize the construction of stream crossings.
Divert stormwater that may run onto the site away from any
disturbed areas of the site.
Dischargers would also be required to meet non-numeric effluent
limits requiring that they provide and maintain effective sediment
controls to minimize the discharge of sediment and other pollutants
from C&D sites. Sediment control measures implemented at the site would
include, at a minimum, the following:
Establishing perimeter controls for any portion of the
down-slope and side-slope perimeter where stormwater will be discharged
from disturbed areas of the site.
Establishing and using stabilized construction entrances
and exits that control sediment discharges from the site. Ensuring that
vehicles entering and exiting the site use such access points to
prevent tracking of sediment onto roads or other areas that convey
sediment to surface waters. Removing any sediment or other pollutants,
including construction materials, from paved surfaces daily. Washing
sediment or other pollutants off paved surfaces into storm drains would
be prohibited.
Establishing and using controls and practices to minimize
the introduction of sediment and other pollutants to storm drain inlets
that receive stormwater discharges from the site.
[[Page 72575]]
Controlling sediment and other contaminants from
dewatering activities. Discharges of dewatering wastes are prohibited
unless treated in a sediment basin or similar control measure.
Each regulatory option includes pollution prevention measures that
would minimize or prohibit the discharge of pollutants from a variety
of sources and activities at C&D sites. Each option would prohibit
discharges of construction wastes, trash, sanitary wastes, and
wastewater from washout of concrete, paint, and other such materials.
The regulatory options would also prohibit the discharge of fuels,
oils, and other materials used in vehicle and equipment operation and
maintenance. The discharge of wastewater from washing vehicles and
equipment where soaps or solvents are used would be prohibited. The
discharge of pollutants resulting from the washing of equipment and
vehicles using only water would also be prohibited, unless wash waters
were treated in a sediment basin or alternative control that provides
equivalent or better treatment. Dischargers would be required to
implement measures to minimize the exposure of stormwater to building
materials, landscape materials, fertilizers, pesticides, herbicides,
detergents, and other liquid or dry products. In addition, dischargers
would be required to implement appropriate spill prevention and
response procedures for these materials.
C. Options for BPT, BCT, BAT and NSPS
EPA considered the following three regulatory options for today's
proposal.
Option 1
Each C&D site subject to the rule would be required to implement
the limitations described above in Section IX.B. In addition, certain
larger sites would be required to install and maintain sediment basins
or equivalent sediment controls. Specifically, for portions of sites
that drain to one location and will have 10 or more acres disturbed at
one time, dischargers would be required to install a sediment basin to
control and treat the stormwater discharges. The proposed rule would
impose minimum standards of design and performance for sediment basins.
The basin would be required to provide storage for a calculated volume
of stormwater (called the water storage volume) from a 2-year, 24-hour
storm from each disturbed acre drained plus a sediment storage volume
of at least an additional 1,000 cubic feet, until final stabilization
of the disturbed area. Alternatively, a sediment basin providing a
water storage volume of 3,600 cubic feet per acre drained plus the
sediment storage volume would be required. To ensure adequate retention
time to facilitate settling of sediment particles, the proposed rule
would require that the effective length of the basin must be at least
four times the width of the basin and that the water storage volume be
designed to drain over a period of at least 72 hours using a surface
outlet (such as a skimmer), unless otherwise designated by the
permitting authority. The size of the basin that would be required is
based on the size of the drainage area that will have vegetation
removed and soils disturbed (i.e., if the total drainage area is 15
acres, but only 13 acres of this area will have vegetation removed and
soils disturbed during the course of the project and the remaining 2
acres will remain vegetated and stormwater is directed around both the
disturbed area and the sediment basin, then the storage volume can be
sized based on 13 acres).
In addition, the design of the sediment basin would be required to
address site-specific factors such as amount, frequency, intensity and
duration of stormwater runoff; soil types; and other factors affecting
pollutant removal efficacy. For example, particle settling
characteristics, and thus pollutant removal efficacy, can be affected
by physical parameters of the basin such as inlet and outlet
velocities, basin surface area, and basin depth and volume necessary to
provide sufficient storage for sediment load and stormwater runoff.
Effective erosion and sediment controls are generally recognized as
including actions to divert stormwater away from disturbed areas of the
site, so that sediment erosion is reduced and sediment controls, such
as basins, are not overwhelmed by stormwater volumes.
To minimize carryover and discharge of suspended particles from the
sediment basin, the basins would be required to incorporate an outlet
device designed to remove water from the top of the water column in
order to minimize the amount of sediment and other pollutants entrained
in the discharge. This can be accomplished by using technologies such
as a siphoning outlet, surface skimmer or floating weir.
Recognizing that there may be impediments to using sediment basins
in some instances or that alternative approaches may provide better
controls depending on site-specific conditions, the proposed rule would
authorize dischargers to use alternative controls equivalent to
sediment basins where approved by the permitting authority.
EPA encourages dischargers to use improved sediment basin designs
that incorporate features such as baffles and to increase the length to
width ratio of the basin to maximize detention time and settling. The
use of these practices may significantly improve the performance of
sediment basins in certain cases. The North Carolina Department of
Transportation (NCDOT) has developed draft specifications for baffles
in sediment basins (see DCN 43083). EPA solicits comments on whether
porous baffles, as described in the draft NCDOT specifications, should
be minimum requirements for all sediment basins nationwide. EPA also
requests comments on the costs and effectiveness of baffles used in
sediment basins, either alone or in combination with skimmers and
polymer addition. EPA also solicits comments on the detention time
requirements for sediment basins contained in today's proposal, and
whether the proposed rule should include other specific detention time,
overflow rate or other design or performance requirements for sediment
basins. EPA also solicits comments on whether the regulation should
require that sediment basins be designed to remove a specified particle
size. EPA also requests comments on whether sediment basin designs
should be required to address downstream channel erosion by requiring
peak or discharge rates to match predevelopment conditions, and for
what storm events such a standard should apply.
Option 1 is estimated to cost approximately $132 million per year
(2008 $), not including costs for Alaska, Hawaii and the U.S.
territories, and reduce discharges of pollutants by 670 million pounds
annually. Monetized benefits of Option 1 are estimated to be $18
million per year. The cost estimates for Option 1 only include costs
for larger sediment basins in those states whose sizing requirements
are less stringent than those contained in the proposal. These cost
estimates do not include any additional costs for implementing skimmers
or the additional volume for sediment storage. EPA assumed that these
costs would not impact sediment basin costs significantly. Skimmers can
be purchased from commercial suppliers, or fabricated on-site. Also not
included are costs for deep ripping and decompaction of soils, and
several other required BMPs that are not currently part of the CGP or
most state permits. EPA solicits comments on the cost assumptions of
Option 1. The efficacy of Option 1 (percent of raw stormwater
[[Page 72576]]
sediment load removed) may be underestimated because only the basins
are modeled in the loading analysis. Removals due to other on-site BMPs
have not been modeled or included in the analysis.
While developing and evaluating Option 1, EPA considered several
possible variations for sediment basin requirements. One approach would
have eliminated flexibility for dischargers to use a 3600 cf/acre basin
in lieu of the 2-year, 24-hour basin. In effect, all sites required to
install a sediment basin under Option 1 would have been required to
construct a basin sized to treat runoff from the 2-year, 24-hour storm
(or use equivalent control measures). EPA estimated that this variation
of Option 1 would cost approximately $1.09 billion per year. EPA also
considered an approach that, in addition to specifying a particular
size of basin, would require that the sediment basin be sized and
constructed to enable settling of a specified-size particle--e.g., 10-
micron particles. This approach would be a design standard rather than
a numeric limitation on the sediment basin effluent. For example, the
California Stormwater Quality Association Construction Handbook (see
DCN 43017) contains an example of designing a sediment basin to remove
a specified particle size standard based on wet sieve analysis for the
10 micron particle for a 10-year, 6-hour storm event. EPA estimates,
using this approach, that sediment basins required to remove particles
greater than 10 microns nationwide would cost approximately $1.7
billion per year. More information about these potential sediment basin
approaches is presented in the Development Document. EPA solicits
comment on whether Option 1 or other variations described here would be
appropriate regulatory approaches and, if so, why, based on the
statutory requirements of CWA section 304, they should be considered to
represent BPT, BCT, BAT, or NSPS level of control for this industry.
Option 2
The requirements that would be established under Option 2
incorporate all of the Option 1 requirements. In addition, a numeric
limit on turbidity of stormwater discharges would apply to sites that
meet certain criteria for size of the site, average clay content of the
soil (with clay content being defined as soil particles less than 2
microns in diameter), and rainfall erosivity factor (``R factor'') as
defined by the Revised Universal Soil Loss Equation (see Predicting
Soil Erosion by Water: A Guide to Conservation Planning With the
Revised Universal Soil Loss Equation (RUSLE), United States Department
of Agriculture, Agriculture Handbook Number 703, January 1997). Option
2 would establish a numeric effluent limit on the turbidity of
stormwater discharges for any site that meets all three of the
following criteria: (1) Average soil clay content of more than 10
percent; (2) annual R factor of 50 or more; and (3) has a size of 30 or
more acres. The numeric turbidity standard would apply to discharges
produced from rainfall events up to the local 2-year, 24-hour storm.
Any volume in excess of the 2-year, 24-hour storm would be exempt from
the turbidity standard. The turbidity limitation would apply to these
sites in addition to the Option 1 requirements (i.e., such sites would
also be required to implement the non-numeric erosion and sediment
control measures described under Option 1). Under Option 2, dischargers
would be required to monitor stormwater discharges for turbidity, which
can be done either by using automated instrumentation or with a
portable, hand-held turbidimeter or similar device. Sites with a common
drainage location that serves an area with 10 or more acres of land
disturbed land at one time that are not required to meet the turbidity
requirement, either because the total size of the site is less than 30
acres, the R factor is less than 50 or the average clay content of
soils is less than 10 percent, would be required to install sediment
basins as described under Option 1. Site size for sites subject to the
proposed turbidity limit is based on the total size of the site, not
the amount of disturbed acres or some other subset of the site. Any
site which is 30 acres or larger regardless of how much of the site
will be disturbed would be subject to the turbidity limit if they also
meet the R factor and soil clay content thresholds.
By considering the construction site's soil clay content, this
option takes into account the pollutant reductions that are achievable
using the erosion control measures and traditional sediment control
measures (i.e., those other than active treatment systems) included in
the proposed rule. These more traditional approaches to controlling
stormwater discharges can be very effective in soils with low clay
content where the entrained sediment is amenable to gravity settling.
However, as the amount of clay in the soil rises, gravity settling
processes are less effective and processes to enhance the removal of
pollutants from stormwater are necessary. By applying the proposed
turbidity limit in Option 2 to sites with 10% or more clay content, the
proposed rule would achieve significant reductions of the slowly
settling or non-settleable particles and turbidity contained in
stormwater. In order to remove these fine-grained particles from
stormwater discharges, active treatment technologies, such as those
described in Section VIII, typically would need to be employed. The
information in the record shows that these systems can achieve low
levels of turbidity in the stormwater discharges.
While it is impossible to predict the weather several months in
advance of construction, for many areas of the country, there are
definite optimal periods for conducting construction activities in
order to limit soil erosion, such as a dry season when rain tends to
fall less frequently and with less force. When feasible, this is the
time to disturb the earth, so that the site is stabilized by the time
the seasonal wet weather returns. The R factor is intended to reflect
consideration of the amount and intensity of precipitation expected
during the time the earth will be exposed.
The method for determining a site's R factor is based on the
Universal Soil Loss Equation (USLE) developed by the U.S. Department of
Agriculture (USDA) in the 1950s to help farmers conserve topsoil. The
USLE has been updated to the Revised USLE (RUSLE). Using a computer
model supported by decades worth of rainfall data, USDA established
estimates of rainfall erosivity factors (R) for locations throughout
the country. These R factors are used as surrogate measures of the
impact that rainfall has on erosion from a particular site. The R
factor represents the driving force for erosion, taking into
consideration total rainfall, intensity and seasonal distribution of
the rain. Isoerodent maps depicting the R factor in various parts of
the country have been created by USDA and are included in Chapter 2 of
Agriculture Handbook Number 703.
While developing and evaluating Option 2, EPA considered several
possible variations for the applicability of a limitation on turbidity
of stormwater discharges. One approach would replace the R factor
criteria with one based on total annual rainfall for the site location.
Under this approach, EPA preliminarily considered values of 20 inches
and 40 inches of total annual rainfall. EPA considers the R factor
approach better than total annual rainfall at addressing stormwater
discharges because the R factor captures both rainfall energy (a
function of the volume of rainfall and runoff) and intensity (which has
direct bearing on the erosive power of a rainfall event). EPA has
structured the regulatory
[[Page 72577]]
option accordingly. However, since R factors have not been calculated
for all areas of Alaska and the U.S. territories, a criterion of 20-
inches total annual rainfall (30-year average using National Weather
Service records) has been retained as a substitute for R factor for
construction sites in those locations unless an R factor applicable to
the construction site is calculated.
EPA also considered approaches that would apply the turbidity
effluent limitation to larger sites (e.g., 50 acres instead of 30
acres) or with higher clay content of the soil (e.g., 20 percent
instead of 10 percent clay). More information about these potential
approaches is presented in the Development Document. EPA solicits
comment on whether Option 2 or other combinations of rainfall, clay
content and acreage limitations like those described above would be
more appropriate regulatory approaches and, if so, why, based on the
statutory requirements of CWA section 304, they should be considered to
represent BPT, BCT, BAT, or NSPS level of control for this industry.
Another option would be to base Option 2 on disturbed acres, instead of
the total site size. EPA solicits comments on this approach.
EPA evaluated the advantages and disadvantages of establishing a
limitation on turbidity vs. total suspended solids (TSS) in stormwater
discharges from construction sites. EPA selected turbidity for two
reasons. First, EPA is specifically targeting fine silt, clay and
colloidal particles in stormwater runoff. These particles have small
diameters and frequently contain a surface charge that prevents
agglomeration. As a result, these particles typically do not settle in
sediment basins and are not effectively removed by conventional BMPs
such as silt fences, which have a large pore diameter. Consequently,
discharges from sites with appreciable clay soils may have low TSS
concentrations but may still have high turbidity levels. Second,
turbidity can be easily measured in the field while TSS requires
collection of a sample and analysis in a laboratory. Since most BMPs
and treatment systems are flow-through systems, TSS would not be a
practical means of estimating compliance because permittees would not
be able to verify whether or not they had met the standard before
discharging. With turbidity, permittees can measure turbidity levels in
discharges continuously and adjust treatment parameters accordingly or
recycle effluent if they are in danger of exceeding the turbidity
limit. For these reasons, EPA believes that turbidity is a more
appropriate measure of effectiveness and can be implemented more easily
than TSS. EPA requests comments on this approach.
Option 2 is estimated to cost $1.9 billion per year (2008 $), not
including costs for Alaska, Hawaii and the U.S. territories, and reduce
discharges of pollutants by 27 billion pounds annually, with a
sensitivity analysis estimate of 6.2 billion pounds annually. Monetized
benefits of Option 2 are estimated to be $333 million annually.
Option 3
Under Option 3, all sites with common drainage locations that serve
an area with 10 or more acres disturbed at one time would be required
to comply with the turbidity effluent limitation (in addition to the
non-numeric effluent limitations in Option 1). This option does not
establish thresholds for R factor (or total annual rainfall) or soil
type (i.e., clay content). Under this option, all other sites (i.e.,
sites with less than 10 acres disturbed at one time) would be required
to implement the requirements described under Option 1 (for sites with
common drainage locations that serve an area of less than 10 acres
disturbed at one time).
Option 3 is estimated to cost $3.8 billion per year (2008 $), not
including costs for Alaska, Hawaii and the U.S. territories, and reduce
discharges of pollutants by 50 billion pounds annually, with a
sensitivity analysis estimate of 11.1 billion pounds annually.
Monetized benefits of Option 3 are $470 million annually. EPA notes
that its modeling of acres subject to the options evaluated is based on
total site size instead of amount of disturbed area on a site. EPA does
not have data that can be used to estimate the percentage of a site
that is typically disturbed. For example, if a site is 15 acres, but
only 7 acres were to be disturbed, then under Option 3 this site would
not be subject to the turbidity standard. However, EPA has estimated
costs for Option 3 for all sites that, in total, are more than 10
acres. Therefore, to the extent that EPA has overestimated the quantity
of acres that would be subject to Option 3, EPA's estimates of costs,
benefits and loadings reductions for turbidity controls under Option 3
would also be overestimated.
With regard to Option 3, depending on the location of the
construction site and time of year, it is possible that relatively
little rain would be expected during construction (based on historical
average rainfall patterns) and perhaps dischargers could opt to not
install active treatment systems. However, such an approach would
expose permittees to the risk of discharging stormwater that exceeds
the turbidity limit. On the other hand, taking an overly precautionary
approach could result in sites installing treatment equipment that sees
little or no use. EPA seeks comment on this issue.
Also with regard to Option 3, EPA has also considered the
availability of treatment systems capable of achieving the turbidity
effluent limit, as well as whether there is sufficient vendor capacity
to meet the demand that would be presented by extending the turbidity
effluent limit to all construction sites disturbing more that 10 acres
at a time. Option 3 means that substantial numbers of active treatment
systems would need to be manufactured and mobilized, along with
sizeable levels of vendor support, in a relatively short period of time
as NPDES permits incorporating the ELGs and NSPS are issued.
EPA solicits comments on this issue.
D. Option Selection Rationale for BPT
EPA proposes to select Option 1 as the basis for establishing BPT
effluent limitations. The requirements established by Option 1 are
well-established for construction activities in all parts of the
country and are generally consistent with and in some cases more
stringent than the control measures currently in place under EPA's
Construction General Permit. Some requirements of Option 1 are more
stringent than many state general permits, while other requirements are
less stringent than some state general permits. EPA has determined that
Option 1 represents a level of control that is technologically
available and economically practicable. EPA considered the non-water
quality environmental impacts of this option and found them to be
minimal and thus acceptable. Selecting Option 1 as BPT for this point
source category is consistent with the CWA and regulatory
determinations made for other point source categories, in that the
Option 1 requirements represent limitations based on the average of the
best performance of facilities within the C&D industry. See Weyerhauser
Co. v. Costle, 590 F.2d 1011, 1053-54 (D.C. Cir. 1978). As stated in
Section III, EPA assesses cost-reasonableness of BPT effluent
limitations by considering the cost of treatment in relation to the
effluent reduction benefits achieved. EPA has determined that the
pollutant reduction benefits achieved by Option 1 justify the costs. We
have typically described this as dollars/pound and compare the results
with other rules. The incremental costs of Option 1 are approximately
$132 million per year
[[Page 72578]]
(2008 $). EPA anticipates that construction sites in approximately 11
states would incur costs to comply with the proposed Option 1 BPT
requirements requiring sediment basins generally consistent with the
EPA CGP. As noted above, the efficacy of this option may be
underestimated.
EPA rejected Options 2 and 3 because EPA views BPT performance as
the first level of technology-based control representing the average of
the best performance. EPA's record does not indicate that meeting a
turbidity limit, even for the subset of facilities identified in Option
2 would represent today's average of the best performance and it would
not represent the BPT level of control for this point source category.
EPA requests comment on what should be considered BPT for this
category.
E. Option Selection Rationale for BAT and NSPS
1. Selection Rationale
EPA proposes to select Option 2 as the basis for BAT and NSPS. This
option would require all C&D sites to implement the non-numeric
effluent limitations described for Option 1, as well as requiring
certain sites to meet a numeric limitation of 13 NTU (nephelometric
turbidity units) to control turbidity for stormwater discharges.
Turbidity is being regulated in this proposed rule as a nonconventional
pollutant and an indicator pollutant for the control of other
pollutants associated with sediment and materials on construction sites
that can become entrained in stormwater discharges from construction
sites, including metals and nutrients. Turbidity, measured as NTU,
which in construction site runoff primarily reflects sediment, is a
nonconventional pollutant because it is not identified as either a
toxic or conventional pollutant under the CWA. See CWA section
301(b)(2)(F); 304(a)(4); 40 CFR 401.16; Rybachek v. EPA, 904 F.2d 1276,
1291-92 (9th Cir. 1990). Turbidity is ``an expression of the optical
property that causes light to be scattered and absorbed rather than
transmitted with no change in direction of flux level through the
sample * * * caused by suspended and colloidal matter such as clay,
silt, finely divided organic and inorganic matter and plankton and
other microscopic organisms.'' 40 CFR 136.3; 72 FR 11200, 11247 (March
12, 2007). In this rulemaking, EPA is identifying turbidity as a
pollutant of concern in construction site discharges. By providing a
measure of the sediment entrained in stormwater discharges, turbidity
is an indicator of the degree to which sediment and other pollutants
associated with sediment and found in stormwater discharges are
reduced. Turbidity is also a more effective measure of the presence of
fine silts, clays and colloids, which are the particles in stormwater
discharges that EPA is specifically targeting in today's proposal.
Metals, nutrients, and other toxic and nonconventional pollutants
are naturally present in soils, and can also be contributed by
equipment/materials used during construction or by activities that
occurred at the site prior to the construction activity. Many of these
pollutants are present as particulates and will be removed with other
particles. Dissolved forms of pollutants are often absorbed or adsorbed
to particulate matter and can also be removed along with the
particulates (i.e., sediment). EPA has determined that effluent
limitations that reduce turbidity in the stormwater discharge will also
achieve reductions of the other pollutants of concern. Demonstrating
compliance with a turbidity limit would be relatively easy and
inexpensive for construction site dischargers to implement. Hand-held
turbidity meters (turbidimeters) can be used to measure turbidity in
discharges, or data loggers coupled with in-line turbidity meters can
be used to automatically measure and log turbidity measurement reducing
labor requirements associated with sampling. In addition, the use of
turbidity meters will provide dischargers with immediate, real-time
information on the efficacy of their treatment systems and sediment
control measures to facilitate timely adjustments of system operation
where necessary.
The requirements of Option 2 have been demonstrated to be
technologically available. Active treatment systems have been used and
are currently being used at several hundred construction sites
throughout the country. Construction sites where these active treatment
systems have been used are primarily located in California, Oregon and
Washington, with some in Florida, Maryland, Vermont and other states.
Oregon requires sites to meet a 160 NTU benchmark if the site is
discharging to a waterbody listed as not meeting applicable water
quality standards under section 303(d) or a waterbody with a total
maximum daily load (TMDL) for sediment and turbidity. Washington has
turbidity benchmark limits that are set at values relative to the
turbidity in the receiving steam. Benchmark requirements (e.g., in the
context of the Oregon and Washington permits), as opposed to numeric
effluent limits, require the facility to take some action to address
the potential water quality issue such as additional monitoring or BMP
review and do not result in a permit violation. Vermont requires what
it defines as ``moderate risk'' projects to take corrective action if
turbidity exceeds 25 NTUs. Also, several other states have turbidity
limitations or standards that are either in draft permits (such as
California), are set relative to background levels (Georgia), or are
set only for specific regions or specific waterbodies within the state
(such as the Lake Tahoe Basin of California) or for specific
construction projects (such as construction of a new runway at the Sea-
Tac airport). To comply with these turbidity-based requirements,
dischargers have used the active treatment systems described
previously--electrocoagulation, polymer clarification, and chitosan-
enhanced sand filtration, as well as other approaches. The information
in the record demonstrates the efficacy of these treatment systems,
showing that they consistently achieve very low levels of turbidity in
stormwater discharges. A summary of existing state requirements are
contained in the TDD.
EPA also considered the recommendations of the National Research
Council (NRC). EPA commissioned the NRC to evaluate the NPDES
stormwater program and make recommendations for improvement of the
program. The Water Sciences and Technology Board released the report
Urban Stormwater Management in the United States (Committee on Reducing
Stormwater Discharge Contributions to Water Pollution, National
Research Council, National Academies Press) in October of 2008. The
report is the product of a 2-year process undertaken by a 15-member
committee of national experts.
While the report did not specifically endorse numeric effluent
limits for construction sites, the report did contain several
recommendations, including that ``Numeric enforcement criteria can be
used to define what constitutes an egregious water quality violation at
construction sites and provide a technical criterion to measure the
effectiveness of erosion and sediment control practices.'' The study
continues to report that ``A maximum turbidity limit would establish
definitive criteria as to what constitutes a direct sediment control
violation and trigger an assessment for remediation and prevention
actions. For example, local erosion and sediment control ordinances
could establish a numeric turbidity limit of 75 Nephelometric
[[Page 72579]]
Turbidity Units (NTU) as an instantaneous maximum for rainfall events
less than an inch (or a 25 NTU monthly average) and would prohibit
visible sediment in water discharged from upland construction sites.
While the exact turbidity limit would need to be derived on a regional
basis to reflect geology, soils, and receiving water sensitivity,
research conducted in the Puget Sound of Washington indicates that
turbidity limits in the 25 to 75 NTU can be consistently achieved at
most highway construction sites using current erosion and sediment
control technology that is properly maintained (Horner et al., 1990).
If turbidity limits are exceeded, a detailed assessment of site
conditions and follow-up remediation actions would be required. If
turbidity limits continue to be exceeded, penalties and enforcement
actions would be imposed. Enforcement of turbidity limits could be
performed either by state, local, or third party erosion and sediment
control inspectors, or--under appropriate protocols, training, and
documentation--by citizens or watershed groups.''
EPA recognizes that the turbidity limits discussed in the report
are more like the action levels specified by Washington and other
states, rather than binding numeric effluent limitations being proposed
by EPA. However, EPA's analysis of ATS effluent data from more than
6,000 data points indicates that a limit of 13 NTUs is technologically
available.
California assembled a blue ribbon panel to evaluate, among other
things, the feasibility of establishing numeric effluent limits from
construction sites (see DCN 41010). The blue ribbon panel found that
``It is the consensus of the Panel that active treatment technologies
make Numeric Limits technically feasible for pollutants commonly
associated with stormwater discharges from construction sites (e.g. TSS
and turbidity) for larger construction sites. Technical practicalities
and cost-effectiveness may make these technologies less feasible for
smaller sites, including small drainages within a larger site, as these
technologies have seen limited use at small construction sites. If
chemical addition is not permitted, then Numeric Limits are not likely
feasible.''
EPA's selection of Option 2, which requires a turbidity limit only
for larger sites, is therefore consistent with the panel's conclusion.
EPA notes that although the panel mentions that a numeric limit is not
feasible without chemical addition (e.g., polymers) there are
technologies available (such as electrocoagulation) that do not use
polymers. Further, data in the literature suggests that a somewhat
higher limt (e.g., 50-150 NTU) may be achievable using enhanced
sediment basin design practices without relying on ATS. An option based
on this approach is discussed in more detail below.
The panel, in determining that numeric effluent limits are
technically feasible, did express concerns, including cost-
effectiveness for small sites, toxicity of treatment chemicals, and the
potential for discharges with low TSS and turbidity into receiving
waters with high background levels (such as in some arid and semi-arid
areas) contributing to channel erosion. EPA has determined that Option
2 addresses these concerns, because the turbidity standard only applies
to larger sites and does not apply in arid and semi-arid areas because
of the R-factor applicability criteria. EPA is soliciting comment on
the need for regulatory requirements or guidance to address the
concerns regarding potential toxicity of treatment chemicals. EPA also
solicits comments on whether and how toxicity concerns should factor
into EPA's BAT determination.
Based on the analysis conducted for this proposed rule, EPA
believes that the requirements of Option 2 are economically achievable.
Option 2 is projected to have a total industry compliance cost, once
fully implemented in NPDES permits, of $1.9 billion per year (2008 $).
Since EPA expects that the effluent guidelines requirements will be
implemented over time as states revise their general permits, EPA
expects full implementation within five years of the effective date of
the final rule, currently required to be promulgated in December 2009,
which would be 2014. EPA estimates that, once fully implemented, there
will be nearly 82,000 firms that perform work falling within scope of
Option 2. Average annual revenue for these in-scope firms is $544.14
billion (2008 $). Option 2 compliance costs are 0.35 percent of in-
scope firm revenues. Of these 82,000 fims, 6,396 would incur costs
under option 2. These firms have revenues of $409.02 billion (2008$)
and costs are 0.46% of revenues for firms incurring costs.
Under Option 2, an estimated 774 firms (0.9 percent of all in-scope
firms) are estimated to incur compliance costs exceeding 1 percent of
annual revenue, and 76 firms (0.1 percent of in-scope firms) are
expected to incur compliance costs exceeding 3 percent of revenue. When
using EPA's assumption that under normal business conditions firms can
pass most of their compliance costs along to customers (85 percent of
costs for residential construction and 71 percent for non-residential),
there are 20 firms estimated to incur (net) costs exceeding 1 percent
of revenue, and no firms expected to incur (net) costs exceeding 3
percent of revenue.
EPA has attempted to analyze the secondary impacts on home buyers
when costs are fully passed through. As part of this analysis, EPA
converted compliance costs into the likely dollar increase in housing
prices. Making assumptions about likely terms of financing, this was
converted to an increase in the monthly mortgage payment, where the
percent increase in home price is approximately equal to the percent
increase in mortgage payment. This analysis assumes there is no change
in the set of households that are new home buyers because of the
proposed regulation. EPA then used income distribution data to estimate
the change in the number of households in the market for a new home
that would qualify to purchase the median and lower quartile priced new
home under the higher monthly mortgage payment. This analysis was
performed using the median and lower quartile priced new home for each
metropolitan statistical area (MSA). For the MSA's, the weighted
average median priced for a home is $322,000, and the percent increase
would be 0.65%. In this way, EPA has attempted to characterize how the
potential increase in mortgage payment may affect housing
affordability. EPA estimated that 2,195 of these prospective home
purchasers would no longer qualify to purchase a median priced home
affected by the rule, and 3,243 would no longer qualify to purchase a
new lower quartile priced home affected by the rule. However, this
approach only looks at two specific points along the spectrum of
housing prices and therefore does not represent the total number of
households potentially impacted by the rule. EPA is interested in
developing an analysis reflective of the number of households that
would likely be adversely affected by the proposed regulation, and
solicits comment on appropriate methodology and any data that would be
required to conduct such an analysis. Based on our analysis thus far
EPA believes that the secondary impacts to new home buyers are
affordable.
Under normal business conditions with cost pass-through (85%
residential and 71% non-residential) EPA estimates the number of firms
expected to incur financial stress as a result of the regulatory
requirements to be 147 firms which represents 0.2 percent of in-scope
firms and 2.3 percent of firms incurring
[[Page 72580]]
costs under Option 2. A total of 103 firms are estimated to experience
negative business value and be at risk of closure due to regulatory
requirements, which represents 0.1 percent of in-scope firms and 1.6
percent of total firms incurring costs. These impact measures are not
additive, as they evaluate different aspects of a firm's financial
viability, and the same firm may be counted under more than one
measure. EPA recognizes that this industry is subject to business
cycles and performed an adverse business conditions analysis to assess
the impacts during an economic downturn. The adverse business
conditions case assumes no cost pass-through as well as other less
favorable operating factors for the industry. No-cost pass through is a
rigid assumption where all impacts are born by the permitee, and there
are no secondary impacts on builders who buy lots or buyers of the
finished construction. For the adverse case, the results for Option 2
show the number of firms expected to incur financial stress as a result
of the regulatory requirements to be 479 firms, which represents 0.6
percent of in-scope firms and 8.3 percent of firms incurring costs
under Option 2. A total of 662 firms are estimated to experience
negative business value and be at risk of closure due to regulatory
requirements, which represents 0.9 percent of in-scope firms and 11.4
percent of firms incurring costs. Nevertheless, given the measures of
financial impact, in terms of percentage of in-scope firms and firms
incurring costs, EPA considers the rule to be economically achievable
by the construction industry. EPA requests comments on its economic
achievability analyses and on its proposed determination that Option 2
is economically achievable.
EPA's analysis shows that Option 2 has acceptable non-water quality
environmental impacts. The pollution prevention, sediment and erosion
control measures included in the proposed rule, including the
collection and treatment of stormwater at some construction sites, will
not result in a significant incremental increase in the energy
consumption, air emissions, or generation of solid waste at
construction sites.
EPA has proposed to reject Option 1 as the basis for BAT and NSPS
in part because it would not represent the best available or best
demonstrated technology for controlling discharges from this industry.
Narrative effluent limitations, such as those contained in Option 1, to
prevent and minimize erosion and sediment dischargers have been a
feature of NPDES permits for many years. Controls are available and
demonstrated that provide a higher degree of pollution reduction than
Option 1 and consistently provide low turbidity values, making a
numeric turbidity limit feasible. In addition, in considering economic
achievability of the option, EPA believes that the measures of
affordability EPA has used in the past, facility closure and firm
failure, and the firm stress metric used in Regulatory Flexibility
Analysis also considered here (percent of revenue lost and whether that
measure is above 1 or 3 percent) demonstrate that Option 2 can be
reasonably borne by the industry.
EPA has also proposed to reject Option 3 as the basis for BAT and
NSPS, due primarily to the total industry cost (estimated at $3.8
billion annually). Option 3, once fully implemented, would cost $1.9
billion more annually than Option 2. EPA closely evaluated whether
establishing a turbidity limit on all construction sites disturbing
more than 10 acres at a time represents the BAT or NSPS level of
control--and believes that it does not. Option 3 would require all
construction sites, in every part of the country and at all times of
the year, to meet a numeric effluent limitation on turbidity if the
construction activity disturbs 10 or more acres of land at a time.
Construction sites that have soils containing relatively little clay
(e.g., a site in coastal Florida with sandy soils) or with low
rainfall-runoff erosivity (such as those in certain parts of Idaho) can
likely control the discharge of sediments and other pollutants through
effective use of the erosion and sediment control measures included in
the non-numeric effluent limitations being proposed today. With
relatively little of the difficult-to-settle clay present, and with low
rainfall energy, sediment production is expected to be low and EPA
expects much of the sediment to be removed from stormwater through the
use of effective sediment controls. Therefore, EPA believes that
requiring these sites to meet a numeric turbidity limit, including the
additional costs for monitoring that a numeric turbidity limit would
impose, does not represent BAT for these sites. EPA solicits comments
on this approach.
In light of the high total cost of Option 3 and the appropriateness
of ELG and NSPS turbidity limits in arid areas and at construction
sites where rainfall energy is low and soils contain little clay, EPA
believes that Option 3 does not represent the best available or best
demonstrated technology for the C&D point source category.
In summary, EPA believes that Option 2 is technologically
available, economically achievable, and has acceptable non-water
quality environmental impacts. EPA believes that establishing a numeric
turbidity limitation on a segment of the point source category
represents best available and best available demonstrated technology
for the C&D industry, striking an appropriate balance that addresses
the factors EPA is required to consider under the CWA and the nature of
stormwater discharges from construction sites. In addition, EPA has
determined that the non-numeric effluent limitations being proposed
under Option 2 represent best available and best available demonstrated
technology for all dischargers in the C&D industry.
Although EPA has proposed Option 2 as a basis for BAT and NSPS, EPA
is soliciting comment on the appropriateness of the numeric turbidity
limit of 13 NTUs and the technology basis (i.e., ATS) for Option 2. EPA
has identified information that indicates that a limit in the range of
50-150 NTUs might be met by relying on passive, rather than active,
treatment systems. Passive treatment systems consist of a number of
techniques that do not rely on pumping of stormwater or mechanical
filtration and that are not as complex, do not cost as much and do not
utilize as much energy as ATS.
Data in the literature indicate that passive systems may be able to
provide a high level of turbidity reduction at a significantly lower
cost than active treatment systems. For example, McLaughlin (see DCN
41005) evaluated several modifications to standard sediment trap
designs at the North Carolina State University Sediment and Erosion
Control Research and Education Facility (SECREF). He evaluated standard
trap designs as contained in the North Carolina Erosion and Sediment
Control Manual utilizing a stone outlet structure as well as
alternative designs utilizing a skimmer outlet and various types of
porous baffles. Baffle materials tested included silt fence, jute/
coconut and tree protection fence tripled over. Tests were conducted
using simulated storm events in which sediment was added to stormwater
at flows of 10 to 30 liters per second. McLaughlin found that a
standard gravel outlet did not significantly reduce turbidity values.
Average turbidity values in the basin were 843 NTUs, while average
turbidity in the effluent was 758 NTUs using the standard outlet. Use
of a skimmer instead of a standard gravel outlet reduced turbidity to
an average of 353
[[Page 72581]]
NTUs. Additional tests were conducted to evaluate the addition of
polyacrylamide (PAM) through the use of floc logs. Floc logs are a
solid form of PAM which are designed to be placed in flowing water.
They are typically anchored by a rope or by placing them in a mesh bag
or cage either in open channels or in pipes. As the water flows over
the floc logs, the PAM dissolves somewhat proportional to flow. The
floc logs typically have substantial amounts of non-PAM components,
which are intended to improve PAM release, maintain the physical
integrity of the blocks and enhance PAM performance (McLaughlin--Soil
Facts; Chemical Treatments to Control Turbidity on Construction Sites).
McLaughlin found that addition of PAM to sediment traps resulted in
average effluent turbidities of 152 NTUs using a rock outlet and 162
NTUs using a skimmer outlet. For one set of tests, use of a standard
stone outlet along with PAM was able to attain an average effluent
turbidity of 51 NTUs, while tests with jute/coconut mesh baffles with
PAM were only slightly higher, at 71 NTUs.
Warner (see DCN 43071) evaluated several innovative erosion and
sediment controls at a full-scale demonstration site in Georgia as part
of the Erosion and Sedimentation Control Technical Study Committee
(known as ``Dirt II''). The Dirt II project consisted, among other
things, of field monitoring as well as modeling of erosion and sediment
control effectiveness at construction sites. The demonstration site was
a 50-acre lot in a suburban area near Atlanta where a school was being
constructed. In total, 22.5 acres of the site was disturbed. A
comprehensive system of erosion and sediment controls were designed and
implemented to mimic pre-developed peak flow and runoff volumes with
respect to both quantity and duration. The system included perimeter
controls that were designed to discharge through multiple outlets to a
riparian buffer, elongated sediment controls (called seep berms)
designed to contain runoff volume from 3 to 4 inch storms and slowly
discharge to down-gradient areas, multi-chambered sediment basins
designed with a siphon outlet that discharged to a sand filter, and
various other controls. Extensive monitoring was conducted at the site.
For one particularly intense storm event of 1.04 inches (0.7 inches of
which occurred during one 27 minute period), the peak sediment
concentration monitored prior to the basin was 160,000 mg/L while the
peak concentration discharged from the sand filter after the basin was
168 mg/L. Effluent turbidity values ranged from approximately 30 to 80
NTUs. Using computer modeling, it was shown that discharge from the
sand filter, which flowed to a riparian buffer, was completely
infiltrated for this event. Thus, no sediment was discharged to waters
of the state from the sand filter for this event. For another storm
event, a 25-year rainfall event of 3.7 inches occurred over a 2 day
period. Effluent from one sand filter during this storm was 175 mg/L
while discharge from a second sand filter was 100 mg/L, except for the
first-flush data point occurring at the beginning of the storm event.
There are other references in the literature describing the various
types of passive treatment systems and the efficacy of passive
treatment systems. One potential application of a passive system would
be to add liquid polymer, such as PAM, to the influent of a
conventional sediment basin. This can be accomplished by using a small
metering pump to introduce a pre-established dose of polymer in the
influent pipe or channel. If the polymer is added in a channel far
enough above the basin, then turbulent mixing in the channel can aid in
the flocculation process. Otherwise, some sort of provision may need to
be made to provide mixing in the basin to produce flocs. Polymers
typically used in this particular application include PAM, chitosan,
polyaluminum chloride (PAC), aluminum sulfate (alum) and gypsum. With
any polymer, jar tests should be performed beforehand with soils
present on the site in order to determine an appropriate polymer type
and dosage.
The Auckland (New Zealand) Regional Council conducted several
trials to evaluate the effectiveness of chemical flocculants and
coagulants in improving settling of suspended sediment contained in
sediment laden runoff from earthworks sites (Auckland Regional Council.
The Use of Flocculants and Coagulants to Aid the Settlement of
Suspended Sediment in Earthworks Runoff--Trials, Methodology and
Design. Technical Publication 227. June, 2004). Trials were conducted
using both liquid and solid forms of flocculants. Trials were initially
conducted on two projects: a highway project and residential
development.
The highway project (ALPURT) evaluated both a liquid polymer system
and solid polymers. Liquid polymers evaluated were alum and PAC and
solid polymers evaluated were all polyacrylamide products (Percol AN1,
Percol AN2 and Percol CN1). Bench tests indicated that AN2 performed
best among the solid polymers and that both PAC and alum were effective
in flocculating the soils present on the site.
Following bench testing of the polymers, liquid and solid dosing
systems were developed. For the liquid dosing system, initial
consideration was given to a runoff proportional dosing system which
would include a weir or flume for flow measurement, an ultrasonic
sensor and signal generating unit, and a battery driven dosing pump.
These components, together with costs for necessary site preparatory
work, chemical storage tanks and a secure housing, were estimated to
cost approximately $12,000 (1999 NZ $) per installation. An alternative
system was developed that provided a chemical dose proportional to
rainfall. This rainfall driven system, which did not require either a
runoff flow measurement system or a dosing pump, had a total cost of
$2,400 (1999 NZ $) per installation.
The rainfall driven system operated by collecting rainfall in a
rainfall catchment tray. Rainfall into this tray was used to displace
the liquid treatment chemical from a storage tank into the stormwater
diversion channel prior to entering the sediment basin. The size of the
catchment tray was determined based on the size of the catchment
draining to the basin, taking into consideration the desired chemical
dosage rate obtained from the bench tests. Accumulated rainfall from
the catchment tray fills a displacement tank that floats in the
chemical storage tank. As the displacement tank fills with rainfall and
sinks, liquid chemical is displaced from the chemical storage tank and
flows via gravity to the dosing point.
Field trials of the liquid treatment system using alum were
conducted at the ALPURT site. The authors report that the system
performed ``satisfactorily in terms of reduction of suspended solids
under a range of rainfall conditions varying from light rain to a very
high intensity, short duration storm, where 24mm of rainfall fell over
a period of 25 minutes.'' Suspended solids removal for the intense
storm conditions was 92% with alum treatment. For a similar storm on
the same catchment with the same retention pond without alum treatment,
suspended solids removal was about 10%.
Field trials at the ALPURT site were also conducted using PAC. In
total, 21 systems were used with contributing catchments ranging
between 0.5 and 15 hectares (approximately 1 to 37 acres). The overall
treatment efficiency of the PAC treated basins in terms of suspended
sediment reduction were
[[Page 72582]]
reported to be between 90% and 99% for ponds with good physical
designs. The authors noted that some systems did not perform as well
due to mechanical problems with the system or physical problems such as
high inflow energy (which likely caused erosion or sediment
resuspension) or poor separation of basin inlets and outlets. The
suspended solids removal for all ponds incorporating PAC ranged from
77% to 99.9%, while the removal in a pond not incorporating PAC ranged
from 4% to 12%. Influent suspended solids concentrations for the
systems incorporating PAC ranged from 128 to 28,845 mg/L while effluent
concentrations ranged from 3 to 966 mg/L. In comparison, influent
suspended solids concentrations for the untreated ponds were
approximately 1,500 mg/L while effluent concentrations were
approximately 1,400 mg/L. The authors also noted that dissolved
aluminum concentrations in the outflow from the basins treated with
PAC, in most cases, were actually less than the inflow concentrations,
and were also less than the outflow concentrations from the untreated
ponds. Outflow aluminum concentrations in the PAC treated ponds ranged
from 0.01 to 0.072 mg/L. The ALPURT trials generally indicate that a
relatively simple, passive treatment system using liquid polymers can
result in significant reductions in suspended sediment concentrations,
even with influent concentrations in excess of 25,000 mg/L. Although
some effluent concentrations were as high as several hundred mg/L, the
majority were below 100 mg/L. This indicates that a passive liquid
polymer system, perhaps coupled with a gravity sand filter or
distributed discharge to a vegetated buffer (as described by Warner,
2001) could be used to meet a numeric effluent limit for turbidity at a
significantly lower cost than ATS. EPA solicits comments on this issue.
Field trials of polymer treatment using solid forms of PAM by the
Auckland Regional Council were conducted at the ALPURT site as well as
a residential project (Greenhithe). Trials at the ALPURT site were
conducted by placing the floc blocks in plastic mesh bags in plywood
flumes through which the runoff from the site was directed. Initial
trials encountered problems due to the high bedload of granular
material, which accumulated against and stuck to the floc logs
inhibiting solubility of the polymer. The system was reconfigured to
incorporate a forebay before the flumes in order to facilitate removal
of the bedload fraction. The authors noted that while this system was
generally effective at low flow rates, it was difficult to control
dosage rates and sediment accumulation in the flumes continued to be a
problem. The authors concluded that ``Floc Block treatment has a high
potential for removal of suspended solids from stormwater with
consistent quality, particularly for small catchments; when flow
balancing can be achieved prior to treatment.''
Field trials were also conducted at the Greenhithe site, which was
a 4 hectare (approximately 10 acre) residential project. As with the
ALPURT trial, a flume was constructed and placed in the flow path
immediately before the sediment basin. Results of the trials were
mixed. The authors noted several problems with the floc logs, such as
drying and breakdown of the logs due to prolonged exposure to the air
and softening and breakdown during periods of prolonged submergence.
Sediment accumulation around the logs and breakdown continued to be a
problem. Incorporating an effective sediment forebay and limiting
bedload are suggestions for increasing performance. In addition, the
authors recommended soaking the floc logs in water to allow hydration
before use and periodic spraying with water as ways to limit drying of
the floc logs. EPA notes that similar problems with floc logs have been
noted by some construction site field inspectors (see DCN 41109) and by
McLaughlin (see DCN 43082). EPA solicits comments on the effectiveness
of floc logs as components of passive treatment systems. EPA also
solicits comments on any operational or maintenance considerations that
should accompany use of solid forms of polymers.
Results of the PAC studies at the ALPURT sites have led the
Auckland regional council to require chemical treatment for any site
that produces more than 1.5 metric tons of (net) sediment as determined
by the Universal Soil Loss Equation. Sites that exceed this threshold
will require chemical treatment in accordance with a site chemical
treatment plan. Exceptions include projects of less than one month
duration and sites with granular volcanic soils and sand areas.
Chemical treatment may also not be required if bench testing indicates
that chemical treatment will provide no improvement in sediment removal
efficiency (see DCN 41111). EPA solicits comments on the approach
adopted by the Auckland Regional Council and its applicability to
construction and development site discharges in the U.S.
In addition to (or in place of) adding polymers to sediment basins,
polymers can be introduced on other areas of the site as a soil
stabilization measure or as components of other BMPs. For example,
McLaughlin (DCN 41005) evaluated adding polymer to check dams on
highway projects. Various other researchers evaluated PAM as a soil
stabilization agent. There are a number of documents in the
administrative record for this rulemaking describing the use of PAM.
The data from these studies indicate that various types of passive
treatment systems that utilize both solid and liquid forms of polymers
have been reported to be effective in reducing turbidity levels in
discharges from construction and development sites. EPA is therefore
soliciting comments on whether a turbidity limitation of 50 to 150 NTUs
(or some other value) based on passive treatment systems should instead
serve as the basis for BAT limitations and NSPS. EPA solicits comments
on the costs, pollutant removal effectiveness and effluent quality
attainable by passive treatment systems and on the technical basis for
establishing a particular a numeric turbidity limit of 50 to 150 NTUs
(or some other value). EPA also solicits comment on the ability to
reliably meet a 50 to 150 NTU limit using passive systems on different
types of construction and development sites and in locations across the
country and on the appropriate monitoring requirements that should
accompany passive treatment systems. EPA also solicits comments on the
applicability of a 50 to 150 NTU (or some other value) standard.
Specifically, since passive systems may be less costly and require less
expertise and operator supervision than active treatment systems, EPA
solicits comments on whether a standard based on passive systems should
apply more broadly and to more sites than are covered by EPA's proposed
Option 2, or if EPA should establish a tiered set of turbidity
limitations, reflecting variation of site parameters such as site size,
rainfall patterns, soil types, soil erodibility, or some other
parameter and the specific thresholds that should apply to such
parameters. EPA also requests comment on whether it should develop an
enhanced non-numeric limitation based on the types of passive
technologies discussed above without establishing a specific numeric
limit, as well as whether it should consider an ``action level'' based
approach such as is required by Washington and several other states
through their construction general permits. EPA further requests
comment on the feasibility and burden
[[Page 72583]]
on permitting authorities of an ``action level'' established
nationally.
2. Definition of ``New Source'' for the Construction and Development
Category
EPA interprets the definition of ``new source'' at CWA section
306(a)(2) as not including discharges associated with construction
activity. Section 306(a)(2) of the CWA defines ``new source'' as ``any
source, the construction of which is commenced after publication of
proposed regulations * * *'' The plain language of section 306 excludes
C&D sites because a construction site cannot itself be constructed.
Further, the term ``source'' is defined in 306(a)(3) of the CWA to mean
``any building, structure, facility, or installation * * *'' or in-
other-words sources that are the product of the construction, not the
construction activity itself. Additionally, there is an independent
definition of ``construction'' in section 306(a)(5). If construction
sites were intended to be ``new sources,'' the Agency finds it
illogical that there would be a separate definition for
``construction'' or that there would be a requirement in section 306 of
the CWA that ``sources'' be ``constructed'' prior to becoming ``new
sources.''
Though EPA interprets the CWA not to apply NSPS under section 306
of the CWA to the C&D point source category, the District Court order
enjoins EPA to propose and promulgate NSPS. Therefore, EPA proposes to
define ``new source'' for purposes of part 450 as any source of
stormwater discharge associated with construction activity that itself
will result in an industrial source from which there will be a
discharge of pollutants regulated by a new source performance standard
in subchapter N other than today's rulemaking. (All new source
performance standards promulgated by EPA for categories of point
sources are codified in subchapter N). The definition of new source
proposed today for purposes of part 450 would mean that the land-
disturbing activity associated with constructing a particular facility
would itself constitute a ``new source'' when the facility being
constructed would be a ``new source'' regulated by new source
performance standards under section 306 of the CWA. For example,
construction activity that builds a new pharmaceutical plant covered by
40 CFR 439.15 would be subject to new source performance standards
under 40 CFR 450.24.
F. Option Selection Rationale for BCT
EPA is proposing to establish BCT requirements equivalent to BPT.
As discussed in IX.C above, the requirements of the proposed BPT have
been demonstrated to be technologically available and EPA's analyses
show that the requirements are economically achievable.
Establishing BCT effluent limitations for a point source category
begins by identifying technology options that provide additional
conventional pollutant control beyond that provided by application of
BPT effluent limitations. Conventional pollutants under the CWA are
biochemical oxygen demand (BOD5), total suspended solids
(TSS), fecal coliform, pH, and oil and grease. CWA section 304(a); 40
CFR 401.16. Stormwater discharges, if not adequately controlled, can
contain very high levels of TSS. In addition, many of the construction
materials used at the site can contribute BOD or oil and grease. Fecal
coliform can also be present at elevated levels, due to natural sources
(contributed by animal wastes) or if stormwater is not segregated from
sanitary waste facilities. See Section VII for additional discussion of
pollutant sources.
EPA evaluates the candidate BCT options by applying the two-part
BCT cost test. The first part of the BCT cost test is the POTW test. To
``pass'' the POTW test, the cost per pound of conventional pollutant
discharges removed in upgrading from BPT to the candidate BCT must be
less than the cost per pound of conventional pollutant removed in
upgrading POTWs from secondary treatment to advanced secondary
treatment. Using the RS Means Historical Cost Indices, the inflation-
adjusted POTW benchmark (originally calculated to be $0.25 in 1976
dollars) is $0.92 (2008 $). To examine whether an option passes this
first test, EPA calculates incremental values of the candidate option
relative to the proposed BPT (Option 1). EPA calculated the incremental
cost per pound of conventional pollutants removed ($/lb TSS) for Option
2 to be $0.068. Since this result is less than the POTW benchmark,
Option 2 passes the first part of the two-part BCT cost test. EPA also
calculated the incremental cost per pound of conventional pollutants
removed for Option 3, which is $0.074. Therefore, Option 3 also passes
the first part of the BCT cost test.
To pass the second part of the BCT cost test, the industry cost
effectiveness test, EPA computes a ratio of two incremental costs. The
numerator is the cost per pound of conventional pollutants removed by
the BCT candidate technology relative to BPT. The denominator is the
cost per pound of conventional pollutants removed by BPT relative to no
treatment (i.e., raw wasteload). As in the POTW test, the ratio of the
numerator divided by the denominator is compared to an industry cost
benchmark. The industry cost benchmark is the ratio of two incremental
costs: The cost per pound to upgrade a POTW from secondary treatment to
advanced secondary treatment, divided by the cost per pound to
initially achieve secondary treatment from raw wasteload. If the
calculated ratio is lower than the industry cost benchmark of 1.29
(i.e., the normalized cost increase must be less than 29 percent), then
the candidate technology passes the industry cost test. The calculated
ratio for Option 2 is 4.46; therefore, it fails the second part of the
BCT cost test. The calculated ratio for Option 3 is 4.81; therefore, it
also fails the second part of the BCT cost test. Therefore, EPA is
proposing to set BCT equal to Option 1.
EPA estimated loading reductions, which are used as the basis of
the BCT cost test (as well as the removals, water quality impacts and
monetized benefits analysis), by using a model site approach and
modeling soil erosion using the Revised Universal Soil Loss Equation
(RUSLE). An alternative approach would be to estimate removals on a
concentration basis by comparing average effluent TSS concentrations in
construction site discharges under baseline conditions to
concentrations following EPA's candidate BCT technology options. EPA
could then estimate total stormwater treatment volumes and, based on
the change in concentrations following treatment, determine the total
load of conventional pollutants removed.
EPA did not use a concentration based approach because a nationally
representative database of discharge data from construction sites does
not exist and EPA believes that the data from several states identified
in the literature is inadequate to use as a basis for national
estimates. Instead, EPA used RUSLE to estimate soil erosion rates from
construction sites. EPA chose to use RUSLE because it is a nationally-
recognized model that is based on extensive field data. RUSLE, and its
predecessors and variants (such as the Universal Soil Loss Equation
(USLE) and the Modified Universal Soil Loss Equation (MUSLE)), have
been widely used to estimate erosion rates from agricultural areas. The
Office of Surface Mining has developed guidelines (see DCN 41113) for
using RUSLE on mine lands, construction sites and reclaimed areas and
RUSLE has been widely used to estimate soil erosion rates from these
areas. RUSLE estimates soil erosion
[[Page 72584]]
rates based on a number of input parameters. These input parameters are
the rainfall-runoff erosivity factor (R), the soil erodibility factor
(K), slope length factor (L), slope steepness factor (S), cover-
management factor (C), and practice support factor (P). In developing
estimates of soil erosion rates, EPA used a mix of data sources as well
as estimates based on best professional judgment (BPJ). For R, EPA used
the RUSLE 2 database (RUSLE 2 ARS Version January 19, 2005, Program
Database) to extract values for each of the indicator cities modeled.
For K and S, EPA used STATSGO soil survey data for each of the
indicator cities modeled. For S, EPA inventoried STATSGO soil survey
data for over 20 million acres of land surrounding eleven indicator
cities to determine area-weighted average slopes present. EPA used the
average slope value to calculate the loadings estimates, pollutant
loading reductions and water quality changes and associated benefits
contained in today's proposal. EPA also calculated a low slope estimate
and a high slope estimate in order to evaluate how variation in slope
values would affect the results. So as not to use the lowest slope
values reported or the highest slope values reported in the STATSGO
data, EPA calculated a low slope value as the average of the range of
low slope values reported and the overall average slope calculated for
the area. Likewise, EPA calculated a high slope estimate as the average
between the range of the highest reported slope values reported and the
overall average slope calculated for the area. EPA estimated baseline
loads and pollutant load reductions using the high and low slope
estimates, but did not determine water quality improvements or benefits
using these values. For L, EPA assumed a range of slope lengths based
on BPJ. For C and P, EPA used BPJ to select values contained in the
SEDCAD documentation (SEDCAD 4, Design Manual and User's Guide, Warner,
R.C. et al. 2006). For C, EPA used a value of 1.0, which corresponds to
bare soil. For P, EPA used a value of 0.9, which represents a ``Roughed
and Irregularly Tracked'' soil surface.
EPA recognizes that alternate reasonable assumptions might
substantially lower the estimated erosion rates, however, we believe
that our assumptions based on BPJ are reasonable. EPA notes that the
RUSLE estimates developed in support of the BCT calculations are
sensitive to the BPJ assumptions for P, C, and L. EPA assumed bare soil
conditions with no soil cover for the duration of the construction
project, which was assumed to be 9 months. EPA also assumed that 90% of
the construction project would be disturbed. EPA has not identified a
data source that indicates typical values on construction sites for any
of these parameters.
Changing C from 1 to some other value to reflect cover present on a
portion of the site would reduce the erosion estimates for that portion
of the site that has been covered. As an example, for subsoil on a 6%
gradient with straw mulch at 1 ton per acre, the value of C may be 0.2.
This would lower the erosion estimates for that portion of the site
that has been covered by a factor of 5. EPA expects that some portion
of the site would be bare soil for the duration of the construction
period, while other portions of the site would have cover installed.
EPA therefore recognizes that its estimates of sediment generation are
tied to the BPJ assumptions associated with some of the RUSLE
parameters and solicits data on the percentage of sites of different
sizes that are likely to be bare soil vs. containing various types of
cover, and the amount of time these conditions would be present.
Changes in P would also affect erosion rates. The values selected
for P would reflect management practices used on the site such as silt
fences, terraces and straw bale barriers. P is best determined using
the RUSLE program, since values vary based on location. For example, in
Lexington, Kentucky, the P value for contour furrowing with moderate
ridge height on a 300 foot hillslope with a 10% gradient and hydrologic
soil group B on nearly bare soil is 0.89. This value assumes no silt
fences, terraces, straw bale barriers or other perimeter controls.
Because P factors are usually associated with agricultural management
practices, it is not clear to EPA how to compute a P value that would
reflect the use practices common on construction sites. EPA solicits
comments on this issue. As an alternate example of how P might change,
if 50% cover were to be applied to the above example for Lexington,
Kentucky, then the P value would change from 0.89 to 0.58, lowering the
estimated soil erosion rates by 35% (not accounting for any effects
that changes in cover would have on the other parameters in the model).
Likewise, changes in estimates for slope and slope length would
change the erosion rate estimates. EPA notes that the United States
Department of Transportation (USDOT) specifies maximum slope lengths
for flows to silt fences, which range from 25 feet on a 50% slope to
500 feet on a slope of less than 2% for a 30-inch silt fence (USDOT.
1995. Best management practices for erosion and sediment control.
Report No. FHWA-FLP-94-005. Eastern Federal Lands Highway Design, U.S
Department of Transportation, Sterling, Virginia), which are generally
consistent with the BPJ slope lengths selected by EPA, which range from
150 to 425 feet. Maximum slope lengths can be even longer if super silt
fence is used. Maryland Department of the Environment (MDE) specified
maximum slope lengths for super silt fences ranging from 250 feet on a
50% or greater slope to 1,500 feet on a slope between 10 and 20%. For
slopes less than 10%, there are no limitations on maximum slope lengths
when super silt fence is used (see Table 7-14 of the TDD). In contrast,
the March 18, 2008 draft California construction general permit would
require dischargers for Risk Level 2 and 3 sites to apply linear
sediment controls along the toe, face and at the grade breaks of
exposed and erodible slopes. Maximum sheet flow lengths would be 20
feet for slopes between 0 and 25%, 15 feet for slopes between 25 to 50%
and 10 feet for slopes over 50%. If EPA were to make different
assumptions about slope length, or use different data to estimate
slopes, this could significantly lower the soil erosion estimates. EPA
solicits comments on using the USDOT, MDE, draft California, or other
data or recommendations as appropriate bases for estimating slope
lengths likely to be present on construction sites. EPA also solicits
data indicating slope lengths as a function of slope present on actual
construction sites as well as other methods to approximate slope
lengths. It has been suggested that using the average slope value from
STATSGO for areas surrounding EPA's indicator cities may not reflect
the possibility that permittees may choose to select land that has
flatter slopes than the average values calculated from the STATSGO
data, or that permittees may quickly grade sites to be a flatter slope
than the average values calculated from the STATSGO data before exposed
soil is exposed to significant rainfall. EPA notes that in these cases,
the slope length on these sites may be longer than the values estimated
by EPA. Conversely, using the average slope value from STATSGO for
areas surrounding EPA's indicator cities may not reflect steeper slopes
that may be present on projects such as infill developments within
existing urban or suburban areas. These sites may not have been
developed earlier because flatter land was available to developers.
[[Page 72585]]
However, as development progresses outward from the urban core and land
becomes less available, it is plausible to assume that undeveloped
areas with steeper slopes may be developed. In these cases, slope
lengths may be shorter than those estimated by EPA.
While EPA chose to use the RUSLE model because a nationally
representative database of discharge data from construction sites does
not exist, EPA did compare available data with its RUSLE model results.
EPA identified several sources of discharge data. Table 5-1 of the TDD
lists eight studies from six states (Maryland, Pennsylvania,
Washington, Georgia, Texas and Ohio) that contain TSS data from
construction site discharges. These studies show mean inflow TSS
concentrations ranging from 359 to 17,500 mg/L, with a mean TSS
concentration from all studies of 3,681 mg/L. Additionally, during the
current rulemaking, EPA collected discharge data from two vendors and
the Oregon Department of Environmental Quality associated with ATS
systems on 17 sites located in the states of Oregon, Washington and
California. These data show NTU measurements in the influent to the ATS
ranging from 0.3 to 4,816 NTUs, with most measurements in the hundreds
of NTUs. Although relationships between TSS and turbidity are highly
site-specific, it has been suggested that TSS concentrations are
roughly 3 times turbidity measured in NTUs. Using this conversion for
the ATS data, influent concentrations ranged from approximately 1 to
14,400 mg/L, with most measurements below 2,000 mg/L. EPA also
identified data in two studies discussed earlier in this notice. On a
site located in Fulton County, GA, Warner found that influent to a
basin for a 1.04 inch storm (with 0.7 inches falling in a 27 minute
period) had a peak TSS concentration of 160,000 mg/l. For the Auckland
monitoring studies, influent concentrations for ponds not using
chemical treatment ranged from 680 to 1,500 mg/L. Influent
concentrations to ponds utilizing chemical addition ranged from 128 to
28,845 mg/L.
In comparison, EPA's RUSLE model results for the 11 indicator
cities ranged from a low of 5,984 mg/L in Albany, New York (using the
low slope estimates) to a high of 283,417 mg/L in Las Vegas, Nevada
(using the high slope estimate). For the average slope value, which is
the basis for the load reduction, water quality improvement and
benefits estimates contained in today's proposal, concentration values
ranged from a low of 9,874 mg/L in Albany, New York to a high of
190,872 mg/L in Las Vegas, Nevada, with a median of 78,516 mg/L. These
results are presented in the record (see DCN 41138).
Moreover, results from Seattle, WA from one of the eight studies
mentioned above (Horner, Guerdy, and Kortenhoff, 1990, DCN 01350) can
be compared with EPA's model results for Seattle. In Horner, the mean
inflow TSS concentration was 17,500 mg/L. Using the RUSLE model, the
modeled concentration was 125,593 mg/l.
EPA also compared its estimates of effluent concentrations from a
standard sediment basin (without ATS) to available data. Warner
monitored sediment basins in Georgia and noted TSS concentrations in
basin effluents ranging from 100 to 20,000 mg/L with effluent turbidity
values ranging from 125 to 3,500 NTUs. Data from the Aukland study
found conventional sediment basin effluent concentrations of about
1,400 mg/L. Data from Horner, Guerdy and Kortenhoff, 1990, Schueler and
Lugbill, 1990, and Jarrett, 1996 give mean effluent concentrations
ranging from 63 mg/L to 876 mg/L, with a mean concentration of 365 mg/L
(see DCN 41138). In addition, 2005 DMR data from 120 construction sites
in King County, WA (Seattle) show a median effluent concentration of
9.2 NTU and a mean concentration of 43.11 NTU (which corresponds to
about 30 mg/L to 130 mg/L using the rough conversion factor referenced
above). See DCN 41138 for these DMR data. EPA solicits comments on the
representativeness of the Seattle data as a basis for estimating
sediment basin effluent concentrations, since it is EPA's understanding
that this data consists of grab samples collected within 24 hours of a
storm event (consistent with the Washington monitoring requirements)
rather than flow-weighted or time-weighted composite samples collected
during the entire effluent hydrograph. Likewise, EPA solicits comments
on the other references cited above, and whether these studies should
be considered representative of discharges from all areas of the
country.
In comparison, EPA's RUSLE model and sediment basin removal
calculation results for the 11 indicator cities ranged from a low
effluent concentration of 2,992 mg/L in Albany, New York (using the low
slope estimate) to a high of 79,585 mg/L in Denver, CO (using the high
slope estimate). For average slope value, which is the basis for the
load reduction, water quality improvement and benefits estimates
contained in today's proposal, concentration values ranged from a low
of 4,937 mg/L in Albany, New York to a high of 61,286 mg/L in Denver
Colorado, with a median of 34,357mg/L. These results are presented in
the record (see DCN 41138).
EPA is concerned about the significant difference between its RUSLE
modeled results and the basin influent and discharge data from vendors,
the state of Oregon, DMR data from King County and available studies,
and the effect this could have on EPA's estimates of loadings,
monetized benefits, and projected water quality impacts. EPA assumes
this difference is a reflection of both those parameters in RUSLE for
which EPA used its professional judgment (e.g., cover, practices and
slope length), and the possibility that the measured valued reported in
the literature are not representative of average influent and sediment
basin effluent concentrations for the range of storm events likely to
occur for the duration of the construction project.
To address this concern, EPA conducted a sensitivity analysis to
explore the potential impacts on its loadings analysis by revising
several of the RUSLE assumptions. EPA changed its assumptions for the C
factor and revised the slope length estimates to be consistent with the
USDOT reference. For C, EPA assumed that half of the site was in bare
soil conditions (with a C of 1) while the other half of the site had a
C of 0.12 for sites with less than 5% slope or 0.06 for sites with
greater than 5% slope. For slope lengths, EPA fit a curve to the USDOT
data for maximum slope lengths for 30 inch silt fence and determined
slope lengths for each model site based on the STATSGO average slope
present. Using these assumptions, estimated load reductions for Option
2 were 6.2 billion pounds and estimated load reductions for Option 3
were 11.1 billion pounds. This represents a 77% reduction for Option 2
and a 78% reduction in estimated removals for Option 3, as compared to
EPA's primary analysis. EPA solicits comments on this sensitivity
analysis.
EPA notes that this sensitivity analysis does not capture the full
range of uncertainty in its RUSLE based analysis as compared to
available data. For example, looking just at Seattle, WA, one of EPA's
11 indicator cities, for which data are also available in Horner,
Guerdy, and Kortenhoff, 1990, the measured influent value of 17,500 mg/
L is about a factor of seven lower than EPA's calculated average
influent value of 125,593 mg/L, while for the effluent, the measured
value is 626 mg/L, which is about a factor of 57 below EPA's calculated
effluent value of 36,422 mg/L. During the SBREFA outreach, URS
[[Page 72586]]
(on behalf of the National Association of Homebuilders) used
alternative values for C, P, slopes and slope length and calculated
sediment erosion rates that were lower by a factor of about 100 than
EPA's estimates. EPA requests comment on all aspects of its RUSLE
analysis and the sensitivity analysis.
EPA requests comment on all aspects of its modeling approach,
particularly its input values. Additionally, EPA is interested in any
other sources of sediment basin influent and effluent concentration
data from construction sites. This data should also include information
on the location of the site, site characteristics, weather patterns
(specifically the volume and intensity of storms) and the timing of
sampling with respect to storm events.
X. Methodology for Estimating Costs to the Construction and Development
Industry
In developing today's proposed rule, EPA has used numeric models to
estimate the costs of compliance with potential regulatory approaches.
This approach was used to estimate the incremental costs associated
with the regulatory options at the state and national level.
In order to estimate costs to different segments of the industry,
EPA developed nine model project types. These nine model project types
are: Small, medium and large transportation; small, medium and large
residential; and small, medium and large non-residential. Small
projects are those less than 10 acres, medium projects are 10 or more
but less than 30 acres, and large projects are 30 or more acres. Using
the NOI data discussed in Section VI.D, EPA developed a national
distribution of construction projects and determined the median project
size (in acres) of each of the nine model project types. Using
estimates of the annual quantity of acres of new developed land
determined from the NLCD data (discussed in Section VI.B.), EPA
determined the number of model projects in each of the nine categories
in each state (excluding Alaska, Hawaii and U.S. territories). Detailed
results of this analysis are discussed in the Development Document.
For estimating baseline conditions, EPA evaluated each state's
erosion and sediment control requirements to determine the size of
sediment basins currently required in each state. For each of the model
projects within each state, EPA calculated the size of the sediment
basin that would be required. When a state's sediment basin
requirements were based on containing runoff from a specific size of
storm (such as runoff from the 2-year, 24-hour storm), EPA used one
indicator city in each state and obtained rainfall data from various
NOAA sources (see discussion on rainfall data in Section VI.F). EPA
used the rainfall data for each indicator city for all model projects
within a given state. To determine runoff quantities, EPA calculated a
runoff coefficient for each state (see discussion in the Development
Document for detailed information on these calculations). While EPA
acknowledges that using one indicator city to represent rainfall
conditions in an entire state is a somewhat simplified approach, it
does capture the range of precipitation that occurs across the country
and serves as a reasonable method of estimating the costs of the
regulatory options.
For each of the regulatory approaches considered, EPA determined
the sediment basin volume (in cubic feet) that would be required for
each of the model projects in each state. Using data on sediment basin
costs, EPA estimated the increase in costs over baseline requirements
for each model project in each state. Using the number of model
projects in each state, EPA estimated the total costs due to larger
sediment basins in each state.
For determining costs for options that include numeric effluent
limits, EPA obtained data from vendors of stormwater treatment systems.
The technology EPA used as a basis for estimating costs is chitosan-
enhanced sand filtration, one type of active treatment system.
Information in the record indicates other active treatment technologies
have comparable costs. Using data submitted by the vendors, EPA
determined a cost for treating stormwater for each of the model
projects that would be expected to be subject to the turbidity limit.
These costs include treatment chemical costs, labor costs and equipment
rental costs, as well as sediment disposal and monitoring costs.
However, EPA did not cost these items separately for each model project
type. Rather, EPA concluded from examining these data that the average
cost across all projects using chitosan-enhanced sand filtration is
$0.02 per gallon treated. This includes all of the costs that would be
incurred by the operator to install, operate, maintain and remove the
treatment systems. Using NOAA data on average annual rainfall for one
indicator city within each state, and using state-specific runoff
coefficients, EPA determined, for each state, the volume of stormwater
that would require treatment for each of the nine model projects. EPA
then estimated the costs for treating stormwater from each model
construction site within each state based on the $0.02 per gallon
estimate. EPA also included additional costs for installing storage
necessary to impound runoff from the 2-year, 24-hour storm event, if
this volume was greater than the sediment basin storage volume
currently required in each state. Using the number of model
construction projects within each state, EPA then determined the total
costs for treatment at the state and national level.
Chapter 9 of the Development Document contains a more detailed
discussion of the EPA's costing approach.
XI. Economic Impact and Social Cost Analysis
A. Introduction
EPA's Economic Analysis (see Supporting Documentation) describes
the impacts of today's proposed rule in terms of firm financial
performance, firm closures, employment losses, and market changes. In
addition, the report provides information on the impacts of the
proposal on sales and prices for residential construction. The results
from the small business impact screening analysis support EPA's
implementation of the Regulatory Flexibility Act (RFA), as amended by
the Small Business Regulatory Enforcement Fairness Act (SBREFA). The
report also presents identified, quantified, and monetized benefits of
the proposal as described in Executive Order 12866.
This notice includes related sections such as the cost-
effectiveness analysis in Section XII, benefits analysis in Section XV,
and benefit-cost analysis in Section XVI. In their entirety, these
sections comprise the economic analysis (referred to collectively as
the ``C&D economic analysis'') for the proposed rule. EPA's
Environmental Assessment provides the framework for the monetized
benefits analysis. See the complete set of supporting documents for
additional information on the environmental impacts, social costs,
economic impact analysis, and benefit analyses.
The C&D economic analysis, covering subsectors that disturb land
(NAICS 236 and 237), uses information from, and builds upon, the 2002
proposed rule (67 FR 42644; June 24, 2002) and the 2004 withdrawal of
the proposed rule (69 FR 22472; April 26, 2004). In addition to CWA
requirements, EPA has followed OMB guidance on the preparation of the
economic analyses for federal regulations to comply with Executive
[[Page 72587]]
Order 12866. See section XIX of today's notice.
B. Description of Economic Activity
The construction sector is a major component of the United States
economy as measured by the gross domestic product (GDP), a measure of
the output of goods and services produced domestically in one year by
the U.S. economy. Historically, the construction sector has directly
contributed about five percent to the GDP. Moreover, one indicator of
the economic performance in this industry, housing starts, is also a
``leading economic indicator,'' one of the indicators of overall
economic performance for the U.S. economy. Several other economic
indicators that originate in the C&D industry include construction
spending, new home sales, and home ownership.
During most of the 1990s, the construction sector experienced a
period of relative prosperity along with the overall economy. Although
cyclical, the number of housing starts increased from about 1.2 million
in 1990 to almost 1.6 million in 2000, with annual cycles during this
period. (U.S. Census Bureau, ``Current Construction Reports, Series
C20--Housing Starts,'' 2000. http://www.census.gov/const/www). At the
beginning of the 21st century, the economy began to slow relative to
previous highs in the 1990s. This slower economic growth had a negative
impact on construction starts for new commercial and industrial
projects. Driven in part by low mortgage interest rates, consumer
spending for new homes continued to remain strong through 2005.
However, speculative buying and relaxed lending standards helped create
a market bubble that burst in 2006. Currently the housing market is in
an economic downturn, yet some near term future projections are for
renewed growth in housing starts in the third quarter of 2009. (Global
Insight, ``U.S. Economic Service, Executive Summary'' October, 2008.)
EPA acknowledges that future predictions can be highly uncertain and
that other projections may be less optimistic. Nonresidential
construction, which was weak during the first five years of the decade,
recovered to 2000 levels by 2007. (Global Insight, ``The Nonresidential
Picture: Will the Rescuer Need To Be Rescued?'' 2007. Global Insight,
``U.S. Economic Service, Executive Summary'' October, 2008.) However,
the construction industry is expected to experience declines for the
residential, non-residential, and non-building sectors for the near
future. The weakness in the construction industry will likely continue
until residential markets work through the current inventory of unsold
homes and credit markets and the general economy return to a better
condition (Global Insight, ``U.S. Economic Service, Executive Summary''
October, 2008.)
The C&D point source category is comprised of activities that
disturb land. The category contains business establishments (the Census
Bureau uses the term ``establishment'' to mean a place of business;
``Employer establishment'' means an establishment with employees) that
are involved in building construction (NAICS 236) as well as heavy and
civil engineering construction (NAICS 237). As a starting point, Table
XI-1 shows the number of business establishments in the C&D category in
1992, 1997, and 2002. Only a portion of these establishments would be
covered by the proposed regulation, because some of these
establishments are house remodelers and others build on sites with less
than one acre of disturbed land each year. The NAICS classification
system changed between the issuance of the 1997 and 2002 Economic
Census.
Table XI-1 shows a sharp decline in the number of developers
between 1992 and 1997. The decrease in the number of developers may
have been a response to changes in tax laws and the Financial
Institutions Reform, Recovery, and Enforcement Act (FIRREA) of 1989
(Pub. L. 101-73, August 9, 1989) and the 1993 implementing regulations.
The objective of FIRREA and the implementing regulations was to correct
events and policies that led to a high rate of bankruptcies in the
thrift industry in the late 1980s. The regulations changed lending
practices by financial institutions, requiring a higher equity position
for most projects, with lower loan-to-value ratios, and more
documentation from developers and builders. (Kone, D. L. ``Land
Development 9th ed.'', Home Builder Press of the National Association
of Home Builders, Washington, DC, 2000).
Table XI-1--Number of C&D Industry Establishments, 1992, 1997, and 2002, Economic Census Data
----------------------------------------------------------------------------------------------------------------
1992 1997 2002 Change 92- Change 97-
NAICS Description (No.) (No.) (No.) 97 (%) 02 (%)
----------------------------------------------------------------------------------------------------------------
236.......................... Construction of 168,407 191,101 211,629 13.50 10.70
Buildings, except
all other Heavy
Construction \a\.
237 except 2372.............. Heavy Construction, 37,180 42,554 49,433 14.50 16.20
except Land
Subdivision.
2372......................... Land Subdivision..... 8,848 8,185 8,403 -7.50 2.70
----------------------------------------------------------------------------------
Total........................................... 214,435 241,840 269,465 14.10 11.30
----------------------------------------------------------------------------------------------------------------
\a\ In the 2002 NAICS classification framework, All Other Heavy Construction was assigned among NAICS 236, 237,
and 238. To maintain relevant comparisons, 2002 All Other Heavy Construction data were reassigned back into
NAICS 237 (Heavy Construction).
Figures do not necessarily add to totals due to rounding.
Source: U.S. Census Bureau (2005).
Building upon Table XI-1, Table XI-2 shows the number of firms that
are expected to be covered under the C&D proposed regulation.
Construction establishments are relatively permanent places of business
where the usual business conducted is construction related.
Construction firms are an aggregation of construction establishments
owned by a parent company that share an annual payroll. EPA estimates
that for approximately 99 percent of construction firms there is only
one establishment, and those that do have more than one establishment
tend to be in the highest revenue categories.
For Table XI-2, EPA subtracted out firms that are engaged in home
remodeling (NAICS 236118) from the total of about 269,000 firms in
2002, as they would not be subject to the proposed regulations. The
elimination of remodelers is based on the fact that remodeling and
renovation activities generally disturb less than one acre of land, if
at all. EPA requests comment on its methodology for removing remodelers
from the analysis. Thus, the total number of C&D firms would be
178,835.
EPA used data from the Economic Census and other sources to define
an
[[Page 72588]]
average housing density for the nation as a whole (average number of
housing units per acre), then used this figure to identify firms to be
excluded from regulation based on their likelihood of disturbing less
than one acre on a per project basis. EPA believes that these estimates
(of firms unaffected by the proposed options) are conservative, meaning
that they potentially overestimate the actual number of firms that will
be affected. First, while the regulatory threshold applies to each
site, EPA excluded firms only if the estimated number of acres
disturbed in a whole year falls below the regulatory threshold. In
addition, the analysis was not adjusted for the portion of a site that
is potentially left undisturbed, such as open space and buffers.
Furthermore, EPA assumes that all of the housing units built by a firm
during a year are in a project covered by a single NPDES storm water
permit, while in reality the firm could build on several separate
sites. However, the Agency does not have information on the amount of
houses that are built within subdivisions, rather than on discrete
lots, by these firms. EPA requests comment on its methodology for
excluding firms that do not disturb more than one acre of land from the
analysis.
Based upon these adjustments of the total number of firms, EPA
believes there currently are about 81,628 firms that would be covered
under the rule. However, the Agency has insufficient data to make any
further adjustments to the population of developers and builders
covered by the proposal. EPA solicits comment on the Agency's estimate
of the number of firms that would be covered under the proposal.
Table XI-2--Number of Firms Covered by the Construction and Development Proposed Regulations
----------------------------------------------------------------------------------------------------------------
Firms
---------------------
NAICS Industry sector Percent
Number of total
----------------------------------------------------------------------------------------------------------------
2361....................................... Residential Building Construction
--------------------------------------------------------------------
236115..................................... New Single-family Housing Construction 33,609 41
(except operative builder).
236116..................................... New Multifamily Housing Construction (except 2,620 3
operative builder).
236117..................................... New Housing Operative Builder................ 17,295 21
--------------------------------------------------------------------
2362....................................... Nonresidential Building Construction
--------------------------------------------------------------------
236210..................................... Industrial Building Construction............. 1,610 2
236220..................................... Commercial and Institutional Building 20,797 26
Construction.
--------------------------------------------------------------------
237........................................ Heavy and Civil Engineering Construction
--------------------------------------------------------------------
237310..................................... Highway, Street, and Bridge Construction..... 5,696 7
--------------------------------------------------------------------
Total............................................................................. 81,628
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
C. Method for Estimating Economic Impacts
EPA has conducted economic impact analyses to determine the
economic achievability of each of the three ELG options presented in
this notice. An important aspect of the economic impact analysis is an
assessment of how incremental costs would be shared by developers and
home builders, home buyers, and society. This method is called ``cost
pass-through'' analysis or CPT analysis. Details of this method may be
found in Chapter 4 of the Economic Analysis.
The economic analysis for the C&D proposal also uses another method
called partial equilibrium analysis that builds upon analytical models
of the marketplace. These models are used to estimate the changes in
market equilibrium that could occur as a result of the proposed
regulations. In theory, incremental compliance costs would shift the
market supply curve, lowering the supply of construction projects in
the market place. This would increase the market price and lower the
quantity of output, i.e., construction projects. If the demand schedule
remains unchanged, the new market equilibrium would result in higher
costs for housing and lower quantity of output. The market analysis is
an important methodology for estimating the impacts of the provision
proposed in today's notice. The economic analysis also reflects
comments in the October 2001 final report from the Small Business
Advocacy Review (SBAR) Panel submitted to the EPA Administrator as part
of the requirements under SBREFA. The SBAR Panel was convened as part
of the 2002 rulemaking effort and EPA considers the information in the
2001 report to still be relevant to today's C&D proposal. Small Entity
Representative (SERs) commenters questioned a number of the assumptions
in EPA's economic and loading analysis. After considering these
comments, EPA determined that it was appropriate to continue to rely on
its existing analysis for this proposed rule. EPA will continue to
consider the SER comments along with comments received on the proposed
rule and revise its analyses for the final rule as appropriate.
EPA estimated the incremental compliance costs for the regulatory
options using an engineering cost model that accounts for cost factors
such as treatment costs, labor and operation and maintenance costs.
Because some of the erosion and sediment controls considered have
design requirements that take into account meteorological and soil
conditions, EPA developed compliance costs that take into account
regional differences.
EPA estimated both the incremental compliance costs and the
economic impacts of each regulatory option at the project, firm, and
industry (national) level. The economic impact analysis considered
impacts on both the firms in the C&D industry, and on consumers who
purchase the homes, and buy or rent industrial buildings and commercial
and office space. In the case of public works projects, such as roads,
schools, and libraries, the economic impacts would accrue to the final
consumers, who, in most circumstances, are the taxpaying residents of
the community. The sections below summarize each modeling effort.
[[Page 72589]]
Detailed information on the data, models, methods, and results of the
economic impact analyses are available in the Economic Analysis.
1. Model Project Analysis
EPA estimated project-level costs and impacts for a series of model
projects. The models establish the baseline economic and financial
conditions for model projects and assess the significance of the change
in cash flow that results from the incremental compliance costs. EPA
used the model project analysis to indicate whether typical projects
affected by the proposed regulations would be vulnerable to abandonment
or closure. The Agency developed nine model projects based on
consideration of size and construction categories. The construction
categories were: Residential; commercial & industrial building; and
transportation. These three categories were broken out further into
small (one acre or more, but less than ten acres), medium (ten acres or
more, but less than thirty acres) and large (thirty acres or more)
projects.
Based on a review of NOI data, each model of the nine project types
was assigned an average number of acres. Implicit in the model project
analysis is the assumption that each project is undertaken in its
entirety by a single entity acting as both developer and builder. EPA
recognizes that in practice there may be several parties with financial
investment, planning, and construction roles in a particular land
development and construction project. For example, on some projects a
developer may acquire the land, conduct the initial engineering and
site assessments, and obtain the necessary approvals. The land may then
be sold to another developer or builder who will undertake the actual
construction work. Projects are also sometimes undertaken by a
consortium of firms or individuals, through various types of limited
liability partnerships (LLP). While it is important to acknowledge this
variation, for modeling purposes EPA has simplified this aspect and
assumed only a single entity is involved from beginning to end,
referred to below as a ``developer-builder.'' This approach measures
the direct impact of the rule on permit holders expected to incur
compliance costs. EPA acknowledges that a portion of these costs will
likely be passed along to small builders. The ability of permitees to
pass costs through to other builders will vary based on market
conditions. These effects are addressed as part of the sensitivity
analysis in Appendix 8-1 of the RFA Chapter in the Economic Analysis.
Some of these small builders may also be copermitees who are required
to be in compliance with these standards. To the extent that they are
copermittees, they are not accounted for in the firms incurring costs.
However, all costs have been attributed to firms. Allocating costs over
a broader number of firms may or may not increase the estimated
impacts, but spreads the same costs over a larger number of firms. EPA
requests comment about this economic modeling approach.
Land development and construction typically occurs in a series of
stages or phases. The model projects developed by EPA incorporate
assumptions concerning the costs incurred and revenue earned at each
stage. EPA has modeled all of the projects to reflect three principal
development stages:
(1) Land acquisition. The starting point is usually acquisition of
a parcel of land deemed suitable for the nature and scale of
development envisioned. The developer-builder puts together the
necessary financing to purchase the parcel. When lenders are involved,
they may require certain documentation, such as financial statements,
tax returns, appraisals, proof of the developer's ability to obtain
necessary zoning, evaluations of project location, assessments of the
capacity of existing infrastructure, letters of intent from city/town
to install infrastructure, environmental approvals, etc. To satisfy
these needs, the developer may incur costs associated with compiling
these data.
(2) Land development. The developer-builder obtains all necessary
site approvals and prepares the site for the construction phase of the
project. Costs incurred during this stage are divided among ``soft''
costs for architectural and engineering services, legal work, permits,
fees, and testing, and ``hard'' costs such as land clearing, installing
utilities and roads, and preparing foundations or pads. The result of
this phase is a parcel with one or more finished lots ready for
construction.
(3) Construction. The developer-builder undertakes the actual
construction of the buildings. A substantial portion of this work may
be subcontracted out to specialty subcontractors (foundation, framing,
roofing, plumbing, electrical, painting, etc.). In the case of a
housing subdivision, marketing often begins prior to the start of this
phase, hence the developer-builder may also incur some marketing costs
at this time. Housing units may come under agreement at any time prior
to, during, or after completion of construction. Marketing costs are
part of the baseline costs. EPA determined that no incremental
marketing costs would be imposed by today's proposed rule.
EPA conducted an analysis of the multiplier that determines how
direct compliance costs translate into the change in the cost of the
final product, or finished construction project. EPA developed
estimates of the project-specific costs and revenue at each stage of
project development as part of this baseline scenario. The general
approach used in establishing the baseline scenario is to assume normal
returns on invested capital and normal operating profit margins to
arrive at the sales price for the final product (for example, completed
new single-family homes in a residential development, or office space
in a new office park). This produces a more accurate estimate of the
costs of complying with the proposed regulation than the costs of
installing and operating the technology alone. These are not the same
assumptions that are used in the firm level analysis to follow,
particularly for economic impacts.
EPA analyzed the impact of today's proposed rule by adding in the
regulatory costs at the appropriate stage of the project life cycle. An
important consideration for assessing who ultimately bears the
financial burden of a new regulation is the ability of the regulated
entity to pass the incremental costs of the rule on to their customers.
If the developer-builder can pass all of their costs through to the
buyer, the impact of the rule on developer-builders is negligible and
the buyer bears all the impact. Conversely, if they are unable to pass
any of the cost to buyers through higher prices, then they must assume
the entire cost. For the economic impact analysis EPA uses three pass-
through cases: Zero cost pass-through; full cost pass-through; and
partial cost pass-through (85% for residential and 71% for non-
residential).
Under the first case, the zero (0%) cost pass-through assumption,
the incremental regulatory costs are assumed to accrue entirely to the
builder-developer, and appear as a reduction in per-project profits.
The sale price of the constructed unit and surrounding lot remains the
same as the asking price in the baseline. Using the full (100%) cost
pass-through assumption, all incremental regulatory costs are passed
through to end consumers. Under this approach, the compliance costs are
also adjusted to reflect the developer's cost of debt, equity, and
overhead. Consumers experience the impact of the proposed regulatory
options in the form of a higher price for each new building or housing
unit. For the partial cost pass-
[[Page 72590]]
through case, firms are assumed to pass on part of the compliance
outlay to other parties. For the partial cost pass-through case, EPA
assumes a cost pass-through rate of 85% for residential sectors and 71%
for non-residential and non-building sectors. This is the expected
average long-term level of cost pass-through based on observed response
of market supply and demand to changes in prices for new construction.
For more on the method used for determining the level of cost pass-
through see Section 3.5 of the Economic Analysis, Analysis of Social
Cost of the Economic Analysis. When a sector is stressed, cost pass-
through will tend to be below this long-term average (i.e., more costs
being borne by builders). Conversely, when a sector is booming, most
costs are likely to be passed through.
Information in the record indicates that builders do pass through
much of the regulatory costs to customers. This is supported by the
academic literature and industry publications. However, the financial
impact analysis also calculates results under the two bounding cases,
no cost pass-through for firms and full cost pass-through for
customers, to assess the ability of these groups to absorb the impact
of the regulation under a worst case scenario. The two bounding cases
also provide an approximation of the sensitivity of impact estimates to
the partial cost pass-through assumptions used for the primary case.
EPA requests comment on the partial cost pass-through assumptions used
for the primary case.
EPA notes that under certain conditions developers might also
attempt to pass regulatory costs back to land sellers. For example, in
a depressed market, builders may argue successfully that a regulatory
cost increase would make a particular project unprofitable unless the
land costs can be reduced. If the land seller is convinced that a
residential subdivision project would not proceed, they may be willing
to accept a lower price for undeveloped land. The ability of developers
to pass such costs back would likely depend on the sophistication of
the land owner, their experience in land development projects,
knowledge of the local real estate market, and, in particular, their
understanding of the regulations and their likely cost. While evidence
of cost pass-back to land owners exists for fixed and readily
identifiable regulatory costs such as development impact fees, it is
unclear whether a builder's claim that costs would be higher due to
construction site control regulations would induce land owners to make
concessions. EPA requests comment on the likely success of developers
attempting to pass regulatory costs for incremental storm water
controls back to land owners.
2. Model Firm Analysis
EPA analyzed the impacts of the regulations at the level of the
firm by building financial models of representative construction firms.
Model firms are broken out by revenue ranges for each of the NAICS
sectors aligning with the principal C&D business segments expected to
be affected by the regulation (See Table XI-2). These revenue range and
sector breakouts are based on data reported by the Statistics of U.S.
Business (SUSB) and the Economic Census. Within each business sector
and revenue range model firms are further differentiated based on
median, lower quartile, and upper quartile measures of baseline
financial performance and condition (i.e., capital returns, profit
margins, levels of debt and equity to capital, etc.). Firms in the
upper quartile have better than normal financial metrics, while the
metrics for firms in the lower quartile are worse than normal. Baseline
financing costs (cost of debt and equity) was varied over revenue
ranges, with firms in higher revenue ranges having access to more
favorable terms. However, the financial data was not sufficiently
disaggregated to allow financing terms to vary over the three
quartiles. These model firms are used in combination with compliance
cost estimates to examine the potential for financial stress, firm
closures, employment effects, and increased barriers to the entrance of
new firms to the industry. EPA did not base its analysis, as it has for
many past ELGs, on firm-specific data because it did not have time
under the court imposed deadline to survey the industry and gather such
data.
The financial statements for the model firms are constructed to
capture two business condition cases for the firm-level analysis:
General Business Conditions case that reflects the financial
performance and condition of C&D industry businesses during normal
economic conditions; and Adverse Business Conditions case that is meant
to reflect financial performance during weak economic conditions. The
two business condition cases are differentiated by the baseline
operating financial circumstances of the model firms as well as other
important factors in firm financial performance, including cost of debt
and equity capital.
Compliance costs for a given regulatory option are assigned to the
model firms, by sector and revenue size category, based on an estimate
of ``annual in-scope acreage per dollar of revenue'' for the various
model firms. The compliance costs for a given regulatory option were
converted to a per-acre basis based on project size, type of
construction and other compliance cost-related characteristics such as
state and/or climatic region, depending on the option being considered.
Since affected acreage is the principal driver of compliance costs, the
number of projects and in-scope project acreage associated with a given
level of firm revenue will be the primary basis on which compliance
costs are assigned to the model firms. The basis for estimating number
of projects and in-scope project acreage for model firms will vary by
sector and principal construction activity. The estimated per-acre
compliance costs for the areas subject to the proposed turbidity limits
range from $1,135 to $16,535, with a median value of $7,501.
EPA assigns the per acre compliance costs to each model firm based
on an estimate of the acreage developed per million dollars of
construction value for the model firm. For residential construction,
the acreage per million dollars was derived from the Census Bureau's
Census of Housing. For nonresidential construction, information on
project acreage and estimated project value from Reed Construction Data
is used to derive an average number of acres developed per million
dollars of value (Reed Construction, March 2008; see DCN 51017). Using
each model firm's acreage to revenue relationship, costs are then
assigned to firms based on the number of in-scope firms in each revenue
range category. EPA requests comment on its approach for assigning
compliance costs to model firms.
EPA was then able to assess the impact of the annual compliance
costs on key business ratios and other financial indicators.
Specifically, EPA examined impacts on the following measures: (1) Costs
to Revenue Ratio, (2) Pre-Tax Income to Total Assets Ratio, (3)
Earnings before Interest and Taxes (EBIT) to Interest Ratio, and (4)
change in business value. The first is a simple screening level measure
which is important for measuring the impact on small entities. The
second and third are financial measures reported by Risk Management
Associates (RMA) for median, lower and upper quartiles by sector and
business size that were used in constructing the baseline financial
statements for the model firms. The change in business value measure is
based on application of compliance
[[Page 72591]]
costs to the model firm financial statements, both as the estimated
absolute dollar change in value and the fraction of firms whose net
business value becomes negative because of compliance outlays. The
impacts of the compliance costs were examined by calculating the values
of each ratio with and without the compliance costs.
In previous effluent guidelines rulemakings, EPA has sometimes
varied levels of cost pass-through and sometimes assumed no cost pass-
through. In practice, the actual level of cost pass-through is
difficult to estimate and changes over time. For example, when a
particular industry faces severe economic distress, as with the current
homebuilding industry, it is less likely that producers will be able to
pass through as significant a portion of compliance costs. When an
industry is healthy, higher levels of cost pass-through are likely.
Also, the larger share of an industry subject to the regulatory
requirements in question, the greater the ability of individual firms
to pass through compliance costs, as they will have less competition
from unregulated producers. For this analysis, EPA used both the
partial and no cost pass-through scenarios, to assess potential
economic impacts on the industry under the primary analysis and upper
bound scenarios. Full cost pass-through would have no impact on the
firms.
3. Housing Market Impacts
EPA developed models to assess the potential impacts of the
regulations on the national housing market. Buyers of new
nonresidential properties will also be impacted as costs are passed
through to them. However, they account for a minority of the
construction projects considered and EPA assumes that this group of
customers is not as vulnerable to changes in prices as are households
in the market for new homes. Therefore, impacts to purchasers of new
nonresidential construction sites were not highlighted as part of the
financial impact assessment and are accounted for on a more general
basis as part of the analysis of impacts on the national economy.
To analyze the impacts of compliance costs on housing
affordability, EPA estimated the level of income that would be
necessary to purchase both the median and lower quartile priced new
home without the proposed regulation, and the change in income needed
to purchase the median and lower quartile priced new home under each of
the regulatory options. The Agency then used income distribution data
to estimate the change in the number of households that would qualify
to purchase the median and lower quartile priced new home under each of
the regulatory options. In this way, EPA attempted to estimate the
number of households that may not be able to afford the exact same new
home they could under baseline conditions. The housing market analysis
was performed at the level of the metropolitan statistical area (MSA)
to account for regional differences in housing prices and income. The
housing market analysis uses the full cost pass-through assumption, to
estimate the worst-case impacts on new single-family home buyers.
When assessing the impact of the rule on housing affordability, EPA
acknowledges that even those buyers who are able to afford the median
valued single-family home at the new price may still experience an
impact. Many households would continue to qualify to purchase (or rent)
a housing unit of approximately the same price (or rent) as before the
C&D regulation, but would instead experience a reduction in some
desirable housing attributes instead. This analysis looks not only at
the affordability effect at the median-priced housing unit but also
considers the impact on housing affordability at lower housing prices,
specifically the impact on households that can afford the lower
quartile priced home. Focusing on housing prices below the median
provides important insight into the regulation's impact on housing
affordability accounting for the likely greater number of households at
the income levels that just qualify to purchase/rent lower price units.
EPA requests comment on its approach to assessing impacts of the rule
on housing affordability.
4. Impacts on the National Economy
The market model generates an estimate of the change in the total
value of construction produced by the industry, i.e., industry output.
Two effects of the regulation are acting on the market value of
construction output. First, the cost of construction increases, leading
to a price rise and an increase in market value of final projects.
Second, the quantity of houses sold is reduced because of the higher
price due to compliance costs. The net effect on market value may be
either positive or negative, depending on whether the elasticity of
demand for housing is less than or greater than 1. There are also
secondary impacts in other markets, caused by the shift in consumer
spending, necessitated by the increased housing costs, from other goods
to housing.
Markets vary in the level of activity, structure of the industry,
and ultimately cost pass-through potential, from state-to-state and
region-to-region. The modeling approach used for the national impact
analysis captures such regional variation in the impacts of the
proposed regulatory options by estimating partial equilibrium models at
the state level for four major building construction sectors (single-
family, multi-family, commercial, and industrial). The analysis of
state- and national-level economic impacts is based on estimating
changes to economic output, employment, and welfare measures that
result from the estimated baseline market equilibrium to the estimated
post-compliance market equilibrium for each construction sector in each
state.
A partial equilibrium analysis assumes that the proposed regulation
will only directly affect a single industry; in this case, the four
major construction sectors considered. Holding other industries
``constant'' in this way is generally appropriate since the compliance
costs of the proposed regulatory options are expected to result in only
marginal changes in prices and quantities and the rule does not
directly affect the other industries (HUD, 2006; see DCN 52015).
For the partial equilibrium analysis, EPA uses estimated
elasticities of market supply and demand to calculate the impact of
incremental costs on the supply curve and, thus, on prices and
quantities of construction products under post-compliance conditions.
Economic impacts in the directly affected construction industry can
trigger further shifts in output and employment losses in the set of
broader U.S. industrial sectors as these changes pass through the
economy. The U.S. Department of Commerce uses input-output techniques
to derive ``multipliers'' which indicate, for a given change in one
industry's output, how output and employment in the whole U.S. economy
will respond. EPA has applied the multipliers from the Regional Input-
Output Modeling System, version 2 (RIMS II) to the change in output
estimated from the market model to estimate some of the anticipated
impacts on national output and employment. EPA is also using the
Regional Economic Models, Inc. (REMI) Economic Geography Forecasting
and Policy Analysis Model to derive a more comprehensive estimate of
the potential long-term effects on the national economy. The REMI model
uses a similar set of industry sector multipliers, but also
incorporates econometric and general equilibrium models to derive a
more refined
[[Page 72592]]
estimate of the impacts on national output and employment.
D. Results
1. Firm-Level Impacts
EPA has estimated the economic impacts of the proposed rule at the
firm level by estimating the number of firm closures, the number of
lost jobs, and the decrease in firms' profits. The economic impact
analysis at the firm level looks at two cases. The first assumes that
none of the incremental costs would be passed through to the final
consumer, i.e., zero cost pass-through. The Agency used this assumption
for the economic impact analysis, because it presents the worst-case
scenario (i.e., the largest impacts to the firm). The second case
assumes partial cost pass-through, and EPA believes this is more
reflective of typical circumstances based on EPA's review of the
academic literature and its discussions with industry officials who
indicate that under normal business conditions most costs are passed
through to the final consumer and are not absorbed by firms in the
industry.
EPA analyzed economic impacts at the firm level. The firm is the
entity responsible for managing financial and economic information.
Moreover, the firm is responsible for maintaining and monitoring
financial accounts. For the C&D category, most of the business
establishments, as defined by the Census Bureau, are firms. Likewise, a
small number of establishments are entities within a larger firm. A
small percentage of firms have multiple establishments and some firms
are regional or national in scope.
Table XI-3 presents one economic indicator, the relationship of
compliance cost to firms' annual revenue. A comparison between costs
and revenues is typically done prior to any consideration of the pass-
through of costs to buyers. Firms whose costs exceed 1% of revenue are
only 4.5 percent of the approximately 82 thousand in-scope firms for
the most costly option. Furthermore, firms whose costs exceed 3% of
revenue are significantly less than 1% for all options considered for
proposal.
Table XI-3--Cost to Revenue, Assuming No Cost Pass-Through
----------------------------------------------------------------------------------------------------------------
Costs exceeding 1% revenue Costs exceeding 3% revenue
-----------------------------------------------------------------------
Percent of Percent of
Option Number of Percent of firms Number of Percent firms
firms firms in- incurring firms of firms incurring
scope costs in-scope costs
----------------------------------------------------------------------------------------------------------------
Option 1................................ 0 0.0 0.0 0 0.0 0.0
Option 2................................ 774 0.9 12.1 33 0.0 0.5
Option 3................................ 2,475 3.0 18.0 146 0.2 1.1
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
Table XI-4 presents two additional economic indicators that measure
the potential decrease in firms' financial fitness. These indicators
are presented using the partial cost pass-through case, which
represents the firms' expected ability to pass costs through to buyers.
These two indicators were also assessed using the no cost pass-through
assumption as one of the revisions made to the adverse analysis case
discussed below.
Table XI-4--Firms Expected To Incur Financial Stress, Assuming Partial
Cost Pass-Through
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Firms Estimated To Incur Deterioration in Measures of Financial
Performance
------------------------------------------------------------------------
Number Incurring Effect................ 17 147 445
% of All In-scope Firms................ 0.0 0.18 0.5
% of Firms Incurring Cost.............. 0.5 2.3 3.2
------------------------------------------------------------------------
Firms Whose Net Business Value Becomes Negative as a Result of
Compliance
(Potential Closures)
------------------------------------------------------------------------
Number Incurring Effect................ 18 103 389
% of All In-scope Firms................ 0.0 0.13 0.5
% of Firms Incurring Cost.............. 0.6 1.6 2.8
Number of Jobs......................... 1,087 11,359 25,266
% of In-scope Firm Employees........... 0.5 1.8 2.7
------------------------------------------------------------------------
Source: Economic Analysis.
Deterioration of firm financial performance is based on assessing
the impact of costs on two financial measures (Pre-Tax Income/Total
Assets and Earnings before Interest and Taxes/Interest). EPA estimated
the fraction of firms in the various sector and revenue ranges whose
financial indicators decline below the lower quartile for these two
measures, as reported by Risk Management Associates (RMA). For each
sector and revenue category, whichever of the two measures have the
greatest decline is used to represent the impact on financial
performance. For additional information on EPA's analysis of the change
in financial position, see Section 3.3.4, Estimating the Change in
Model Firm Financial Performance and Condition, from the Economic
Analysis.
The second economic indicator is firm closures and resulting job
loss, by regulatory options. These numbers represent the impact on
firms with thin profit margins who are most vulnerable to impacts from
costs increases, and they do not represent the effects of a reduction
in the overall quantity of
[[Page 72593]]
construction activity as a result of the C&D rule. Both phenomena can
result in job losses, but they are two separate measures of job losses
and are not necessarily wholly additive or overlapping. Construction is
a highly competitive industry that is characterized by many small firms
with a relatively high turnover and low barriers to entry. Firms
routinely expand and contract their workforce in response to work load
and as a result many workers laid off when a firm closes are rehired by
new and other existing more financially healthy firms. Therefore, job
losses due to firm closures are in many cases a temporary displacement
of the workforce. By contrast, job losses due to market contraction
result from an overall reduction in the volume of construction and can
be considered a more lasting effect until market conditions change
again. For more information on job losses due to market contraction,
see Section 3.5 Analysis of Social Cost in the Economic Analysis.
The C&D industry has historically been a relatively volatile
sector, and is subject to wider swings of economic performance than the
economy as a whole. EPA has used historical financial and census data
for the C&D industry to discern long-term trends within the market
fluctuations. EPA based its primary economic analysis on data that
reflects average long-term performance rather than a temporary high or
low. The industry is currently experiencing a period of weakness, which
will persist until residential markets work through the current
inventory of unsold homes, and credit markets and the general economy
return to a better condition. There continues to be considerable
uncertainty regarding how much the market for new construction will
contract or how far real estate values will decline, before the
construction industry begins to recover. EPA realizes that the rule
will be promulgated during a low period for the industry, and there may
be concerns that additional compliance costs, associated with the rule,
could have a greater than normal impact on C&D firms and potentially
slow the industry recovery. Again using historical census and financial
data for the industry EPA identified periods of weakness for various
industry sectors and used them to develop a secondary analysis that
represents potential impacts of additional compliance costs during a
period of adverse economic circumstances. Three key assumptions EPA
used to represent adverse conditions for the industry were that there
would be a contraction in overall market activity, firms would finance
projects under less favorable terms and no costs incurred by the firm
as a result of compliance would be passed through to the buyer. Table
XI-5 below shows the results of the adverse analysis case. The number
of firms experiencing impacts reflects the market contraction, so they
are not directly comparable to the primary analysis case, since they
represent differing levels of regulated activity. However, a comparison
of the percentage of in-scope firms experiencing impacts and firms
incurring costs that experience impacts illustrate the relative
difference between the two cases. With regard to Option 2, the
percentage of firms in-scope incurring financial stress in the adverse
case is three and a half times the percentage in the primary economic
analysis and the percentage of in-scope firms at risk of closure in the
adverse case is seven times the percentage in the primary economic
analysis. There are also corresponding increases in short-term
employment losses. However, even with the greater impacts seen under
the adverse analysis case, the percentage of total firms experiencing
financial hardship, under any of the metrics considered, does not
exceed one percent of total in-scope firms or 12 percent of firms
incurring costs, for the proposed option. Another important
consideration for the adverse analysis case is that under the no-cost
pass through assumption, there are no secondary impacts on small
builders or affordability effects for buyers. For additional
information on the adverse impact analysis case, see Chapters Three and
Five of the Economic Analysis.
Table XI-5--Adverse Impact Analysis Results
------------------------------------------------------------------------
Impact analysis concept Option 1 Option 2 Option 3
------------------------------------------------------------------------
Firms with Costs Exceeding 1 Percent of
Revenue:
Number of Firms.................... 0 698 2,233
% of Firms In-Scope................ 0.0% 0.9% 3.0%
% of Firms Incurring Cost.......... 0.0% 12.0% 17.9%
------------------------------------------------------------------------
Firms with Costs Exceeding 3 Percent of
Revenue:
Number of Firms.................... 0 30 132
% of Firms In-Scope................ 0.0% 0.0% 0.2%
% of Firms Incurring Cost.......... 0.0% 0.5% 1.1%
------------------------------------------------------------------------
Firms Incurring Financial Stress:
Number of Firms.................... 51 479 1,534
% of Firms In-Scope................ 0.1% 0.64% 2.0%
% of Firms Incurring Cost.......... 1.75% 8.3% 12.3%
------------------------------------------------------------------------
Firms with Negative Business Value
(Potential Closures):
Number of Firms.................... 88 662 2,164
% of Firms In-Scope................ 0.1% 0.88% 2.9%
% of Firms Incurring Cost.......... 3.03% 11.4% 17.4%
------------------------------------------------------------------------
Source: Economic Analysis.
Since EPA expects that the effluent guidelines requirements will be
implemented over time as states revise their general permits (EPA
expects full implementation within five years of the effective date of
the final rule, currently required to be promulgated in December 2009,
which would be 2014), EPA has used macroeconomic forecasts of
construction activity to assess when the industry is likely to return
to its long-term trend (Global Insight, ``Housing and Construction'',
2008) (Global Insight, ``U.S. Economic Service, Executive Summary''
2008). Based on these forecasts, EPA anticipates that the industry
activity will have recovered to
[[Page 72594]]
the long-term trend during the period when the rule is being
implemented.
2. Impacts on Governments
EPA has analyzed the impacts of today's proposed rule on government
entities. This analysis includes the cost to governments for compliance
at government-owned construction project sites (construction-related).
For construction-related costs, EPA assumed that 100 percent of the
incremental compliance costs that contractors incur at government-owned
construction sites are passed through to the government. EPA also
estimated the additional administrative costs that government entities
would incur for reviewing the additional monitoring reports associated
with the turbidity monitoring requirements of Options 2 and 3. Table
XI-6 shows the costs that government entities are expected to incur at
federal, state, and local levels.
Table XI-6--Total Costs by Government Unit
[Millions 2008 $]
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Compliance Costs
------------------------------------------------------------------------
Federal................................ $2.3 $34.0 $66.5
State.................................. 4.4 68.1 128.2
Local.................................. 25.1 390.7 735.8
------------------------------------------------------------------------
Administrative Costs
------------------------------------------------------------------------
Federal................................ 0.0 0.0 0.0
State.................................. 0.0 0.1 0.2
Local.................................. 0.0 0.6 1.0
------------------------------------------------------------------------
Total Costs
------------------------------------------------------------------------
Federal................................ 2.3 34.0 66.5
State.................................. 4.4 68.2 128.4
Local.................................. 25.1 391.3 736.8
--------------------------------
Total.............................. 31.8 593.5 931.7
------------------------------------------------------------------------
Source: Economic Analysis.
These additional government costs are not expected to have a
significant impact on state and local governments as they account for
less than a tenth of a percent of state government revenues and less
than a tenth of a percent of estimated local government revenues. For
additional information on the effect of the rule on government entities
see the UMRA analysis in Chapter 9 of the Economic Analysis.
3. Community-Level Impacts
EPA has estimated community-level impacts based upon the
incremental costs of the proposed rule at the household level. The
household impacts are those that would affect local communities in
terms of the costs of housing. EPA's analysis considers the impacts on
the price of housing based on the increase/decrease in the median price
per house. Table XI-7 shows the change by selected option in the price
per house. It is important to note that these costs would not apply to
all new houses built in the U.S., but rather only to those houses that
are part of construction projects that are subject to the given
regulatory option. Approximately 3 percent of total annual home sales
are expected to be in projects subject to Option 1, 8 percent to Option
2 and 13 percent to Option 3. When considering only newly-built homes,
approximately 21 percent of sales are expected to be in projects
subject to Option 1, 52 percent to Option 2 and 90 percent to Option 3.
The table also provides estimates of the expected change in monthly
payments under each option for the median and lower quartile priced
home. The monthly mortgage payments were calculated using the median
and lower quartile priced house for each Metropolitan Statistical Area
(MSA) in the country. For the MSA's, the weighted average median price
for a home is $322,000, the 5th percentile is $110,000, and the 95th
percentile is $560,000. For the lower quartile priced home, the
weighted average is $201,000, the 5th percentile is $66,000, and the
95th percentile is $404,000. The U.S. Census does not report lot sizes
for the upper or lower quartile. However, housing census data indicates
that lower-priced homes have a greater likelihood of having a smaller
lot size (U.S. Census Characteristics of New Housing, 2006). To account
for this factor, EPA performed the affordability analysis for the
lower-quartile price home twice, using both the median lot size for all
single family homes and the median lot size for attached single family
homes.
Table XI-7--Change in Monthly Mortgage Payment for New Single-Family
Home
[Full cost pass-through]
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
New Single-Family Median Priced Home
------------------------------------------------------------------------
Price Change New Single-Family Home on $330 $2,100 $2,242
Median Sized Lot......................
Baseline Mortgage Payment ($/month).... $1,971 $1,971 $1,971
New Mortgage Payment ($/month)......... $1,972 $1,985 $1,986
[[Page 72595]]
% Change............................... 0.05% 0.70% 0.75%
------------------------------------------------------------------------
New Single-Family Lower Quartile Priced Home on Median Sized Lot
------------------------------------------------------------------------
Price Change New Single-Family Home on $330 $2,100 $2,242
Median Sized Lot......................
Baseline Mortgage Payment ($/month).... $1,358 $1,358 $1,358
New Mortgage Payment ($/month)......... $1,359 $1,372 $1,373
% Change............................... 0.04% 1.01% 1.09%
------------------------------------------------------------------------
New Single-Family Lower Quartile Priced Home on Median Sized Lot for
Attached Single-Family Home
------------------------------------------------------------------------
Price Change New Single-Family Home on $118 $738 $803
Median Sized Attached Lot.............
Baseline Mortgage Payment ($/month).... $1,358 $1,358 $1,358
New Mortgage Payment ($/month)......... $1,359 $1,363 $1,364
% Change............................... 0.01% 0.36% 0.39%
------------------------------------------------------------------------
Source: Economic Analysis.
The increase in mortgage payments attributable to the proposed
options compared to the estimated mortgage payment for the median price
of a new house in the U.S., currently about $1,971, is a small
percentage of the overall payment. For these costs, the average monthly
mortgage payment would increase by $1, $14, and $15 per month for
Options 1, 2, and 3, respectively. For the analysis, EPA assumes that
buyers finance approximately 80% of the home purchase price using a 30-
year conventional fixed rate mortgage with an interest rate of 7.39%.
EPA also estimated how the change in home prices would affect
mortgage availability. EPA estimated that 2,195 prospective new home
purchasers would no longer qualify to purchase a new median priced home
affected by the rule, and 3,243 would no longer qualify to purchase a
new lower quartile priced home affected by the rule. Most impacted home
buyers, except those at the low end of the income distribution, would
still be able to purchase newly built homes, but not as expensive a
home as they could afford without the regulation. EPA has attempted to
characterize how the potential increase in mortgage payment may affect
housing affordability. However, this approach only looks at two
specific points along the spectrum of housing prices and therefore does
not represent the total number of households that would have to make a
different homebuying decision as a result of the rule. EPA is
interested in developing an analysis reflective of the number of
households that would likely be adversely affected by the proposed
regulation, and solicits comment on appropriate methodology and any
data that would be required to conduct such an analysis. For more
information on the affordability analysis see Section 3.4, Analysis of
Regional-Level Housing Affordability Impacts, of the Economic Analysis.
4. Foreign Trade Impacts
As part of its economic analysis, EPA has evaluated the potential
for changes in U.S. trade (imports, exports) of C&D related goods and
services. A significant component of the U.S. C&D category operates
internationally, and, in addition, numerous foreign firms that
participate in this category also operate in the U.S. EPA judged that
the potential for U.S. C&D firms to be differentially affected by the
proposed rule is negligible. The proposed rule will be implemented at
the project level, not the firm level, and will affect projects within
the U.S. only. All firms undertaking such projects, domestic or
foreign, will be subject to the proposed rule. U.S. firms doing
business outside the U.S. will not be differentially affected compared
to foreign firms, nor will foreign firms doing business in the U.S.
This proposed rule could theoretically stimulate or depress demand
for some construction-related goods. To the extent that the proposed
rule acts to depress the overall construction market, demand for
conventional construction-related products may decline. This decline
may be offset by purchase of goods and services related to erosion and
sediment control. Overall, EPA does not anticipate that any shifts in
demand for such goods and services resulting from the proposal would
have a significant implication for U.S. and foreign trade.
5. Impacts on New Firms
The construction sector is a relatively fluid industry, as
documented in the industry profile, with low barriers to entry and
considerable entry and exit activity from year to year. As a result,
the potential employment losses or capital idling effects of weakness
in a specific firm are likely to be offset by changing levels of
activity in other existing firms or entry of new firms into the local
market. EPA conducted an analysis to assess the impacts on new firms
that choose to enter the C&D point source category. This analysis uses
a method called ``barrier to entry''. EPA examined the ratio of
compliance costs to current and total assets to determine if new market
entrants could find it more difficult to assemble the capital
requirements to start a project than would existing firms. The
methodology is conservative, because it doesn't account for the fact
that a firm would typically be expected to finance 20 percent of the
incremental compliance costs from their own financial resource to
obtain the loan, not the full amount as assumed here. In addition,
existing firms would need to meet the same requirement, and therefore
would not obtain a competitive advantage over new entrants. For more
information on the analysis see Section 3.3.6 Assessing Potential
Barriers to Entry of New Businesses to the C&D Industry from the
Economic Analysis.
For the proposed regulatory option (Option 2), the increase in
financing requirement varies from approximately 2.7 percent to 7.7
percent of baseline assets depending on the firms size and business
sectors. This comparison assumes that the new firm's compliance outlay
would be financed and recorded
[[Page 72596]]
on its balance sheet. To the extent that the compliance outlay is
financed and recorded not on the firm's baseline sheet but as part of a
separate project-based financing for each individual project, this
comparison is likely to be overstated, perhaps substantially. EPA does
not consider the increase in financing requirements to pose a
significant barrier to entry for potential businesses and projects.
6. Social Costs
EPA's analysis of social costs for each option contains four costs
components: (1) Firm compliance costs; (2) incremental increase in
government administrative costs; and (3) deadweight loss (loss of
economic efficiency in the construction market). When summed, these
three cost categories comprise the total social costs for each option.
EPA has conducted a social cost analysis for each option. The
Economic Analysis provides the complete social cost analysis for the
proposed regulation. The firm-level estimate compliance cost, however,
does not account for the potential affect of the proposed options on
the quantity of construction activity/units performed in the various
C&D markets. Compliance costs for each proposed option have the effect
of increasing builder/developer costs, which can cause a leftward shift
in the market's supply curve. Part of the increased costs may raise the
price of new housing, with the balance of increased costs being
absorbed by the builder, depending on the relative elasticities of
supply and demand. The resulting shift in market equilibrium may also
reduce the quantity of construction units produced in a given market.
EPA has estimated a state-by-state linear partial equilibrium
market model for each C&D building sector to estimate this potential
market effect on the quantity of output. The estimated change in the
quantity of output produced in each C&D market segment is then used to
not only adjust the firm-level resource cost of compliance, but also to
compute the economic value of the reduction in C&D output, and estimate
the total loss of consumer and producer surplus, referred to as the
deadweight loss. Table XI-8 shows the change in cost due to the
quantity effect (i.e. reduction in market activity), the dead weight
loss, and their combined effect on total costs.
Table XI-8--Total Social Cost of Options
[Millions of $2008]
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Total Costs, Unadjusted for Quantity $132 $1,891 $3,797
Effect................................
Change in Costs Due to Quantity 0.1 7 17
Effect............................
Total Costs, Adjusted for Quantity 132 1,884 3,780
Effect............................
Total Dead Weight Loss................. 0.0 3.5 8.4
Additional Government Administrative 0.0 0.7 1.2
Costs.................................
Total Social Cost of the Regulation.... 132 1,888 3,789
------------------------------------------------------------------------
Source: Economic Analysis.
7. Small Business Impacts
Section XIX.C of today's document provides EPA's Regulatory
Flexibility Analysis (RFA) analyzing the effects of the rule on small
entities. For purposes of assessing the economic impacts of today's
proposed rule on small entities, small entity is defined by the U.S.
Small Business Administration (SBA) size standards for small businesses
and RFA default definitions for small governmental jurisdictions. The
small entities regulated by this proposed rule are small land
developers, small residential construction firms, small commercial,
institutional, industrial and manufacturing building firms, and small
heavy construction firms.
Table XI-9 shows the impacts of the proposal using the one percent
and three percent revenue tests, a method used by EPA to estimate the
impacts on small businesses. The table presents the results for the
regulatory options.
Table XI-9--Small Business Analysis for Options, 1% and 3% Revenue Tests, Assuming No Cost Pass-Through
----------------------------------------------------------------------------------------------------------------
1% Revenue test 3% Revenue test
-------------------------------------------------------
Option Number of Percent of Number of Percent of
small firms small firms small firms small firms
----------------------------------------------------------------------------------------------------------------
Option 1................................................ 0 0.0 0 0.0
Option 2................................................ 618 0.8 51 0.1
Option 3................................................ 3,049 3.9 185 0.2
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
Table XI-9 shows that for the preferred option (Option 2), less
than a thousand small firms would be likely to incur direct costs
exceeding one percent of revenue, which accounts for less than one
percent of the approximately 78 thousand small in-scope firms.
Therefore, EPA does not consider the preferred option to have the
potential to cause a significant economic impact on a substantial
number of small entities. EPA acknowledges that additional small
builders may experience secondary impacts in the form of higher lot
prices as larger developers attempt to pass some of their compliance
costs through. The ability of large developers to pass-through costs to
builders will vary based on market conditions in the same manner that
the pass-through rate to the purchaser of the finished construction can
vary. These effects are addressed as part of the sensitivity analysis
in Appendix 8-1 of the RFA Chapter in the Economic Analysis.
Additionally, as noted above, some of these small builders may also be
copermittees who are required to be in compliance with these standards.
To the extent they are copermittees, they are not accounted for
[[Page 72597]]
in the firms incurring costs. However, all costs have been attributed
to firms. Allocating costs over a broader number of firms may or may
not increase the estimated impacts, but spreads the costs over a larger
number of firms.
XII. Cost-Effectiveness Analysis
For many effluent guidelines, EPA performs a cost-effectiveness (C-
E) analysis using toxic-weighted pound equivalents. The C-E analysis is
useful for describing the relative efficiency of different
technologies. The pollutant removals estimated for today's proposed
rule are all based on sediment. While EPA expects that today's rule
would also result in a significant reduction of other pollutants
associated with sediment at construction sites, such as nutrients and
metals, and other pollutants found in urban stormwater runoff, such as
organics, oil and grease, pesticides and herbicides, the Agency has not
quantified these reductions. The Agency does not have a methodology for
converting sediment, measured as TSS or turbidity, into toxic-weighted
pound equivalents for a C-E analysis. Instead, EPA compared the cost of
each regulatory option to the pounds of sediment removed. This
unweighted pollutant removal analysis is meaningful because it allows
EPA to compare the cost effectiveness of one option against another,
and to other sediment reduction efforts. Table XII-1 shows a comparison
of the cost-effectiveness of the options for controlling sediment
discharges. EPA notes that the total pollutant reductions for Options 2
and 3 are likely upper-bound estimates, because it is very difficult to
estimate baseline sediment discharges from this industry given the
variation in stormwater discharge rates, sediment concentrations and
the range of conditions present on construction sites across the
country.
Table XII-1--Cost-Effectiveness of Options
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Compliance Cost (millions $132.2 $1,891.0 $3,796.5
2008$).......................
Sediment Removed (million lbs/ 670 26,426 50,413
yr)..........................
Cost per Pound Removed ($/lb). $0.20 $0.07 $0.08
------------------------------------------------------------------------
Source: Economic Analysis.
EPA notes that changes in the loading reduction estimates, as
discussed earlier, would affect the cost per pound estimates presented
in Table XII-1.
XIII. Non-Water Quality Environmental Impacts
Under sections 304(b) and 306(b) of the CWA, EPA is to consider the
``non-water quality environmental impacts'' (NWQEI) when setting ELGs
and NSPS. EPA used various methods to estimate the NWQEI for each of
the options considered for today's proposed rule.
A. Air Pollution
EPA estimates that today's proposed rule would have no significant
effect on air pollution because none of the approaches considered would
significantly alter the use of heavy equipment at construction sites,
nor the manner in which construction sites are prepared. Accordingly,
the levels of exhaust emissions from diesel-powered heavy construction
equipment and fugitive dust emissions generated by construction
activities would not change substantially from current conditions under
the proposed rule. Use of active treatments systems that utilize
diesel-powered pumps and generators would produce additional emissions,
however, these emissions are expected to be small compared to current
emissions for this industry. EPA estimates that fuel combustion used by
ATS would increase industry emissions by approximately 0.3% under
Option 2 and 0.5% under Option 3. Increased emissions for Option 1 are
expected to be less than 0.1%.
B. Solid Waste Generation
Generation of solid waste could be affected under Options 2 or 3
because of the large volumes of sediment contaminated with polymers or
other chemicals that would accumulate in sediment basins. Where
permittees are using polymers or other chemicals to treat stormwater,
then sediment accumulated in sediment basins or filter backwash waters
may need to be handled as solid waste, depending on the nature of the
chemical used. However, most dischargers using chemical additives are
expected to select polymers that would enable the operator to apply
solids (i.e., sediment) on-site to avoid the transportation and
disposal costs associated with hauling off-site. For example, chitosan
is biodegradable and discussions with vendors indicate that accumulated
sediments containing chitosan are usually incorporated as fill
materials on-site. If ATS systems utilize bag or cartridge particulate
filters, then disposal of these filters would produce additional solid
waste. EPA expects that these filters can be managed as nonhazardous
solid waste. If states decide to regulate sediment containing polymers
as solid waste, then generation of solid waste could be substantially
affected.
The Administration recently created an initiative to strengthen
control of marine debris, which includes any man-made, solid material
that enters the nation's waterways either directly or indirectly via
land- and ocean-based sources. Materials from construction sites may
become marine debris if they are improperly disposed of or maintained
(California Coastal Commission, June 2006). However, many actions can
be taken at construction sites to prevent materials used on-site from
becoming marine debris. For example, permittees can schedule regular
collection and disposal of trash before dumpsters become full, or
ensure that adequate waste and recycling receptacles are available and
properly covered. Today's guideline includes control measures that
should address these issues and preventative actions. (Source:
Eliminating Land-based Discharges of Marine Debris in California: A
Plan of Action From the Plastic Debris Project, California Coastal
Commission, June 2006, available on the Internet at: http://www.plasticdebris.org/CA_Action_Plan_2006.pdf).
C. Energy Usage
The consumption of energy as a result of today's proposed rule is
not expected to be significant regardless of the option selected
because the operations that currently consume energy (both direct
fossil fuel use and electricity) will not be changing to any
substantial degree during land disturbance. Use of active treatment
systems that utilize diesel-powered pumps and generators would result
in increased fuel consumption. Likewise, the installation of larger
sediment basins would require
[[Page 72598]]
additional run-time for construction equipment. However the additional
fuel consumption for these activities is expected to be small compared
to current consumption for this industry. EPA estimates that gasoline
and diesel fuel consumption due to portable generators and pumps used
as part of an ATS would be approximately 22 million gallons per year
under Option 2 and approximately 45 million gallons under Option 3.
This represents an increase in fuel usage by the industry of 0.3% under
Option 2 and 0.5% under Option 3. Increased fuel consumption under
Option 1 is expected to be less than 0.1%. In addition, polymers such
as polyacrylamide are produced from petroleum, so additional
polyacrylamide usage to treat construction site stormwater runoff would
result in increased petroleum consumption. However, usage on
construction sites is not expected to significantly increase demand for
acrylamide (U.S. acrylamide demand in 2001 was estimated to be
approximately 253 million pounds, and additional usage on construction
sites would be small). Chitosan, another polymer commonly used on
construction sites, and the basis for EPA's BAT option, is manufactured
from crustacean shells. Therefore, additional petroleum and energy
consumption due to chitosan production and usage is expected to be
small. If every site subject to the turbidity limit were to use
chitosan, then total chitosan acetate usage (assuming a dosage of 2 mg/
L) under Option 2 would be approximately 2 million pounds per year,
while under Option 3 would be approximately 2.3 million pounds per
year. By comparison, the global chitin market is estimated to be
approximately 113 million annually pounds by 2012. See section 11 of
the TDD for additional discussion.
XIV. Environmental Assessment
A. Introduction
In its Environmental Assessment (see ``Supporting Documentation''),
EPA evaluated environmental impacts associated with the discharge of
stormwater from construction activities.
As discussed in Section VII, construction stormwater discharges
have been documented to increase the loadings of several pollutants to
receiving surface waters. The most prominent and widespread pollutants
from construction sites are turbidity and TSS, which are primarily
caused by sediment. Discharges of metals, nutrients, and polycyclic
aromatic hydrocarbons (PAHs) have also been documented. Other possible
construction site pollutants include materials that exert biochemical
oxygen demand (BOD), pesticides and other toxic organic compounds.
Pollutants other than sediment derive from construction equipment
and materials, contaminants naturally present in a site's soils, or
contamination by some other source prior to the start of construction
activity at a site. Construction activities mobilize sediments and
other pollutants by disturbing soil and altering stormwater runoff
quantity and patterns. Construction equipment washes and irrigation of
revegetation areas, if not properly managed, can mobilize pollutants
during dry weather.
Surface water effects from construction site discharges include
physical and biological changes. Physical changes include increased
turbidity levels, increased total suspended solids concentrations,
increased sedimentation rates, increased levels of pollutants other
than sediment, and modified stream flow. Biological changes include
decreased organism abundance, modified species composition, and
decreased species diversity.
Sediment is the predominant pollutant from construction activity
and is also one of the most common sources of impairment under Clean
Water Act Section 303(d). According to the National Water Quality
Inventory Report to Congress: 2002 Reporting Cycle (USEPA, 2007),
sediment is the top source of impairment for streams and rivers in the
United States. Sediment and siltation impairs 100,446 stream and river
miles and turbidity or suspended solids impair 695,133 miles. In
addition, 1,317,938 acres of lakes and reservoirs have been documented
as impaired by sediment or siltation and 376,832 acres are impaired by
turbidity or suspended solids. The report states that sediment also has
significant impacts on wetlands. Because only a subset of all surface
waters were assessed for water quality impairment during the 2002
Reporting Cycle, it is likely that the quantity of surface water
impaired by sediment is greater than the numbers above indicate.
Construction site discharges impair or place additional stress on
already impaired waterbodies. Twenty-four states have been able to
identify construction activity as a cause of impairment for some
waterbodies under their jurisdiction. Identifying the causes of a
waterbody's impairment is often a challenging task, however, so it is
likely that construction activity is a cause of impairment for more
waterbodies than states have been able to identify at this time.
Ecological impacts from sediment discharges to surface waters can
be acute or chronic and vary in severity depending on the quantity of
sediment discharged, the nature of the receiving waterbody and aquatic
community, and the length of time over which discharges take place.
Sediment can depress aquatic organism growth, reproduction, and
survival, leading to declines in organism abundance and changes in
community species composition and distribution. Threatened and
Endangered (T&E) and other special status species are particularly
susceptible to adverse habitat impacts. According to the United States
Fish and Wildlife Service, increased sedimentation is one of the main
contributors to the demise of some fish, plants, and invertebrates (see
Drennen, Daniel J. United States Fish and Wildlife Service. 2003. The
urban life of darters (excessive sedimentation endangers darter
fishes). Endangered Species Bulletin. Also see ``Endangered Species
Program: Species Information'' at http://www.fws.gov/endangered/wildlife.html).
There are numerous processes by which sediment affects aquatic
communities. Sediment deposition on waterbody beds can bury benthic
communities, smothering fish eggs and other immobile benthic organisms
and severing connections to organisms in the water column.
Sedimentation also modifies certain types of benthic habitats by
filling crevices and burying hard substrates, making recolonization by
previously existing organisms difficult unless the sediment is removed.
In the water column, increased turbidity levels block light needed
for photosynthesis by submerged aquatic vegetation (SAV), resulting in
its reduced growth or death. Because SAV is a primary producer depended
upon by many other aquatic organisms in ecosystems, its loss or
reduction can create an impact cascade throughout an entire community,
lowering the community's total health and productivity. Increased
turbidity also impairs the ability of visual predators (e.g., many fish
species) to forage successfully. Increased TSS concentrations in the
water column can also impair fish gill function, reducing the ability
of fish to breathe. These and additional processes by which sediment
discharges impact aquatic ecosystems are discussed in more detail in
the Environmental Assessment.
Increased sediment and turbidity levels in surface waters can also
[[Page 72599]]
adversely affect direct human uses of water resources such as navigable
channels, reservoirs, drinking water supplies, industrial process
water, agricultural uses, and recreational uses, as well as property
values.
Sediment deposition on riverbeds can fill and impede use of
navigable channels. Between 1995 and 2006, the U.S. Army Corps of
Engineers (USACE) funded approximately 3,700 dredging projects at a
cost of more than $6.3 million (2007 dollars) to remove more than 2.3
billion cubic yards of sediment from U.S. navigable waters (United
States Army Corps of Engineers Dredging Database. 2007).
Reservoirs and lakes serve a variety of functions, including
drinking water storage, hydropower supply, flood control, and
recreation. Sediment deposition on reservoir and lake beds reduces
their capacity to serve these functions. An increase in sedimentation
rate reduces the useful life of these waterbodies unless measures are
taken to reclaim their capacity. In waters serving as a drinking water
source, increased turbidity levels and TSS concentrations degrade water
quality unless treatment levels are increased to remove the additional
sediment.
Sediment can also have negative effects on industrial activities.
Suspended sediment increases the rate at which hydraulic equipment,
pumps, and other equipment wear out, causing accelerated depreciation
of capital equipment. Sediment can clog cooling water systems at power
plants and other large industrial facilities.
Irrigation water used for agriculture that contains sediment or
other pollutants from construction site discharges can harm crops and
reduce agricultural productivity. Suspended sediment can form a crust
over a field, reducing water absorption, inhibiting soil aeration, and
preventing emergence of seedlings. Sediment can also coat plant leaves,
inhibiting plant growth and reducing crop value and marketability.
Other pollutants can damage soil quality (Clark, Edwin, Jennifer A.
Haverkamp, and William Chapman. 1985. ``Eroding Soils: The Off-Farm
Impacts.'' Washington, DC: The Conservation Foundation).
Sediment deposition in river channels, ditches, and culverts
reduces their capacity and can increase flood levels and frequency,
increasing the level of adjoining property damage from flooding.
Sediment can also lower values of property near impacted surface waters
by degrading surface water appearance (ibid). Degraded aesthetics can
also lower the value of surface waters for recreational activities such
as boating, fishing, and swimming.
Sediment is the primary source of the pollutants turbidity and TSS
known to be associated with construction activity, but as stated
earlier in this section, other pollutants such as nutrients, PAHs, and
metals are also discharged from construction sites. Environmental
impacts associated with these other pollutants are qualitatively
discussed in the Environmental Assessment. The remaining discussion in
this section describes EPA's quantitative analysis of the water quality
impacts associated with sediment discharges from construction activity.
Additional qualitative information on sediment impacts is also provided
in the Environmental Assessment. EPA solicits submission of additional
information on discharges from construction activity and environmental
impacts associated with those discharges.
B. Methodology for Estimating Environmental Impacts and Pollutant
Reductions
This section describes the methodology EPA used to quantitatively
assess water quality impacts from construction activity sediment
discharges and the water quality benefits expected from today's
proposed options. Other pollutants from construction activity, such as
nutrients, PAHs, and metals, create water quality impacts, but the
information available to EPA on discharges other than sediment from
construction sites is insufficient for EPA to quantitatively analyze
their impacts. These discharges are instead discussed qualitatively in
the Environmental Assessment.
1. National Analysis
EPA conducted a national quantitative analysis of water quality
impacts associated with construction activity sediment discharges. To
conduct this analysis, EPA used a Spatially Referenced Regressions on
Watershed Attributes (SPARROW) model. SPARROW is a statistically-based
modeling approach developed by the United States Geological Survey that
relates measured levels of water quality components to the attributes
of contributing watersheds. SPARROW has been used previously to
estimate deliveries of nitrogen and phosphorus to surface waters from
point, nonpoint, and atmospheric sources at both national and regional
scales. The sediment version of SPARROW allows EPA to estimate levels
of total suspended solids (TSS) in the larger freshwater surface waters
(Reach File 1 level) in the contiguous 48 states (see description of
Enhanced Reach File 1.2 (RF1) in Section VI). EPA used this analysis to
examine expected water quality impact improvements under various
options relative to current levels of water quality impact. To the
extent that changes in the loadings estimates, as discussed above in
the sensitivity analysis, may be lower, then the lower loadings
estimates would lower the SPARROW estimates of water quality changes by
a comparable amount. A full description of EPA's analysis is provided
in the Environmental Assessment.
SPARROW estimates total sediment loadings to estuaries but is
unable to estimate sediment concentrations in estuaries. EPA instead
used the Dissolved Concentration Potential (DCP) approach developed by
the National Oceanic and Atmospheric Administration (NOAA) to estimate
ambient concentrations of conserved contaminants introduced to
estuaries that are subject to mixing and dilution. NOAA has provided
DCP factors for most major estuaries in the contiguous 48 states. These
factors allow estimation of estuarine TSS concentrations without
detailed numerical simulation modeling. A full description of this
analysis is provided in the Environmental Assessment.
The compliance options vary in the number of RF1 river and stream
miles they improve. Option 1 improves water quality in 175,775 RF1
reach miles. Option 2 improves water quality in 522,120 RF1 reach
miles. Option 3 improves water quality in 542,408 RF1 reach miles. In
addition to improving water quality in rivers and streams, each option
also improves water quality in other types of surface waters such as
lakes and estuaries.
Construction activity in the United States is unevenly distributed
among watersheds. It is highly concentrated in some areas and very
sparse in others. For this reason, EPA presents information on water
quality improvements associated with the compliance options for two
different groups of watersheds. The first group contains the 10 percent
of RF1 watersheds in the conterminous United States with the highest
number of construction acres during the 1992-2001 time period (``Top
10%'') and includes 115,568 RF1 stream miles. This group represents 75
percent of all construction activity during this time period and
therefore reflects conditions associated with the majority of
construction site activity. The second group encompasses all RF1
watersheds containing construction activity during the 1992-2001 time
period (``All'') and
[[Page 72600]]
includes 517,982 RF1 stream miles. Median TSS concentration reductions
under the compliance options are greater for the ``Top 10%'' group
because construction sites exert a greater influence on water quality
in these reaches. This is because construction activities comprise a
higher percentage of watershed area in these watersheds.
For the group of watersheds representing 75 percent of construction
activity during the 1992-2001 time period, Option 1 reduces sediment
discharges by approximately 0.5 billion pounds per year. It reduces
median TSS concentration from 248.34 mg/L to 248.05 mg/L, or 0.29 mg/L.
Option 2 reduces sediment discharges more than 19 billion pounds per
year. It reduces median TSS concentration from 248.34 mg/L to 239.16
mg/L, or 9.18 mg/L. Option 3 reduces sediment discharges by more than
37 billion pounds per year. It reduces median TSS concentration from
248.34 mg/L to 231.65 mg/L, or 16.69 mg/L. The corresponding changes in
the group of ``All'' RF1 reaches are shown in Table XIV-1 below.
The median concentrations in Table XIV-1 reflect conditions over
multi-year time periods and across a large geographic area. Most
construction site discharges are driven by precipitation events and are
therefore highly episodic. In-stream TSS concentrations deriving from
construction site discharges tend to be higher during and shortly after
precipitation events and lower during periods in between precipitation
events. In addition, the average median concentrations in Table XIV-1
do not describe the high level of variability seen among different
locations affected by construction site discharges. For more
information on these sources of variability, see the Environmental
Assessment.
Table XIV-1--RF1 River and Stream Median TSS Concentration Improvements Under Three Compliance Options
----------------------------------------------------------------------------------------------------------------
``All'' RF1
``Top 10%'' RF1 Reduction in watersheds-- Reduction in
watersheds--median median TSS median TSS median TSS
TSS concentration concentration concentration concentration
(mg/L) (mg/L) (mg/L) (mg/L)
----------------------------------------------------------------------------------------------------------------
Baseline................................. 266.86 ............... 287.22 ...............
Option 1................................. 266.85 0.01 287.03 0.19
Option 2................................. 257.10 9.76 282.23 4.99
Option 3................................. 250.13 16.73 279.71 7.51
----------------------------------------------------------------------------------------------------------------
Estimates from EPA's national quantitative analysis of water
quality impacts were used for an analysis of the potential economic
benefits of each of today's proposed options. See Section XV for
additional information on the economic benefits analysis.
2. Case Study Analysis
In addition to a national analysis of water quality, EPA is
conducting a case study analysis. SPARROW allows national examination
of water quality at the scale of Reach File 1 surface waters, which is
a relatively coarse scale. Reach File 1 surface waters do not include
many smaller rivers and streams in the national surface water network.
In order to quantitatively examine the nature of water quality impacts
from construction activity on smaller rivers and streams, EPA is using
the Soil and Water Assessment Tool (SWAT) in combination with the
Agricultural Policy--Environmental Extender (APEX) model. SWAT is a
watershed-scale simulation model and APEX is a site-scale simulation
model. SWAT-APEX was developed by the United States Department of
Agriculture's Agricultural Research Service (USDA-ARS). Because of
higher computational requirements for the SWAT-APEX model relative to
the SPARROW model, EPA has chosen to use the SWAT-APEX model for a
single watershed in the Dallas metropolitan region that has experienced
significant levels of construction. A description of the case study
methodology is provided in the Environmental Assessment. The case study
has not been completed, so EPA intends to consider the results of the
case study and include the case study analysis in the documentation in
support of the final rule. EPA requests comments on this modeling
approach.
XV. Benefit Analysis
EPA has assessed the potential benefits associated with the
proposed rule by identifying various types of benefits that can result
from reducing the level of sediment and turbidity being discharged from
construction sites. Where possible, EPA has attempted to quantify and
monetize benefits attributable to the regulatory options. Section XIV,
Environmental Assessment, established the analytical framework for the
benefits analysis.
A. Benefits Categories Estimated
Discharges of sediment and other pollutants from construction
activity can have a wide range of effects on down stream water
resources. As discussed in Section XIV, there are numerous potential
impacts to local aquatic environments, and there are also consequences
for human welfare. Human activities and uses affected by construction
discharge-related environmental changes include recreation, commercial
fishing, public and private property ownership, navigation, and water
supply and use. Sediments and other pollutants in discharges from C&D
sites can also cause environmental changes that affect the non-use
values that individuals have for the assurance that environmental
resources are in good condition. These existence services, sometimes
described as ``ecological benefits,'' are reflected under the Clean
Water Act as aquatic life, wildlife, and habitat designated uses.
Stormwater control measures reduce the amount of sediment that
reaches waterways from C&D sites. As sediment loads are reduced, TSS
and turbidity levels in adjacent waters decline, which in turn
increases the production of environmental services that people and
industry value. These environmental services valued by industry and the
public include: recreation, public and private property ownership,
navigation, water supply and use, and existence services. Table XV-1
provides a summary of various water related activities and their
associated environmental services potentially impacted by discharges of
sediment from C&D sites.
[[Page 72601]]
Table XV-1--Summary of Benefits From Reducing Sediment Runoff from Construction Sites
----------------------------------------------------------------------------------------------------------------
Environmental service
potentially affected by
Activity runoff from construction Benefits category
sites
----------------------------------------------------------------------------------------------------------------
Recreation.......................... Aesthetics, water clarity, Non-market direct use.
--Outings........................... water safety, degree of
--Boating........................... sedimentation, weed growth,
--Swimming.......................... fish and shellfish
--Fishing........................... populations.
Commercial Fishing and Shellfishing. Fish and shellfish Markets.
populations.
Property Ownership.................. Aesthetics, safety of Markets.
property from flooding,
property value.
Water Conveyance and Supply......... Turbidity, degree of Avoided Costs.
--Water conveyance.................. sedimentation.
--Water storage.....................
--Water treatment...................
Transportation...................... Degree of sedimentation..... Avoided Costs.
Water Use........................... Turbidity................... Avoided Costs.
--Industrial........................
--Municipal.........................
--Agricultural......................
Knowledge (No Direct Uses).......... Environmental health........ Non-market existence value.
----------------------------------------------------------------------------------------------------------------
However, not all of the changes in these services can be readily
quantified as it requires a thorough understanding of the relationship
between changes in water pollutant loads and production of
environmental services. This problem is exacerbated by the fact that
both the pollutant source and load reductions are relatively small,
sporadic, numerous, and dispersed over a wide area when compared to
more traditional sources of pollutants, such as a wastewater treatment
plant. As a result of the difficulty in assessing changes in each
environmental service associated with an activity listed in Table XV-1,
EPA chose to focus on two main categories of benefits: avoided costs
and non-market benefits. The specific categories of avoided costs
considered were: Reservoir dredging, navigable waterway dredging, and
drinking water treatment and sludge disposal. Non-market benefits
considered were improvements in recreational activities and existence
value from improvements in the health of aquatic environments.
B. Quantification of Benefits
Reduced costs for water treatment, water storage, and navigational
dredging are three benefit categories that EPA is using to estimate the
benefits of the proposed rule. EPA used estimates of changes in
sediment deposition and in-stream TSS concentrations from the SPARROW
model runs to quantify the reduction in the amount of sediment that
would need to be dredged from reservoirs and the reduction in the
amount of TSS that must be removed from the source water used for the
production of potable water. The SPARROW results provided these changes
for each waterbody in the RF1 network (approximately 60,000 stream
segments). This allowed EPA to associate these changes with: Data from
the U.S. Army Corps of Engineers on navigable waterways that are
routinely dredged; EPA data on source water for drinking water
treatment plants; and USGS data on the location of reservoirs used for
hydroelectric power, flood control, a source for drinking water, and
recreation. SPARROW results also allowed for the estimated change in
TSS concentrations in the RF1 network which were mapped to a Water
Quality Index (WQI). The index is used to map changes in pollutant
parameters, such as TSS, to effects on human uses and support for
aquatic and terrestrial species habitat. Section 10.1.1 of the
Environmental Assessment Document provides detail on the WQI index and
its application to the benefits analysis for the C&D regulation. The
WQI presents water quality by linking to suitability for various human
uses, but does not in itself identify associated changes in human
behavior. Behavioral changes and associated welfare effects are implied
in the proposed benefit transfer approach for measuring economic
values. For more on the benefit transfer approach see Appendix 7-1
Meta-Analysis Results from the Economic Analysis.
The benefits analysis results are shown in Table XV-2. To the
extent that changes in the loadings estimates, as discussed above in
the sensitivity analysis may lower the loadings estimates then the
lower loadings estimates would lower the SPARROW estimates of water
quality changes and the associated benefits presented in Table XV-2 by
a comparable amount.
Table XV-2--Annual Benefits (Million 2008 $) for Options
------------------------------------------------------------------------
Regulatory options
--------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Avoided Costs
------------------------------------------------------------------------
Reservoir Dredging..................... $0.6 $17.6 $30.6
Navigable Waterway Dredging............ 1.0 12.9 27.2
Drinking Water Treatment............... 0.2 7.4 13.1
--------------------------------
Total Avoided Costs \a\............ 1.8 37.9 70.9
Welfare Improvements................... 16.6 295.0 398.5
--------------------------------
[[Page 72602]]
Total Monetized Benefits........... 18.4 332.9 469.5
------------------------------------------------------------------------
\a\ Totals do not add due to rounding.
Source: Economic Analysis; Environmental Assessment.
XVI. Monetized Benefit-Cost Comparison
EPA has conducted a benefit-cost analysis of the C&D effluent
guidelines proposed in today's notice. The benefit-cost analysis may be
found in the complete set of support documents. Sections XI, XIV, and
XV of this notice provide additional details of the benefit-cost
analysis.
Table XVI-1 provides the results of the benefit-cost analysis. A
discount rate of 3% was used to annualize costs and benefits. To the
extent that changes in the loadings estimates, as discussed above in
the sensitivity analysis may lower the loadings estimates, then the
lower estimates would lower the SPARROW estimates of water quality
changes and the associated benefits presented in Table XVI-1 by a
comparable amount. Moreover, changes in the RUSLE parameters as
described earlier would reduce EPA's estimates of runoff volumes
requiring treatment, which would reduce the costs of Options 2 and 3.
Table XVI-1--Total Annualized Benefits and Costs of Options
[Year 2008 $]
------------------------------------------------------------------------
Monetized benefits
Option Social costs (2008 (2008 $ millions per
$ millions per year) year)
------------------------------------------------------------------------
Option 1.................... $132 $18
Option 2.................... 1,891 333
Option 3.................... 3,797 470
------------------------------------------------------------------------
XVII. Approach to Determining Long-Term Averages, Variability Factors,
and Effluent Limitations and Standards
This section describes the statistical methodology used to develop
long-term averages, variability factors, and limitations for BAT and
NSPS. For simplicity, the following discussion refers only to effluent
limitations guidelines; however, the discussion also applies to new
source performance standards. EPA also is soliciting comments on a
limitation on pH as described in Section XX. Such a limitation would
not be developed using the statistical methodology described below.
Instead, EPA typically establishes a range of acceptable values from 6
to 9 to protect against extreme acidity or alkalinity.
A. Definitions
The proposed limitations for turbidity, as presented in today's
notice, are provided as the maximum daily discharge limitation.
Definitions provided in 40 CFR 122.2 state that the ``maximum daily
discharge limitation'' is the ``highest allowable `daily discharge.'' '
``Daily discharge'' is defined as the `` `discharge of a pollutant'
measured during a calendar day or any 24-hour period that reasonably
represents the calendar day for purposes of sampling.'' To be
consistent with the daily discharge definition, EPA averaged all
measurements recorded each day from each treatment system before
calculating the proposed limitations. In complying with the final rule,
the number of measurements required each day would be determined by the
permit authority. EPA would, however, discourage the practice of
allowing the number of monitoring samples to vary arbitrarily merely to
allow a site to achieve a desired average concentration, i.e., a value
below the limitation that day. EPA expects that enforcement authorities
would prefer, or even require, monitoring samples at some regular, pre-
determined frequency. As explained below, if a site has difficulty
complying with the limitation on an ongoing basis, then the site should
improve its equipment, operations, and/or maintenance.
B. Data Selection
The proposed limitations are based upon data from sites located in
three western states: California, Oregon and Washington. EPA is
soliciting data (see Section XX for a detailed request for data), in
part, to evaluate whether the limitations are appropriate for other
locations. Typically, EPA qualitatively reviews all the data before
making its data selection used to calculate the limitations in final
rules. EPA generally selects only from facilities that have the model
technologies for the option and meet several other criteria. One
criterion generally requires that the influents and effluents from the
treatment components represent typical wastewater from the industry,
with no incompatible wastewater from other sources (e.g., sanitary
wastes). A second criterion typically ensures that the pollutants were
present in the influent at sufficient concentrations to evaluate
treatment effectiveness. A third criterion generally requires that the
facility demonstrate good operation of the treatment component (e.g.,
data sets for episodes with generally high pollutant concentrations are
often excluded). A fourth criterion typically requires that the data
can not represent periods of treatment upsets or shut-down periods. EPA
solicits comment on its data selection and criteria.
EPA relied on data from two vendors and the Oregon Department of
Environmental Quality to calculate limits. Sites were located in
California, Oregon and Washington and employed chitosan-enhanced sand
filtration. Data were from 19 treatment systems located at 17 different
sites. For some of these sites, EPA has data on site locations,
treatment systems, flowrates, operating conditions, and treatment
volumes. For other sites, this information was not available from the
vendors. In total, EPA
[[Page 72603]]
has 6,537 individual data points on turbidity effluent from these
systems. The influent concentrations in these data points are generally
substantially lower than the concentrations modeled by EPA in its RUSLE
analysis as discussed in section IX. F, which is not consistent with
the first criterion above. EPA will be examining this discrepancy
between this proposed rule and the final rule and its affect on EPA's
analysis. In its calculations of the proposed limitations, EPA applied
its criteria and excluded data that do not appear to demonstrate
typical performance (e.g., extremely large values for a measurement,
daily value, and/or site) and typographical errors. EPA retained 6,003
measurements after incorporating data exclusions. For the final rule,
EPA intends to reevaluate its exclusions and inclusions of data, and
seek additional information about the sites used as a basis for the
proposed limitations. EPA also intends to evaluate, and incorporate as
appropriate, any additional data provided by commenters and other
sources. For example, a memorandum by GeoSyntec Consultants (see DCN
41114) contains additional data on ATS performance that EPA has not
considered in evaluating the limitations.
C. Statistical Percentile Basis for Limitations
The daily maximum limitation is an estimate of the 99th percentile
of the distribution of the daily measurements. EPA calculates the daily
maximum limitation based upon a percentile chosen with the intention,
on one hand, to accommodate reasonably anticipated variability within
the control of the site and, on the other hand, to reflect a level of
performance consistent with the Clean Water Act requirement that these
effluent limitations be based on well operated and maintained
facilities. The percentile for the daily maximum limitation is
estimated using the product of the long-term average and the
variability factor. For the proposed rule, EPA estimated the long-term
average and variability factor using a statistical model based upon the
lognormal distribution. The Development Document describes this model
and others that EPA will consider in developing the final regulations.
D. Daily Maximum Limitation
In establishing the daily maximum limitation, EPA's objective is to
restrict the discharges on a daily basis at a level that is achievable
for a site that targets its treatment at the long-term average. EPA
acknowledges that variability around the long-term average results from
normal operations. This variability means that at certain times sites
may discharge at a level that is greater than the long-term average.
This variability also means that sites may at other times discharge at
a level that is considerably lower than the long-term average. To allow
for these possibly higher daily discharges, EPA has established the
daily maximum limitation that is based upon a long-term average and a
variability factor.
1. Long-Term Average
In the first of two steps in estimating the different types of
limitations, EPA determines an average performance level (the ``long-
term average'') that a site with well-designed and operated model
technologies (which reflect the appropriate level of control) is
capable of achieving. This long-term average is calculated from the
data from the sites using the model technologies for the option. EPA
expects that all sites subject to the limitations will design and
operate their treatment systems to achieve the long-term average
performance level on a consistent basis because sites with well-
designed and operated model technologies have demonstrated that this
can be done. The proposed long-term average of 2.77 NTU is the median
value of 19 long-term averages collected from 17 construction sites
(two sites each had two treatment systems). The long-term averages
ranged from a minimum of 0.43 NTU to a maximum of 21.86 NTU. The median
is the midpoint of the 19 values, and thus, nine of the system averages
are above the proposed long-term average and nine are below.
A site that discharges consistently at a level near the proposed
daily maximum limitation of 13 NTU would not be operating its treatment
to achieve the long-term average of 2.77 NTU, which is part of EPA's
objective in establishing the daily maximum limitations. Targeting
treatment to achieve the limitation may result in frequent values
exceeding the limitation due to routine variability in treated
effluent. Operators should instead target the long-term average, and if
they do so, should be able to consistently discharge below the limit.
To ensure that this is possible, EPA has incorporated an allowance for
variability into the limitation.
2. Variability Factor
In the second step of developing a limitation, EPA determines an
allowance for the variation in pollutant concentrations when processed
through well designed and operated treatment systems. This allowance
for variance incorporates all components of variability including
process and wastewater generation, sample collection, shipping,
storage, and analytical variability. This allowance is incorporated
into the limitations through the use of the variability factors, which
are calculated from the data from the sites using the model
technologies. If a site operates its treatment system to meet the
relevant long-term average, EPA expects the site to be able to meet the
limitations. The variability factor assures that normal fluctuations in
a site's treatment are accounted for in the limitation. By accounting
for these reasonable excursions above the long-term average, EPA's use
of variability factors results in limitations that are generally well
above the actual long-term averages. The proposed variability factor of
4.58 is the arithmetic average of 19 variability factors collected from
the 17 construction sites also used to calculate the proposed long-term
average. The variability factors ranged from a minimum of 1.96 to a
maximum of 10.85.
In its evaluation of the proposed daily variability factor, EPA
examined TSS limitations promulgated during the last 10 years.
Engineering references (e.g. , American Society of Civil Engineers
(ASCE)/American Water Works Association (AWWA), Water Treatment Plant
Design, 4th Edition, McGraw-Hill, NYC, NY, 2005) cite conversion
factors for turbidity to TSS values. Because of the generally accepted
relationship between turbidity and TSS, EPA assumes that the
variability also would be similar for turbidity and TSS. Furthermore,
although the regulations were based upon different treatment
technologies, wastewater professionals generally agree that TSS and
turbidity can be adequately controlled by many different types of
treatment systems. Furthermore, each regulation used data from well
operated and controlled treatment processes in determining the
variability of TSS. As shown in the TDD, the values are relatively
close in value, ranging from 2.9 to 5.4, with an arithmetic average of
4.1. Because the C&D technology is a relatively simple one, EPA
concluded that the relatively large value of 4.58 for the proposed
variability factor still ensures a level of control that EPA considers
possible for a simple technology.
E. Engineering Review of Limitations
In conjunction with the statistical methods, EPA performs an
engineering review to verify that the limitations are reasonable based
upon the design and expected operation of the control technologies and
the facility conditions. EPA compared the value of the
[[Page 72604]]
proposed limitation to the data values used to calculate the
limitation. Most monitoring results were substantially lower than the
proposed turbidity limit. In most instances where the effluent
turbidity was higher than the proposed turbidity limit, the data
indicated sudden jumps in turbidity levels which suggested that the
treatment system was not being operated properly.
For the final rule, EPA will perform a more in-depth examination of
the range of performance by the treatment systems used as the basis of
the limitation. Data from some treatment systems demonstrate the best
available technology. Data from other systems may demonstrate the same
technology, but not the best demonstrated design and operating
conditions for that technology. For these sites, EPA will evaluate the
degree to which the site can upgrade its design, operating, and
maintenance conditions to meet the limitations. If such upgrades are
not possible, then EPA will modify the limitations to reflect the
lowest levels that the technologies can reasonably be expected to
achieve. EPA recognizes that, as a result of the proposed limitation,
some dischargers may need to improve treatment systems, erosion and
sediment controls, and/or treatment system operations in order to
consistently meet the effluent limitation. EPA determined that this
consequence is consistent with the Clean Water Act statutory framework,
which requires that discharge limitations reflect the best available
technology.
F. Monthly Average Limitations
Because this industry generally does not have continuous
discharges, EPA is proposing only a daily maximum limitation that would
apply only on days when the site discharges. While the actual
monitoring requirements will be determined by the permitting authority,
the Agency has assumed that sites will monitor every day that the
discharge occurs. In similar situations when it has assumed daily
monitoring for other industries, EPA typically has also promulgated
monthly average limitations with the daily maximum limitations. In
establishing monthly average limitations, EPA's objective is to provide
an additional restriction to help ensure that sites target their
average discharges to achieve the long-term average. The monthly
average limitation requires continuous dischargers to provide on-going
control, on a monthly basis, that complements controls imposed by the
daily maximum limitation. However, EPA expects C&D discharges to be
intermittent (only during and after precipitation) with substantial
variability in rainfall and site characteristics over the life of the
project. Under these circumstances, EPA believes that it appropriate to
rely on a daily maximum to ensure that systems are being operated
properly. EPA solicits comment on whether monthly average limitations
or some other approach would be appropriate to further ensure that
sites target treatment at the long-term average.
XVIII. Regulatory Implementation
A. Relationship of Effluent Guidelines to NPDES Permits and ELG
Compliance Dates
Effluent guidelines act as a primary mechanism to control the
discharge of pollutants to waters of the U.S. Once finalized, the
proposed C&D regulations would be applied to C&D sites through
incorporation in individual NPDES permits or a general permit issued by
EPA or authorized states or tribes under section 402 of the Act.
The Agency has developed the limitations for this proposed rule to
cover the discharge of pollutants for this point source category. In
specific cases, the NPDES permitting authority may elect to establish
effluent limitations for pollutants not covered by this regulation. In
addition, if state water quality standards or other provisions of state
or federal law authorize or require limits on pollutants not covered by
this regulation or authorize or require more stringent limits or
standards on pollutants to achieve compliance, the permitting authority
has authority to apply those effluent limitations or standards in their
NPDES permits. EPA does not intend for this rule to preclude states
from including controls in their stormwater programs that are found to
be effective at controlling discharges of pollutants.
Since EPA expects that the effluent guidelines requirements will be
implemented over time as states revise their general permits, EPA
expects full implementation within five years of the effective date of
the final rule, currently required to be promulgated in December 2009,
which would be 2014.
B. Upset and Bypass Provisions
A ``bypass'' is an intentional diversion of the streams from any
portion of a treatment facility. An ``upset'' is an exceptional
incident in which there is unintentional and temporary noncompliance
with technology-based permit effluent limitations because of factors
beyond the reasonable control of the permittee. EPA's regulations
concerning bypasses and upsets for direct dischargers are set forth at
40 CFR 122.41(m) and (n).
Because much of today's proposed rule includes requirements for the
design, installation, and maintenance of erosion and sediment controls,
EPA considered the need for a bypass-type provision in regard to large
storm events. However, EPA did not specifically include such a
provision in the text of the proposed regulation because the proposed
ELGs only require dischargers to meet a numeric turbidity limit for
discharges from storm events smaller than the 2-year, 24-hour storm.
Because EPA is not establishing requirements for control of larger
storm events, specific bypass provisions were not necessary. Standard
upset and bypass provisions are generally included in all NPDES
permits, and EPA expects this will be the case for construction
stormwater permits issued after this rule becomes effective.
C. Variances and Waivers
The CWA requires application of effluent limitation guidelines
established pursuant to section 301 to all direct dischargers. However,
the statute provides for the modification of these national
requirements in a limited number of circumstances. Moreover, the Agency
has established administrative mechanisms to provide an opportunity for
relief from the application of ELGs for categories of existing sources
for toxic, conventional, and nonconventional pollutants. ``Ability to
Pay'' and ``water quality'' waivers do not apply to conventional or
toxic pollutants (e.g., TSS, PCBs) and, therefore, do not apply to
today's proposed rule. However, the variance for Fundamentally
Different Factors (FDFs) may apply in some circumstances.
EPA will develop effluent limitations or standards different from
the otherwise applicable requirements if an individual discharging
facility is fundamentally different with respect to factors considered
in establishing the limitation of standards applicable to the
individual facility. Such a modification is known as a ``fundamentally
different factors'' (FDF) variance.
Early on, EPA, by regulation provided for the FDF modifications
from the BPT and BAT limitations for toxic and nonconventional
pollutants and BPT limitations for conventional pollutants for direct
dischargers. For indirect dischargers, EPA provided for modifications
for PSES. FDF variances for toxic pollutants were challenged judicially
and ultimately sustained by the Supreme Court. Chemical
[[Page 72605]]
Manufacturers Assn v. NRDC, 479 U.S. 116 (1985).
Subsequently, in the Water Quality Act of 1987, Congress added new
section 301(n) of the Act explicitly to authorize modifications of the
otherwise applicable BAT effluent limitations or categorical
pretreatment standards for existing sources if a facility is
fundamentally different with respect to the factors specified in
section 304 (other than costs) from those considered by EPA in
establishing the effluent limitations or pretreatment standard. Section
301(n) also defined the conditions under which EPA may establish
alternative requirements. Under section 301(n), an application for
approval of a FDF variance must be based solely on (1) information
submitted during rulemaking raising the factors that are fundamentally
different or (2) information the applicant did not have an opportunity
to submit. The alternate limitation or standard must be no less
stringent than justified by the difference and must not result in
markedly more adverse non-water quality environmental impacts than the
national limitation or standard.
EPA regulations at 40 CFR part 125, subpart D, authorizing the
Regional Administrators to establish alternative limitations and
standards, further detail the substantive criteria used to evaluate FDF
variance requests for direct dischargers. Thus, 40 CFR 125.31(d)
identifies six factors (e.g., volume of process wastewater, age and
size of a discharger's facility) that may be considered in determining
if a facility is fundamentally different. The Agency must determine
whether, on the basis of one or more of these factors, the facility in
question is fundamentally different from the facilities and factors
considered by EPA in developing the nationally applicable effluent
guidelines. The regulation also lists four other factors (e.g.,
infeasibility of installation within the time allowed or a discharger's
ability to pay) that may not provide a basis for an FDF variance. In
addition, under 40 CFR 125.31(b)(3), a request for limitations less
stringent than the national limitation may be approved only if
compliance with the national limitations would result in either (a) a
removal cost wholly out of proportion to the removal cost considered
during development of the national limitations, or (b) a non-water
quality environmental impact (including energy requirements)
fundamentally more adverse than the impact considered during
development of the national limits. EPA regulations provide for an FDF
variance for indirect dischargers at 40 CFR 403.13. The conditions for
approval of a request to modify applicable pretreatment standards and
factors considered are the same as those for direct dischargers.
The legislative history of section 301(n) underscores the necessity
for the FDF variance applicant to establish eligibility for the
variance. EPA's regulations at 40 CFR 125.32(b)(1) are explicit in
imposing this burden upon the applicant. The applicant must show that
the factors relating to the discharge controlled by the applicant's
permit which are claimed to be fundamentally different are, in fact,
fundamentally different from those factors considered by the EPA in
establishing the applicable guidelines. An FDF variance is not
available to a new source subject to NSPS.
D. Other Clean Water Act Requirements
Compliance with the provisions of this proposed rule would not
exempt a discharger from any other requirements of the CWA. Notable, if
construction activity results in the ``discharge of dredged or fill
material'' into waters of the U.S. the discharger at the C&D site must
obtain a separate permit under section 404 of the CWA.
XIX. Related Acts of Congress, Executive Orders, and Agency Initiatives
A. Executive Order 12866: Regulatory Planning and Review
Under section 3(f)(1) of Executive Order 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
Section 8.3, Comparison of Social Cost and Monetized Benefits in
Chapter 8 of the Economic Analysis. A copy of the analysis is available
in the docket for this action and the analysis is briefly summarized
here. Table XIX-1 provides the results of the benefit-cost analysis.
Table XIX-1--Total Annualized Benefits and Costs of the Regulatory
Options
------------------------------------------------------------------------
Social costs (2008 Monetized benefits
Option $ millions per (2008 $ millions
year) per year)
------------------------------------------------------------------------
Option 1.................... $132 $18
Option 2.................... 1,891 333
Option 3.................... 3,797 470
------------------------------------------------------------------------
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2336.01.
Today's proposed option, Option 2, would require operators to
perform turbidity monitoring that would entail measuring and recording
the NTU level of effluent prior to discharge.
EPA estimates that this provision would create a total annual
burden of about 224,000 hours for the proposed rule for permittees and
about 25,000 hours for permitting authorities. This estimate is the
incremental burden above the currently-approved burden level for the
EPA and State construction general permits. EPA has received OMB
approval for the current permit requirements under control no. 2040-
0188, ``Notice of Intent for Storm Water Discharges Associated with
Construction Activity under a NPDES General Permit.'' Burden is defined
at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
[[Page 72606]]
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number [EPA-HQ-OW-
2008-0465]. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after November 28, 2008, a comment to OMB is best assured of having its
full effect if OMB receives it by December 29, 2008. The final rule
will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For the purposes of assessing the impacts of today's rule on small
entities, small entity is defined as either a: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field. EPA does not anticipate any impacts on
small organizations and impacts on small governments are covered under
the UMRA analysis section. The RFA provides that EPA generally define
small businesses according to the size standards established by the
Small Business Administration (SBA). The SBA established criteria for
identifying small businesses is based on either the number of employees
or annual revenues (13 CFR 121). These size standards vary by NAICS
(North American Industrial Classification System) code. For the C&D
industry NAICS categories (236 and 237) the small business annual
revenue threshold is set at $33.5 million. The SBA sets the small
business threshold for NAICS 2372 (Land Subdivision of NAICS 237) at $7
million. However, for the purpose of the economic analysis, EPA
allocated this sector amongst the four primary building construction
sectors: Single-family housing, multifamily housing, industrial
building, and commercial and institutional building construction.
In order to gather more information on the potential impacts of
today's proposal on small businesses, EPA voluntarily followed the
provisions of section 609(b) of the Regulatory Flexibility Act (RFA) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA). EPA voluntarily convened a panel for this rulemaking on
September 10, 2008. EPA held an outreach meeting with SERs on September
17, 2008. A list of SERs and the outreach materials sent to SERs are
included in the docket (see DCN 41115-41133). Because of the voluntary
nature under which EPA followed section 609(b), EPA does not plan to
complete the panel process or release an Initial Regulatory Flexibility
Analysis (IRFA). However, EPA did prepare a report that summarizes
information obtained from the panel, which is also included in the
docket (see DCN 41136).
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Overall, EPA
estimates that in a typical year there will be 82,000 in-scope firms,
and of this total, approximately 78,000, or about 96 percent, are
defined as small businesses. For this option, EPA estimates that about
618 small businesses would experience costs exceeding 1 percent of
revenue and 51 small businesses would incur costs exceeding 3 percent
of revenue. Both numbers represent very small percentages of the in-
scope small firms. The 618 firms estimated to incur costs exceeding 1
percent of revenue represent about 0.4 percent of all small C&D sector
firms and 0.8 percent of estimated potentially in-scope small
businesses. The 51 firms estimated to incur costs exceeding 3 percent
of revenue are again very small percentages at less than one-tenth of a
percent of both small business counts. Therefore, EPA does not consider
the preferred option to have the potential to cause a significant
economic impact on a substantial number of small entities.
In developing the current set of proposed options, EPA considered
potential affects on small firms, as demonstrated by the inclusion of a
one to less than ten acre project size category for each option. The
regulatory requirements for these small size projects are considered to
be significantly less burdensome than those for the larger size
projects. Although small firms do not directly equate to small
projects, EPA's review of the construction industry suggests that
smaller firms tend to undertake smaller projects.
Therefore, EPA considers the inclusion of a separate small site
size category with less burdensome requirements to be an effective way
to address potential impacts on small firms. We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments
[[Page 72607]]
to have meaningful and timely input in the development of EPA
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this rule contains a Federal mandate that
may result in expenditures of $100 million or more for State, local,
and tribal governments, in the aggregate, or the private sector in any
one year. Accordingly, EPA has prepared under section 202 of the UMRA a
written statement which is summarized below.
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA EPA has already initiated consultations with
the governmental entities affected by this rule. EPA took and responded
to comments from government entities on the earlier proposed C&D rule.
To help characterize the potential impacts to government entities EPA
has gathered state government data on NOI submissions, and from U.S.
Census data and Reed Construction Data, EPA has compiled information on
how much construction activity is undertaken by government entities.
EPA has routinely consulted with EPA regional offices who maintain
direct and regular contact with state entities. Finally, EPA met
directly with and solicited data from all the state Stormwater
Coordinators who attended EPA's Annual Stormwater Conference in 2007.
As part of the financial impact analysis, EPA looked specifically at
the impact on government entities resulting from both compliance with
construction site requirements and from administering the additional
monitoring reports submitted by in-scope firms. Table XIX-2 shows the
results of this analysis. For more information on how this analysis was
performed see Section 9-1 Assessing Costs to Government Entities in
Chapter 9 of the Economic Analysis.
Table XIX-2--Impacts of Regulatory Options on State and Local
Governments
[Million 2008 $]
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Compliance Costs
------------------------------------------------------------------------
Federal................................ $2.3 $34.0 $66.5
State.................................. 4.4 68.1 128.2
Local.................................. 25.1 390.7 735.8
------------------------------------------------------------------------
Administrative Costs
------------------------------------------------------------------------
Federal................................ 0.0 0.0 0.0
--------------------------------
State.................................. 0.0 0.1 0.2
Local.................................. 0.0 0.6 1.0
------------------------------------------------------------------------
Total Costs
------------------------------------------------------------------------
Federal................................ 2.3 34.0 66.5
State.................................. 4.4 68.2 128.4
Local.................................. 25.1 391.3 736.8
------------------------------------------------------------------------
Source: Economic Analysis.
In developing this rule, EPA consulted with small governments
pursuant to its plan established under section 203 of the UMRA to
address impacts of regulatory requirements in the rule that might
significantly or uniquely affect small governments. To ensure that the
proposed Options were not disproportionately affecting small government
entities EPA analyzed impacts on small government entities. The
assessment of impacts on small governmental entities involved three
steps: (1) Identifying small government entities (i.e., those serving
populations of less than 50,000, (5 U.S.C. 601[5])), (2) estimating the
share of total government costs for the regulatory options incurred by
small governments, and (3) estimating the potential impact from these
costs based on comparison of small government outlays with small
government revenue and outlays. For details of this analysis see
Section 9.2 Assessing Costs and Impacts on Small Government Entities in
Chapter 9 of the Economic Analysis. Table XIX-3 has the results of the
small government entity impact analysis.
Table XIX-3--Impacts of Regulatory Options on Small Government Units
[Million 2008 $]
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Compliance Costs
------------------------------------------------------------------------
Small Government Entities........... $11.8 $183.6 $345.8
------------------------------------------------------------------------
Administrative Costs
------------------------------------------------------------------------
Small Government Entities........... $0.0 $0.3 $0.5
------------------------------------------------------------------------
Total Costs
------------------------------------------------------------------------
Small Government Entities........... $11.8 $183.9 $346.3
------------------------------------------------------------------------
[[Page 72608]]
Small Government Impact Analysis Concepts
------------------------------------------------------------------------
Total Revenues...................... $125,515 $125,515 $125,515
Total Costs as % of Total Revenues.. 0.01% 0.15% 0.28%
Capital Outlay...................... $13,455 $13,455 $13,455
Total Costs as % of Total Capital 0.09% 1.37% 2.57%
Outlay.............................
Construction Outlay Only............ $8,529 $8,529 $8,529
Total Costs as % of Total 0.14% 2.16% 4.06%
Construction Outlay................
------------------------------------------------------------------------
Source: Economic Analysis.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The proposed rule would not
alter the basic state-federal scheme established in the Clean Water Act
under which EPA authorizes states to carry out the NPDES permitting
program. EPA expects the proposed rule would have little effect on the
relationship between, or the distribution of power and responsibilities
among, the federal and state governments. Thus, Executive Order 13132
does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
``Policies that have Tribal implications'' is defined in the
Executive Order to include regulations that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and the Indian Tribes, or on the distribution of
power and responsibilities between the Federal government and Indian
Tribes. This proposed rule does not have tribal implications. It will
not have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes as specified in Executive Order 13175.
Today's proposed rule contains no Federal mandates for Tribal
governments and does not impose any enforceable duties on Tribal
governments. Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA policy
to promote communications between EPA and Tribal governments, EPA
specifically solicits comment on this proposed rule from tribal
officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it does not concern an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. This
rule is based on technology performance, not health or safety risks.
H. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. The
treatment systems required by most sites affected by today's proposed
rule rely on treatment techniques that do not utilize mechanical
equipment. The proposed rule may require larger sediment basins in
certain cases and some sites would need to operate treatment systems
designed to reduce the turbidity of stormwater discharges, and
therefore may result in the use of additional fuel for construction
equipment conducting excavation and soil moving activities or to
operate electrical generators to power pumps. EPA determined that the
additional fuel usage would be small, relative to the total fuel
consumption at construction sites and the total annual U.S. fuel
consumption.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Pub. L. 104-113, section 12(d); 15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise
[[Page 72609]]
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standard bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
The Agency is not aware of any consensus-based technical standards
for the types of controls contained in today's proposal. EPA welcomes
comments on this aspect of the proposed rulemaking and, specifically,
invites the public to identify potentially-applicable voluntary
consensus standards and to explain why such standards should be used in
this regulation.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The proposed rule will reduce the negative effects
of discharges from construction sites in the nation's waters to benefit
all of society, including minority communities.
XX. Solicitation of Data and Comments
A. General Solicitation of Comment
EPA encourages public participation in this rulemaking. EPA asks
that commenters address any deficiencies that they perceive in the
record supporting this proposal and that suggested revisions or
corrections to the rule, preamble or record be supported by data. EPA
invites all parties to coordinate their data collection activities with
the Agency to facilitate cost-effective data submissions. Please refer
to the FOR FURTHER INFORMATION CONTACT section at the beginning of this
preamble for technical contacts at EPA.
B. Specific Solicitation of Comments and Data
EPA solicits comments on all aspects of today's proposal. In
addition to the various topics on which EPA has solicited comments
throughout this proposal, EPA specifically solicits comments on the
following:
1. EPA is proposing an effluent limit for turbidity. EPA solicits
comments on the need to regulate additional pollutants or require
monitoring of additional parameters, specifically pH. High pH can
result from discharges of concrete truck washout as well as from
stormwater that flows over recently placed concrete. EPA solicits
comments on whether an effluent limit for pH is needed. Such a
limitation would not be developed using the statistical methodology
used to develop the turbidity limitation. Instead, EPA typically
establishes a range of acceptable values from 6 to 9 to protect against
extreme acidity or alkalinity.
2. EPA is proposing that construction activity located in areas of
the country that have an annual R-factor of less than 50 not be
required to meet the turbidity standard. EPA solicits comment on the
use of the annual R-factor as an applicability provision. EPA also
solicits comment on incorporating a seasonal R-factor applicability
provision, similar to the waiver provision for small construction sites
currently in place under the Phase II regulation, into this regulation.
(EPA's rainfall erosivity factor calculator can be found at http://cfpub.epa.gov/npdes/stormwater/lew/lewcalculator.cfm). EPA solicits
comment on the appropriate seasonal R-factor to consider, as well how
it would be implemented. EPA is aware that R-factor information may not
be widely available in Alaska, Hawaii and the U.S. territories. EPA
solicits comment on the availability of R-factors in these areas. EPA
also solicits comments on using annual precipitation instead of R-
factor as an applicability provision for Alaska, as well as for other
areas where R-factor information is not readily available.
3. EPA solicits comments on other factors related to soil type,
climate or soil erosivity that should be considered as potential
applicability provisions. EPA considered annual precipitation as an
applicability provision in concert with or in place of an annual R-
factor applicability criterion. EPA solicits comments on the merits of
an annual precipitation applicability criterion.
4. EPA is proposing that construction activity located in areas
with less than 10 percent soil clay content, by mass, not be required
to meet the turbidity standard. EPA solicits comments on the
feasibility and ease of implementation of the proposed 10 percent clay
content applicability criteria. Specifically, EPA requests comments on
how permittees could demonstrate that soils on their construction sites
contain less than 10 percent clay content. EPA envisions permittees
using available soil survey data as a way of establishing
applicability, or permittees conducting laboratory analysis of soils
present on-site. For example, ASTM D-422 (Standard Test Method for
Particle-Size Analysis of Soils) could be specified. EPA requests
comment on these two approaches. Specifically, EPA requests comments on
the availability of soil survey data for the entire U.S. (including
Alaska, Hawaii and the U.S. territories) and also the appropriate
laboratory methods or standards that should be used by permittees to
analyze soils on their sites. EPA also solicits comments on the number
of samples that should be collected, the type and location of samples
to be collected (i.e., should EPA consider that the applicability
provision apply to topsoil or should EPA consider all soils expected to
be exposed during the duration of the construction project). EPA
solicits comments on how to aggregate or weight soil data for different
areas of the site and for different soil horizons. EPA also solicits
comment on whether the proposed 10 percent clay content value is an
appropriate value to use for an applicability provision of the
turbidity standard.
5. EPA is proposing that C&D sites required to meet the turbidity
limit provide storage and treatment for runoff expected from the local
2-year, 24-hour storm. EPA solicits comments on whether this volume is
adequate, or whether additional storage (such as runoff from the 10-
year, 24-hour storm or the 25-year, 24-hour storm) or less storage
(such as runoff from the 1-year, 24-hour storm) should be required. EPA
also solicits comments on whether specific analytical approaches or
models (such as TR-55) should be used by permittees to calculate runoff
volumes and storage requirements and whether specific assumptions in
these models (such as specifying minimum runoff curve numbers that must
be used) should be mandated through the regulation.
[[Page 72610]]
6. EPA solicits data on the costs and performance of stormwater
treatment systems and construction site erosion and sediment controls.
EPA requests comment on the $0.02 per gallon cost for ATS EPA used as a
basis for calculating costs for Options 2 and 3. EPA specifically
solicits comments on treatment systems other than chitosan-enhanced
filtration that could be used by permittees to meet the proposed or an
alternate turbidity limit. EPA requests costs and performance data for
these systems, as well as information on specific locations, project
types or soil types for which these systems would be applicable. EPA
also solicits comments on the costs to install conventional sediment
basins.
7. EPA has based its baseline assumptions on requirements currently
contained in state construction general permits. EPA has not considered
existing local or municipal requirements or regulations that may be
more stringent than requirements contained in state general permits.
EPA solicits comments and data on existing or proposed state, local and
municipal requirements that are more stringent than the data used in
EPA's analysis so that EPA may more accurately characterize the
baseline of regulatory programs nationwide. EPA also solicits comments
on the extent to which water quality standards or Total Maximum Daily
Loads are requiring a higher level of control than currently required
by state construction general permits.
8. EPA solicits comments on the modeling approach used to estimate
sediment generation and reductions due to the proposed option, which is
described in the Development Document. EPA also solicits information
and data on concentrations of pollutants, including sediment,
turbidity, TSS, nutrients, metals, organics and other pollutants
typically found in construction site stormwater discharges. EPA
recognizes that currently available data generally show significantly
lower influent and effluent sediment concentrations (for traditional
sedimentation basins) than are reflected in EPA's modeling analysis.
EPA solicits comment on whether and how these data should be
incorporated into its analysis. More generally, EPA solicits comments
on ways in which the load and pollutant removal estimates generated in
support of this proposal can be improved, and how EPA's load estimates
and benefits estimation methodologies can incorporate consideration of
pollutants other that sediment.
9. EPA has used NOI data from approximately 38 states. EPA solicits
NOI data from other states, as well as other data that can be used to
estimate the annual number of construction sites in the U.S. and the
proportion of sites that would be subject to today's proposed
regulations.
10. EPA solicits comments on the typical duration of construction
projects, the percent of construction projects acres that are
disturbed, and the typical duration that soils are exposed.
11. EPA solicits comments on the ability of dischargers to meet a
numeric turbidity limit using passive, instead of active systems and
the costs and performance of available technologies. EPA solicits
comments on basing a turbidity limit on passive systems at a level in
the range of 50-150 NTUs (or some other level) and the costs and
pollutant load reductions that would be attributable to such a
standard. EPA solicits comments on the applicability provisions of such
a standard (i.e., should a 50-150 NTU (or some other level) standard
apply to all permitted sites, only sites above 10 acres, should the
standard include consideration of R-factor, annual precipitation or
soil clay content, or other factors). EPA solicits information on the
potential toxicity of polymers used in wastewater treatment, especially
those used or marketed for use in stormwater treatment. EPA further
solicits information on regulator and industry strategies and methods
for avoiding any toxic effects of polymers used on construction sites.
EPA requests comment on whether an approach based on passive controls
could be implemented without specific numeric limits, or with action
levels that would not themselves lead to permit violations but for
which exceedances would result in additional controls, monitoring,
inspection, and/or reporting requirements.
12. EPA solicits comments on the ability of dischargers located in
areas with R-factors less than 50 and with less than 10% soil clay
content to meet a numeric turbidity limit and what technologies would
be necessary to meet the proposed standard under Option 2 using
conventional BMPs or passive treatment systems. Specifically, EPA
requests comment on whether or not these sites, due to low rainfall,
soil erosivity and low clay content, could meet the proposed Option 2
turbidity standard using conventional BMPs and at a substantially lower
costs than ATS.
13. EPA solicits comments on whether national standards regulating
peak flowrates from sediment basins should be included in the effluent
guideline in order to limit channel erosion and what specific criteria
or standards, such as matching predevelopment peak discharge rates for
a specific design storm (such as the 1-year, 24-hour or 2-year, 24-
hour) should be included.
14. EPA solicits comments on whether perimeter controls should be
designed to remove a specific particle size and on any specific design
or performance criteria that should be established for perimeter
controls.
15. EPA solicits comments on the costs and feasibility of requiring
that flow from silt fences discharge through a vegetated filter strip
or buffer before leaving the construction site.
16. EPA solicits comments on ways in which permittees could certify
that soils on their C&D site would not exceed the percent clay criteria
associated with the turbidity limit.
17. EPA solicits comments on requiring porous baffles in sediment
basins as minimum requirements nationwide and whether the draft porous
baffle design standards published by the North Carolina Department of
Transportation (see DCN 43083) would be appropriate, or if other design
standards are appropriate.
18. EPA solicits comments on whether the detention time
requirements proposed for sediment basins are appropriate and if other
detention time requirements should be considered. EPA solicits comments
on whether sediment basin requirements should address any other
factors, such as a minimum surface area or a discharge rate per unit
watershed area. EPA solicits data on effectiveness of any alternative
criteria.
19. EPA solicits comments on whether it would be feasible to
require construction sites to maintain a minimum cover factor for soils
based on the C-factor in RUSLE. For example, would it be feasible to
require permittees to document in their SWPPP or erosion and
sedimentation control plan the various phases of their project and
calculate an area-weighted C-factor for each phase. Permittees would be
required to meet a minimum average C-factor for the entire site during
all phases of the project. Such a standard could vary based on the size
of the site, with a lower average C-factor applying to larger sites.
EPA solicits comments on the costs and feasibility of such an approach,
and comments on what the specific C-factors should be for sites of
various sizes (or other criteria) under such a standard. EPA solicits
comments on the appropriate C-factors that would apply to various
rolled erosion control products, hydromulches and other types of ground
covers and erosion control
[[Page 72611]]
products currently in use by the industry.
20. EPA solicits comments on whether or not the guideline should
establish maximum slope lengths before a grade break or linear sediment
control must be provided for steep slopes. EPA solicits comments on
appropriate slope lengths for various slope values. EPA points readers
to the March 18, 2008, Draft California CGP (see DCN 41137) for an
example.
21. Under the current permitting system, permittees (such as a
developer) may sell or transfer control of a property to a builder or
several builders and file for an NOT at some point during the course of
the project, thus ending permit coverage for the developer. The builder
or builders assuming control of the property would then be the
permittee(s). If the project, while under control of the developer, was
subject to the proposed turbidity limit because the project was over 40
acres in size and met the R-factor and clay content applicability
provisions, and the project was sold to two builders, each controlling
20 acres, neither builder now controls more than 30 acres. As a result,
there is some question as to whether or not the turbidity limit would
still apply and which of the builders would be responsible for meeting
the turbidity limit. EPA solicits comments from permitting authorities
on if, and how, the proposed turbidity limit applicability provisions
should be structured and the regulatory language structured so that the
project remains subject to the turbidity limit until the entire project
is completed.
22. EPA solicits comments on the need for text in the rule language
regarding proper operation and maintenance and chemical dosages of
chemical treatment systems, or whether these requirements should be
addressed through guidance.
23. EPA's proposed option includes an applicability provision tied
to the RUSLE R-factor. However, certain areas of the U.S., such as
parts of Idaho, have a low annual R-factor but can experience high
erosivity during certain times of the year, such as when rain occurs on
snow or partially frozen ground. Also, for some cold mountainous
climates, most of the erosivity is attributable to snowfall, instead of
rainfall. EPA solicits comments on how to address applicability of the
turbidity standard in areas such as these, and whether the rule
language should include specific requirements regarding calculation of
an R-factor for these areas or whether these issues should be addressed
through guidance issued by EPA and/or left to the discretion of the
permitting authority.
24. EPA solicits comments on the proper techniques for turbidity
measurement in the field to demonstrate compliance with today's
proposal. EPA has an approved analytical method for turbidity (EPA
Method 180.1 Rev 2.0). However, EPA is not proposing that a specific
analytical method be used to demonstrate compliance. EPA's intent with
today's proposal is to allow turbidity measurements to be made in the
field using properly calibrated portable turbidity meters, or a
properly calibrated automated turbidity meter coupled with a data
logger, which typically is a component of ATS. EPA solicits comments on
whether EPA Method 180.1 Rev 2.0 is appropriate in this case, or
whether a revised method or other guidance would be needed in order to
reduce monitoring burden and allow for the use of equipment commonly
available and in use by ATS operators.
25. EPA solicits comments on whether the effluent limit for
turbidity should be a daily maximum value, as proposed today, or an
instantaneous maximum based on continuous measurement. With a daily
maximum, no individual measurements could be above the limit. With an
instantaneous maximum, there could be a provision for brief exceedances
of the limit. See 40 CFR 401.17 for an example of pH effluent
limitations under continuous monitoring. EPA solicits comments on
whether a similar approach should be applied for turbidity, and what
specific excursion criteria would be appropriate.
26. EPA solicits comments on whether any of the proposed options
for BAT, BPT, BCT or NSPS should be based on the total size of the
project, the disturbed area of the project, the quantity of soil
disturbed at any one time, or the amount of disturbed area draining to
any particular location. EPA solicits comment on the 30 acre site size
provision for Option 2.
27. EPA solicits comments on whether an approach based on passive
treatment systems could be implemented as BAT, BCT, BPT or NSPS without
specific numeric limits. EPA solicits comments on how permit
authorities would implement and enforce such a standard. EPA
specifically requests comment on action level or benchmark approaches,
including what benchmark or action level should be used, and what
measurement protocol should be used, and what measurement protocol
should be established. EPA also solicits comment on how to account for
soil conditions, storm events, and other variables in setting an action
level or benchmark.
28. EPA solicits comments on cases where discharges of stormwater
from construction sites with low turbidity and TSS values to waters
with high natural background concentrations of sediment may contribute
to receiving stream channel instability and increase stream channel
erosion. EPA solicits comments on whether the R-factor applicability
provisions, which exempt most arid and semi-arid areas of the country,
adequately address these concerns, or whether the guideline should
incorporate specific provisions to allow permitting authorities
flexibility in applying the turbidity limit to sites where receiving
channel instability may be of concern.
C. Guidelines for Submission of Analytical Data
EPA requests that commenters to today's proposed rule submit
analytical and flow data to supplement data collected by the Agency
during the regulatory development process. To ensure that commenter
data may be effectively evaluated by the Agency, EPA has developed the
following guidelines for submission of data.
1. Types of Data Requested
EPA requests paired influent and effluent treatment data for
systems capable of reducing the turbidity of stormwater runoff from
construction sites. EPA prefers paired influent and effluent treatment
data, but also solicits unpaired data as well.
For the systems treating C&D stormwater, EPA requests paired
influent and effluent treatment data from BMPs and treatment systems.
Submission of effluent data alone is acceptable, but the commenters
should provide evidence that the influent concentrations contain
treatable levels of the pollutants. EPA also prefers individual
measurements, rather than averages, to better evaluate variability, but
will consider averages if individual measurements are unavailable. If
commenters sample their stormwater to respond to this proposal, EPA
encourages them to sample both the influent and effluent to BMPs and
treatment systems and provide the individual measured values.
EPA prefers that the data be submitted in an electronic format. In
addition to providing the measurement of the pollutant in each sample,
EPA requests that sites provide the detection limit (rather than
specifying zero or ``ND'') if the pollutant is non-detected in the
stormwater. Each measurement should be identified with a sample
collection
[[Page 72612]]
date, the sampling point location, and the flow rate at that location.
For each sample or pollutant, EPA requests that the chemical analytical
method be identified.
In support of the treatment data, commenters should submit the
following items if they are available: A process diagram of the
treatment system that includes the sampling point locations; treatment
chemical addition rates; laboratory reports; influent and effluent flow
rates for each treatment unit during the sampling period; a brief
discussion of the treatment technology sampled; and a list of C&D
operations contributing to the sampled wastestream. If available,
information on capital cost, annual (operation and maintenance) cost,
and treatment capacity should be included for each treatment unit
within the system.
2. Analytes Requested
EPA requests analytical data for any pollutant parameters that
commenters believe are of concern in the C&D industry. Of particular
interest are turbidity, TSS, and pH data. Commenters should document
the method used for all data submissions. Submissions of analytical
data should include any available documentation of QA/QC procedures;
however, EPA will still consider data submitted without detailed QA/QC
information. If commenters sample their stormwater to respond to this
proposal, EPA encourages them to provide detailed documentation of the
QA/QC checks for each sample.
List of Subjects in 40 CFR Part 450
Environmental protection, Construction industry, Land development,
Erosion, Sediment, Stormwater, Water pollution control.
Dated: November 19, 2008.
Stephen L. Johnson,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend
title 40, chapter I of the Code of Federal Regulations to add a new
part 450 as follows:
PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY
Subpart A--General Provisions
Sec.
450.10 Applicability.
450.11 General definitions.
Subpart B--Construction and Development Effluent Guidelines
450.21 Effluent limitations reflecting the best practicable
technology currently available (BPT).
450.22 Effluent limitations reflecting the best available technology
economically achievable (BAT).
450.23 Effluent limitations reflecting the best conventional
pollutant control technology (BCT).
450.24 New source performance standards (NSPS).
Authority: 33 U.S.C. 1311, 1314, 1316, 1318, 1342, 1361 and
1370.
Subpart A--General Provisions
Sec. 450.10 Applicability.
This part applies to discharges associated with construction
activity required to obtain NPDES permit coverage pursuant to 40 CFR
122.26(b)(14)(x) and (b)(15).
Sec. 450.11 General definitions.
The following definitions apply to this part:
(a) Commencement of construction means the initial removal of
vegetation and disturbance of soils associated with clearing, grading,
excavating, or other construction activities.
(b) Construction activity includes, but is not limited to,
clearing, grading, excavation, and other site preparation work related
to construction of residential buildings and non-residential buildings,
and heavy construction (e.g., highways, streets, bridges, tunnels,
pipelines, transmission lines and industrial non-building structures).
(c) Minimize means to reduce and/or eliminate to the extent
achievable using control measures (including best management practices)
that are technologically available and economically practicable and
achievable in light of best industry practices.
(d) New Source means any source from which there will be a
discharge associated with construction activity that will result in a
building, structure, facility, or installation subject to new source
performance standards elsewhere under subchapter N of this chapter.
(e) Erosion as used in this part means the process of carrying away
soil particles by the action of water.
(f) Sediment basin means a structure designed to detain sediment
laden stormwater long enough to allow sediment to settle in the basin
and then discharge stormwater at a controlled rate through an
engineered outlet device.
Subpart B--Construction and Development Effluent Guidelines
Sec. 450.21 Effluent limitations reflecting the best practicable
technology currently available (BPT).
Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve the following effluent
limitations representing the application of the best practicable
control technology currently available (BPT).
(a) Erosion Controls. During all phases of construction activity,
provide and maintain effective erosion controls in accordance with
established industry practices on all disturbed areas of the
construction site to minimize the discharge of sediment and other
pollutants. Erosion controls are considered effective when bare soil is
uniformly and evenly covered with vegetation or other suitable
materials, stormwater is controlled so that rills and gullies are not
visible, sediment is not visible in runoff from these areas and
channels and streambanks are not eroding. Disturbed areas must be
stabilized using erosion controls immediately after any clearing,
grading, excavating or other earth disturbing activities have
permanently or temporarily ceased. Assessment of erosion potential and
appropriate erosion controls must take into account the rainfall,
topography, soil types, climate, and vegetation or other cover at each
site. Erosion controls implemented at the site must, at a minimum be
designed and installed to achieve the following:
(1) Stabilize disturbed soils immediately when earth disturbing
work has temporarily or permanently ceased. Stabilization measures must
be implemented immediately on any portion of the site whenever final
grade is reached or when earth disturbing work has been stopped on that
portion of the site and will not resume for a period exceeding 14
calendar days.
(2) Control stormwater volume and velocity within the site to
minimize soil erosion.
(3) Minimize the amount of soil exposed for the duration of the
construction activity as well as at any one time during the
construction activity.
(4) Control stormwater discharges, including both peak flowrates
and total stormwater volume, leaving the site to prevent channel and
streambank erosion and erosion at outlets.
(5) Preserve topsoil and natural vegetation.
(6) Minimize soil compaction by construction equipment in areas
that will not contain permanent structures or where compaction is not
necessary for structural integrity. In disturbed areas that will not
contain structures or where compaction is not necessary for structural
integrity, utilize deep ripping and decompaction of soils and
[[Page 72613]]
incorporate organic matter to restore infiltrative capacity.
(7) Provide and maintain natural buffers around surface waters.
(8) Minimize the construction of stream crossings.
(9) Sequence/phase construction activities to minimize the extent
and duration of exposed soils.
(10) Minimize disturbance of steep slopes.
(11) Implement erosion controls specifically designed to prevent
soil erosion on slopes.
(12) Establish temporary or permanent vegetation, such as grass or
sod, or use non-vegetative controls such as mulch, compost,
geotextiles, rolled erosion control products, polymers or soil
tackifiers to stabilize exposed soils.
(13) Divert stormwater that runs onto the site away from disturbed
areas of the site.
(b) Sediment Controls. Provide and maintain effective sediment
controls in accordance with established industry practice to minimize
the discharge of sediment from the site. Effective sediment controls
include a variety of practices that are designed to remove sediment
within the range of particle sizes expected to be present on the site,
taking into account rainfall, topography, soil types, climate and
vegetation at each site and the proximity to storm drain inlets and
receiving waters. Sediment controls must be installed, operated, and
maintained in accordance with established industry practices to
minimize the discharge of sediment and other pollutants from the site.
Install appropriate sediment controls prior to the commencement of
construction and maintain during all phases of construction activity.
Effective sediment controls must include, at a minimum, the following:
(1) Establish and maintain perimeter control measures for any
portion of the down-slope and side-slope perimeter where stormwater
will be discharged from disturbed areas of the site. Perimeter controls
include, but are not limited to, BMPs such as diversion dikes, storm
drain inlet protection, filter berms, and silt fencing. Perimeter
control measures along the down-slope perimeter of the site must be
installed following the contours of the land. Discharge stormwater from
perimeter controls through vegetated areas and functioning stream
buffers.
(2) Control discharges from silt fences using a vegetated filter
strip or vegetated buffer at least six feet in width.
(3) Minimize the length of slopes and install linear sediment
controls along the toe, face and at the grade breaks of exposed and
erodible slopes.
(4) Establish, use and maintain stabilized construction entrances
and exits. Install, utilize and maintain wheel wash stations to remove
sediment from construction equipment and vehicles leaving the site.
(5) Remove any sediment and other pollutants, including
construction materials, from paved surfaces daily to minimize
discharges from the site. Washing sediment and other pollutants off
paved surfaces into storm drains is prohibited unless those storm
drains discharge to a sediment basin or other sediment control on the
site.
(6) Establish, use and maintain controls and practices to minimize
the introduction of sediment and other pollutants to storm drain
inlets.
(7) Control sediment and other pollutants from dewatering
activities and obtain and comply with any state or local discharge
standards or permits for dewatering activities. Discharges from
dewatering activities are prohibited unless treated to minimize the
discharge of pollutants and sediment within the range of particle sizes
expected to be present on the site.
(8) For common drainage locations that serve an area with 10 or
more acres disturbed at one time, install and maintain a sediment basin
to control and treat the stormwater runoff. The permitting authority
may allow alternative controls where alternative controls provide an
equivalent or better level of pollutant reduction. The sediment basin
must incorporate, at a minimum, the following requirements:
(i) Provide a water storage volume for the calculated volume of
stormwater runoff from the local 2-year, 24-hour storm for the entire
watershed area draining to the basin until final stabilization of the
disturbed area. Alternatively, a sediment basin providing a water
quality storage volume of 3,600 cubic feet per acre of total watershed
area draining to the basin must be provided until final stabilization
of the disturbed area. If water will be flowing onto the construction
site from up-slope and into the basin, the calculation of sediment
basin volume must also account for this volume.
(ii) In addition to the water storage volume, a sediment storage
volume of at least an additional 1,000 cubic feet per acre of disturbed
land area directed to the basin must be provided. If water will be
flowing onto the construction site from up-slope and into the basin,
the calculation of the sediment storage volume must also account for
this volume.
(iii) The effective length of the basin must be at least four times
the width of the basin.
(iv) Sediment basins must include and utilize an outlet device,
such as a skimmer, designed to withdraw water from the surface of the
water column. If a basin is to be used during freezing conditions which
would interfere with the operation of an outlet device designed to
withdraw water from the surface of the water column, then an
alternative means of dewatering may be used only during periods of
freezing conditions.
(v) Discharges from sediment basins must be regulated in a manner
that maximizes the residence time of the water in the basin. The
dewatering time must consider the range of soil particle sizes and the
settling time for soil particles expected to be present on the
construction site. The dewatering time for the water storage volume
must be at least 72 hours, unless otherwise specified by the permitting
authority. However, in no case shall the dewatering time be less than
24 hours. The design of the sediment basin must address factors such as
the amount, frequency, intensity and duration of stormwater runoff,
soil types, soil particle sizes, and other factors affecting pollutant
removal performance.
(9) Direct stormwater discharges from sediment controls to seep
berms and level spreaders or utilize spray or drip irrigation systems
to distribute stormwater to vegetated areas and functioning stream
buffers to increase sediment removal and to maximize infiltration.
(c) Pollution Prevention Measures. During all phases of
construction activity, provide and maintain effective pollution
prevention measures in accordance with established industry practice to
control the discharge of pollutants from the site. Effective pollution
prevention measures include a variety of recognized and accepted
industry practices that minimize the discharge of pollutants from the
site taking into account the specific circumstances at each site.
Pollution prevention measures must be implemented to achieve, at a
minimum, the following:
(1) Prohibit the discharge of construction wastes, trash, and
sanitary waste in stormwater;
(2) Prohibit the discharge of wastewater from washout of concrete,
stucco, paint, and cleanout of other construction materials;
(3) Prohibit the discharge of fuels, oils, or other pollutants used
in vehicle and equipment operation and maintenance;
[[Page 72614]]
(4) Prohibit the discharge of pollutants resulting from the washing
of equipment and vehicles where soaps or solvents are used;
(5) Prohibit the discharge of pollutants resulting from the washing
of equipment and vehicles using only water to remove sediment, unless
wash waters, such as water from wheel wash stations, are treated in a
sediment basin or alternative controls that provide equivalent or
better treatment;
(6) Implement measures to minimize the exposure of stormwater to
building materials, landscape materials, fertilizers, pesticides,
herbicides, detergents, and other liquid or dry products. Implement
appropriate chemical spill prevention and response procedures. Any
spills and leaks that do occur shall be immediately addressed in a
manner that prevents the discharge of pollutants.
(7) Prevent stormwater runoff from contacting areas with uncured
concrete to minimize changes in stormwater pH.
Sec. 450.22 Effluent limitations reflecting the best available
technology economically achievable (BAT).
Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve the following effluent
limitations representing the degree of effluent reduction attainable by
the application of the best available technology economically
achievable (BAT):
(a) For construction activity located at a site with 10 percent or
greater by mass of soils less than 2 microns in diameter (down to the
graded and excavated level of the site), and that has an annual
rainfall erosivity factor (R factor) of 50 or higher as defined by the
Revised Universal Soil Loss Equation (for construction activity located
in Alaska or a U.S. territory where the R factor applicable to the
activity has not been calculated, the 30-year average total annual
precipitation of 20 inches or more shall be used in place of the R
factor):
(1) The effluent limitations specified in Sec. 450.21 shall apply.
(2) Except as provided by paragraph (a)(3) of this section, for any
construction activity of 30 or more acres, the discharge of stormwater
shall not exceed the value listed in the following table:
------------------------------------------------------------------------
Maximum for
Pollutant or pollutant property any time
(NTU) \1\
------------------------------------------------------------------------
Turbidity.................................................. 13
------------------------------------------------------------------------
\1\ Nephelometric turbidity units.
(3) The requirements of paragraph (a)(2) of this section do not
apply to the discharge of pollutants in the overflow from the sediment
basin or other storage impoundment whenever rainfall events, either
chronic or catastrophic, cause an overflow of stormwater from a
sediment basin or other impoundment designed, constructed and operated
to contain runoff from a 2-year, 24-hour rainfall event.
(b) For any construction activity subject to this Subpart and not
specified in paragraph (a) of this section, the effluent limitations
are the same as those specified in Sec. 450.21.
Sec. 450.23 Effluent limitations reflecting the best conventional
pollutant control technology (BCT).
Except as provided in 40 CFR 125.30 through 125.32, any point
source subject to this subpart must achieve the following effluent
limitations representing the application of the best conventional
pollutant control technology (BCT): The effluent limitations are the
same as those specified in Sec. 450.21.
Sec. 450.24 New source performance standards (NSPS).
Any new source subject to this subpart must achieve new source
performance standards (NSPS): The standards are the same as the
limitations specified in Sec. 450.22.
[FR Doc. E8-27848 Filed 11-26-08; 8:45 am]
BILLING CODE 6560-50-P